FOR UP CANDIDATES ONLY
FOR UP CANDIDATES ONLY
FOR UP CANDIDATES ONLY
FOR UP CANDIDATES ONLY
FOR UP CANDIDATES ONLY
TABLE OF CONTENTS
CONSTITUTIONAL LAW 1 ................................ 2
POWERS AND STRUCTURES OF
GOVERNMENT ........................................... 1
I. PRELIMINARY CONCEPTS ................... 1
A. Nature of Constitution.................................... 1
1. Parts ........................................................... 1
2. Manner of Interpretation (SelfExecuting and Non-Executing Character) ... 1
3. Process of Change (Amendments and
Revisions)........................................................... 2
a. Amendment ......................................... 2
b. Revision ................................................ 2
c. Difference ............................................ 2
d. The Lambino Tests [Lambino v.
Commission on Elections, supra]. .................... 2
e. Procedure to Amend or Revise the
Constitution .................................................. 3
1. Proposal ........................................... 3
2. Submission (Doctrine of Proper
Submission) .............................................. 3
3. Ratification ...................................... 3
4. Judicial Review of Amendments.. 3
B. The Philippines as a State ............................... 3
1. Elements/Requisites for Statehood ..... 3
a. Permanent Population ....................... 4
b. Defined Territory................................ 5
c. Government ........................................ 5
d. Capacity to Enter into Relations with
Other States/Independence ....................... 5
2. Distinction Between Internal and
External Self-Determination........................... 5
C. Fundamental Powers of the State.................. 6
1. Police Power ............................................ 6
2. Eminent Domain..................................... 8
3. Taxation .................................................. 10
E. Dynamics Among the Branches of
Government......................................................... 16
1. Separation of Powers ............................ 16
2. System of Checks and Balances .......... 17
3. Delegation of Powers ........................... 18
F. State Immunity ............................................... 19
G. National Territory ......................................... 23
1. Scope ....................................................... 23
II. LEGISLATIVE DEPARTMENT .......... 25
A. Nature of Legislative Power......................... 25
1. Derivative and Delegated Power ........... 25
2. Plenary Character ..................................... 26
3. Limitations ................................................ 26
4. Exceptions to Non-Delegability ............ 26
a. Principle ................................................. 26
b. Rationale ................................................ 26
c. General Rule; Exceptions .................... 26
5. Legislative Power of the People Through
Initiative and Referendum............................. 27
a. R.A. No. 6735......................................... 28
b. Local Initiative; Voter Requirements 28
c. Where to File ......................................... 28
d. Limitations on Local Initiative ........... 28
e. Classes of Referendum......................... 28
h. Is the power to hold a referendum
plenary? – NO ............................................ 28
B. House of Congress; Compositions and
Qualifications ....................................................... 28
1. Senate ........................................................... 29
2. House of Representatives ......................... 29
a. District Representatives and Questions
of Apportionment ...................................... 29
b. Party-List System ................................... 30
1. Sectoral Representatives ................... 30
2. Disqualified Parties ........................... 30
3. Qualified Sectors ............................... 31
C. Legislative Privileges, Inhibitions, and
Qualifications ....................................................... 32
1. Privileges ...................................................... 32
a. Salaries...................................................... 32
b. Freedom From Arrest ........................... 32
c. Speech and Debate Clause.................... 33
2. Inhibitions and Disqualifications ............. 33
a. May not hold any office or employment
in the government during his term without
forfeiting his seat [Section 3, Article VI] 33
b. May not be appointed to any office
created or whose emoluments were
increased during the term for which he
was elected [Section 13, Article VI] ......... 33
c. Shall not be financially interested,
directly or indirectly, in any contract with,
or franchise or special privilege granted by
the government during his term of office
[Section 14, Article VI, 1987 Constitution]
....................................................................... 33
d. Shall not intervene in any matter before
any office of the government when it is
for his pecuniary benefit or where he may
be called upon to act on account of his
office [Section 14, Article VI, 1987
Constitution] ............................................... 33
e. Shall not intervene in any matter before
any office of the government when it is
for his pecuniary benefit or where he may
be called upon to act on account of his
office [Section 14, Article VI, 1987
Constitution] ............................................... 34
3. Duty to Disclose ......................................... 34
a. Statements of Assets, Liabilities, and
Net Worth (SALN) .................................... 34
b. Financial and Business Interests;
Political Conflicts of Interest.................... 34
c. Amounts Paid To/Expenses Incurred
by Each Member ........................................ 34
D. Quorum and Voting Majorities ................... 34
1. Quorum........................................................ 34
2. Voting Majorities ........................................ 35
FOR UP CANDIDATES ONLY
a. Doctrine of Shifting Majority............... 35
b. Exceptions .............................................. 35
E. Discipline of Members .................................. 36
F. Process of Law-Making ................................. 37
1. Function of the Bicameral Conference
Committee ....................................................... 37
2. Requirement as to Bills.............................. 37
a. As to titles of bills .................................. 37
b. As to certain laws .................................. 37
3. Limitations on Legislative Power ............ 38
4. Procedure for Passage of Bills.................. 38
5. The President’s Veto Power ..................... 40
6. Doctrine of Inappropriate Provision ...... 40
7. Effectivity of Laws ..................................... 41
8. Limitations on Legislative Power ............ 41
G. Appropriation and Re-alignment ................ 41
H. Legislative Inquiries and Oversight
Functions .............................................................. 42
1. Requisites of Legislative Inquiries ........... 42
2. Legislative Inquiries v. Question Hour ... 42
3. Additional Limitation: Executive Privilege
........................................................................... 43
4. Elements of Presidential Communications
Privilege ............................................................ 43
5. Contempt Power ........................................ 44
6. Contempt of Congressional Oversight ... 44
7. Categories of Congressional Oversight
Functions ......................................................... 44
a. Scrutiny ................................................... 44
b. Congressional Investigation................ 44
c. Legislative supervision (legislative veto)
...................................................................... 44
I. Power of Impeachment .................................. 45
1. Initiation: Regular Procedure [Section 3(2)
& (3), Article XI, 1987 Constitution] .......... 45
2. Notes on Initiation [Gutierrez v. HOR
Committee on Justice, G.R. No. 193459 (2011)]
........................................................................... 45
3. Trial .............................................................. 45
4. Periods Rule ................................................ 45
III. EXECUTIVE DEPARTMENT............ 46
A. Nature of Executive Power .......................... 46
1. In Relation to the Implementation of
Laws (Including Delegated Powers) ............ 46
a. Principle ................................................ 46
b. Emergency Powers [Section 23, Article
VI, 1987 Constitution] .............................. 46
c. Commander-in-Chief powers vs.
Emergency Powers .................................... 46
d. When emergency powers cease ........... 46
2. Express or Implied (Including the Faithful
Execution of Laws and Residual Powers) .. 47
B. Concept of Presidential Immunity .............. 47
1. Conduct Covered ....................................... 47
2. Waiver and Exceptions ............................. 47
a. May be invoked only by the President
...................................................................... 48
b. Limitations .............................................. 48
C. Concept of Executive Privilege.................... 48
1. Types ............................................................ 48
2. Who May Invoke ........................................ 49
D. Qualifications, Election, Term of the
President and Vice-President, and Rules on
Succession............................................................. 49
1. Qualifications .............................................. 49
2. Election ........................................................ 50
3. Jurisprudence on Canvassing.................... 50
4. The Supreme Court as Presidential
Electoral Tribunal ........................................... 50
5. Term of Office............................................ 50
6. Rules on Succession ................................... 50
a. Who shall act as or become President 50
b. What if the Senate President and
Speaker are also not capable to act as
President? .................................................... 51
c. Vacancy in the Office of the President
....................................................................... 51
d. Vacancy in the Office of the VicePresident ...................................................... 54
E. Other Privileges, Inhibitions, and
Disqualifications .................................................. 54
1. Official residence ........................................ 54
2. Salary............................................................. 54
3. Presidential Privilege ............................. 54
4. The Vice President ..................................... 54
5. Prohibitions on the Executive Department
........................................................................... 54
6. Multiple Offices and Double
Compensation ................................................. 54
a. President’s spouse and relatives ........... 55
b. Exceptions to the rule prohibiting
executive officials from holding additional
positions....................................................... 55
F. Powers of the President................................. 55
1. Executive and Administrative Powers .... 55
a. Executive Power..................................... 55
b. Summary of Presidential Powers......... 55
2. Power of Appointment.............................. 57
a. Process of Confirmation by the
Commission ................................................ 59
b. By-Passed Appointments and their
Effects .......................................................... 59
c. Appointments by Acting President ..... 59
d. Scope of Midnight Appointments ...... 59
e. Recess of Ad Interim appointments ... 60
f. Power of Removal .................................. 60
3. Power of Control and Supervision .......... 60
a. Doctrine of Qualified Political Agency
....................................................................... 61
b. Executive Departments and Offices . 61
c. General Supervision over Local
Government Units ..................................... 62
4. Emergency Powers ..................................... 62
a. Emergency Powers ............................... 62
b. Nature of Grant .................................... 62
FOR UP CANDIDATES ONLY
c. Requisites of Grant of Emergency
Powers ......................................................... 62
d. Concept of Emergency........................ 62
5. Commander-In-Chief Powers .................. 63
a. Calling Out Powers .............................. 64
b. Declaration of Martial Law and the
Suspension of the Privilege of the Writ of
Habeas Corpus (Including Extension of
Period) ......................................................... 64
6. Pardoning Powers ...................................... 67
a. Scope and Limitations: When clemency
may not be extended by the President:... 67
b. Forms of Executive Clemency ........... 67
7. Foreign Relations Powers ......................... 69
a. In General .............................................. 69
b. To Contract or Guarantee Foreign
Loans............................................................ 69
c. Entry into Treaties or International
Agreements ................................................. 69
8. Tariff-Setting Power .................................. 71
9. Veto Powers ................................................ 72
IV. JUDICIAL DEPARTMENT ................. 72
A. Concept of Judicial Power............................ 72
B. Judicial Review................................................ 73
1. Requisites ..................................................... 73
a. Actual case or controversy ................... 73
b. Locus standi .............................................. 74
1. Associational or third-party standing
.................................................................. 74
2. Citizen standing ................................. 74
3. Environmental standing .............. 74
4. Governmental standing ............... 74
5. Legislative standing ...................... 74
6. Taxpayer’s standing...................... 74
7. Voter’s standing ............................ 74
c. Earliest Possible Opportunity .............. 75
d. Lis Mota ................................................... 75
2. Political Questions Doctrine .................... 75
3. Moot Questions.......................................... 76
4. Operative Fact Doctrine ........................... 76
C. Judicial Independence and Fiscal Autonomy
............................................................................... 77
1. Concepts ...................................................... 77
2. Safeguards of Judicial Independence ...... 77
D. Appointments to the Judiciary .................... 78
1. Qualifications of members ....................... 78
2. Judicial and Bar Council ............................ 79
a. Composition ........................................... 79
b. Powers ..................................................... 79
E. The Supreme Court (Composition, Powers,
and Functions) ..................................................... 80
1. Composition ............................................... 80
a. En banc instances .................................... 80
b. Requirements and procedures in
divisions ....................................................... 80
2. Powers and Functions ............................... 81
a. Procedural rule-making ......................... 81
b. Limitations .............................................. 81
c. Administrative supervision over .......... 81
d. Period for deciding cases ...................... 81
e. Original and appellate jurisdiction ....... 82
f. Original jurisdiction [Section 5(1),
Article VIII, 1987 Constitution] .............. 82
g. Appellate jurisdiction [Section 5(2),
Article VIII, 1987 Constitution] .............. 82
h. Doctrine of judicial stability or
noninterference........................................... 82
i. Finality of judgments ..............................82
j. Requirements for decisions and
resolutions ................................................... 83
V. CONSTITUTIONAL COMMISSIONS
(COMELEC, COA, CSC) ............................ 83
A. Constitutional Safeguards to Ensure
Independence of Commissions......................... 83
B. Common Provisions ...................................... 83
1. Promotional Appointment of
Commissioner to Chairman [Funa v. Villar,
supra] ................................................................ 84
2. Jurisprudence on Section 1(2), Article IXD [Funa v. Villar, supra] ................................. 84
3. Term of Office of Commission Members
........................................................................... 84
C. Powers, Functions, and Jurisdiction ............ 85
1. Civil Service Commission ......................... 85
a. Functions ................................................. 85
b. Scope of Civil Service ........................... 85
c. Jurisdiction .............................................. 86
d. Appellate Jurisdiction ............................ 86
CITIZEN IN RELATION TO THE STATE
...................................................................... 92
I. CITIZENSHIP......................................... 92
A. Who are Filipino Citizens ............................. 92
1. Classification of Citizens ........................... 93
a. Natural-born Citizens ............................ 93
b. Naturalized Citizens .............................. 93
2. Foundlings ................................................... 95
B. Modes of Acquiring Citizenship .................. 95
1. By Birth ........................................................ 95
2. By Naturalization ........................................ 95
3. Derivative Naturalization .......................... 96
4. Election of Filipino Citizenship ............... 96
5. Reglementary Period .................................. 96
6. Eligibility under the Administrative
Naturalization Law; Rationale....................... 96
7. Qualifications Prescribed Under Act 473
NOT APPLICABLE to R.A. No. 9139...... 96
C. Loss and Re-Acquisition of Philippine
Citizenship ............................................................ 97
1. Grounds for Loss of Philippine
Citizenship ....................................................... 97
2. General Rule ............................................. 97
3. Exception .................................................. 97
4. Reacquisition ............................................. 97
a. Naturalization [CA 63 and CA 473] .... 97
b. Repatriation ............................................ 98
FOR UP CANDIDATES ONLY
c. Legislative Act ....................................... 98
5. R.A. No. 9225 (CITIZENSHIP
RETENTION AND REACQUISITION
ACT OF 2003) ................................................ 98
6. Repatriation under R.A. No. 8171........... 99
D. Dual Citizenship and Dual Allegiance ....... 99
1. Dual Citizenship ......................................... 99
2. Dual Allegiance........................................... 99
3. Dual citizenship vs. dual allegiance
[Mercado v. Manzano, 307 SCRA 630 (1999)].
......................................................................... 100
II. SOCIAL JUSTICE AND HUMAN
RIGHTS ...................................................... 100
A. Concept of Social Justice ............................ 100
B. Economic, Social and Cultural Rights ...... 101
1. Economic and Social ............................... 101
2. Agrarian and Natural Resources Reform
......................................................................... 101
3. Urban Land Reform and Housing ........ 102
4. Health......................................................... 103
5. Women ...................................................... 103
6. Role and Rights of People’s Organization
......................................................................... 104
7. Cultural ...................................................... 104
C. Commission on Human Rights ................. 104
1. Powers........................................................ 104
2. Composition and Qualification of
Members ........................................................ 105
III. EDUCATION, SCIENCE,
TECHNOLOGY, ARTS, CULTURE, AND
SPORTS....................................................... 105
A. Academic Freedom...................................... 105
B. Constitutional Tax Exemptions for Certain
Educational Institutions ................................... 106
NATIONAL ECONOMY AND
PATRIMONY ............................................. 106
I. REGALIAN DOCTRINE ....................... 106
II. PUBLIC TRUST DOCTRINE.............. 109
III. EXPLORATION, DEVELOPMENT,
AND UTILIZATION OF NATURAL
RESOURCES .............................................. 110
1. La Bugal-B’laan Tribal Assn. v. Ramos
[G.R. No. 127882, (2004)]........................... 110
2. FTAA v. Service Contract ...................... 111
3. Service Contracts Not Prohibited ......... 111
IV. ACQUISITION, OWNERSHIP, AND
TRANSFER OF PUBLICAND PRIVATE
LANDS ........................................................ 112
A. Lands of Public Domain ............................ 112
B. Private Lands ................................................ 112
VI. CONCEPT OF ANCESTRAL DOMAIN
(INCLUDING ANCESTRAL LANDS) ..... 113
VII. PRACTICE OF PROFESSIONS ........ 114
CONSTITUTIONAL LAW 2 ............................ 115
I.
BILL OF RIGHTS .............................. 116
Private Acts and the Bill of Rights ........116
Due Process ..............................................117
1. Procedural and Substantive ................117
a. Substantive Due Process................117
b. Procedural Due Process .................118
2. Void-for-Vagueness ............................118
3. Judicial and Administrative Due
Process............................................................119
a. Due Process in Judicial Proceedings
119
b. Due Process in Administrative
Proceedings ...............................................119
C. Equal Protection ......................................121
1. Requisites for Valid Classification
[SGEC] ...........................................................121
2. Standards of Judicial Review..............121
a. Rational Basis Test ..........................121
b. Strict Scrutiny Test ..........................121
c. Intermediate Scrutiny Test ............121
3. Examples of Valid Classification.......122
a. Filipino Female Domestics Working
Abroad .......................................................122
b. Land-Based v. Sea-based Filipino
Overseas Workers ....................................122
c. Office of the Ombudsman ............122
D. Arrests, Searches, and Seizures ..............122
1. Requisites of a Valid Warrant ............122
a. Arrest Warrant .................................123
b. Search Warrant ................................123
2. Warrantless Arrests and Detention...124
a. In Flagrante Delicto........................124
b. Hot Pursuit.......................................124
c. Escaped Prisoners ...........................124
d. Additional Exceptions ....................124
3. Valid Warrantless Searches ................125
a. Warrantless Search Incidental to a
Lawful Arrest ............................................125
b. Plain View Doctrine .......................125
c. Search of a Moving Vehicle...........126
d. Consented Warrantless Search ......126
e. Customs Search (Enforcement of
Fishing, Customs, and Immigration Law)
126
f. Routine Security Checks ................127
g. Stop and Frisk..................................127
h. Exigent and Emergency
Circumstances ...........................................127
4. Exclusionary Rule ................................127
E. Privacy of Communications and
Correspondence.................................................128
1. Private and Public Communications 128
2. When Intrusion is Allowed ................129
3. Exclusionary Rule ................................130
F. Freedom of Speech and Expression .....130
1. Prior Restraint and Subsequent
Punishment ....................................................131
A.
B.
FOR UP CANDIDATES ONLY
a.
b.
Prior Restraint ................................. 131
Subsequent Punishment ................ 132
2. Content-Based and Content-Neutral
Regulations .................................................... 132
3. Facial Challenges and Overbreadth
Doctrine ......................................................... 133
4. Tests to Determine the Validity of
Governmental Regulation ........................... 134
a. Clear and Present Danger Test ..... 134
b. Balancing of Interests Test ............ 134
c. Dangerous Tendency Test ............ 134
d. O’brien Test..................................... 135
5. State Regulation of Different Types of
Mass Media .................................................... 135
6. Commercial Speech ............................ 135
7. Unprotected Speech............................ 136
a. Hate Speech ..................................... 136
b. Defamation and Libel .................... 136
c. Sedition and Speech in Relation to
Rebellion.................................................... 136
d. Obscenity/Pornography ................ 137
G. Freedom of Religion................................ 138
1. Non-Establishment Clause ................ 138
2. Benevolent Neutrality and
Conscientious Objector ............................... 140
3. Tests to Determine the Validity of
Governmental Regulation ........................... 141
a. Clear and Present Danger.............. 141
b. Compelling State Interest .............. 141
H. Liberty of Abode and Right to Travel .. 142
1. Scope and Limitations ........................ 142
2. Watch-List and Hold Departure Orders
143
I. Right to Information ............................... 144
1. Scope and Limitations ........................ 144
J. Eminent Domain ..................................... 145
1. Concept ................................................. 145
2. Public Use ............................................. 147
3. Just Compensation .............................. 147
a. Definition ......................................... 147
b. Determination of Just Compensation
147
c. Effect of Delay ................................ 148
4. Expropriation by Local Government
Units ............................................................... 148
K. Right to Association ................................ 148
1. Scope and Limitations ........................ 149
L. Non-Impairment of Contracts .............. 149
1. Scope and Limitations ........................ 149
M.
Free Access to Courts and Adequate
Legal Assistance ................................................ 151
N.
Custodial Investigation ....................... 152
1. Meaning of Custodial Investigation . 152
2. Rights of a Person Under Custodial
Investigation .................................................. 152
a. Availability ....................................... 152
b. Requisites ......................................... 153
1. Right to Remain Silent............... 153
2. Right to Counsel .........................153
3. Rights to Visitation and
Conference............................................154
3. Requisites of a Valid Waiver ..............154
4. Exclusionary Doctrine ........................154
O.
Rights of the Accused .........................155
1. Criminal Due Process .........................155
2. Bail .........................................................156
3. Presumption of Innocence.................158
4. Right to be Heard ................................159
5. Right to Counsel ..................................159
6. Right to be Informed of the Nature and
Cause of Accusation .....................................160
7. Right to Speedy, Impartial and Public
Trial 160
8. Right of Confrontation .......................160
9. Right to Compulsory Processes ........160
10.
Trial in Absentia ..............................160
P. Right to Speedy Trial and Speedy
Disposition of Cases .........................................160
Q.
Right Against Self-Incrimination ......161
1. Scope and Limitations ........................162
2. Immunity Statutes................................163
R. Right Against Double Jeopardy .............164
1. Requisites and Limitations .................164
S. Right Against Involuntary Servitude .....166
T. Right Against Excessive Fines, and Cruel
and Inhuman Punishments ..............................167
U. Non-Imprisonment for Debts ...............168
V. Ex Post Facto Laws and Bill of Attainder
168
W.
Writ of Habeas Corpus, Kalikasan,
Habeas Data, and Amparo...............................170
1. Writ of Habeas Corpus .......................170
2. Writ of Kalikasan .................................171
3. Writ of Habeas Data [A.M. No. 08-1-16SC (2008)] ......................................................172
4. Writ of Amparo .....................................172
LAW ON PUBLIC OFFICERS ......................... 175
I.
GENERAL PRINCIPLES .................. 176
A. Public Office .................................................176
1. Definition, Purpose, Nature ...................176
2. Characteristics ...........................................176
a. Public office is a Public Trust .......176
b. Not a Property Right ......................176
c. Not a Contract.................................176
d. Public Office is Personal................176
e. Right to Public Office Is Not a
Natural Right ............................................176
f. There Is No Such Thing as a Vested
Interest or an Estate in an Office, or Even
an Absolute Right to Hold It. ................176
3. Elements ....................................................177
4. Creation modification, abolition ............177
a. Modes of Creation ..........................177
b. Modification/Abolition .................177
B. Public Officer................................................177
FOR UP CANDIDATES ONLY
II. MODES OF ACQUIRING TITLE TO
PUBLIC OFFICE ....................................... 178
A. Appointment ................................................ 178
B. Election.......................................................... 179
C. Succession ..................................................... 179
D. Operation of Law ........................................ 179
III.
MODES AND KINDS OF
APPOINTMENT ....................................... 179
A. As to term ..................................................... 180
1. Permanent ................................................. 180
2. Temporary ................................................. 180
B. Regular or Ad Interim Appointment ........ 182
1. Ad Interim Appointment and
Appointment in an Acting Capacity .......... 182
2. Disapproval vs. Bypass............................ 182
C. Midnight Appointments ............................. 183
IV.
ELIGIBILITY AND
QUALIFICATION REQUIREMENTS .... 183
V.
DISABILITIES AND INHIBITIONS
OF PUBLIC OFFICERS ............................ 186
VI.
POWERS AND DUTIES OF PUBLIC
OFFICERS .................................................. 189
A. Scope of Power of a Public Officer .......... 189
B. Classification of Powers and Duties ......... 190
1. As to Nature.............................................. 190
a. Ministerial......................................... 190
b. Discretionary ................................... 190
2. As to the Obligation of the Officers to
Perform Their Powers and Duties............. 191
a. Mandatory ........................................ 191
b. Permissive ........................................ 191
3. As to the Relationship of the Officers to
Their Subordinates ....................................... 191
C. Duties of Public Officers ............................ 191
1. General (Constitutional) Duties ............. 192
2. Duties of Public Officers as Trustees for
the Public ....................................................... 192
a. In General ........................................ 192
b. Ethical Duties .................................. 192
3. Specific Duties under the Code of
Conduct and Ethical Standards for Public
Officials and Employees ............................. 192
VII. RIGHTS OF PUBLIC OFFICERS . 193
A. To Office....................................................... 193
B. Security of Tenure ........................................ 193
C. Compensation............................................... 193
D. Different/Applicable Leaves ..................... 194
E. Self-Organization ......................................... 194
F. Retirement Pay.............................................. 194
VIII. LIABILITIES OF PUBLIC
OFFICERS .................................................. 194
IX.
IMMUNITY OF PUBLIC OFFICERS
196
X.
DISTINGUISH: DE FACTO AND DE
JURE OFFICERS ........................................ 197
A. De Facto Officers...........................................197
Definition .......................................................197
Elements of De Facto Officership ...............197
Entitlement to Salary of De Facto Officer .198
B. De Facto v. De Jure Officers .....................198
XI.
TERMINATION OF OFFICIAL
RELATION ................................................ 199
A. Involuntary Retirement ...............................199
B. Death or Permanent Disability ..................199
C. Abolition of Office ......................................200
D. Expiration of Term or Tenure ..................200
E. Resignation ....................................................200
F. Abandonment of Office ..............................201
G. Acceptance of Incompatible Office .........202
H. Recall..............................................................202
I. Criminal Conviction ......................................202
J. Impeachment..................................................202
K. Removal through Quo Warranto/Prescription
of Right to Office ..............................................202
L. Dismissal as Penalty of Disciplinary Action
..............................................................................202
XII. THE CIVIL SERVICE ................... 203
A. Scope ..............................................................203
B. Appointments to the Civil Service.............203
1. Career Service............................................204
2. Non-Career Service ..................................204
C. Personnel Actions ........................................204
1. Original Appointment or Appointment
through Certification ....................................205
2. Promotion..................................................205
3. Transfer ......................................................205
4. Reinstatement............................................206
5. Reemployment ..........................................206
6. Detail ..........................................................206
7. Reassignment ............................................206
8. Secondment ...............................................207
9. Demotion...................................................207
10. Reappointment .......................................207
11. Reclassification .......................................207
XIII. ACCOUNTABILITY OF PUBLIC
OFFICERS ..................................................207
A. Types of Accountability ..............................207
1. Administrative ...........................................207
2. Criminal......................................................208
B. Discipline .......................................................208
1. Grounds .....................................................208
2. Jurisdiction.................................................210
3. Dismissal, Preventive Suspension,
Reinstatement and Back Salaries ................211
4. Condonation Doctrine ............................215
C. Impeachment vs. Quo Warranto ...............216
1. Impeachment ............................................216
a. Concept ............................................216
b. Impeachable Officers .....................216
c. Grounds for Impeachment ...........216
FOR UP CANDIDATES ONLY
d.
e.
Effects of Impeachment ................ 216
Extent of Judgment in Impeachment
216
f. Process of Impeachment ............... 216
g. One-Year Limit Rule ...................... 217
2. Quo Warranto........................................... 218
a. Concept ............................................ 218
b. Who May File? ................................ 218
c. Prescriptive Period ......................... 218
d. Effects When Petition is Granted 218
3. Impeachment vs. Quo Warranto .............. 218
D. The Ombudsman and the Office of the
Special Prosecutor [Sections 5 to 14, Article XI
of the 1987 Constitution in relation to RA No.
6770, otherwise known as “The Ombudsman
Act of 1989”] ..................................................... 219
1. Functions of the Office of the
Ombudsman.................................................. 221
2. Judicial Review in Administrative
Proceedings ................................................... 223
3. Judicial Review in Penal Proceedings.... 224
E. The Sandiganbayan ...................................... 224
1. Nature and Composition ........................ 224
2. Jurisdiction ................................................ 224
a. Exclusive Original Jurisdiction ..... 224
b. Exclusive Appellate Jurisdiction ... 225
c. Jurisdiction Over Private Individuals
225
XIV. TERM LIMITS............................... 226
A. Legislative Department ............................... 226
1. Senators ..................................................... 226
2. Members of the House of Representatives
......................................................................... 226
B. Executive Department ................................ 226
1. President and Vice-President ................. 226
2. Supreme Court Justices and Judges of
Lower Courts ................................................ 226
C. Constitutional Commissions ...................... 226
1. Civil Service Commission ....................... 226
2. Commission on Elections ....................... 226
3. Commission on Audit ............................. 227
D. The Office of the Ombudsman ................ 227
E. Local Governments ..................................... 227
ADMINISTRATIVE LAW ................................ 228
I. GENERAL PRINCIPLES ..................... 229
A. Definition of Administrative Law ............. 229
B. Separation of Powers and Administrative
Functions ............................................................ 229
II. ADMINISTRATIVE AGENCIES........ 229
A. Definition of Administrative Agency ....... 229
B. Historical Considerations............................ 229
III. POWERS OF ADMINISTRATIVE
AGENCIES ................................................ 230
A. Quasi-Legislative (Rule-Making Power) ... 230
1. Kinds of Administrative Rules and
Regulations .................................................... 232
a. Supplementary Legislation ..................232
b. Interpretative Legislation ....................232
2. Requisites for Validity ..............................233
a. Within the Scope or Authority of Law
.....................................................................233
b. Authorized by Law ..............................233
c. Reasonable Relation to the purposes 233
d. Promulgated in Accordance with
Prescribed Procedure...............................233
B. Quasi-Judicial (Adjudicatory) Power .........233
1. Administrative Due Process ...................234
a. Notice and Hearing..............................237
b. Application of Rules of Evidence in
Administrative Proceedings ....................238
2. Administrative Appeal and Review .......239
3. Administrative Res Judicata.......................240
C. Fact-Finding, Investigative, Licensing, and
Rate-Fixing Powers ...........................................242
1. Ascertainment of Fact .............................242
2. Investigative Powers ................................242
3. Licensing Function ...................................242
4. Fixing of Rates, Wages, and Prices ........243
IV. JUDICIAL RECOURSE AND REVIEW
.....................................................................245
A. Doctrine of Primary Administrative
Jurisdiction (or Prior Resort) ...........................246
B. Doctrine of Exhaustion of Administrative
Remedies .............................................................248
1. Legal Reason .............................................249
2. Practical Reason ........................................249
3. Reasons of Comity ...................................249
4. Separation of Powers ...............................249
C. Doctrine of Finality of Administrative
Action ..................................................................251
ELECTION LAW ............................................... 253
I. SUFFRAGE .............................................254
A. Concept .........................................................254
1. Definition...................................................254
2. Scope ..........................................................254
a. Election ..................................................254
b. Plebiscite ...............................................254
c. Initiative .................................................254
d. Referendum ..........................................254
B. Qualification and Disqualification of Voters
..............................................................................255
1. Under Sec. 1, Art. V, 1987 Constitution
.........................................................................255
2. Qualifications in General ........................255
a. Filipino citizen by birth or naturalization
.....................................................................255
b. At least 18 years of age at the time of
the election ................................................255
c. Resident of the Philippines for at least
one (1) year ................................................255
d. Resident of the place wherein they
propose to vote for at least six (6) months
immediately preceding the election .......255
FOR UP CANDIDATES ONLY
e. Not otherwise disqualified by law ..... 256
3. Disqualifications in General ................... 256
C. Registration and Deactivation .................... 256
1. Registration of Voters ............................. 256
a. Election Registration Board (ERB)... 257
b. System of Continuing Registration of
Voters ........................................................ 257
c. Validation .............................................. 257
d. Manner of Registration for Illiterate or
Disabled Voters [Sec. 14, R.A. No. 8189]
.................................................................... 258
e. When the List of Voters will be Altered
.................................................................... 258
1. Deactivation ..................................... 258
2. Reactivation [Sec. 28, R.A. 8189] .. 258
3. Cancellation of Registration .......... 259
4. Annulment of Book of Voters ...... 260
5. New Voters ...................................... 260
6. Transfer of Residence .................... 260
D. Inclusion and Exclusion Proceedings ...... 261
1. Jurisdiction in Inclusion and Exclusion
Case [Sec. 33, R.A. No. 8189].................... 261
2. Petition for Inclusion and Exclusion of
Voters in the List [Secs. 34-35, R.A. No.
8189] ............................................................... 261
3. Special Rules on Overseas Absentee
Voters [Sec. 9.3, R.A. No. 9189 as inserted
by R.A. 10590; Sec. 9.1, R.A. 9189 as
inserted by R.A. 10590] ............................... 262
E. Local and Overseas Absentee Voting [Sec.
3(a), R.A. No. 9189, The Overseas Absentee
Voting Act, as amended by R.A. No. 10590,
The Overseas Voting Act of 2013] ................ 263
1. General Rule ............................................. 263
2. Exceptions ................................................. 263
3. Qualifications ............................................ 264
4. Disqualifications ....................................... 264
F. Detainee Voting............................................ 264
G. Escorted Voting........................................... 265
II. CANDIDACY ........................................ 265
A. Qualifications and Disqualifications of
Candidates .......................................................... 265
1. Qualifications ............................................ 265
2. Disqualifications ....................................... 266
B. Filing of Certificates of Candidacy ............ 268
1. Effect of Filing ......................................... 269
a. Appointive Officials ............................ 269
b. Elective Officials ................................. 269
2. Substitution and Withdrawal of
Candidates ..................................................... 270
3. Nuisance Candidates................................ 270
4. Effect of Disqualification ....................... 272
5. Duties of the Commission on Elections
(COMELEC) ................................................ 273
III. CAMPAIGN......................................... 274
A. Concept ......................................................... 274
1. Definition .................................................. 274
2. Regulations ................................................275
3. Prohibitions ...............................................275
4. Period .........................................................275
5. Equal Access to Media, Time, and Space
.........................................................................275
a. Print advertisements [Sec. 6.1, R.A.
No. 9006] ...................................................275
b. TV advertisements [Sec. 6.2, R.A.
No. 9006] ...................................................275
c. Radio advertisements [Sec. 6.2, R.A.
No. 9006] ...................................................276
6. Right to Reply ...........................................276
7. Required Submissions to the COMELEC
[Sec. 6.2 and 6.3, R.A. No. 9006] ...............276
8. Application for Rallies, Meetings and
Other Political Activity ................................277
B. Premature Campaigning ..............................277
C. Contributions ................................................277
1. Prohibited Contributions ........................277
2. Prohibited Fund-Raising Activities [Sec.
97, B.P. Blg. 881]...........................................278
3. Prohibited Donations [Sec. 104. B.P. Blg.
881]..................................................................278
D. Lawful and Prohibited Election Propaganda
..............................................................................279
1. Lawful Election Propaganda ..................279
2. Prohibited Acts .........................................279
a. For any foreigner: [Sec. 81, B.P. Blg.
881] 279
b. For any person during the campaign
period: [Sec. 83, B.P. Blg. 881] ...............279
c. For any candidate, political party,
organization or any person: [Sec. 89, B.P.
Blg. 881] .....................................................279
E. Limitations on Expenses.............................279
1. Lawful Expenditures ................................279
2. For Candidates [Sec. 13, R.A. No. 7166]
.........................................................................280
3. For Political Parties ..................................280
F. Statement of Contributions and Expenses
(SOCE) [Sec. 14, R.A. No. 7166]....................280
IV. REMEDIES AND JURISDICTION ... 281
A. Petition to Deny Due Course or Cancel a
Certificate of Candidacy ...................................281
1. For any False Material Representation
[Sec. 78, OEC] ...............................................281
2. For Nuisance Candidates [Sec. 69, OEC]
.........................................................................281
B. Petition for Disqualification .......................281
1. Grounds under Par. 1, Sec. 68, OEC ....281
2. Grounds under Par. 2, Sec. 68, OEC ....281
3. Grounds under Sec. 12, OEC ................281
4. Grounds under Sec. 40, LGC for Local
Elective Positions .........................................282
C. Failure of Election, Call for Special Election
..............................................................................283
1. Failure of Election ....................................283
2. Annulment of Election Results ..............284
FOR UP CANDIDATES ONLY
D. Pre-Proclamation Controversy .................. 285
1. Illegal Composition of the Board of
Canvassers ..................................................... 287
2. Illegal Proceedings of the Board of
Canvassers ..................................................... 287
3. When and Where to File PreProclamation Controversy .......................... 287
4. Effect of Filing of Pre- Proclamation
Controversy ................................................... 288
E. Election Contest .......................................... 289
1. Election Protest ........................................ 289
2. Quo Warranto.............................................. 289
F. Recall .............................................................. 291
V. PROSECUTION OF ELECTION
OFFENSES ................................................ 293
A. Jurisdiction over Election Offenses .......... 293
B. Preferential Disposition of Election
Offenses ............................................................. 293
1. Election Offenses..................................... 293
2. Penalties ..................................................... 295
C. Arrests in Connection with Election
Campaign............................................................ 295
D. Prescription .................................................. 295
E. Grant of Transactional Immunity ............. 296
F. Prohibited Acts under R.A. 9369 ............... 296
LOCAL GOVERNMENTS ................................ 297
I.
PUBLIC CORPORATIONS .............. 298
A. Concept; Distinguished from GovernmentOwned or Controlled Corporations .............. 298
B. Classifications ............................................... 298
Quasi-Corporations...................................... 298
Municipal Corporations............................... 299
a. Elements .......................................... 299
1. Legal Corporation or
Incorporation ....................................... 299
2. A Corporate Name by Which the
Artificial Personality Is Known and in
Which All Corporate Acts Are Done
299
3. Inhabitants Constituting the
Population ............................................ 299
4. Territory Within Which Local
Civil Government/Corporate
Functions Are Exercised .................... 299
b. Dual Nature and Functions .......... 300
c. Requisites for Creation, Conversion,
Division, Merger or Dissolution............ 300
1. Creation and Conversion .......... 300
(1) Barangay ............................ 302
(2) Municipality....................... 303
(3) City ..................................... 303
(4) Highly Urbanized City ..... 303
(5) Province ............................. 304
(6) Merger and Division ........ 304
(7) Substantial Alteration of
Boundaries................................... 304
(8) Abolition............................ 305
(9) Autonomous Regions
(Muslim Mindanao and the
Cordilleras) ..................................305
(10) Beginning of Corporate
Existence ......................................306
II. PRINCIPLES OF LOCAL
AUTONOMY..............................................306
A. Autonomy and Decentralization; Devolution
..............................................................................306
Decentralization v. Devolution ..................306
Local Autonomy and National
Accountability ...............................................307
Local Autonomy and Decision Making ....307
B. Local Fiscal Autonomy................................308
Sources of LGU Funds ................................309
a. Internal Revenue Allotments ........309
b. Automatic Release...........................309
c. Consultation .....................................309
Accountability ...............................................310
a. Basic Principles ................................310
1. Under the 1987 Constitution ....310
2. Under the LGC ...........................310
III.
AUTONOMOUS REGIONS AND
THEIR RELATION TO THE NATIONAL
GOVERNMENT ........................................ 311
IV.
LOCAL GOVERNMENT UNIT
(LGU) 313
A. Powers ...........................................................313
1. Police Power..............................................313
2. Eminent Domain ......................................315
a. Nature ...............................................315
b. Requisites for the Exercise of
Eminent Domain by an LGU ................316
c. Jurisdiction .......................................316
d. Ultimate Right of Sovereign Power
316
e. Public Use, Purpose, or Welfare ...316
f. Ordinance Requirement .................317
g. Just Compensation ..........................317
h. Writ of Execution and Expropriation
Suit 317
i.
Valid and Definite Offer ................317
j.
Requisites for the Immediate Entry
by the LGU ...............................................318
k. Returning the Property...................318
3. Taxing Power .......................................319
a. Fundamental Principles of Local and
Real Property Taxation............................319
1. Power to Create Revenues ........319
2. Local Taxing Authority [Sec. 132,
LGC] ......................................................319
3. Fundamental Principles [Sec. 130,
LGC] ......................................................319
4. Common Limitations on the
Taxing Power of the LGU .................319
5. Persons Exempted from LGU’s
Taxing Power .......................................320
FOR UP CANDIDATES ONLY
6. Requirements for a Valid Tax
Ordinance ............................................. 320
7. Procedure for Approval and
Effectivity of Tax Ordinances ........... 321
8. Withdrawal of Local Tax
Exemption Privileges .......................... 321
9. Exemptions from Real Property
Taxes ..................................................... 322
10.
Franchise Tax ......................... 322
4. Closure and Opening of Roads [Sec. 21,
LGC]............................................................... 322
a. Scope of LGU’s Power to Close
Road, Alley, Park or Square.................... 323
b. Requisites For Temporary Closure
323
c. Requisites For Permanent Closure
323
d. Public Roads Are Outside The
Commerce of Man ................................... 323
5. Legislative Power ..................................... 323
a. Ordinance vs. Resolution .............. 323
b. Requisites for Valid Ordinance .... 324
c. Internal Rules of Procedure .......... 325
d. Sangguniang Sessions ..................... 326
1. Regular Sessions ......................... 326
2. Special Sessions .......................... 326
e. Publication and Effectivity of
Ordinances ................................................ 327
f. Review of Ordinances & Resolutions
327
g. Review of Tax Ordinances by the
Secretary of Justice [Sec. 187, LGC] ..... 328
h. Local Initiative and Referendum .. 328
6. Corporate Powers .................................... 331
a. To Sue and Be Sued ....................... 331
b. To Acquire and Sell Property ....... 331
1. In Its Public and Governmental
Capacity................................................. 331
2. In Its Private or Proprietary
Capacity................................................. 331
c. To Enter into Contracts ................ 331
7. Ultra Vires Acts ........................................ 332
B. Liability of Local Government Units ........ 333
Statutory Liability ......................................... 333
Liability Under the Civil Code.................... 333
Liability Under Art. 2189 Based on Control
or Supervision ............................................... 333
Contractual Liability ..................................... 334
Torts Liability ................................................ 334
a. If in the Performance of a
Governmental Function ......................... 334
b. If in the Performance of a
Proprietary Function ............................... 334
c. Liability for Back Pay of Employees
334
Personal Liability of the Public Official .... 334
Refunding of Amounts Disallowed by the
COA ............................................................... 334
C. Settlement of Boundary Disputes..............335
Amicable Settlement.....................................335
Formal Trial ...................................................336
a. Trial by Sanggunian ........................336
b. Trial by RTC ....................................336
Appeal.............................................................336
Evidence Given More Weight ....................336
D. Vacancies and Succession...........................336
Permanent Vacancy ......................................336
a. Permanent Vacancy in the Local
Chief Executive [Sec. 44, LGC] .............336
b. Permanent Vacancies in the
Sanggunian [Fariñas v. Barba, G.R. No.
116763 (1996); Sec. 45, LGC] ................337
c. Resignation of Elective Officials ..338
d. Abandonment ..................................339
Temporary Vacancy .....................................339
Leaves of Absence [Sec. 47(a), LGC] ........340
E. Recall ..............................................................340
Grounds .........................................................340
Signature Requirement .................................341
Procedure [Sec. 70, LGC, as amended by
R.A. No. 9244] ..............................................341
Limitations .....................................................341
F. Term Limits ...................................................342
Length of Term .............................................342
Limitation of Consecutive Terms ..............342
PUBLIC INTERNATIONAL LAW ................. 344
I.
SOURCES OF OBLIGATIONS ......... 345
A. Treaties ..........................................................345
a. Definition of Treaty ........................345
b. Requisites (General) ........................345
c. Requisites (Valid Treaty) ................345
d. Treaty-Making Process ...................345
1. Authorization ..............................345
2. Negotiation ..................................346
3. Adoption ......................................346
4. Authentication ............................346
5. Expression of consent ...............346
6. Registration..................................346
e. Basic Principles of Treaties............346
1. Vienna Convention on the Law of
Treaties ..................................................346
2. Pacta Tertiis Nec Nocent Nec
Prosunt ..................................................346
3. Pacta Sunt Servanda ...................346
4. Generally Not Binding on Third
States, i.e. Non-Contracting Parties ..346
5. Treaties are Non-Retroactive....346
6. Interpretations.............................346
1. Concept of Jus Cogens (Peremptory Norms
of International Law) ...................................347
2. Reservations, Withdrawal, Termination,
and Rebus Sic Stantibus ...............................348
a. Reservations .....................................348
1. General Principles on
Reservations .........................................349
FOR UP CANDIDATES ONLY
b.
Withdrawal and Termination ........ 350
1. Invalid Treaties ........................... 350
2. Other Grounds for Termination
of Treaty ............................................... 350
3. Suspension of Treaties .............. 351
B. Customary International Law..................... 351
1. Elements .................................................... 351
2. Obligations Erga Omnes ................... 353
C. General Principles of Law .......................... 353
D. Application of International Law by
Domestic Courts ............................................... 354
1. Monism ...................................................... 354
2. Dualism ...................................................... 354
3. Inverted Monism ...................................... 354
4. Harmonization.......................................... 354
II. INTERNATIONAL LEGAL PERSON
354
A. States .............................................................. 354
1. Elements .................................................... 354
a. Permanent Population ................... 354
b. Defined Territory............................ 354
1. Modes of Acquiring Territory .. 355
c. Government .................................... 355
1. Types of Government ............... 355
d. Capacity to Enter into Relations .. 356
2. Recognition of States and Governments
......................................................................... 356
a. Recognition ...................................... 356
b. Failed States ..................................... 356
c. Secession .......................................... 356
B. Non-State Entities ....................................... 357
C. International Organizations........................ 357
D. Status of Individuals and Corporations ... 357
III.
JURISDICTION............................. 358
A. Basis of Jurisdiction ..................................... 358
1. Territoriality Principle.............................. 358
2. Nationality Principle ................................ 358
3. Protective Principle .................................. 358
4. Passive Personality Principle .................. 358
3. Universality Principle .......................... 358
B. Title to Territory........................................... 358
C. Adjacent Maritime Seas ............................... 358
1. Territorial Sea............................................ 358
2. Contiguous Zone ..................................... 360
3. Exclusive Economic Zone ................ 360
a. The Extent of the State’s Rights in
the EEZ..................................................... 360
b. Rights of the Coastal State in the
EEZ360
c. Rights of the Non-Coastal State ... 360
d. The Right of Geographically
Disadvantaged States or Landlocked
States .......................................................... 361
4. Continental Shelf ................................. 361
a. Extended Continental Shelf .......... 361
b. Continental Margin ......................... 361
c. Continental Shelf ............................ 361
d. Exclusive Rights of the Coastal State
in the Continental Shelf...........................361
D. Jurisdiction Over Persons and Economic
Activity ................................................................362
1. Criminal Jurisdiction ................................362
a. General Theory ...............................362
b. Extradition .......................................362
1. Definition.....................................362
2. The General Rule on Standard of
Treatment..............................................362
3. Requisites For Extradition to Be
Exercised [Gov. of Hong Kong v. Olalia,
Jr., supra] ...............................................362
4. Fundamental Principles on
Extradition ............................................363
2. Civil Jurisdiction .......................................364
3. Immunity From Jurisdiction ...................364
a. Sovereign Immunity .......................364
1. Two Theories of Sovereign
Immunity [US v. Ruiz, G.R. No. L35645 (1985)] ........................................364
2. Suits Against the State ...............364
b. Diplomatic and Consular Immunity
365
4. Areas Not Subject to Jurisdiction of
Individual States ............................................366
a. High Seas ..........................................366
b. Deep Seabed ....................................366
c. Outer Space......................................367
IV.
INTERNATIONAL
RESPONSIBILITY ....................................367
A. Concept of Imputability of Internationally
Wrongful Act or Omission ..............................367
1. Conduct of Organs of a State [Article 4,
ARSIWA] .......................................................368
2. Conduct of Persons or Entities Exercising
Elements of Governmental Authority
[Article 5, ARSIWA].....................................368
3. Conduct of Organs Placed at the Disposal
of a State by Another State [Article 6,
ARSIWA] .......................................................368
4. Excess of Authority or Contravention of
Instructions [Article 7, ARSIWA] ..............368
5. Conduct Directed or Controlled by a State
[Article 8, ARSIWA].....................................368
a. Effective Control ............................368
b. Overall Control ...............................368
6. Conduct Carried Out in the Absence or
Default of the Official Authorities [Article 9,
ARSIWA] .......................................................369
7. Conduct of an Insurrectional or Other
Movement [Art. 10, ARSIWA] ...................369
8. Conduct Acknowledged and Adopted by a
State as its Own [Art. 11, ARSIWA]..........369
9. Responsibility of a State in Connection
with the Acts of Another State ...................369
10. Circumstances Precluding Wrongfulness
(Defenses) ......................................................369
FOR UP CANDIDATES ONLY
a. Consent [Art. 20, ARSIWA] ......... 370
b. Self-Defense [Art. 21, ARSIWA] . 370
c. Countermeasures [Article 22,
ARSIWA] .................................................. 370
1. Conditions for Countermeasures
[Art. 52, ARSIWA] .............................. 370
2. Limitations of Countermeasures:
[Art. 49, ARSIWA] .............................. 370
d. Force Majeure [Art. 23, ARSIWA]
370
e. Distress [Art. 24, ARSIWA] .......... 370
f. Necessity [Art. 25, ARSIWA] ....... 370
g. Other Principles .............................. 371
11. Consequences Of an Internationally
Wrongful Act ................................................ 371
B. Reparation ..................................................... 371
1. Forms of Reparation................................ 371
a. Restitution [Art. 35, ARSIWA] ..... 371
b. Compensation [Art. 36, ARSIWA]
372
c. Satisfaction [Art. 37, ARSIWA] .... 372
d. Other Principles .............................. 372
C. International Protection of Human Rights
(Including Refugees and Stateless Persons) .. 372
1. Basic Principles of International Human
Rights Law ..................................................... 372
a. The Universal Declaration of Human
Rights (UDHR) ........................................ 373
b. The International Covenant on Civil
and Political Rights (ICCPR) ................. 374
c. The International Covenant on
Economic, Social and Cultural Rights
(ICESCR) .................................................. 374
2. Refugees..................................................... 375
a. General Principles........................... 375
b. Definition ......................................... 375
c. The Following are Refugees Not
Covered by the Convention: .................. 375
d. The Convention shall NOT Apply
to: [1951 Convention]..............................376
e. General Obligations of Refugees..376
f. Non-Discrimination .......................376
g. Personal Status ................................376
h. Rights of a Refugee .........................376
i.
Principle of Non-Refoulment .......377
3. Statelessness ..............................................377
4. Remedies Under Treaty-Based
Mechanisms ...................................................378
D. International Minimum Standard and
National Treatment (Including Expropriation
of Foreign-Owned Properties) ........................378
1. Fair and Equitable Treatment ................379
2. Protection Against the Denial of Justice
.........................................................................379
3. Expropriation of Foreign Property .......379
E. Environmental Harm ..................................380
1. Precautionary Principle ............................380
2. Polluter-Pays Principle.............................380
3. Common but Differentiated
Responsibilities..............................................380
4. Sustainable Development ........................380
5. Sic Utere Tuo Ut Alienum Non Laedas or
the No-Harm Principle ................................380
F. International Claims .....................................381
1. International Human Rights Law ..........381
2. International Economic Law ..................381
3. Immunities.................................................381
V.
DISPUTE RESOLUTION ............. 381
A. Legality of the Use of Force .......................381
B. Concept of International and NonInternational Armed Conflicts ........................382
1. The Role of the International Criminal
Court ...............................................................382
C. Judicial and Arbitral Settlement .................382
1. International Court of Justice .................382
Permanent Court of Arbitration.................384
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL AND PUBLIC
INTERNATIONAL LAW
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
CONSTITUTIONAL
LAW 1
POWERS AND
STRUCTURES OF
GOVERNMENT
I. PRELIMINARY
CONCEPTS
A. Nature of Constitution
1. Parts
The Philippine Constitution is divided into
eighteen (18) Articles:
1. ARTICLE I National Territory
2. ARTICLE II Declaration of Principles and
State Policies
3. ARTICLE III Bill of Rights
4. ARTICLE IV Citizenship
5. ARTICLE V Suffrage
6. ARTICLE VI Legislative Department
7. ARTICLE VII Executive Department
8. ARTICLE VIII Judicial Department
9. ARTICLE IX Constitutional Commissions
10. ARTICLE X Local Government
11. ARTICLE XI Accountability of Public
Officers
12. ARTICLE XII National Economy and
Patrimony
13. ARTICLE XIII Social Justice and Human
Rights
14. ARTICLE XIV Education, Science and
Technology, Arts, Culture and Sports
15. ARTICLE XV The Family
16. ARTICLE XVI General Provisions
17. ARTICLE XVII Amendments or Revisions
18. ARTICLE XVIII Transitory Provisions
2. Manner of Interpretation (SelfExecuting and Non-Executing
Character)
Self-Executing Character: The general rule
and presumption is that the provisions in the
Constitution are self-executing in character.
Self-executing clauses refer to those in the
Constitution that are effective without the
need for an enabling statute.
A provision which is complete in itself and
becomes operative without the aid of
supplementary or enabling legislation, or that
which supplies sufficient rule by means of
which the right it grants may be enjoyed or
protected, is self-executing. Thus a
constitutional provision is self-executing if the
nature and extent of the right conferred and
the liability imposed are fixed by the
constitution itself, so that they can be
determined by an examination and
construction of its terms, and there is no
language indicating that the subject is referred
to the legislature for action. [Manila Prince
Hotel v. GSIS, G.R. No. 122156 (1997)].
Certain provisions in Art. XIII (on Health) and
Art. XVI (on protection from hazardous
products) have been held as self-executing
[Imbong v. Ochoa, G.R. No. 204819 (2014)].
Non-Executing Character: As an exception,
the Supreme Court has ruled that certain
provisions in the Constitution are nonexecuting in character.
1. Art. II: A provision which lays down a
general principle, such as those found in Art.
II of the 1987 Constitution, is usually not selfexecuting [Manila Prince Hotel v. GSIS,
supra].
These principles in Art. II are not intended to
be self-executing principles ready for
enforcement through the courts. They are
used by the judiciary as aids or guides in the
exercise of its power of judicial review, and by
the legislature in its enactment of laws
[Tañada v. Angara, G.R. No. 118295 (1997)].
2. Art. XIII: Time and again, we have ruled
that the social justice provisions of the
Constitution are not self-executing principles
ready for enforcement throu2gh the courts.
They are merely statements of principles and
Page 1 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
policies. To give them effect, legislative
enactment is required. (BFAR Employees
Union, Regional Office No. VII, Cebu City v.
Commission on Audit, G.R. No. 169815
(2008)].
As an exception, Section 15 and Section 16
[Right to a Balanced and Healthful Ecology] of
Article II of the Constitution are self-executing
and judicially enforceable even in their
present form. (Oposa v. Factoran, Jr., G.R.
No. 101083 (1993)].
3. Process of Change (Amendments
and Revisions)
1987 Constitution
ARTICLE XVII, 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 Members; or
(2) A constitutional convention.
ARTICLE XVII, SECTION 2. Amendments to this
Constitution may likewise be directly proposed by
the people through initiative upon a petition of 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 five years
following the ratification of this Constitution nor
oftener than once every five years thereafter.
The Congress shall provide for the implementation
of the exercise of this right.
ARTICLE XVII, 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.
a. Amendment
Amendment broadly refers to a change that
adds, reduces, or deletes without altering the
basic principle involved. (Lambino v.
Commission on Elections, G.R. Nos. 174153
& 174299 (2006)].
An addition or change within the lines of the
original instrument as will effect an
improvement, or better carry out the purpose
for which it was framed. [Lambino v.
Commission on Elections, supra].
b. 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. [Lambino v. Commission on
Elections, supra].
c. Difference
An amendment to the Constitution may be
proposed by (1) initiative, (2) a Constitutional
Convention, or (3) Congress (acting as a
Constituent Assembly).
A revision may only be proposed by a
Constitutional Convention or Congress. It
cannot be proposed via initiative [Lambino v.
COMELEC, supra].
d. The Lambino Tests [Lambino v.
Commission on Elections, supra].
ARTICLE XVII, SECTION 4. Any amendment to, or
revision of, this Constitution under Section 1 hereof
shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier
than sixty days nor later than ninety days after the
approval of such amendment or revision.
The prevailing view is that a proposed change
that meets either test must be considered a
revision of the Constitution, instead of a mere
amendment.
Any amendment under Section 2 hereof shall be
valid when ratified by a majority of the votes cast in
a plebiscite which shall be held not earlier than sixty
days nor later than ninety days after the certification
by the Commission on Elections of the sufficiency of
the petition.
Quantitative Test -- 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." The court
examines only the number of provisions
Page 2 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
affected and does not consider the degree of
the change.
Qualitative Test -- whether the change will
"accomplish such far reaching changes in the
nature of our basic governmental plan as to
amount to a revision."
e. Procedure to Amend or Revise the
Constitution
1. Proposal
This refers to the adoption of the suggested
change in the Constitution.
a. Congress (as a Constituent Assembly)
– a vote of 3/4 of ALL its members.
b. Constitutional Convention (ConCon) –
Called into existence by (i) 2/3 of all
members of Congress OR (ii) the
electorate, in a referendum called for by a
majority of all members of Congress
[Section 3, Article XVII]
c. People (through a People’s Initiative) –
Petition of at least 12% of the total number
of registered voters; every legislative
district must be represented by at least 3%
of the registered voters therein
i. Limitation
on
Initiative:
No
amendment in this manner shall be
authorized (1) within 5 years following
the ratification of the 1987 Const. nor
(2) more often than once every 5
years thereafter.
ii. Enabling
Law:
Constitutional
provision on amendments via
People’s Initiative are not selfexecutory [Defensor-Santiago v.
COMELEC, G.R. No. 127325 (1997)]
2. Submission (Doctrine of Proper
Submission)
The proposal must be submitted to the
people.
Provided
there
is
sufficient
prior
dissemination of the proposed changes to
the Constitution, a plebiscite may be held on
the same day as a regular election
[Gonzales v. COMELEC, G.R. No. L-28196
(1967)].
The entire Constitution must be submitted
for ratification at one plebiscite only. The
people must have a proper “frame of
reference” [Tolentino v. COMELEC, G.R.
No. L-34150 (1971)].
No “piecemeal submission” is allowed; e.g.,
submission of age amendment ahead of
other proposed amendments [Lambino v.
COMELEC, supra].
3. Ratification
The Proposed Amendments shall be
submitted to the people and shall be
deemed ratified by the majority of the votes
cast in a plebiscite, held not earlier than 60
days nor later than 90 days:
i. After approval of the proposal by
Congress or ConCon;
ii. If proposal by initiative, after certification
by the COMELEC of sufficiency of
petition of the people.
4. Judicial Review of Amendments
The validity of the process of amendment is
not a political question because the Court
must review if constitutional processes were
followed [Lambino v. COMELEC, supra].
B. The Philippines as a State
1. Elements/Requisites for Statehood
Montevideo Convention, Article 1
The state as a person of international law should
possess the following qualifications:
(a) A permanent population;
(b) A defined territory;
(c) Government; and
(d) Capacity to enter into relations with the other
States.
[cited in Province of North Cotabato v. GRP,
G.R. No. 183591 (2008)].
1987 Constitution, Article IV.
SECTION 1. The following are citizens of the
Philippines:
(1) Those who are citizens of the Philippines at the
time of the adoption of this Constitution;
Page 3 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
(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.
SECTION 2. Natural-born citizens are those who are
citizens of the Philippines from birth without having
to perform any act to acquire or perfect their
Philippine citizenship. Those who elect Philippine
citizenship in accordance with paragraph (3),
Section 1 hereof shall be deemed natural-born
citizens.
(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.
SECTION 2. Natural-born citizens are those who are
citizens of the Philippines from birth without having
to perform any act to acquire or perfect their
Philippine citizenship. Those who elect Philippine
citizenship in accordance with paragraph (3),
Section 1 hereof shall be deemed natural-born
citizens.
SECTION 3. Philippine citizenship may be lost or
reacquired in the manner provided by law.
SECTION 3. Philippine citizenship may be lost or
reacquired in the manner provided by law.
SECTION 4. Citizens of the Philippines who marry
aliens shall retain their citizenship, unless by their
act or omission they are deemed, under the law, to
have renounced it.
SECTION 4. Citizens of the Philippines who marry
aliens shall retain their citizenship, unless by their
act or omission they are deemed, under the law, to
have renounced it.
SECTION 5. Dual allegiance of citizens is inimical to
the national interest and shall be dealt with by law.
SECTION 5. Dual allegiance of citizens is inimical to
the national interest and shall be dealt with by law.
a. Permanent Population
It refers to a permanent population and
intended to be used in association with that of
territory, and connotes a stable community.
Citizenship is personal and more or less
permanent membership in a political
community. It denotes possession within that
particular political community of full civil and
political
rights
subject
to
special
disqualifications such as minority. Reciprocally,
it imposes the duty of allegiance to the political
community. (Bernas, Constitutional Law
Primer).
1987 Constitution, Article IV.
The constitution provides that the following
people are considered citizens of the
Philippines:
1. Those who are citizens of the Philippines
at the time of the adoption of this
Constitution;
● Includes those who were citizens
under
the
1973
and
1935
Constitution.
2. Those whose fathers or mothers are
citizens of the Philippines;
● Jus sanguinis (“Right by Blood”) - a
person's nationality follows that of his
natural parents.
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.
SECTION 1. The following are citizens of the
Philippines:
Renunciation of Citizenship
(1) Those who are citizens of the Philippines at the
time of the adoption of this Constitution;
In Board of Immigration Commissioners vs. Go
Gallano, express renunciation was held to
mean a renunciation that is made known
distinctly and explicitly and not left to inference
or implication. Petitioner, with full knowledge,
and legal capacity, after having renounced
Portuguese citizenship upon naturalization as
(2) Those whose fathers or mothers are citizens of
the Philippines;
Page 4 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
a Philippine citizen resumed or reacquired his
prior status as a Portuguese citizen, applied for
a renewal of his Portuguese passport and
represented himself as such in official
documents even after he had become a
naturalized Philippine citizen. Such resumption
or reacquisition of Portuguese citizenship is
grossly inconsistent with his maintenance of
Philippine citizenship. [In re: Yu v. DefensorSantiago, G.R. No. 83882 (1989)].
b. Defined Territory
The national territory comprises the Philippine
archipelago, with all the islands and waters
embraced therein, and all other territories over
which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial,
and aerial domains, including its territorial sea,
the seabed, the subsoil, the insular shelves,
and other submarine areas. The waters
around, between, and connecting the islands of
the archipelago, regardless of their breadth
and dimensions, form part of the internal
waters of the Philippines. [Article 1, 1987
Constitution]
The existence of effective government, with
centralized administrative and legislative
organs, is the best evidence of a stable political
community. It is a centralized structure capable
of exercising effective control over a human
community living in a given territory.
State practice suggests that the requirement of
a “stable political organization” in control of the
territory does not apply during a civil war or
where there is a collapse of law and order in a
state that already exists.
The Philippines is a democratic and republican
state. Government authority emanates from its
people.
d. Capacity to Enter into Relations with
Other States/Independence
1987 Constitution
ARTICLE II, SECTION 7. The State shall pursue an
independent foreign policy. In its relations with other
states the paramount consideration shall be national
sovereignty, territorial integrity, national interest,
and the right to self-determination.
State territory is that defined portion of the
surface of the globe, which is subjected to the
sovereignty of the State [Oppenheim].
A State must be free from outside control in
conducting foreign and internal affairs, i.e.,
sovereign and independent.
A State must exercise control over a certain
area. It need not be exactly defined by metes
and bounds, so long as there exists a
reasonable certainty of identifying it. No
minimum land area is required.
The State is the sole executive and legislative
authority. It must be independent of other state
legal orders, and any interference by such legal
orders, or by an international agency, must be
based on a title of international law.
c. Government
Independence is the decisive criterion of
statehood. This concept of independence is
represented by the requirement of capacity to
enter into relations with other States.
Definition - institution or aggregate of
institutions by which an independent society
makes and carries out those rules of action
which are necessary to enable men to live in a
social state, or which are imposed upon the
people forming that society by those who
possess the power or authority of prescribing
them. Government is the aggregate of
authorities which rule a society. [U.S. v. Dorr,
G.R. No. 1051 (1903)].
Denotes a “stable political community
supporting a legal order to the exclusion of
another in a given area”.
2. Distinction Between Internal and
External Self-Determination
The recognized sources of international law
establish that the right to self-determination of
a people is normally fulfilled through internal
self-determination — a people's pursuit of its
political, economic, social and cultural
development within the framework of an
existing state.
Page 5 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
External self-determination can be defined
as in the following statement from the
Declaration on Friendly Relations, supra, as
“The establishment of a sovereign and
independent State, the free association or
integration with an independent State or the
emergence into any other political status freely
determined by a people constitute modes of
implementing the right of self-determination by
that people.” [See Province of North Cotabato
v. Government of the Republic of the
Philippines Peace Panel on Ancestral Domain,
G.R. Nos. 183591, 183752, 183893, 183951 &
183962 (2008)].
A right to external self-determination (which
in this case potentially takes the form of the
assertion of a right to unilateral secession)
arises in only the most extreme of cases and,
even
then,
under
carefully
defined
circumstances.
C. Fundamental Powers of the
State
1. Police Power
It is the inherent and plenary power of the State
which enables it to prohibit all that is hurtful to
the comfort, safety and welfare of society
[Ermita-Malate Hotel and Motel Operators
Association, Inc. v. Mayor of Manila, G.R. No.
L-24693 (1967)].
It is a power coextensive with self-protection,
and is not inaptly termed the “law of the
overruling necessity” [Rubi v. Provincial Board
of Mindoro, G.R. No. L-14078 (1919)].
Police power, while incapable of an exact
definition, has been purposely veiled in general
terms to underscore its comprehensiveness to
meet all exigencies and provide enough room
for an efficient and flexible response as the
conditions warrant. [White Light Corporation v.
City of Manila, G.R. No. 122846 (2009)].
POLITICAL LAW
The moment greater authority is conferred
upon the government, logically so much is
withdrawn from the residuum of liberty which
resides in the people. The paradox lies in the
fact that the apparent curtailment of liberty is
precisely the very means of insuring its
preservation. [Calalang v. Williams, G.R. No.
47800 (1940)].
Scope and Limitations
“The State in order to promote the general
welfare, may interfere with personal liberty,
with property, and with business and
occupations. Persons may be subjected to all
kinds of restraints and burdens, in order to
secure the general comfort, health and
prosperity of the state and to this fundamental
aim of our Government, the rights of the
individual are subordinated” [Ortigas and Co.,
Limited Partnership v. Feati Bank and Trust
Co., G.R. No. L- 24670 (1979)].
As police power derives its existence from the
very existence of the State itself, it does not
need to be expressed or defined in its scope.
xxx So it is that Constitutions do not define the
scope or extent of the police power of the State;
what they do is to set forth the limitations
thereof. The most important of these are the
due process clause and the equal protection
clause [Ichong v. Hernandez, G.R. No. L-7995
(1957)].
Police power has been characterized as the
most essential, insistent, and the least limitable
of powers, extending as it does to all the great
public needs [Ermita-Malate Hotel and Motel
Operators Association, Inc. v. Mayor of Manila,
supra].
Taxation and Eminent Domain as
Implements on Police Power
Taxation may be used as an implement of
police power [Lutz v. Araneta, G.R. No. L-7859
(1955)].
Eminent domain may be used as an implement
to attain the police objective [Association of
Small Landowners v. Secretary of Agrarian
Reform, G.R. No. 78742 (1989)].
Liberty is a blessing without which life is a
misery, but liberty should not be made to
prevail over authority because then society will
fall into anarchy. Neither should authority be
made to prevail over liberty because then the
individual will fall into slavery. […]
Page 6 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Specific Coverage
1. Public Health
2. Public Safety
3. Public Morals
4. General Welfare [Abe v. Foster Wheeler
Corporation, G.R. No. L-14785 & L-14923
(1960)]
Who may Exercise Police Power
Generally: Legislature
Delegated:
1. The President (and executive agencies)
2. Administrative bodies (including the
constitutional commissions)
3. Law-making bodies of LGUs
Limitations on Delegation of Police Power
1. It must be made through an express grant
by law;
2. It must be exercised within the territorial
jurisdiction of the LGU or the statutory
mandate of the delegate; and
3. The delegate’s exercise must not be
contrary to law.
TEST OF VALID EXERCISE
A. Means Purpose Test
1. Lawful Subject - The interests of the public,
generally, as distinguished from those of a
particular class, require such interference and
that the subject of the measure is within the
scope of the police power [Ichong v.
Hernandez, supra]
2. Lawful Means - The means employed are
reasonably necessary for the accomplishment
of the purpose and not unduly oppressive upon
individuals [National Development Company v.
Philippine Veterans Bank, G.R. Nos. 84132-33
(1990)].
B. Reasonability Test
The limit to police power is reasonability. The
Court looks at the test of reasonability to decide
whether it encroaches on the right of an
individual. So long as legitimate means can
reasonably lead to create that end, it is
reasonable [Morfe v. Mutuc, G.R. No. L-20387
(1968)].
Examples of Legitimate Exercise
The PWD mandatory discount on the purchase
of medicine is supported by a valid objective or
purpose as aforementioned. It has a valid
subject considering that the concept of public
use is no longer confined to the traditional
notion of use by the public, but held
synonymous with public interest, public benefit,
public welfare, and public convenience.
As in the case of senior citizens, the discount
privilege to which the PWDs are entitled is
actually a benefit enjoyed by the general public
to which these citizens belong. The means
employed in invoking the active participation of
the private sector, in order to achieve the
purpose or objective of the law, is reasonably
and directly related. Also, the means employed
to provide a fair, just and quality health care to
PWDs are reasonably related to its
accomplishment, and are not oppressive,
considering that as a form of reimbursement,
the discount extended to PWDs in the
purchase of medicine can be claimed by the
establishments as allowable tax deductions
pursuant to Section 32 of R.A. No. 9442 as
implemented in Section 4 of DOF Revenue
Regulations No. 1-2009. Otherwise stated, the
discount reduces taxable income upon which
the tax liability of the establishments is
computed [Drugstores Association of the
Philippines, Inc. v. National Council on
Disability Affairs, G.R. No. 194561 (2016)].
R.A. No. 9257, the Expanded Senior Citizens
Act of 2003, is a legitimate exercise of police
power. Administrative Order No. 177 issued by
the Department of Health, providing that the
20% discount privilege of senior citizens shall
not be limited to the purchase of unbranded
generic medicine but shall extend to both
prescription and non-prescription medicine,
whether branded or generic, is valid [Carlos
Superdrug Corporation v. DSWC, G.R. No.
166494 (2007)].
Exercise of Police Power is subject to
judicial inquiry
The Legislature’s determination as to what is a
proper exercise of its police powers is not final
or conclusive, but it is subject to the supervision
of the courts [US v. Toribio, G.R. No. L-5060
(1910)].
Page 7 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
However, courts cannot delimit beforehand the
extent or scope of the police power, since they
cannot foresee the needs and demands of
public interest and welfare. So it is that
Constitutions do not define the scope or extent
of the police power of the State; what they do
is to set forth the limitations thereof. The most
important of these are the due process clause
and the equal protection clause [Ichong v.
Hernandez, supra].
2. Eminent Domain
The power of eminent domain is the inherent
right of the State to condemn private property
to public use upon payment of just
compensation.
The right of eminent domain is the ultimate right
of the sovereign power to appropriate, not only
the public but the private property of all citizens
within the territorial sovereignty, to public
purpose [Republic v. Heirs of Borbon, G.R. No.
165354 (2015)].
Two mandatory requirements should
underlie the Government’s exercise of the
power of eminent domain:
a. It is for a particular public purpose; and
b. Just compensation should be paid to the
property
owner
[Mactan-Cebu
International Airport Authority v. Lozada,
Sr., G.R. No. 176625 (2010)]
It is well settled that eminent domain is an
inherent power of the State that need not be
granted even by the fundamental law. Sec. 9,
Art. III merely imposes a limit on the
government’s exercise of this power [Republic
v. Tagle, G.R. No. 129079 (1998)].
Who may Exercise Eminent Domain
Generally: Legislature
Delegated (through charter):
1. LGUs
2. Other government entities
The repository of eminent domain powers is
the legislature, i.e. exercised through the
enactment of laws. But power may be
delegated to LGUs and other government
entities (via charter); still, the delegation must
be by law [Manapat v. CA, G.R. No. 110478
(2007)].
Requisites for the Valid Exercise of Eminent
Domain
1. Necessity
2. Private Property
3. Public Use
4. Taking
5. Just Compensation
6. Due Process
1. Necessity
There must be a necessity which must be of
public character [Manapat v. CA, supra].
Difference as to the direction to expropriate
[Manapat v. CA, supra].
If directed by
Nature of necessity
Congress
Political question
A delegate under
general authority
(e.g., LGUs)
Justiciable question
Example: In Manabat, the expropriation
proceedings were initiated by the National
Housing Authority (NHA). Although a delegate,
the NHA was acting under P.D. 1072, which
concerned the expropriation of a specific piece
of property (there, Grace Park). This was
therefore an expropriation directed by the
legislator, and its necessity a political question.
2. Private Property
General Rule: All private property capable of
ownership may be expropriated
Exceptions
a. Money
b. Choses in Action
Chose in Action
It is a personal right not reduced into
possession such as debts owed by another
person. It is the right to recover a debt,
demand, or damages on a cause of action ex
contractu or for a tort or omission of a duty
[Black’s Law Dictionary].
3. Public Use
“Public use” has been liberalized not just to
cover cases of actual use by the government
for traditional public services (e.g., roads) but
Page 8 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
to redistributive purposes (e.g., agrarian
reform, urban land reform).
Public use includes not only use directly
available to the public but also those which
redound to their indirect benefit [Heirs of
Ardona v. Reyes, G.R. Nos. L-60549, 6055355 (1983)].
As long as the public has the right of use,
whether exercised by one or many members of
public, a public advantage or public benefit
accrues sufficient to constitute a public use
[Manosca v. CA, G.R. No. 106440 (1995)].
4. Taking
There is taking of property when the following
are present [Republic v. Castellvi, G.R. No. L20620 (1974)]:
a. The expropriator must enter a private
property;
b. The entrance into private property must be
for more than a momentary period;
c. The entry into the property should be
under warrant or color of legal authority;
d. The property must be devoted to a public
use;
e. The utilization of the property ousts the
owner and deprives him of all beneficial
enjoyment of the property.
Not an instance of taking
Imposition of restrictions on the use of property
to protect the public health safety or morals
from danger is not taking as there is no
dedication to public use [Association of Small
Landowners in the Philippines, Inc. v. Sec. of
Agrarian Reform, G.R. No. 78742 (1989)].
5. Just Compensation
Just compensation is defined as the full and fair
equivalent of the property taken from its owner
by the expropriator. The measure is not the
taker's gain, but the owner's loss. The word
"just" is used to intensify the meaning of the
word "compensation" and to convey thereby
the idea that the equivalent to be rendered for
the property to be taken shall be real,
substantial, full, and ample [National
Transmission
Corporation
v.
Oroville
Development Corporation, G.R. No. 223366
(2017)].
Determination of Just Compensation
General Rule: It is computed at the time of the
filing of the complaint for expropriation [Section
4, Rule 67, ROC].
Exceptions:
• At the time of actual taking, when
taking precedes filing of the complaint.
• At the time of payment, after an
inequitable lapse of time since the
actual taking and the government’s
offer to pay [Heirs of Tria v. Landbank,
G.R. No. 170245 (2013)].
Inflation will not be considered in determining
what the value of a property is for purposes of
computing just compensation [Nepomuceno v.
CA, G.R. No. 166246 (2008)].
Determination of Just Compensation is a
Judicial Function
The determination of just compensation is a
judicial function. The executive or legislature
may make the initial determination but when a
party claims a violation in the Bill of Rights, no
statute, decree, or executive order can
mandate that its own determination shall
prevail over the court’s mandate [EPZA v.
Dulay, G.R. No. L-59603 (1987)].
Possessory Taking vs. Regulatory Taking
Possessory Taking
Regulatory Taking
The
government
confiscates
or
physically occupies
property.
The
government
passes a regulation,
but the regulation
leaves
no
reasonable
economically viable
use of the property.
Generally, and in contrast to expropriation,
regulation is a species of police power and is
thus non-compensable.
However, when the regulation goes “too far”
and amounts to a regulatory taking, it will be
considered as taking in the eminent domain
sense [City of Manila v. Laguio, G.R. No. 11812
(2005)].
Page 9 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Two stages of Eminent Domain
1. Condemnation Stage: Determination of
the authority of the expropriator to
exercise the power of eminent domain and
the propriety of its exercise.
2. Just
Compensation
Stage:
Determination by the court of the just
compensation [Municipality of Biñan v.
Garcia, G.R. No. 69260 (1989)].
Note: Expropriation proceedings are generally
initiated by the government, which seeks the
approval of a court for an intended taking.
When actual taking (occupation) precedes an
expropriation proceeding, the affected private
individual may file a complaint for just
compensation (also known as “inverse
expropriation”) [DPWH v. Manalo, G.R. No.
217656 (2020)].
3. Taxation
It is the power by which the State raises
revenue to defray the necessary expenses of
the Government. It is the enforced proportional
contributions from persons and property, levied
by the State, for the support of the government
and for all public needs. It is as broad as the
purpose for which it is given.
Purpose:
a. To raise revenue
b. Tool for regulation
c. Protection/power to keep alive
Lifeblood theory
Taxes are the lifeblood of the government, for
without taxes, the government can neither exist
nor endure. A principal attribute of sovereignty,
the exercise of taxing power derives its source
from the very existence of the state whose
social contract with its citizens obliges it to
promote public interest and common good. The
theory behind the exercise of the power to tax
emanates from necessity; without taxes,
government cannot fulfill its mandate of
promoting the general welfare and well-being
of the people [NPC v. Cabanatuan, G.R. No.
149110 (2003)].
Tax for special purpose
Treated as a special fund and paid out for such
purpose only; when the purpose is fulfilled, the
balance, if any, shall be transferred to the
general funds of the Government [Section
29(3), Article VI, 1987 Constitution].
Requisites [Section 28(1), Article VI]
a. Uniform and Equitable
Taxes should be (a) uniform (persons or things
belonging to the same class shall be taxed at
the same rate) and (b) equitable (taxes should
be apportioned among the people according to
their ability to pay).
b. Progressive system of taxation
The rate increases as the tax base increases,
with social justice as basis. Taxation here is an
instrument for a more equitable distribution of
wealth.
The requirement is for Congress to evolve a
progressive system of taxation. Hence, while
the VAT is regressive (as an indirect tax whose
rate does not consider the tax base of the
consumer to whom it is passed), its imposition
is not in violation of this requirement [Tolentino
v. Secretary of Finance, G.R. No. 115455
(1994)].
c. Delegated tax legislation
Congress may delegate law-making authority
only when the Constitution itself specifically
authorizes it.
Scope and Limitation
General Limitations
a. The power to tax exists for the general
welfare. It should be exercised only for a
public purpose.
b. Might be justified as for public purpose
even if the immediate beneficiaries are
private individuals.
c. Tax should not be confiscatory. If a tax
measure is so unconscionable as to
amount to confiscation of property, the
Court will invalidate it. But invalidating a
tax measure must be exercised with
utmost caution, otherwise, the State’s
power to legislate for the public welfare
might be seriously curtailed.
d. Taxes should be uniform and equitable
[Section
28(1),
Article
VI,
1987
Constitution].
Page 10 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Judicial review for unconscionable and
unjust tax amounting to confiscation of
property
The legislature has discretion to determine the
nature, object, extent, coverage, and situs of
taxation. But where a tax measure becomes so
unconscionable and unjust as to amount to
confiscation of property, courts will not hesitate
to strike it down; the power to tax cannot
override constitutional prescriptions [Tan v. del
Rosario, G.R. No. 109289 (1994)].
Specific Limitations
a. Uniformity of taxation
Simply geographical uniformity, meaning it
operates with the same force and effect in
every place where the subject of it is found
sRule does not prohibit classification for
purposes of taxation, provided the requisites
for valid classification are met [Ormoc Sugar v.
Treasurer of Ormoc, G.R. No. L-237934
(1968)].
b. Tax Exemptions
No law granting any tax exemption shall be
passed without the concurrence of a majority of
all the Members of Congress [Section 28(4),
Article VI, 1987 Constitution].
There is no vested right in a tax exemption.
Being a mere statutory privilege, a tax
exemption may be modified or withdrawn at will
by the granting authority [Republic v. Caguioa,
G.R. No. 168584 (2007)].
Exemptions may either be constitutional or
statutory:
1. Constitutional exemptions [Section 28(3),
Article VI, 1987 Constitution]
Charitable
institutions,
churches
and
parsonages or convents appurtenant thereto,
mosques, non-profit cemeteries, and all lands,
buildings, and improvements, actually, directly,
and exclusively used for religious, charitable,
or educational purposes shall be exempt from
taxation.
To determine whether an enterprise is a
charitable institution/entity or not, the elements
which should be considered include the statute
creating the enterprise, its corporate purposes,
its constitution and by-laws, the methods of
administration, the nature of the actual work
performed, the character of the services
rendered,
the
indefiniteness
of
the
beneficiaries, and the use and occupation of
the properties. [Lung Center of the Philippines
v. Quezon City, G.R. No. 144104 (2004)].
Exception: those portions of its real property
that are leased to private entities are not
exempt from real property taxes as these are
not actually, directly and exclusively used for
charitable purposes. [Lung Center of the
Philippines v. Quezon City, supra]
2. If statutory, it has to have been passed by
majority of all the members of Congress
[Section 28(4), Article VI, 1987 Constitution]
D. Relevance of the Declaration
of Principles and State Policies
Article II, 1987 Constitution: Declaration of
Principles and State Policies
Principles (Sections 1-6) – Binding rules
which must be observed in the conduct of
government [Bernas].
State Policies (Sections 7-28) – Guidelines
for the Orientation of the State [Bernas]
General Rule: Article II of the Constitution is
not intended to be self-executing principles
ready for enforcement through courts [Tanada
v. Angara, G.R. No. 118295 (1997)].
Exceptions:
The right to a balanced and healthful ecology
[Sec. 16, 1987 Consti.; Oposa v. Factoran, G.R
No. 101083 (1993)].
The right to health [Sec. 15, 1987 Consti.;
Imbong v. Ochoa, G.R. No. 204819 (2014)].
The State policy of full public disclosure of all
its transactions involving public interest [Sec.
28, 1987 Consti.; Legaspi v. Civil Service
Commission, G.R. No. 72119 (1987)].
Page 11 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
PRINCIPLES
The Philippines is a Democratic and
Republican State
Section 1, Article II. The Philippines is a democratic
and republican State. Sovereignty resides in the
people and all government authority emanates from
them.
The Philippines, under the 1987 Constitution,
is not just a representative government but also
shares some aspects of direct democracy such
as, for instance, the “initiative and referendum”
under Section 32, Article VI [Bernas].
Renunciation of War
Section 2, Article II. The Philippines renounces war
as an instrument of national policy, adopts the
generally accepted principles of international law as
part of the law of the land and adheres to the policy
of peace, equality, justice, freedom, cooperation,
and amity with all nations.
Only refers to wars of aggression, not
defensive war.
Adoption of Generally Accepted Principles
of International Law
Generally accepted principles of international
law (GAPIL), by virtue of the incorporation
clause of the Constitution, form part of the laws
of the land even if they do not derive from treaty
obligations.
Incorporation: When, by mere constitutional
declaration, international law is deemed to
have the force of domestic law [Pharmaceutical
and Health Care Assoc. Of the Philippines v.
Duque III, G.R. No. 173034 (2007)].
Compare Transformation: Requires that an
international law be transformed into a
domestic law through a constitutional
mechanism such as local legislation [Id.]
Allows an international principle, even if not
GAPIL, to have the force and effect of domestic
law.
POLITICAL LAW
2. The principle of sovereign immunity;
3. A person's right to life, liberty and due
process, and
International customary rules are accepted as
binding as a result from the combination of two
elements:
1. The established, widespread, and
consistent practice on the part of States; and
2. A psychological element known as the
opinio juris sive necessitates (opinion as to
law or necessity) [Poe-Llamanzares v.
COMELEC, G.R. No. 221697 (2016)].
Civilian Supremacy
Section 3, Article II. Civilian authority is, at all times,
supreme over the military. The Armed Forces of the
Philippines is the protector of the people and the
State. Its goal is to secure the sovereignty of the
State and the integrity of the national territory.
The supremacy of civilian authority over the
military is implemented under the 1987
Constitution
with
the
President
as
Commander-in-Chief of the Armed Forces of
the Philippines.
Civilian authority (Section 3, Article II) is not
defeated in a joint task force between the PNP
and Marines for the enforcement of law and
order in Metro Manila as long as control is left
to the PNP [IBP v. Zamora, G.R. No. 141284
(2000)].
Role of the Armed Forces
a. Protector of the people and the State
b. Secure the sovereignty of the State and the
integrity of the national territory
Compulsory Military and Civil Service
Section 4, Article II. The prime duty of the
Government is to serve and protect the people. The
Government may call upon the people to defend the
State and, in the fulfillment thereof, all citizens may
be required, under conditions provided by law, to
render personal military or civil service.
"Generally
accepted
principles
of
The phrase "under conditions provided by law"
international law" - norms of general or
was placed in lieu of "with due regard for
customary international law which are binding
objections of conscience" and was intended to
on all states, e.g.,
give to Congress a flexible guideline for dealing
1. Renunciation of war as an instrument of
with conscientious objectors, e.g., persons who
national policy;
Page 12 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
refuse the military draft for reasons of
conscience [Bernas].
Maintenance of Peace and
Promotion of General Welfare
Order,
Section 5, Article II. The maintenance of peace and
order, the protection of life, liberty, and property, and
the promotion of the general welfare are essential for
the enjoyment by all the people of the blessings of
democracy.
Recognition of Hierarchy of Rights [Bernas;
Section 5, supra]
a. Life
b. Liberty
c. Property
Separation of Church and State
Section 6, Article II. The separation of Church and
State shall be inviolable.
The fact that R.A. No. 3350 grants a privilege
to members of said religious sects cannot by
itself render the Act unconstitutional, for the Act
only restores to them their freedom of
association which closed shop agreements
have taken away and puts them in the same
plane as the other workers who are not
prohibited by their religion from joining labor
unions [Victoriano v. Elizalde Rope Workers,
G.R. No. L-25246 (1974)].
See also discussion on Establishment Clause
in Constitutional Law II.
STATE POLICIES
Independent Foreign Policy
Section 7, Article II. The State shall pursue an
independent foreign policy. In its relations with other
states the paramount consideration shall be national
sovereignty, territorial integrity, national interest, and
the right to self-determination.
Paramount
considerations:
national
sovereignty, territorial integrity, national
interest, and the right to self-determination.
Freedom from Nuclear Weapons
Section 8, Article II. The Philippines, consistent
with the national interest, adopts and pursues a
policy of freedom from nuclear weapons in its
territory.
The ban on nuclear arms includes not only
possessing, controlling and manufacturing
nuclear but also nuclear tests in our territory,
as well as the use of our territory as dumping
ground for radioactive wastes [Bernas].
There is no ban on nuclear energy, which has
been recognized by the other branches of
government (Congress through the Phil.
Nuclear Energy Act of 1957; the Executive as
recent as 2022 through the E.O. on the
National Position for a Nuclear Energy
Program).
Promote Just and Dynamic Social Order
Section 9, Article II. The State shall promote a just
and dynamic social order that will ensure the
prosperity and independence of the nation and free
the people from poverty through policies that provide
adequate social services, promote full employment,
a rising standard of living, and an improved quality
of life for all.
Promote Social Justice in All Phases of
National Development
Section 10, Article II. The State shall promote
social justice in all phases of national development.
Personal Dignity and Human Rights
Section 11, Article II. The State values the dignity
of every human person and guarantees full respect
for human rights.
Family as Basic Social Institution and
Natural and Primary Right and Duty of
Parents in the Rearing of the Youth
Section 12, Article II. The State recognizes the
sanctity of family life and shall protect and
strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the
mother and the life of the unborn from conception.
Page 13 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
The natural and primary right and duty of parents in
the rearing of the youth for civic efficiency and the
development of moral character shall receive the
support of the Government.
well-being is likewise imperiled as minor
children are prone to making detrimental
decisions” [SPARK v. Quezon City, G.R. No.
225442 (2017)].
The right and duty referred to here is primary,
not exclusive.
Protection of the Life of the Mother and the
Life of the Unborn from Conception
Doctrine of Parens Patriae
Parens patriae holds the State under obligation
to provide protection and look after the welfare
of its people especially those who cannot tend
to themselves. Parens patriae means parent of
his or her country, and refers to the State in its
role as "sovereign", or the State in its capacity
as a provider of protection to those unable to
care for themselves [Southern Luzon Drug
Corporation v. DSWD, G.R. No. 199669
(2017)].
The question of when life begins is a scientific
and medical issue that should not be decided
(in the RH petitions) without proper hearing and
evidence [Imbong v. Ochoa, supra].
The State, as parens patriae, has an inherent
right to aid parents in the moral development of
the youth. Hence, the provision in the RH Law
mandating the teaching of age- and
development-appropriate reproductive health
education is not per se unconstitutional; a
ruling on its constitutionality would be
premature absent an actual curriculum
formulated by the Department of Education
[Imbong v. Ochoa, G.R. No. 204819 (2014)].
Quezon City’s imposed curfew does not violate
Section 12, Article II of the Constitution
because the curfew was done within the role of
the State as parens patriae. While parents
have a primary role in raising a child, “when
actions concerning the child have a relation to
the public welfare or the well-being of the child,
the State may act to promote these legitimate
interests”, especially in cases that may bring
harm to a child or to public safety. This
overrides a parent’s right to control upbringing
of a child. The State is mandated to support
parents in exercise of rights and duties, and
state authority is therefore, not exclusive of, but
rather complementary to parental supervision.
The Curfew Ordinances merely serve as legal
restrictions designed to aid parents in
promoting their child’s welfare. Though these
are inherently limiting on the part of the minor,
this is necessary because the youth is
vulnerable and inexperienced, and “their moral
N.B. Discussions in the RH cases on when life
begins are all personal opinions of the justices.
The discussion in the main opinion was
expressly cautioned as the personal opinion of
the ponente and is thus, at best, obiter dictum.
Vital Role of Youth in Nation-Building
Section 13, Article II. The State recognizes the vital
role of the youth in nation-building and shall promote
and protect their physical, moral, spiritual,
intellectual, and social well-being. It shall inculcate
in the youth patriotism and nationalism, and
encourage their involvement in public and civic
affairs.
Role of Women in Nation Building
Fundamental Equality Before the Law of
Women and Men
Section 14, Article II. The State recognizes the role
of women in nation-building, and shall ensure the
fundamental equality before the law of women and
men.
Right to Health
Section 15, Article II. The State shall protect and
promote the right to health of the people and instill
health consciousness among them.
Right to a Balanced and Healthful Ecology
Section 16, ArticlE II. The State shall protect and
advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and
harmony of nature.
Page 14 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Citizens have a public right to a balanced and
healthful ecology, the right of which need not
be written in the Constitution for it is assumed
to be an issue of transcendental importance
with intergenerational implications. Such right
carries with it the correlative duty to refrain from
impairing the environment [Oposa v. Factoran,
G.R. No. 101083 (1993)].
Priority to Education, Science, and
Technology, Arts, Culture, and Sports
Section 17, Article II. The State shall give priority to
education, science and technology, arts, culture,
and sports to foster patriotism and nationalism,
accelerate social progress, and promote total human
liberation and development.
Labor as a Primary Social Economic Force
Section 18, Article II. The State affirms labor as a
primary social economic force. It shall protect the
rights of workers and promote their welfare.
Self-Reliant
Economy
and
Independent
National
Section 19, Article II. The State shall develop a selfreliant and independent national economy
effectively controlled by Filipinos.
Role of Private Sector
Section 20, Article II. The State recognizes the
indispensable role of the private sector, encourages
private enterprise, and provides incentives to
needed investments.
Comprehensive Rural Development and
Agrarian Reform
Section 21, Article II. The State shall promote
comprehensive rural development and agrarian
reform.
Recognition and Promotion of Rights of
Indigenous Cultural Communities
communities within the framework of national unity
and development.
Community-Based, Sectoral Organizations
Section 23, Article II. The State shall encourage
non-governmental, community-based, or sectoral
organizations that promote the welfare of the nation.
Rule of Communication and Information in
Nation-Building
Section 24, Article II. The State recognizes the vital
role of communication and information in nationbuilding.
Autonomy of Local Governments
Section 25, Article II. The State shall ensure the
autonomy of local governments.
Equal Access for Public Service and
Prohibition of Political Dynasties
Section 26, Article II. The State shall guarantee
equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law.
The state policy against political dynasties is
not self-executing. It does not provide a
judicially enforceable constitutional right but
merely specifies a guideline for legislative or
executive action [Belgica v. Ochoa, G.R. No.
208566 (2013)].
Honesty and Integrity in Public Service
Section 27, Article II. The State shall maintain
honesty and integrity in the public service and take
positive and effective measures against graft and
corruption.
Policy of Full Public Disclosure
Section 28, Article II. Subject to reasonable
conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its
transactions involving public interest.
Section 22, Article II. The State recognizes and
promotes the rights of indigenous cultural
Page 15 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
government cannot be decided upon by the
Courts.
E. Dynamics Among the
Branches of Government
1. Separation of Powers
Separation of powers is a fundamental
principle in our system of government and is
founded on the belief that, by establishing
equilibrium among the three (3) power holders,
harmony will result and power will not be
concentrated and tyranny will be avoided
[Bernas]. Any system that is violative of the
principle of separation of powers is
unconstitutional and void [Belgica v. Ochoa,
supra].
Each of the three branches of government has
exclusive cognizance of and is supreme in
matters falling within its constitutionally
allocated sphere; each branch cannot invade
the domain of others. Powers of the
government
are
separated
to
avoid
concentration of powers in any one branch
[Gatmaytan].
Three (3) branches
government:
1. Legislative
2. Executive
3. Judiciary
of
the
Philippine
The principle of separation of powers ordains
that each of the three government branches
has exclusive cognizance of and is supreme in
concerns falling within its own constitutionally
allocated sphere. It intends to secure action, to
forestall over-action, to prevent despotism, and
to promote efficiency.
While the separation of powers is not expressly
provided for in the Constitution [currently found
in Sec. 1 of Articles VI, VII, and VIII], it obtains
from actual division in the Constitution. Each
department has exclusive cognizance of
matters within its jurisdiction and is supreme
within its own sphere [Angara v. Electoral
Commission, G.R. No. L-45081 (1936)].
Political Question Doctrine
A question in which resolution has been vested
by the Constitution exclusively in the people, or
in which full discretionary authority has been
delegated to a co-equal political branch of the
The determination of a truly political question
from a non-justiciable political question lies in
the answer to the question of whether there are
constitutionally imposed limits on powers or
functions conferred upon political bodies. If
there are, then our courts are duty-bound to
examine whether the branch or instrumentality
of the government properly acted within such
limits. [Francisco, Jr. v. House of
Representatives, G.R. No. 160261 (2003)].
Application
A. Belgica v. Ochoa, supra
The Pork Barrel System violates the separation
of powers because it is a form of post
enactment authority in the implementation or
enforcement of the budget.
1. The
system
permits
legislative
encroachment upon the executive
prerogative of implementing the law, by
giving individual legislators: (a) The power
to determine projects after the General
Appropriations Act (GAA) is passed; and
(b) through congressional committees,
authority in the areas of fund release and
realignment, the system encroaches on
the Executive’s power to implement the
law.
2. Furthermore, identification of a project by
a
legislator
being
a
mandatory
requirement before his PDAF can be
tapped as a source of funds, his act
becomes indispensable in the entire
budget execution process.
B. Ocampo v. Enriquez, G.R. No. 225973
(2016)
In allowing the internment of Marcos at the
LNMB, which is a land of the public domain
devoted for national military cemetery and
military shrine purposes, President Duterte
decided a question of policy based on his
wisdom that it shall promote national healing
and forgiveness. There being no taint of grave
abuse of discretion, as discussed below,
President Duterte’s decision on that political
question is outside the ambit of judicial review.
Page 16 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
C. Forietrans Manufacturing Corporation v.
Davidoff Et Cie. SA, G.R. No. 197482 (2017)
The task of determining probable cause is
lodged with the public prosecutor and
ultimately, the Secretary of Justice. Under the
doctrine of separation of powers, courts have
no right to directly decide matters over which
full discretionary authority has been delegated
to the Executive Branch of the Government.
D. OCA v. Reyes, A.M. No. P-08- 2535 (2010)
Legislative power cannot limit the Court’s
power to impose disciplinary actions against
erring justices, judges and court personnel.
Neither should such policy be used to restrict
the Court’s power to preserve and maintain the
Judiciary’s honor, dignity and integrity and
public confidence that can only be achieved by
imposing strict and rigid standards of decency
and propriety governing the conduct of justices,
judges and court employees.
E. Angara v. Electoral Commission, supra
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. Each
department of the government has exclusive
cognizance of matters within its jurisdiction,
and is supreme within its own sphere. But it
does not follow from the fact that the three
powers are to be kept separate and distinct that
the Constitution intended them to be absolutely
unrestrained and independent of each other.
The Constitution has provided for an elaborate
system of checks and balances to secure
coordination in the workings of the various
departments of the government.
2. System of Checks and Balances
Corollary to Separation of Powers: Prevents
authority from being concentrated in one
branch. Each branch is supreme within their
own sphere.
Application
A. Belgica v. Ochoa, supra
The Pork Barrel system is unconstitutional,
among others, because it violates the system
of checks and balances.
1. It deprives the president of his item-veto
power. As lump-sum appropriations, the
actual projects under each congressman’s
PDAF
are
determined
by
the
congressman only after the GAA is
passed. The president then would not be
able to discern whether or not he should
veto the appropriation.
2. It has a detrimental effect on
Congressional
Oversight.
Because
legislators effectively intervene in project
implementation, it becomes difficult for
them to exercise their (valid) post
enactment
role
of
scrutinizing,
investigating,
or
monitoring
the
implementation of the law, when they are
no longer disinterested observers [Belgica
v. Ochoa, supra].
B. Gonzales v. Aguinaldo, G.R. No. 74769
(1990)
Section 8(2) of R.A. No. 6770, providing that
the President may remove a Deputy
Ombudsman, is unconstitutional. Subjecting
the Deputy Ombudsman to discipline and
removal by the President, whose own alter
egos and officials in the Executive department
are subject to the Ombudsman’s disciplinary
authority, cannot but ser0069ously place at risk
the independence of the Office of the
Ombudsman itself. Section 8(2) of R.A. No.
6770 intruded upon the constitutionally-granted
independence of the Office of the
Ombudsman. By so doing, the law directly
collided not only with the independence that
the Constitution guarantees to the Office of the
Ombudsman, but inevitably with the principle of
checks and balances that the creation of an
Ombudsman office seeks to revitalize. What is
true for the Ombudsman must equally and
necessarily be true for her Deputies who act as
agents of the Ombudsman in the performance
of their duties. The Ombudsman can hardly be
expected to place her complete trust in her
subordinate officials who are not as
independent as she is, if only because they are
subject to pressures and controls external to
her Office [Gonzales III v. Office of the
President, G.R. No. 196231 (2014)].
C. Legislative Veto
Congressional oversight is not per se violative,
but is integral to separation of powers.
However, for a post-enactment congressional
measure to be valid, it must be limited to:
Page 17 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
1. Scrutiny:
Congress’
power
of
appropriation, i.e., budget hearings, and
power of confirmation
Provincial Board of Mindoro, G.R. No. L-14078
(1919) cited in Belgica v. Ochoa, supra.
2. Investigation and monitoring of
implementation of laws: Using its power
to conduct inquiries in aid of legislation
[Abakada Guro Partylist v. Purisima, G.R.
No. 166715 (2008)].
This is an express exception under the 1987
Constitution. See Article X, Sec. 9 of the 1987
Constitution, explicitly mentioning “legislative
bodies of local governments;” and Section 20
providing for the coverage of legislative powers
delegated to autonomous regions via the
latter’s organic acts].
A legislative veto, i.e., statutory provision
(which may take the form of a congressional
oversight committee) that requires the
President or an agency to submit the proposed
implementing rules and regulations of a law to
Congress for approval, is unconstitutional. It
encroaches on:
1. The Executive: For it allows Congress to
take a direct role in the enforcement of its
laws;
b. Constitutionally-grafted Presidential
Exceptions
i. Emergency power delegated to the Executive
during the State of War or National Emergency
[Section 23(2), Article VI, 1987 Constitution];
and
ii. Certain taxing powers of the President
[Section 28(2), Article VI, 1987 Constitution].
2. The Judiciary: Administrative issuances
enjoy a presumption of validity, and only
the courts may decide whether or not they
conform to statutes or the Constitution
[Abakada Guro Partylist v. Purisima,
supra]
3. Delegation of Powers
Rule of Non-Delegation of Legislative
Power
Principle: Delegata potestas non potest
delegari – What has been delegated can no
longer be delegated.
Rationale: Since the powers of the
government have been delegated to them by
the people, who possess original sovereignty,
these powers cannot be further delegated by
the different government departments to some
other branch or instrumentality of the
government.
General Rule: Only Congress (as a body) may
exercise legislative power.
Exceptions
a. Delegated legislative power to local
governments: Local governments, as an
immemorial practice, may be allowed to
legislate on purely local matters [See Rubi v.
The Congress may authorize the President to
fix, within specified limits, and subject to such
limitations and restrictions as it may impose,
tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or
imposts within the framework of the national
development program of the Government.
c. The extent reserved to the people by the
provision on initiative and referendum
[Section 1, Article VI, 1987 Constitution].
Subordinate
legislation
made
by
administrative agencies
The principle of non-delegability should not be
confused with the delegated rule-making
authority of implementing agencies [Belgica v.
Ochoa, supra]. Strictly speaking, what is
delegated is not “law-making” power, but rulemaking power, limited to (a) filling up the details
of the law; or (b) ascertaining facts to bring the
law into actual operation.
While there are two views on the nature of
administrative rulemaking and subordinate
legislation (i.e., as a species of delegated
legislative power or as an exercise of the
executive power to implement the law), the
traditional enumeration of the exceptions (see
below) include subordinate legislation.
Page 18 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Traditional/Simplified Formulation:
the law [Pelaez v. Auditor General, G.R. No. L23825 (1965)]; and
Who may exercise legislative powers:
General Rule: Congress only.
Exceptions: PLATE
1. Delegation to the People (by initiative and
referendum)
2. Delegation to the Local governments
3. Delegation to the Administrative bodies
a. Increasing complexity of the task of
government
b. Lack of technical competence of
Congress
c. Administrative bodies may fill up
details of statute for implementation
d. Legislature may pass “contingent
legislation”, which leaves to another
body the business of ascertaining
facts
4. Delegation of Tariff powers to the
President under Constitution [Article 6,
Section 28(2), 1987 Constitution]
5. Delegation of Emergency powers to the
President under Constitution [Article 6,
Section 23(2), 1987 Constitution]
There is neither an express prohibition nor an
express grant of authority in the Constitution for
Congress to delegate to regional or local
legislative bodies the power to create local
government units. However, under its plenary
legislative powers, Congress can delegate to
local legislative bodies the power to create
local government units, subject to reasonable
standards and provided no conflict arises with
any provision of the Constitution [Sema v.
COMELEC, G.R. No. 177597 (2008)].
Test for Valid Delegation
Rule: There is a valid delegation of legislative
power when it passes the following tests –
a. Completeness test: The law sets forth the
policy to be executed, carried out, or
implemented by the delegate [Abakada Guro
Partylist v. Purisima, supra], such that there is
nothing left for the delegate to do but to enforce
b. Sufficient Standard Test: The standard is
sufficient if it defines legislative policy, marks
its limits, maps out its boundaries and specifies
the public agency to apply it. It indicates the
circumstances under which the legislative
command is to be effected [Edu v. Ericta, G.R.
No. L-32096 (1970)].
The standard must specify the limits of the
delegates authority, announce the legislative
policy and identify the conditions under which it
is to be implemented, e.g.,
● Public interest
● Justice and equity
● Simplicity, sufficiency, and economy
F. State Immunity
Summary of Rule
General Rule: The State cannot be sued.
Constitutional Basis: Section 3, Article XVI.
The State may not be sued without its consent.
International Law Basis: Par in parem non
habet imperium.
• “An equal does not have power over an
equal”
Basis in Jurisprudence
• Positivist Theory – There can be no
legal right as against the authority that
makes the laws on which the right
depends. Also called the doctrine of
Royal Prerogative of Dishonesty
[Department of Agriculture v. NLRC,
G.R. No. 104269 (1993)].
• Sociological Theory – If the State is
amenable to suits, all its time would be
spent defending itself from suits and
this would prevent it from performing its
other functions [Republic v. Villasor,
G.R. No. L-30671 (1973)].
Exception: When the State consents to be
sued.
How consent is given:
1. Express
a. Through general law; or
Page 19 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
b. Through special law
2. Implied
a. When the State enter into business
contracts with individuals (performing
proprietary functions);
b. When the State commences litigation
and
becomes
vulnerable
to
counterclaim;
c. When it would be inequitable for the
State to invoke immunity; and
d. In eminent domain cases.
a. Two Theories of Sovereign Immunity
[US v. Ruiz, G.R. No. L-35645 (1985)]
1. Absolute or Classical Theory — A
sovereign cannot, without its consent, be made
a respondent in the courts of another
sovereign.
This derives from the principle of sovereign
equality found in Article 2(1) of the UN Charter
as well as generally accepted principles of
international law.
2. Restrictive Theory — The immunity of the
sovereign is recognized only with regard to
public acts or acts (jure imperii) of state, but not
regard to private acts or acts (jure gestionis)
The Philippines follows the restrictive theory.
The restrictive theory came about because of
the entry of sovereign states into purely
commercial activities remotely connected with
the discharge of governmental functions. This
is particularly true with respect to the
Communist states which took control of
nationalized
business
activities
and
international trading. (The Holy See v. Rosario,
Jr., G.R. No. 101949 (1994)].
b. Suits Against the State
When is a suit considered a suit against the
State?
1. If it produces adverse consequences to
public treasury in terms of disbursement
as well as loss of government property,
regardless of the defense;
2. When the Republic is sued in its name;
3. When the suit is against an unincorporated
government agency; and
4. Even when the suit, on its face, is against
an officer but liability will belong to/fall on
the government.
When is a suit NOT against the State?
1. When it partakes of the nature of ordinary
business rather than functions of a
governmental or political character;
2. When the purpose of the suit is to compel
an officer charged with the duty of making
payments pursuant to an appropriation
made by law in favor of the plaintiff to
make such payment, since the suit is
intended to compel performance of a
ministerial duty [Begosa v. Philippine
Veterans Association, G.R. No. L-25916
(1970)];
3. When it is clear that the respondent is a
public officer sued in a private capacity;
4. When the action is not in personam with
the government as the named defendant,
but an action in rem that does not name
the government in particular.
5. When the officer sued acted beyond his
official capacity (i.e., ultra vires)
Official Capacity vs. Personal Capacity
The doctrine of non-suability applies only in
cases wherein the complaint is against officials
of state for acts performed in discharge of
duties or his official capacity. When officials
abuse this authority gravely (like discriminatory
behavior), this is no longer an official state act
and the official may now be sued in his
personal capacity [Shauf v. CA, G.R. No.
90314 (1990)].
Beyond Scope of Authority
When officials, while discharging their official
functions, commit acts that are beyond their
scope of authority (i.e., police forces firing upon
civilians and killing them, mistakenly believing
they were Communists), they will be liable in
their personally capacity and thus will not be
covered by state immunity [Republic v.
Sandoval, G.R. No. 84607 (1993)].
c. Consent To Be Sued
(1) Express Consent
Effected only by the will of the legislature
through the medium of a duly enacted statute;
Page 20 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
may be embodied either in a general law or a
special law.
The exclusion of existing private rights from the
reservation established by Proclamation No.
90 can not be construed as a waiver of the
immunity of the State from suit. Waiver of
immunity, being a derogation of sovereignty,
will not be inferred lightly, but must be
construed in strictissimi juris. Moreover, the
Proclamation is not a legislative act. The
consent of the State to be sued must emanate
from statutory authority. Waiver of State
immunity can only be made by an act of the
legislative body. (Republic v. Feliciano, G.R.
No. 70853 (1987)].
When the State expressly states their consent
to be sued through legislation (including
treaties), it waives its immunity from suit.
However, this waiver of immunity may be
limited to certain legal actions (i.e., under the
VFA, there is a waiver of immunity by the US
under criminal jurisdiction but not to civil
actions) [Arigo v. Swift, G.R. No. 206510
(2014)].
SECTION 5. When the Government of the
Philippines is plaintiff in an action instituted in any
court of original jurisdiction, the defendant shall have
the right to assert therein, by way of set-off or
counterclaim in a similar action between private
parties.
b. Torts
1. Liability of local government units
Provinces, cities and municipalities shall be
liable for damages for the death or injuries
suffered by any person by reason of the
defective conditions of roads, streets, public
buildings and other public works under their
control and supervision [Article 2189, CC].
2. Vicarious liability for special agents
The Government is only liable for the acts of its
agents, officers and employees, when they act
as special agents within the meaning of the
provision [Article 2180(6), CC].
(i) General Law
Special Agent — One who receives a definite
and fixed order or commission, foreign to the
exercise of the duties of his regular office [See
Merritt v. Government of the Philippine Islands,
G.R. No. L-11154 (1916)].
Authorizes any person who meets the
conditions stated in the law to sue the
government in accordance with the procedure
in the law; e.g.,
One who performs his regular functions, even
if he is called a “special agent”, is not a special
agent within the context of Government liability
[USA v. Guinto, G.R. No. 76607 (1990)].
a. Money claims arising from contract
express or implied
3. Liability under the Local Government
Code
Local government units and their officials are
not exempt from liability for death or injury to
persons or damage to property [Section 24,
LGC].
Act No. 3083: An Act Defining the Conditions
under which the Government of the Philippines
may be sued.
SECTION 1. Complaint against Government. —
Subject to the provisions of this Act, the Government
of the Philippines hereby consents and submits to
be sued upon any moneyed claim involving liability
arising from contract, express or implied, which
could serve as a basis of civil action between private
parties.
SECTION 2. A person desiring to avail himself of the
privilege herein conferred must show that he has
presented his claim to the Insular Auditor [now the
Commission on Audit] and that the latter did not
decide the same within two months from the date of
its presentation.
(ii)
Special Law — May come in the
form of a private bill authorizing a
named individual to bring suit on a
special claim.
By consenting to be sued a state simply waives
its immunity from suit. It does not thereby
concede its liability to plaintiff, or create any
cause of action in his favor, or extend its liability
to any cause not previously recognized. It
merely gives a remedy to enforce a preexisting liability and submits itself to the
Page 21 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
jurisdiction of the court, subject to its right to
interpose any lawful defense [Merritt v.
Government of the Philippine Islands, supra]
(2) Implied Consent
a. In instances when the State takes private
property for public use or purpose
(eminent domain).
b. When the State enters into a business
contract (in jure gestionis or proprietary
functions).
c. When it would be inequitable for the State
to invoke its immunity.
d. If the government files a complaint and
seeks affirmative relief, the defendant may
file a counterclaim against it.
e. When the State directs a compensate
taking (e.g., appropriation) for just
compensation of the plaintiff.
Note: When the DOTC constructed the
encroaching structures and subsequently
entered into the FLA with Digitel for their
maintenance, it was carrying out a sovereign
function. Therefore, these are acts jure imperii
that fall within the cloak of state immunity.
However, the doctrine of state immunity cannot
serve as an instrument for perpetrating an
injustice to a citizen. The SC, citing Ministerio
v. CFI (1971), held that when the government
takes any property for public use, which is
conditioned upon the payment of just
compensation, to be judicially ascertained, it
makes manifest that it submits to the
jurisdiction of a court. The Department's entry
into and taking of possession of the
respondents' property amounted to an implied
waiver of its governmental immunity from suit
[DOTC v. Sps. Abecina, G.R. No. 206484
(2016)].
d. Specific Rules
Suits against Government Agencies:
Suability depends on whether the agency is
incorporated (i.e., there is a separate charter)
or
unincorporated
(i.e.,
no
separate
personality).
POLITICAL LAW
express consent [SSS v. Court of Appeals,
G.R. No. L-41299 (1983)].
b. Unincorporated: There must be an
inquiry into the principal functions of
government.
i.
If governmental: No suit without its
consent [Bureau of Printing v. Bureau
of Printing Employees Association,
G.R. No. L-15751 (1961)].
ii.
If proprietary: The suit will lie
because when the State engages in
principally proprietary functions, it
descends to the level of a private
individual, and may, therefore be
vulnerable to suit [Civil Aeronautics
Administration v. Court of Appeals,
G.R. No. L-51806 (1988)].
The State may only be liable for
proprietary acts (jure gestionis) and
not for sovereign acts (jure imperii).
Types
Function
Role
Incorporated
Governmental
or proprietary
CAN be sued
ONLY IF
charter allows
Unincorpora
ted
Governmental
CANNOT be
sued unless
consent is
given
Proprietary
CAN be sued
Note: The State's immunity from suit did not
extend to the NHA despite its being a
government owned and controlled corporation.
Under Section 6(i) of PD No. 757, which was
its charter, the NHA could sue and be sued.
There is no question that the NHA could sue or
be sued, and thus could be held liable under
the judgment rendered against it. But the
universal rule remains to be that the State,
although it gives its consent to be sued either
by general or special law, may limit the
claimant's action only up to the completion of
proceedings anterior to the stage of execution.
The power of the court ends when the
a. Incorporated: If the charter provides that
the agency can sue, then the suit will lie.
The provision in the charter constitutes
Page 22 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
judgment is rendered because government
funds and property may not be seized pursuant
to writs of execution or writs of garnishment to
satisfy such judgments. The functions and
public services of the State cannot be allowed
to be paralyzed or disrupted by the diversion of
public funds from their legitimate and specific
objects, and as appropriated by law. The rule
is based on obvious considerations of public
policy [National Housing Authority v. Roxas,
G.R. No. 171953 (2015)].
Suits against Public Officers
General Rule: The doctrine of state immunity
also applies to complaints filed against officials
of the State for acts performed by them in the
discharge of their duties within the scope of
their authority.
Exception: The doctrine of immunity from suit
will not apply and may not be invoked where
the public official is being sued in his (1) private
and personal capacity as an ordinary citizen,
for (2) acts without authority or in excess of the
powers vested in him [Lansang v. CA, G.R. No.
102667 (2000)].
Note: Acts done without authority are not acts
of the State (see Beyond Scope of Authority).
e. Exceptions to Prior Consent Rule
Jurisprudence provides these exceptions,
when the State or public officer may be sued
without prior consent:
1. To compel the State or public officer to do
an act required by law;
2. To restrain the State or public officer from
enforcing an act claimed to be
unconstitutional;
3. To compel the payment of damages from
an already appropriated assurance fund or
to refund tax over-payments from a fund
already available for the purpose;
4. To secure a judgment that the officer
impleaded may satisfy by himself without
the State having to do a positive act to
assist him;
5. Where the government itself has violated
its own laws [Sanders v. Veridiano II, G.R.
No. L-46930 (1988)].
f. Scope of Consent (Consent to Liability,
Independently Required)
When a money judgment is given against the
government, the ordinary rule for execution
would not apply, for the consent of the
government to be sued is only up to the point
of judgment. If it does not pay, it cannot be
compelled to pay by attachment or otherwise.
Consent to be sued is not a concession of
liability. Suability depends on the consent of
the State to be sued, and liability on the
applicable law and the established facts. The
circumstance that a State is suable does not
necessarily mean that it is liable, but it can
never be held liable if it does not first consent
to be sued. When the State does waive its
sovereign immunity, it is only giving the plaintiff
the chance to prove that it is liable [USA v.
Guinto, G.R. No. 76607 (1990)].
g. Estoppel
General Rule: The State cannot be put in
estoppel by the mistakes or errors of its officials
or agents [Republic v. Galeno, G.R. No.
215009 (2017)].
Exception: Estoppel may not be invoked
where they would operate to defeat the
effective operation of a policy adopted to
protect the public, or in those special cases
where the interest of justice clearly required it.
Respondent had already acquired a vested
right on the tax classification of its San Mig
Light as a new brand. To allow petitioner to
change its position will result in deficiency
assessments in substantial amounts against
respondent
to
the
latter's
prejudice
[Commissioner of Internal Revenue v. San
Miguel Corporation, G.R. Nos. 205045 &
205723 (2017)].
G. National Territory
1. Scope
1987 Constitution
Article I. The national territory comprises the
Philippine archipelago, with all the islands and
waters embraced therein, and all other territories
over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and
aerial domains, including its territorial sea, the
Page 23 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between, and
connecting the islands of the archipelago,
regardless of their breadth and dimensions, form
part of the internal waters of the Philippines.
The national territory is comprised of —
1. Philippine archipelago, with all the islands
and waters embraced therein, including
internal waters; and
2. All other territories over which the
Philippines has sovereignty or jurisdiction.
It consists of —
a. Territorial sea, seabed, subsoil, insular
shelves, and other submarine areas
b. Terrestrial, fluvial, and aerial domains
[Article I, 1987 Constitution]
Internal Waters: 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 [Article I, 1987 Constitution].
Archipelagic Doctrine - The Philippine
Archipelago is one single unit. Hence, all
waters within the Philippines’ baselines –
regardless of their breadth and distance from
the nearest island coastline – are archipelagic
waters.”
Within the archipelago, the Philippines
exercises territorial sovereignty, limited only by
the freedom of navigation and overflight in the
UNCLOS.
Treaty limits of the Philippine archipelago
1. Treaty of Paris of 10 December 1898:
“Spain cedes to the United States the
archipelago known as the Philippines
Islands, and comprehending the islands
lying within the following line” xxx
Article 3 defines the metes and bounds of
the archipelago by longitude and latitude,
degrees and seconds.
2. Treaty of Washington of 7 November
1900 between the United States and
Spain: Ceding Cagayan, Sibuto and Sulu.
3. Treaty of 12 January 1930 between the
United States and Great Britain: Ceding
the Turtle and Mangsee Islands [Bernas
(2003), cited in Justice Velasco’s
concurring opinion in Magallona v. Ermita,
G.R. No. 187167 (2011)].
Methods of Baseline Determination
Baselines laws such as R.A. No. 9522 are
enacted by United Nations Convention on the
Law of the Seas III (UNCLOS III) State parties
to mark-out specific basepoints along their
coasts from which baselines are drawn, either
straight or contoured, to serve as geographic
starting points to measure the breadth of the
maritime zones and continental shelf.
UNCLOS III and its ancillary baselines laws
play no role in the acquisition, enlargement or,
as petitioners claim, diminution of territory.
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 (i.e., the
territorial waters [12 nautical miles from the
baselines], contiguous zone [24 nautical miles
from the baselines], exclusive economic zone
[200 nautical miles from the baselines]), and
continental shelves that UNCLOS III delimits.
UNCLOS III was the culmination of decades
long negotiations among United Nations
members to codify norms regulating the
conduct of States in the world's oceans and
submarine areas, recognizing coastal and
archipelagic States' graduated authority over a
limited span of waters and submarine lands
along their coasts. XXX Under traditional
international law typology, States acquire (or
conversely, lose) territory through 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. Territorial claims to land features are
outside UNCLOS III and are instead governed
by the rules on general international law
[Magallona v. Ermita, G.R. No. 187167 (2011)].
R.A. No. 9522 (March 10, 2009) - The current
baselines law created 101 base points around
the Philippines to determine the baseline. This
aims to demarcate the country's maritime zone
and continental shelf in accordance with
Page 24 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
UNCLOS III and is not meant to delineate
Philippine territory. Under the Treaty of Paris,
baselines cannot be drawn from the
boundaries or other portions of the rectangular
area but the outermost islands and drying reefs
of the archipelago.
R.A. No. 9522 is not unconstitutional: (1) It
is a statutory tool to demarcate the maritime
zone and continental shelf of the Philippines
under UNCLOS III and does not alter the
national territory. (2) While UNCLOS III does
not bind the Philippines to pass a baselines
law, Congress may do so. (3) The law also
does not abandon the country's claim to
Sabah, as it does not expressly repeal the
entirety of R.A. No. 5446.
R.A. No. 9522 uses the framework of regime of
islands in determining the maritime zones of
the Kalayaan Island Group (KIG) and
Scarborough Shoal. Regime of islands refers
to any natural formed area of land surrounded
by water that generate their own applicable
maritime zone [UNCLOS III].
Straight baseline method — Consists of
drawing straight lines connecting appropriate
points on the coast without departing to any
appreciable extent from the general direction of
the coast, in order to delineate the internal
waters from the territorial waters of an
archipelago. (Note: This is the method
prescribed under the UNCLOS)
R.A. No. 9522 amends R.A. No. 3046 (as
amended by R.A. No. 5446). R.A. No. 3046
determined appropriate points of the outermost
islands of the archipelago, then connected
them by means of a straight line until all islands
were surrounded or enclosed by the imaginary
lines. R.A. No. 5446 states that the definition of
the baselines of the territorial sea of the
Philippine Archipelago is without prejudice to
the delineation of the baselines of the territorial
sea around the territory of Sabah, situated in
North Borneo, over which the Republic of the
Philippines has acquired dominion and
sovereignty.
II. LEGISLATIVE
DEPARTMENT
A. Nature of Legislative Power
1. Derivative and Delegated Power
SECTION 1, ARTICLE VI. 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.
Derivative legislative power is that which has
been delegated by the sovereign people to
legislative bodies such as the Congress and is
subordinate to the original power of the people.
[Garcia v. COMELEC, G.R. No. 111230
(1994)].
“[E]xcept to the extent reserved to the
people by the provision on initiative and
referendum”
This clause pertains to the original power of
legislation which the sovereign people have
reserved for their exercise in matters they
consider fit. Considering that derivative
legislative power is merely delegated by the
sovereign people to its elected representatives,
it is deemed subordinate to the original power
of the people. [Marmeto v. COMELEC, G.R.
No. 213953 (2017)].
Tests for Valid Delegation
Rule: There is a valid delegation of legislative
power when it passes the following tests –
1. Completeness Test
The law sets forth the policy to be executed,
carried out, or implemented by the delegate
[Abakada Guro Partylist v. Purisima, supra],
such that there is nothing left for the delegate
to do but to enforce the law [Pelaez v. Auditor
General, G.R. No. L-23825 (1965)]; and
2. Sufficient Standard Test
The standard defines legislative policy, marks
its limits, maps out its boundaries and specifies
the public agency to apply it. It indicates the
circumstances under which the legislative
Page 25 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
command is to be effected [Edu v. Ericta, G.R.
No. L-32096 (1970)].
which shall be expressed in the title [Section
26(1), Article VI, 1987 Constitution].
Note: Acts which are purely legislative in
character (e.g., making of laws) cannot be
delegated to an administrative body (in
contrast to the ascertainment of facts or the
filing of details which can be delegated to
administrative agencies).
2. The title is not required to be an index of
the contents of the bill. It is sufficient
compliance if the title expresses:
(a) the general subject; and
(b) all the provisions of the statute are
germane to that subject [Tio v. Videogram
Regulatory Commission, G.R. No. L75697 (1987)].
2. Plenary Character
The grant of legislative power to Congress is
broad, general, and comprehensive. The
legislative body possesses plenary power for
all purposes of civil government. Any power,
deemed to be legislative by usage and
tradition, is necessarily possessed by
Congress, unless the Constitution has lodged
it somewhere.
Except as limited by the Constitution, either
expressly or impliedly, legislative power
embraces all subjects and extends to all
matters of general concern or common interest
[Kida v. Senate of the Philippines, G.R. No.
196271 (2011)].
3. Limitations
SECTION 26 (2), ARTICLE VI. No bill passed by
either House shall become a law unless it has
passed three readings on separate days, and
printed copies thereof in its final form have been
distributed to its Members three days before its
passage, except when the President certifies to
the necessity of its immediate enactment to meet
a public calamity or emergency. Upon the last
reading of a bill, no amendment thereto shall be
allowed and the vote thereon shall be taken
immediately thereafter, and the yeas and nays
entered in the journal.
Substantive Limitations
Circumscribe both the exercise of the power
itself and the allowable subject of legislation
(i.e., non-delegation).
Formal/Procedural Limitations
1. Prescribes the manner of passing bills and
the form they should take.
Rider clause: Every bill passed by the
Congress shall embrace only one subject,
3. No bill passed by either house shall become
law unless it has passed three (3) readings on
separate days [Section 26(2), Article VI, 1987
Constitution].
4. Printed copies in its final form must have
been distributed.
Exception: When the President certifies the
necessity of its immediate enactment to meet
a public calamity or emergency.
Presidential certification dispenses with (1) the
printing requirement; and (2) the requirement
for readings on separate days [Kida v. Senate,
G.R. No. 196271 (2011), citing Tolentino v.
Secretary of Finance, supra].
4. Exceptions to Non-Delegability
a. Principle
Delegata potestas non potest delegari –
What has been delegated cannot be further
delegated.
b. Rationale
Since the powers of the government have
been delegated to them by the people, who
possess original sovereignty, these powers
cannot be further delegated by the different
government departments to some other
branch or instrumentality of the government.
c. General Rule; Exceptions
General Rule: Only Congress (as a body)
may exercise legislative power.
Exceptions:
1. Delegated
to
Page 26 of 384
UP Law Bar Operations Commission 2023
legislative
power
local governments;
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
2. Constitutionally-grafted exceptions
a. Emergency power delegated
to the Executive during State
of
War
or
National
Emergency [Section 23(2),
Article VI, 1987 Constitution]
b. Certain taxing powers of the
President
[Section
28(2),
Article VI, 1987 Constitution]
c. The extent reserved to the
people by the provision on
initiative
and
referendum
[Section 1, Article VI, 1987
Constitution]
Note: Subordinate legislation
made
by administrative agencies – The principle of
non-delegability should not be confused with
the delegated rule-making authority of
implementing agencies [Belgica v. Ochoa,
supra].
Strictly speaking, what is delegated is not
“lawmaking” power, but rule-making power,
limited to (a) filling up the details of the law; or
(b) ascertaining facts to bring the law into
actual operation.
The President did not proclaim a national
emergency, only a state of emergency in the
three places in ARMM. 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 congressional
authority to exercise the same [Ampatuan v.
Puno, G.R. No. 190259 (2011)].
Under its plenary legislative powers, Congress
can delegate to local legislative bodies the
power to create local government units,
subject to reasonable standards and provided
no conflict arises with any provision of the
Constitution [Sema v. COMELEC, G.R. No.
177597 (2008)].
Exercise of Legislative Powers by Local
Government
Requirements of a valid ordinance (CUPPUGC):
a. It must not CONTRAVENE the
Constitution or any statute;
b. It must not be UNFAIR or oppressive;
c. It must not be PARTIAL or
discriminatory;
d. It must not PROHIBIT but may
regulate trade;
e. It must not be UNREASONABLE;
f. It
must
be
GENERAL
and
CONSISTENT with public policy
[Magtajas v. Pryce Properties, G.R.
No. 111097 (1994)].
Presidential Power under Martial Law or in
a Revolutionary Government
SECTION 23(2), ARTICLE VI. In times of war or
other national emergency, the Congress may, by
law, authorize the President, for a limited period
and subject to such restrictions as it may
prescribe, to exercise powers necessary and
proper to carry out a declared national policy.
Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next
adjournment thereof.
Congress may delegate legislative powers to
the president in times of war or in other national
emergencies [David v. Macapagal-Arroyo,
G.R. No. 171396 (2006)].
5. Legislative Power of the People
Through Initiative and Referendum
People’s Initiative on Statutes. Legislative
power is also vested in the people by the
system of initiative and referendum [Section 1,
Article VI, 1987 Constitution]. The power of
initiative and referendum is the power of the
people directly to “propose and enact laws or
approve or reject any act or law or part thereof
passed by the Congress or local legislative
body” [Section 32, Article VI, 1987
Constitution].
The provision is not self-executing [DefensorSantiago v. COMELEC, G.R. No. 127325
(1997)].
Page 27 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
a. R.A. No. 6735
An Act Providing for a System of Initiative and
Referendum and Appropriating Funds
Therefor
This is valid for (a) laws, (b) ordinances, and
(c) resolutions, but not amendments to the
Constitution [Defensor-Santiago, supra].
b. Local Initiative; Voter Requirements
Region
Not less than x
registered voters
Autonomous
regions
2000
Provinces
1000
Municipalities
100
Barangays
50
of the LGUs may approve, amend, or
reject any ordinance enacted by the
Sanggunian [LGC, Sec. 26].
h. Is the power to hold a referendum
plenary? – NO
Limitations:
1. No petition embracing more than one
subject shall be submitted to the
electorate; and
2. Statutes
involving
emergency
measures, the enactment of which is
specifically vested in Congress by the
Constitution, cannot be subject to
referendum until 90 days after their
effectivity [Section 10, R.A. No. 6735].
B.
House
Compositions
Qualifications
of
Senate
c. Where to File
Regional Assembly or local legislative body,
as the case may be [Section 13, R.A. No.
6735].
Congress;
and
House of
Represent
atives
Provision
Sections 214, Article VI
Sections 5-8,
Article VI
Compositi
on
24 senators
elected
at
large
Not more
than 250
members,
unless
otherwise
provided by
law,
consisting of;
d. Limitations on Local Initiative
Cannot be exercised more than once a year;
extends only to subjects or matters which are
within the legal powers of the local legislative
bodies to enact; and if at any time before the
initiative is held, the local legislative body
should adopt in toto the proposition
presented, the initiative shall be canceled
[Section 15, R.A. No. 6735].
a. District
Representativ
es;
Referendum
This refers to the power of the electorate to
approve or reject legislation through an
election called for that purpose [Section 3(c),
R.A. No. 6735].
b. Party-List
Representativ
es
e. Classes of Referendum
1. Referendum on Statutes: Petition to
approve or reject an act or law, or part
thereof, passed by Congress;
2. Referendum on Local Laws: Legal
process whereby the registered voters
Qualificati
on
a. Naturalborn citizen
b. At least
35 years old
Page 28 of 384
UP Law Bar Operations Commission 2023
a. Naturalborn citizen
b. At least 25
years old on
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Senate
House of
Represent
atives
on the day of
the election
c. Able
to read
and write
d. A
registered
voter
Resident of
the
Philippines for
at least 2
years
immediately
preceding the
day of the
election
the day of
the election
c. Able
to read
and write
d. A
registered
voter in the
district he
seeks to
represent
A resident of
the said
district for at
least 1 year
immediately
preceding the
day of the
election
Term
Office
of
6 years
3 years
Term
Limits
of
2
consecutive
terms
3 consecutive
terms
Note: Citizenship must be Filipino at the time
of assumption of office [Frivaldo v. COMELEC,
G.R. No. 120295 (1996)].
1. Senate
The Senate of each Congress acts separately
and independently of the Senate of the
Congress before it. Due to the termination of
the business of the Senate during the
expiration of one (1) Congress, all pending
matters and proceedings, such as unpassed
bills and even legislative investigations, of the
Senate are considered terminated upon the
expiration of that Congress and it is merely
optional on the Senate of the succeeding
Congress to take up such unfinished matters,
not in the same status, but as if presented for
the first time [Balag v. Senate of the
Philippines, G.R. 234608 (2018)].
2. House of Representatives
a.
District
Representatives
Questions of Apportionment
and
District Representatives - Elected from
legislative districts apportioned among the
provinces, cities, and Metro Manila area.
Rules on Apportionment of Legislative
Districts
i. Apportionment of legislative districts
must be by law which could be a:
a. General Apportionment Law; or
b. Special Law (i.e., creation of new
provinces)
Note: The power to apportion legislative
districts is textually committed to Congress by
the Constitution. Thus, it cannot be validly
delegated to the ARMM Regional Assembly
[Sema v. COMELEC, G.R. No. 177597 (2008)].
Under the Constitution and the LGC,
apportionment and reapportionment do not
require a plebiscite [Bagabuyo v. COMELEC,
G.R. No. 176970 (2008)].
ii. Proportional representation based on
number of inhabitants:
a. Each city with a population of at least
250,000 shall have at least 1
representative.
b. Each province, irrespective of the
number of inhabitants, shall have at
least 1 representative.
There is no fixed 250,000:1 ratio. 250,000 is
simply the “minimum population requirement”
and a city with 450,000 may have two (2)
congressional districts. [Mariano v. COMELEC,
G.R. No. 118577 (1995)].
iii. Each legislative district shall comprise,
as far as practicable, contiguous, compact,
and adjacent territory (Anti-gerrymandering
provision).
iv. Re-apportionment by Congress within
3 years after the return of each census.
Page 29 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Note:
“Apportionment”
refers
to
the
determination of the number of representatives
which a State, county, or other subdivision may
send
to
a
legislative
body,
while
“reapportionment” refers to the realignment or
change in legislative districts brought about by
changes in population and mandated by the
constitutional requirement of equality of
representation [Bagabuyo v. COMELEC,
supra].
b. Party-List System
ii. Party-List Representatives
They shall constitute 20% of the total number
of representatives, elected through a party-list
system of registered national, regional, and
sectoral parties or organizations.
1. Sectoral Representatives
For 3 consecutive terms from 2 February 1987,
1⁄2 of the party-list seats shall be allotted to
sectoral representatives to be chosen by
appointment or election, as may be provided
by law. Until a law is passed, they are
appointed by the President from a list of
nominees by the respective sectors [Section 7,
Article XVIII, 1987 Constitution].
Note: The party-list system is not synonymous
with sectoral representation [Atong Paglaum v.
COMELEC, G.R. No. 203766 (2013), citing the
1986 Constitutional Commission Records].
iii. Atong Paglaum Guidelines:
1. Three different parties or organizations may
participate in the party-list system:
1. National;
2. Regional; or
3. Sectoral;
2.
National and regional parties or
organizations do not need to (a) organize
along sectoral lines, or (b) represent any
“marginalized or underrepresented” sector;
3. Political parties may participate in the partylist system provided:
a. they register under the party-list
system;
b. they do not field candidates in
legislative district elections.
i.
ii.
A party that participates in the
legislative district elections
may still participate in the partylist through a sectoral wing.
The sectoral wing can be part
of the political party’s coalition,
but the former must be
registered independently in the
party-list system.
4. Sectoral parties or organizations may either
be (a) “marginalized or underrepresented”
(e.g., labor, peasant, fisherfolk); or (b) “lacking
in well-defined political constituencies” (e.g.,
professionals, women, elderly, youth);
5. The nominees of sectoral parties or
organizations, of either type, must (a) belong
to their respective sectors, or (b) have a track
record of advocacy for their respective
sectors. Majority of the members of a sectoral
party, of either type, must belong to the sector
they represent;
6. National, regional, or sectoral parties or
orgs shall not be disqualified if some of their
nominees are disqualified, provided they
have at least 1 nominee who remains
qualified [Atong Paglaum, supra].
iv. Disqualifications and Qualifications
See R.A. No. 7941: An Act Providing for The
Election Of Party-List Representatives
Through The Party-List System, and
Appropriating Funds Therefor
2. Disqualified Parties
1. Religious sects;
2. Foreign organizations;
3. Advocating violence or unlawful
means;
4. Receiving support from any foreign
government, foreign political party,
foundation, organization, whether
directly or through any of its officers
or members or indirectly through third
parties for partisan election purposes;
5. Violating or failing to comply with
laws, rules or regulations relating to
elections;
6. Declaring untruthful statements in its
petition;
Page 30 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
7. Ceased to exist for at least one (1)
year; or
8. Failing to participate in the last two (2)
preceding elections or fails to obtain
at least 2 per centum of the votes cast
under the party-list system in the two
(2) preceding elections for the
constituency in which it has
registered.
3. Qualified Sectors
Note: This qualification applies only to
sectoral parties. Participating national or
regional parties need not fall under any of
these sectors [Atong Paglaum, supra].
1. Labor
2. Peasant
3. Fisherfolk
4. Urban Poor
5. Indigenous Cultural Communities
6. Elderly
7. Handicapped
8. Women
9. Youth
10. Veterans
11. Overseas Workers
12. Professionals
v. Four parameters of the party-list system
1. 20% Allocation - 20% of the total number
of the membership of the House of
Representatives is the maximum number of
seats available to party-list organizations.
2. 2% Threshold - Garnering 2% of the total
votes cast in the party-list elections guarantees
a party-list organization one (1) seat.
3. Additional Seats - The additional seats,
that is, the remaining seats after allocation of
the guaranteed seats, shall be distributed to
the party-list organizations including those that
received less than two percent of the total
votes. This distribution will continue until all the
seats have been filled.
4. 3-Seat Cap - The three-seat cap is
constitutional.
Note: It is intended by the Legislature to
prevent any party from dominating the party-
list system. There is no violation of the
Constitution because the 1987 Constitution
does not require absolute proportionality for
the party-list system [BANAT v. COMELEC,
G.R. No. 179271 (2009)].
vi. Rules on Computation of Seats: TwoRound Allocation
Step 1: Compute total number of seats
allocated for party-list representatives.
Step 2: Rank all party-list candidates from
highest to lowest based on the number of
votes they garnered.
Step 3: Compute for each party-list
candidate’s percentage of votes garnered in
relation to the total number of votes cast for
party-list candidates.
Step 4: Round 1 – Allocate one (1) seat each
for a party-list that garnered at least 2% of the
total number of votes.
Step 5: Round 2 – Assign additional seats
from the balance (i.e., total number of party-list
seats minus Round 1 allocations) by:
a. Allocating one (1) seat for every whole
integer (e.g., if a party garners 2.73% of the
vote, assign it two (2) more seats; if 1.80%,
assign it one (1) more seat); then
b. Allocating the remaining seats (i.e., total
seats minus Round 1 and Round 2a
allocations) to those next in rank until all seats
are completely distributed.
Step 6: Apply the 3-Seat Cap, if necessary [see
BANAT v. COMELEC, supra].
vii. ARARO v. COMELEC, G.R. No. 192803,
December 10, 2013
The Supreme Court further modified the
formula used and interpreted in BANAT v.
COMELEC. Thus, the formula to determine
the proportion garnered by the party-list
group would now henceforth be:
(Number of votes of party list)/(Total number of
valid votes for party-list candidates) =
Page 31 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Proportion or percentage of votes garnered by
party-list
viii. Formula for additional seats
(Total number of Party-list seats available) (Number of seats allocated in the first round)
x (Proportion or Percentage of votes
garnered by the Party) = Additional seats
awarded
Under this modified formula, the divisor:
• Includes votes for party-lists with
pending disqualification cases as of the
date of the election.
• Excludes votes for party-lists that have
been disqualified with finality before the
election, if such disqualification was
reasonably made known to the public.
• Excludes spoiled or invalid ballots.
C.
Legislative
Privileges,
Inhibitions, and Qualifications
1. Privileges
expiration of the terms of both houses
who passed the law increasing said
salary. This means that even if the House of
Representatives term has already expired but
the senate has not, the salary increase
cannot yet take effect even if the increase is
different for each house [PHILCONSA v.
Mathay, G.R. No. L-25554 (1966)].
This prohibition also applies to the benefits a
member of Congress will attain upon
retirement. Thus, a member of Congress may
not compute his retirement benefits based on
the salary increase which he was not able to
reach because his term has already expired
before said increase took effect [Ligot v.
Mathay, G.R. No. L-34676 (1974)].
b. Freedom From Arrest
A Senator or Member of the House of
Representatives shall, in all offenses
punishable by not more than six years
imprisonment, be privileged from arrest while
the Congress is in session [Section 11, Article
VI, 1987 Constitution].
a. Salaries
ARTICLE VI, SECTION 10. The salaries of
Senators and Members of the House of
Representatives shall be determined by law. No
increase in said compensation shall take effect
until after the expiration of the full term of all the
Members of the Senate and the House of
Representatives approving such increase.
ARTICLE XVIII, SECTION 17. Until the Congress
provides otherwise, the President shall receive an
annual salary of three hundred thousand pesos;
the Vice-President, the President of the Senate,
the Speaker of the House of Representatives, and
the Chief Justice of the Supreme Court, two
hundred forty thousand pesos each; the Senators,
the Members of the House of Representatives, the
Associate Justices of the Supreme Court, and the
Chairmen of the Constitutional Commissions, two
hundred four thousand pesos each; and the
Members of the Constitutional Commissions, one
hundred eighty thousand pesos each.
“Expiration of the full term of all Members of
the
Senate
and
the
House
of
Representatives” is singular and means that
the increase may only take effect upon the
Regardless of the whereabouts of a Senator or
Member of the House, freedom from arrest
holds, so long as Congress is in session.
Applicability: Freedom from arrest applies
only to offenses punishable by not more than
six years imprisonment.
Preventive suspension is not a penalty. Order
of suspension under R.A. No. 3019 (Anti-Graft
and Corrupt Practices Act) is distinct from the
power of Congress to discipline its own
members and did not exclude members of
Congress from its operation [DefensorSantiago v. Sandiganbayan, G.R. No. 128055
(2001)].
In People v. Jalosjos [G.R. No. 132875
(2000)], the Court denied the request of Cong.
Jalosjos that he be allowed to attend legislative
sessions. The denial was premised on the
following: (a) membership in Congress does
not exempt an accused from statutes and rules
which apply to validly incarcerated persons; (b)
one rationale behind confinement is public
self- defense; (c) it would amount to creation
Page 32 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
of a privileged class, without justification in
reason; and (d) he was provided with an office
in the New Bilibid Prison.
c. Speech and Debate Clause
No Member shall be questioned nor be held
liable in any other place for any speech or
debate in the Congress or in any committee
thereof [Section 11, Article VI, 1987
Constitution].
This means the Senator or Member of the
House can still be questioned and held liable in
Congress.
To come under the guarantee, the speech or
debate must be one made "in Congress or in
any committee thereof." Publication of an
allegedly libelous letter is not covered by the
privilege [Jimenez v. Cabangbang, G.R. No. L15905 (1966)].
What is covered under this provision?
Anything a member of Congress says in line
with his legislative functions [Jimenez v.
Cabangbang, supra]
a. Speeches
b. Utterances
c. Bills signed
d. Votes passed
While the immunity of a Member of Congress
is absolute and thus even the Supreme Court
cannot discipline a lawyer-senator for remarks
made against the court during a privilege
speech, it does not shield said member from
the authority of Congress to discipline its own
members [Defensor-Santiago v. Pobre, A.C.
No. 7399 (2009)].
2. Inhibitions and Disqualifications
a. May not hold any office or
employment in the government during
his term without forfeiting his seat
[Section 3, Article VI]
Incompatible Office — The forfeiture of the
seat in Congress shall be automatic upon a
member’s assumption of such office deemed
incompatible, e.g., under the non-synchronized
terms of the 1973 Constitution, when a
governor-elect was elected to the Batasang
Pambansa and he could not hold both the
offices of governor and MP [Adaza v. Pacana,
G.R. No. L-68159 (1985)].
Note: The office of the Philippine National Red
Cross (PNRC) Chairman is not a government
office or an office in a government-owned or controlled corporation for purposes of the
prohibition in Section 13, Article VI [Liban v.
Gordon, G.R. No. 175352 (2009 & 2011)]; but
note that the structure of the PNRC is sui
generis , being neither strictly private nor public
in nature.
b. May not be appointed to any office
created or whose emoluments were
increased during the term for which he
was elected [Section 13, Article VI]
Forbidden Office — One to which a member
cannot be appointed even if he is willing to give
up his seat in Congress. The effect of his
resignation from the Congress is the loss of his
seat therein but his disqualification for the
forbidden office nevertheless remains.
c. Shall not be financially interested,
directly or indirectly, in any contract
with, or franchise or special privilege
granted by the government during his
term of office [Section 14, Article VI,
1987 Constitution]
d. Shall not intervene in any matter
before any office of the government
when it is for his pecuniary benefit or
where he may be called upon to act on
account of his office [Section 14, Article
VI, 1987 Constitution]
The Pork Barrel System “runs afoul” of Section
14, Article VI, because in “allowing legislators
to intervene in the various phases of project
implementation – a matter before another
office of government – [Pork Barrel] renders
them susceptible to taking undue advantage of
their own office” [Belgica v. Ochoa, supra].
Page 33 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
e. Shall not intervene in any matter
before any office of the government
when it is for his pecuniary benefit or
where he may be called upon to act on
account of his office [Section 14, Article
VI, 1987 Constitution]
This prohibition is absolute. Thus, when an
assemblyman acting as counsel for one group
in an internal dispute in a company was denied
leave to intervene, the court held that his
action of buying 10 stocks in order to be able
to intervene in the company’s dispute as a
stockholder was an indirect violation of this
rule and still unconstitutional [Puyat v. De
Guzman Jr., G.R. No. L-51122 (1982)].
3. Duty to Disclose
a. Statements of Assets, Liabilities, and
Net Worth (SALN)
SECTION 17, ARTICLE XI. A public officer or
employee shall, upon assumption of office and as
often thereafter as may be required by law, submit
a declaration under oath of his assets, liabilities,
and net worth. In the case of the President, the
Vice-President, the Members of the Cabinet, the
Congress, the Supreme Court, the Constitutional
Commissions and other constitutional offices, and
officers of the armed forces with general or flag
rank, the declaration shall be disclosed to the
public in the manner provided by law.
When to disclose:
• Within 30 days after assuming office
• On or before April 15 after the closing
of the calendar year
• Upon expiration of term of office,
resignation or separation from office
POLITICAL LAW
b. Financial and Business Interests;
Political Conflicts of Interest
SECTION 12, ARTICLE VI. All Members of the
Senate and the House of Representatives shall,
upon assumption of office, make a full disclosure
of their financial and business interests. xxx
c. Amounts Paid To/Expenses Incurred
by Each Member
SECTION 20, ARTICLE VI. The records and
books of accounts of the Congress shall be
preserved and be open to the public in
accordance with law, and such books shall be
audited by the Commission on Audit which shall
publish annually an itemized list of amounts paid
to and expenses incurred for each Member.
D. Quorum and Voting Majorities
1. Quorum
SECTION 16(2), ARTICLE VI. A majority of each
House shall constitute a quorum to do business,
but a smaller number may adjourn from day to day
and may compel the attendance of absent
Members in such manner, and under such
penalties, as such House may provide.
In computing a quorum, members who are
outside the country, thus outside of each
House’s coercive jurisdiction, are not included.
“Majority” shall take into consideration the
number of members within the “jurisdiction” of
the Congress (those it can order arrested for
the purpose of questioning).
In Avelino v. Cuenco [G.R. No. L-2821 (1949)],
Who must declare:
one Senator was out of the Philippines and
• President
another Senator abroad was not within the
• Vice President
“jurisdiction” of the Senate, so that the working
• Members of the Cabinet
majority was 23 Senators (inclusive of the
• Members of Congress
hospitalized Senator).
• Members of the SC
• Members
of
the
Constitutional
There is a difference between a majority of "all
Commission and other Constitutional
members of the House" and a majority of "the
Offices
House," the latter requiring less number than
• Officers of the Armed Forces with
the first. Therefore, an absolute majority (12) of
general or flag rank [Section 17, Article
all members of the Senate less one (23)
XI, 1987 Constitution]
Page 34 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
constitutes a constitutional majority of the
Senate for the purpose of the quorum.
2. Voting Majorities
a. Doctrine of Shifting Majority
b. Exceptions
Votes where requirement is based on “all
the members of Congress”: Requirement is
based on the entire composition of a House or
Congress (in its entirety), regardless of the
number of Members present or absent
For each House of Congress to pass a bill, only
the votes of the majority of those present in the
session, there being a quorum, is required.
Action
Votes Required House Voting
(All Members)
Basis
Senate shall elect its
President and the Speaker
of the House
Majority
Separately;
All
respective members
Section 16(1), Article VI
Punish for disorderly
behavior
and
may
SUSPEND or EXPEL
2/3
Separately;
All
respective members
Section 16(3), Article VI
Override
Presidential Veto
2/3
Separately (House
where
the
bill
originated
votes
first)
Section 27(1), Article VI
Grant Tax Exemption
Majority
Silent
Section 28(4), Article VII
Elect President in case of
tie
Majority
Separately
Section 4(5), Article VII
Confirm appointment of VP Majority
Separately
Section 9, Article VII
Congress affirming that
the President is unable to
discharge powers and
duties
2/3
Congress
Revoke or extend (a)
Martial Law or (b) the
suspension
of
the
privilege of the writ of
Habeas Corpus
Majority
Jointly
Section 18, Article VII
Amnesty Grant
Majority
Silent
Section 19(2), Article VII
Page 35 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Action
Votes Required House Voting
(All Members)
(Silent)
Basis
Submit a question calling
a Const. Convention to
the electorate
Majority
Section 3, Article XVII
Call for Constitutional
Convention
2/3
Section 3, Article XVII
Propose amendments as
Constitutional Assembly
3/4
Section 1(1), Article XVII
Prevailing view; by
default, houses vote
separately (because
Congress
is
bicameral)
Other Cases (not out of all members)
Action
Determine
disability
Votes
Required
Members)
President’s
Declaring a State of War
Validity
Treaty/International
Agreement
of
(All
⅔ of both houses, voting
separately
Basis
Section 11(4), Article VII
⅔ of both houses (in joint
session) voting separately
Section 23(1), Article VI
⅔ members of Senate
Section 21, Article VII
E. Discipline of Members
Each House may determine the rules of its
proceedings, punish its Members for
disorderly behavior, and, with the concurrence
of two-thirds of all its Members, suspend or
expel a Member. A penalty of suspension,
when imposed, shall not exceed sixty days
[Section 16(3), Article VI, 1987 Constitution].
Other measures (not necessarily requiring
2/3, and depending on voting thresholds
determined by the respective houses):
● Deletion of unparliamentary remarks
from the record
● Fine
● Imprisonment
● Censure
Each house may punish its members for
disorderly behavior, and with the concurrence
of 2/3 of ALL its members, with: (SED-FIC)
● Suspension
● Expulsion
The suspension contemplated in the
Constitution is different from the suspension
prescribed in the Anti-Graft and Corrupt
Practices Act (R.A. No. 3019). The former is
punitive in nature while the latter is preventive
Page 36 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
[Defensor-Santiago v. Sandiganbayan, G.R.
No. 118364 (1995)].
The determination of Congress when it comes
to disciplining its members is respected by the
court. As such, the Supreme Court does not
have the power to compel congress to
reinstate a member who has been expelled by
it [Alejandrino v. Quezon, G.R. No. 22041
(1924)].
The immunity for speech given to a member of
Congress is not a bar to the power of Congress
to discipline its members [Osmeña v.
Pendatun, G.R. No. L-17144 (1960)].
F. Process of Law-Making
1. Function of the
Conference Committee
Bicameral
A Conference Committee is constituted and is
composed of Members from each House of
Congress to settle, reconcile or thresh out
differences or disagreements on any provision
of the bill.
The conferees are not limited to reconciling the
differences in the bill but may introduce new
provisions germane to the subject matter or
may report out an entirely new bill on the
subject.
The Conference Committee prepares a report
to be signed by all the conferees and the
Chairman.
The Conference Committee Report is
submitted for consideration/approval of both
Houses. No amendment is allowed.
2. Requirement as to Bills
a. As to titles of bills
SECTION 26(1), ARTICLE VI. Every bill passed
by the Congress shall embrace only one subject
which shall be expressed in the title thereof. xxx
One Subject One Title Rule
1. To prevent hodge-podge, "log-rolling", or
the smuggling in of "riders," that is, "any act
containing several subjects dealing with
unrelated matters representing diverse
interests.
2. To prevent surprise or fraud upon the
legislature.
3. To fairly apprise the people of the subjects
of legislation that are being considered in
order that they may have the opportunity of
being heard thereon, by petition or otherwise,
if they should so desire.
4. But the title need not be a complete
catalogue of a bill. In any case, a title must
not be "so uncertain that the average person
reading it would not be informed of the
purpose of the enactment.”
5. When there is conflict, the title of the bill is
controlling over any contradictory provision
on a law whose titles says “regulating” but has
a provision which says “prohibiting” [Dela
Cruz v. Paras, G.R. No. L-42571-72 (1983)].
b. As to certain laws
Appropriation Laws – Created to guide
spending
SECTION 22, ARTICLE VII. The President shall
submit to the Congress within thirty days from the
opening of every regular session, as the basis of
the general appropriations bill, a budget of
expenditures and sources of financing, including
receipts from existing and proposed revenue
measures.
SECTION 24, ARTICLE VI. All appropriation,
revenue or tariff bills, bills authorizing increase of
the public debt, bills of local application, and
private bills shall originate exclusively in the
House of Representatives, but the Senate may
propose or concur with amendments.
SECTION 25, ARTICLE VI. (1) The Congress
may
not
increase
the
appropriations
recommended by the President for the operation
of the Government as specified in the budget. The
form, content, and manner of preparation of the
budget shall be prescribed by law.
(2) No provision or enactment shall be embraced
in the general appropriations bill unless it relates
Page 37 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
specifically to some particular appropriation
therein. Any such provision or enactment shall be
limited in its operation to the appropriation to
which it relates.
(3) The procedure in approving appropriations for
the Congress shall strictly follow the procedure for
approving appropriations for other departments
and agencies.
(4)
A special appropriations bill shall specify
the purpose for which it is intended, and shall be
supported by funds actually available as certified
by the National Treasurer, or to be raised by a
corresponding revenue proposed therein.
(5) No law shall be passed authorizing any
transfer of appropriations; however, the
President, the President of the Senate, the
Speaker of the House of Representatives, the
Chief Justice of the Supreme Court, and the
heads of Constitutional Commissions may, by
law, be authorized to augment any item in the
general appropriations law for their respective
offices from savings in other items of their
respective appropriations.
(6) Discretionary funds appropriated for particular
officials shall be disbursed only for public
purposes to be supported by appropriate
vouchers and subject to such guidelines as may
be prescribed by law.
(7) If, by the end of any fiscal year, the Congress
shall have failed to pass the general
appropriations bill for the ensuing fiscal year, the
general appropriations law for the preceding fiscal
year shall be deemed reenacted and shall remain
in force and effect until the general appropriations
bill is passed by the Congress.
SECTION 29(1), ARTICLE VI. No money shall be
paid out of the Treasury except in pursuance of
an appropriation made by law.
3. Limitations on Legislative Power
(See Nature of Legislative Power; Limitations,
supra).
4. Procedure for Passage of Bills
SECTION 27(1), ARTICLE VI. Every bill passed
by the Congress shall, before it becomes a law,
be presented to the President. If he approves the
same, he shall sign it; otherwise, he shall veto it
and return the same with his objections to the
House where it originated, which shall enter the
objections at large in its Journal and proceed to
reconsider it. If, after such reconsideration, twothirds of all the Members of such House shall
agree to pass the bill, it shall be sent, together with
the objections, to the other House by which it shall
likewise be reconsidered, and if approved by twothirds of all the Members of that House, it shall
become a law. In all such cases, the votes of each
House shall be determined by yeas or nays, and
the names of the Members voting for or against
shall be entered in its Journal. The President shall
communicate his veto of any bill to the House
where it originated within thirty days after the date
of receipt thereof; otherwise, it shall become a law
as if he had signed it.
Generally, there are 3 ways for the bill to
become a law:
a. By signature: When it is approved by
the President;
b. By lapse of time: Upon failure of the
President to veto the bill and to return
it with his objections, to the House
where it originated, within 30 days after
the date of receipt; or
c. By congressional override: When the
vote of the President is overridden by
a two-thirds vote of all the members of
both houses.
House Rules
1. Preparation of the bill
The Member or the Bill Drafting Division of the
Reference and Research Bureau prepares
and drafts the bill upon the Member's request.
2. First reading
The bill is filed with the Bills and Index Service
and the same is numbered and reproduced.
Three days after its filing, the same is
included in the Order of Business for First
Reading.
On First Reading, the Secretary General
reads the title and number of the bill. The
Speaker refers the bill to the appropriate
Committee/s.
Page 38 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
3. Committee consideration / action
The Committee where the bill was referred to
evaluates it to determine the necessity of
conducting public hearings. If the Committee
finds it necessary to conduct public hearings,
it schedules the time thereof, issues public
notice and invites resource persons. If the
Committee finds that no public hearing is
needed, it schedules the bill for Committee
discussion/s.
Based on the result of the public hearings or
Committee discussions, the Committee may
introduce amendments, consolidate bills on
the same subject matter, or propose a
substitute bill. It then prepares the
corresponding committee report.
The Committee approves the Committee
Report and formally transmits the same to the
Plenary Affairs Bureau.
same are distributed to all the Members three
days before its Third Reading.
On Third Reading, the Secretary General
reads only the number and title of the bill.
A roll call or nominal voting is called and a
Member, if he desires, is given three minutes
to explain his vote. No amendment on the bill
is allowed at this stage.
The bill is approved by an affirmative vote of a
majority of the Members present.
If the bill is disapproved, the same is
transmitted to the Archives.
6. Transmittal of the approved bill to the
Senate
The approved bill is transmitted to the Senate
for its concurrence.
7. Senate action on approved bill of the
House
The bill undergoes the same legislative
process in the Senate.
4. Second reading
The Committee Report is registered and
numbered by the Bills and Index Service. It is
included in the Order of Business and
referred to the Committee on Rules.
The Committee on Rules schedules the bill
for consideration on Second Reading.
On Second Reading, the Secretary General
reads the number, title and text of the bill and
the following takes place:
● Period of Sponsorship and Debate
● Period of Amendments
● Voting which may be done by:
○ Viva voce;
○ Count by tellers;
○ Division of the House; or
○ Nominal voting.
8. Conference committee (Bicameral)
(See Function of the Bicameral Conference
Committee, supra).
9. Transmittal of the bill to the President
Copies of the bill, signed by the Senate
President and the Speaker of the House of
Representatives and certified by both the
Secretary of the Senate and the Secretary
General of the House, are transmitted to the
President.
10. Presidential action on the bill
If the bill is approved by the President, the
same is assigned an RA number and
transmitted to the House where it originated.
5. Third reading
The amendments, if any, are engrossed and
printed copies of the bill are reproduced for
Third Reading.
The engrossed bill is included in the Calendar
of Bills for Third Reading and copies of the
If the bill is vetoed, the same, together with a
message citing the reason for the veto, is
transmitted to the House where the bill
originated.
11. Action on approved bill
The bill is reproduced and copies are sent to
the Official Gazette Office for publication and
Page 39 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
distribution to the implementing agencies. It is
then included in the annual compilation of
Acts and Resolutions.
12. Action on vetoed bill
The message is included in the Order of
Business. If the Congress decides to override
the veto, the House and the Senate shall
proceed separately to reconsider the bill or
the vetoed items of the bill. If the bill or its
vetoed items is passed by a vote of two-thirds
of the Members of each House, such bill or
items shall become a law.
A joint resolution is NOT a bill, and its
passage does not enact the joint resolution
into a law even if it follows the requirements
expressly prescribed in the Constitution for
enacting a bill into law. However, a joint
resolution
can
be
part
of
the
implementation of a law as provided in the
law itself. A joint resolution can also be
treated as a recommendation to the
Executive on how the law can be
implemented. Further, neither the Rules of
the Senate nor the Rules of the House of
Representatives
can
amend
the
Constitution which recognizes only a bill
can become law [Ang Nars Party-List v.
Executive Secretary, G.R. No. 215746
(2019)].
SECTION 26(2), ARTICLE VI. No bill passed by
either House shall become a law unless it has
passed three readings on separate days, and
printed copies thereof in its final form have been
distributed to its Members three days before its
passage, except when the President certifies to
the necessity of its immediate enactment to meet
a public calamity or emergency. Upon the last
reading of a bill, no amendment thereto shall be
allowed, and the vote thereon shall be taken
immediately thereafter, and the yeas and nays
entered in the Journal.
5. The President’s Veto Power
Section 27, Article VI defines the only way for
the President to veto a bill.
When the President vetoes a measure, he
should return the measure to the House of
origin, indicating his objections thereto in what
is commonly known as a veto message so that
the same may be studied by the members for
possible overriding of his veto.
General Rule: The President must approve a
bill in its entirety or disapprove it in toto.
Exception: Item Veto. In appropriation,
revenue and tariff bills, any particular item or
items of which may be disapproved without
affecting the item or items to which he does not
object.
However, the condition in an expenditure bill
“cannot be vetoed separately from the items to
which they relate so long as they are
“appropriate” in the budgetary sense”
[PHILCONSA v. Enriquez, G.R. No. 113105
(1994)].
Congressional Override: To override the
President’s veto, at least ⅔ of ALL members
of each house must agree to pass the bill. In
such case, the veto is overridden and the bill
becomes law without need of presidential
approval.
6. Doctrine of Inappropriate Provision
A provision that is constitutionally inappropriate
for an appropriation bill may be singled out for
veto even if it is not an appropriation or revenue
item.
Examples:
Inappropriate: A provision in the GAA requiring
the President to first submit to Congress a list
of equipment the Executive will purchase
before the appropriation is released. (This is an
inappropriate provision as it constitutes a
legislative
veto
and
post-enactment
interference with the Executive.)
Appropriate: The veto of a clause in the GAA
which places of a 30%-limit on the DPWH’s
budget for road maintenance hat can be
contracted out. (This is appropriate and cannot
be item-vetoed as Congress can set preimplementation limits on how expenditures
shall be spent.) [PHILCONSA v. Enriquez,
supra]
Page 40 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
7. Effectivity of Laws
Civil Code, Article 2. Laws shall take effect after
fifteen days following the completion of their
publication in the Official Gazette, unless it is
otherwise provided. This Code shall take effect
one year after such publication.
Even when the law provides its own date of
effectivity, the publication requirement is
mandatory, in order that a law may become
effective. The object of the publication
requirement is to give the general public
adequate notice of the various laws which
are to regulate their actions and conduct—
without publication, there would be no basis
for the application of the maxim, “ignorantia
legis non excusat.” The publication
requirement is a requirement of due process
[Tanada v. Tuvera, G.R. No. L-63915
(1985)].
8. Limitations on Legislative Power
Formal/Procedural Limitations
1. Prescribes the manner of passing bills and
the form they should take.
Rider clause: Every bill passed by the
Congress shall embrace only one subject,
which shall be expressed in the title [Section
26(1), Article VI, 1987 Constitution].
2. The title is not required to be an index of
the contents of the bill. It is sufficient
compliance if the title expresses:
(a) the general subject; and
(b) all the provisions of the statute are
germane to that subject [Tio v. Videogram
Regulatory Commission, G.R. No. L-75697
(1987)].
3. No bill passed by either house shall become
law unless it has passed three (3) readings on
separate days [Section 26(2), Article VI, 1987
Constitution].
4. Printed copies in its final form must have
been distributed.
Exception: When the President certifies to
the necessity of its immediate enactment to
meet a public calamity or emergency.
Presidential certification dispenses with (1) the
printing requirement; and (2) the requirement
for readings on separate days [Kida v. Senate,
G.R. No. 196271 (2011), citing Tolentino v.
Secretary of Finance, supra].
5. Substantive Limitations
Circumscribe both the exercise of the power
itself and the allowable subject of legislation.
Notable Examples:
• Const., Art. III (Bill of Rights)
• Const., Art. VI, Sections 25,28, and 29
(Appropriation,
Taxation,
Disbursement)
• Const., Art. VI, Section 30 (Nobility)
• Const., Art. VI, Section 31 (Expansion
of Supreme Court Jurisdiction)
• Non-Delegation Doctrine
• Irrepealable Laws: Congress may not
bind future congresses by imposing
supermajority requirements for the
repeal of a law, or making the
procedure of repeal or amendment
more cumbersome than that already
provided in the Constitution. [City of
Davao v. RTC Branch XII, G.R. No.
127383 (August 18,2005)]
G. Appropriation
alignment
and
Re-
Exec. Ord. No. 292 (1987), Book VI,
Chapter 1
SECTION 1. Constitutional Policies on the
Budget.—
(1) All appropriations, revenue or tariff bills, bills
authorizing increase of the public debt, bills of local
application, and private bills shall originate
exclusively in the House of Representatives but the
Senate may propose or concur with amendments.
(2) The Congress may not increase the
appropriations recommended by the President for
the operation of the Government as specified in the
budget. The form, content and manner of
preparation of the budget shall be prescribed by law.
(3) No provision or enactment shall be embraced in
the general appropriations bill unless it relates
specifically to some particular appropriation to which
it relates.
Page 41 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
(4) The procedures in approving appropriations for
the Congress shall strictly follow the procedure for
approving appropriations for other departments and
agencies.
Legislative
Inquiries
Question
Hour
Constitutional
Provision
Section 21, Section
Article VI
Article VI
Topic
(6) No law shall be passed authorizing any transfer
of appropriations. However, the President, the
President of the Senate, the Speaker of the House
of Representatives, the Chief Justice of the
Supreme Court and the heads of Constitutional
Commissions may, by law, be authorized to
augment any item in the general appropriations laws
for their respective offices from savings in other
items of their respective appropriations.
In aid of On any matter
legislation
pertaining to
the subject’s
department
Persons
Subjected
Any person Heads
of
upon
departments
subpoena
only
(7) Discretionary funds appropriated for particular
official shall be disbursed only for public purposes to
be supported by appropriate vouchers and subject
to such guidelines as may be prescribed by law.
Appearance of Appearance
Executive
of executive
officials
Officials
generally
mandatory
(5) A special appropriations bill shall specify the
purpose for which it is intended, and shall be
supported by funds actually available as certified by
the National Treasurer or to be raised by a
corresponding revenue proposal therein.
(8) If, by the end of any fiscal year, the Congress
shall have failed to pass the general appropriations
bill for the ensuing fiscal year, the general
appropriations law for the preceding fiscal year shall
be deemed reenacted and shall remain in force and
effect until the general appropriations bill is passed
by the Congress.
(9) Fiscal autonomy shall be enjoyed by the
Judiciary, Constitutional Commissions, Office of the
Ombudsman, Local Government and Commission
on Human Rights.
H. Legislative Inquiries
Oversight Functions
and
1. Requisites of Legislative Inquiries
a. Must be in aid of legislation;
b. Is in accordance with duly published
rules of procedure;
c. Right of persons appearing in or
affected by such inquiries shall be
respected [Bengson v. Senate Blue
Ribbon Committee, G.R. No. 89914
(1991)]
2. Legislative Inquiries v. Question
Hour
[See also Senate v. Ermita, G.R. No. 169777
(2006)]
22,
Appearance
of executive
officials
1. Via request;
2.
Upon
executive
official’s
volition
with
President’s
consent.
The mere filing of a criminal or an
administrative complaint before a court or
quasi-judicial body should not automatically
bar the conduct of a legislative inquiry
[Standard Chartered Bank v. Senate
Committee on Banks, G.R. No. 167173,
(2007)].
The requirement of securing prior consent of
the President prior to appearing before either
House of Congress applies only to Cabinet
Members and not to other public officials and
only when either House of Congress conducts
a Question Hour and not in cases of inquiries
in aid of legislation as the latter should be
untrammeled because it is co-extensive with
the power to legislate [Senate of the
Philippines v. Ermita, G.R. No. 169777 (2006)].
However, in Gudani v. Senga [G.R. No.
170165 (2006)], the Court en banc clarified the
above authority over the military. It held that
obedience and deference to the military chain
of command and the President as commander-
Page 42 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
in-chief are the cornerstones of a professional
military in the firm cusp of civilian control.
involves military or diplomatic secrets, closeddoor Cabinet meetings, etc.
In the same case, the Supreme Court also
ruled that any chamber of Congress which
seeks the appearance before it of a military
officer against the consent of the President has
adequate remedies under the law to compel
such attendance.
A claim of privilege, being a claim of exemption
from an obligation to disclose information must
be clearly asserted. Congress has the right to
know why the executive considers the
requested information privileged. It does not
suffice to merely declare that the President, or
an authorized head of office, has determined
that it is so.
Final judicial orders have the force of the law of
the land which the President has the duty to
faithfully execute.
If the courts so rule, the duty falls on the
shoulder of the President, as Commander-inChief, to authorize the appearance of military
officials before Congress ruling and upheld the
President’s constitutional powers.
3. Additional Limitation: Executive
Privilege
Executive privilege is the right of the President
and high level officials authorized by her to
withhold information from Congress, from the
courts, and ultimately from the public.
Among the types of information which have
been judicially recognized as privileged are
state secrets regarding military, diplomatic and
other national security matters. Certain
information in the possession of the executive
may validly be claimed as privileged even
against Congress, such as Presidential
conversations,
correspondences,
or
discussions during closed-door Cabinet
meetings [Chavez v. PEA, G.R. No. 133250
(2003)].
Who may invoke: Only the President can
invoke it. She may also authorize the
Executive Secretary to invoke the privilege on
her behalf, in which case, the Executive
Secretary must state that the Act is “By order
of the President,” which means that he
personally consulted with the President on
such matters of concern [Senate of the
Philippines v. Ermita, supra].
If the President and Congress cannot agree on
whether the matter is privileged or not, then the
Court must come in to determine the validity of
the claim of privilege [Senate of the Philippines
v. Ermita, supra].
4.
Elements
of
Presidential
Communications Privilege
In Neri v. Senate Committees [G.R. No.
180643 (2008)], the Court ruled that the claim
of executive privilege was properly invoked
by Secretary Neri, specifically under what is
called “presidential communication privilege.”
The elements of presidential communications
privilege are:
a. The protected communication must
relate to a “quintessential and nondelegable presidential power.”
b. The
communication
must
be
authored or “solicited and received”
by a close advisor of the President or
by the President himself. The judicial
test is that an advisor must be in
“operational proximity” with the
President.
c. The presidential communications
privilege remains a qualified privilege
that may be overcome by a showing
of adequate need, such that
information sought “likely contains
important evidence” and by the
unavailability of the information
elsewhere
by
an
appropriate
investigating authority.
The claim of privilege must be specific, e.g.,
whether the information sought to be withheld
Page 43 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
5. Contempt Power
a. Scrutiny
As long as there is legitimate inquiry, then the
inherent power of contempt by the Senate may
be properly exercised. Conversely, once the
legislative inquiry concludes, the exercise of
the inherent power of contempt ceases and
there is no more genuine necessity to penalize
the detained witness [Balag v. Senate of the
Philippines, G.R. No. 234608 (2018)].
Passive inquiry, the primary purpose of which
is to determine economy and efficiency of the
operation of government activities.
As the Senate is not a continuing body, all
inquiries automatically end once the Senate
adjourns sine die (i.e., at the end of the Third
Session of each Congress). The imprisonment
for contempt automatically terminates on such
date as well. [Balag, supra]
6.
Contempt
Oversight
of
Congressional
Broadly defined, the power of oversight
embraces all activities undertaken by
Congress to enhance its understanding of and
influence over the implementation of legislation
it has enacted.
Clearly, oversight concerns post-enactment
measures undertaken by Congress:
1. to monitor bureaucratic compliance
with program objectives;
2. to determine whether agencies are
properly administered;
3. to eliminate executive waste and
dishonesty;
4. to prevent executive usurpation of
legislative authority, and
5. to assess executive conformity with the
congressional perception of public
interest.
7. Categories of
Oversight Functions
Congressional
The acts done by Congress purportedly in the
exercise of its oversight powers may be divided
into
3categories,
namely:
scrutiny,
investigation and supervision.
In the exercise of legislative scrutiny,
Congress may request information and report
from the other branches of government. It can
give recommendations or pass resolutions for
consideration of the agency involved.
Legislative scrutiny is based primarily on the
power of appropriation of Congress. Under the
Constitution, the "power of the purse" belongs
to Congress.
Legislative scrutiny does not end in budget
hearings. Congress can ask the heads of
departments to appear before and be heard by
either House of Congress on any matter
pertaining to their departments, pursuant to
Section 22, Article VI of the 1987 Constitution.
b. Congressional Investigation
More intense digging of facts, compared to
scrutiny. Power of investigation recognized by
Section 21, Article VI, 1987 Constitution.
c. Legislative supervision (legislative
veto)
Connotes a continuing and informed
awareness on the part of a congressional
committee regarding executive operations in a
given administrative area.
Allows Congress to scrutinize the exercise of
delegated law-making authority, and permits
Congress to retain part of that delegated
authority. Through this, Congress exercises
supervision over the executive agencies.
Note: Legislative supervision is NOT allowed
under the Constitution [Abakada Guro Partylist
v. Purisima, supra; See also discussion under
Checks and Balances, supra].
Page 44 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
I. Power of Impeachment
The House of Representatives shall have the
exclusive power to initiate all cases of
impeachment [Section 3(1), Article XI, 1987
Constitution].
1. Initiation: Regular Procedure
[Section 3(2) & (3), Article XI, 1987
Constitution]
FILING by (a) any member of the HOR or (b) any
citizen upon endorsement by a member of the HOR;
followed by REFERRAL to the proper HOR
Committee (i.e., HOR Committee on Justice).
!
COMMITTEE REPORT by proper committee, which
either favorably or unfavorably resolves the
complaint.
!
Above resolution is AFFIRMED if favorable or
OVERRIDDEN if unfavorable, by vote of ⅓ of ALL
the members of the HOR.
Verified complaint or resolution [Section 3(4),
Article XI, 1987 Constitution] FILED by 1/3 of
all the members of the HOR; trial by Senate
forthwith proceeds.
2. Notes on Initiation [Gutierrez v.
HOR Committee on Justice, G.R. No.
193459 (2011)]
No impeachment proceeding shall be initiated
against the same official more than once
within a period of one (1) year [Section 2(5),
Article XI, 1987 Constitution].
Initiation means filing coupled with referral to
the Committee on Justice.
The Court cannot make a determination of
what constitutes an impeachable offense; it is
a purely political question [Francisco v.
House of Representatives, G.R. No.
160261(2003)].
Congressmen) the stringent standards it asks
of justices and judges when it comes to
inhibition from hearing cases.
Constitutional requirement that HOR shall
promulgate its rules on impeachment [Sec.
3(8), Art. XI, 1987 Constitution] is different from
the publication requirement in Tañada v.
Tuvera, supra. When the Constitution provides
for promulgation of the HOR Rules on
Impeachment, posting via any medium or even
provisional adoption of references to the rules
of the previous Congress may suffice.
[Gutierrez v. House of Representatives, supra]
Contrast Rules on Legislative Inquiries, which
must be published under Art. VI, Sec. 21
3. Trial
The Senate shall have the sole power to try
and decide all cases of impeachment [Section
3(6), Article XI, 1987 Constitution].
By virtue of the expanded judicial review
[Section 1(2), Article VIII, 1987 Constitution],
the Court’s power of judicial review extends
over justiciable issues arising in impeachment
proceedings [Francisco v. House of
Representatives, supra]. But the question of
whether or not Senate Impeachment Rules
were followed is a political question [Corona v.
Senate, G.R. No. 200242 (2012)].
4. Periods Rule
10 days: a verified complaint for impeachment
must be included in the Order of Business
within 10 session days;
3 days: after the lapse of the 10 days, the
complaint must be referred to a Committee
within 3 session days;
60 days: The Committee, after hearing, and by
a majority vote of all its Members, shall submit
its report to the House within sixty session
days from such referral;
10 days: The resolution shall be calendared
for consideration by the House within ten
session days from receipt thereof.
On motion to inhibit: Impeachment is a
political exercise. The Court cannot apply (to
Page 45 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
out a declared national policy in times of war or
other national emergency.
III. EXECUTIVE
DEPARTMENT
A. Nature of Executive Power
1987 Constitution
Article VII, Section 1. The executive power shall be
vested in the President of the Philippines.
The executive power is vested in the
Presidents. It is generally defined as the power
to enforce and administer the laws. It is the
power of carrying the laws into practical
operation and enforcing their due observance.
Corollary to the power of control, the President
also has the duty of supervising the
enforcement of laws for the maintenance of
general peace and public order. Thus, he is
granted administrative power over bureaus and
offices under his control to enable him to
discharge his duties effectively. [Ople v.
Torres, G.R. No. 127685 (1998)]
1. In Relation to the Implementation of
Laws (Including Delegated Powers)
1987 Constitution
Article VI, Section 23 (2). In times of war or other
national emergency, the Congress may, by law,
authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out
a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall
cease upon the next adjournment thereof.
a. Principle
General Rule: Executive Power is limited to
the implementation of the law.
Constitutionally-Grafted Exceptions: The
Constitution provides for limited instances
when Congress can delegate legislative
powers to the President, i.e., [See Belgica v.
Ochoa, supra]:
2. Tariff Powers (Art. VI, Sec. 28(2): i.e., fix
within specified limits, and subject to such
limitations and restrictions as Congress 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.
b. Emergency Powers [Section 23,
Article VI, 1987 Constitution]
a. In times of war or other national
emergency, the Congress, may, by law,
authorize the President, for a limited
period, and subject to such restrictions as
it may prescribe, to exercise powers
necessary and proper to carry out a
declared national policy
b. Unless sooner withdrawn by resolution of
the Congress, such powers shall cease
upon the next adjournment thereof.
c. Commander-in-Chief
Emergency Powers
powers
vs.
Commander-inChief powers
Emergency Powers
When the President
acts
under
the
Commander-in-Chief
clause, he acts under
a constitutional grant
of military power to
suppress an invasion
or
rebellion
that
endangers
public
safety.
When the President
acts
under
the
emergency power,
he acts under a
Congressional
delegation of lawmaking (i.e. policymaking) power.
d. When emergency powers cease
a. According to the text of the Constitution, the
power ceases:
i. Upon withdrawal by resolution of the
Congress; or
ii. If Congress fails to adopt such resolution,
upon the next adjournment of Congress.
1. Emergency Powers (Art. VI, Sec. 23): i.e., to
exercise powers necessary and proper to carry
Page 46 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
b. Example:
i. March 15, 202X – Congress is in recess
from its regular session. Emergency
arises.
ii. March 16, 202X – President calls
Congress to a special session, certifying
an emergency bill as urgent.
iii. March 17, 202X – Congress passes law
granting President Emergency Powers.
Congress adjourns the special session.
This is the first adjournment.
iv. April 1, 202X – Congress resumes the
regular session. During the session, it
doesnot withdraw Emergency Powers.
v. June 15, 202X – Congress adjourns its
regular session. This is the next
adjournment, and the Emergency Powers
grant expires by operation of the
Constiution.
c. Because the Constitution was promulgated
after the lastest jurisprudence on adjournment
[see, e.g., Araneta v. Dinglasan, G.R. No. L2044 (1949)], it supersedes any inconsistency
in the rulings of the Court on those points.
2. Express or Implied (Including the
Faithful Execution of Laws and
Residual Powers)
1987 Constitution
Section 17, Article VII. The President shall have
control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be
faithfully executed.
The allocation of power in the three principal
branches of government is a grant of all powers
inherent in them. The President’s power to
conduct investigations [e.g., via fact-finding
commissions] to aid him in ensuring the faithful
execution of laws is inherent in the President’s
powers as the Chief Executive. [Biraogo v.
Philippine Truth Commission of 2010, G.R. No.
192935 (2010)]
The powers of the President cannot be said to
be limited only to the specific powers
enumerated in the Constitution. In other words,
executive power is more than the sum of
specific powers so enumerated.
The residual unstated powers of the President
are implicit in and correlative to the paramount
duty residing in that office to safeguard and
protect general welfare. [Marcos v. Manglapus,
G.R. No. 88211 (1989)]
In MEWAP v. Romulo, G.R. No. 160093
(2007), the Court upheld the reorganization of
the DOH through EOs 102 and 1165, as it was
within the President’s residual power to
restructure the executive departments since he
has the power of control over executive
departments granted by the Constitution.
The power to create ad hoc bodies is a residual
power vested in the President in accordance
with faithful execution clause [Biraogo v. Phil.
Truth Commission of 2010, G.R. Nos. 192935,
193036 (2010)].
B. Concept
Immunity
of
Presidential
The President as such cannot be sued,
enjoying as he does immunity from suit. But the
validity of his acts can be tested by an action
against other executive officials [Carillo v.
Marcos, G.R. No. L-21015 (1981)].
1. Conduct Covered
The President, during his tenure of office or
actual incumbency, may not be sued in any civil
or criminal case, and there is no need to
provide for it in the Constitution or law. It will
degrade the dignity of the high office of the
President, the head of State, if he can be
dragged into court litigation while serving as
such. Furthermore, it is important that he be
freed from any form of harassment, hindrance
or distraction to enable him to fully attend to the
performance of his official duties and functions.
[David v. Macapagal-Arroyo, G.R. No. 171396
(2006)]
2. Waiver and Exceptions
The concept of presidential immunity under our
governmental and constitutional system does
not distinguish whether or not the suit pertains
to an official act of the President. Neither does
immunity hinge on the nature of the suit.
The concept is clear and allows no
qualifications or restrictions that the President
Page 47 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
cannot be sued while holding such office. [De
Lima v. Duterte, G.R. No. 227635 (2019)]
Cause of Action Accrues
suit is one
against the
state
(cf.
state
immunity)
a. May be invoked only by the President
Immunity from suit pertains to the President by
virtue of the office and may be invoked only by
the holder of the office; not by any other person
on the President's behalf. The President may
waive the protection afforded by the privilege
and submit to the court's jurisdiction [Soliven v.
Makasiar, G.R. No. 82585 (1988); Beltran v.
Makasiar, G.R. No. 82827(1988)].
But presidential decisions may be questioned
before the courts where there is grave abuse of
discretion or that the President acted without or
in excess of jurisdiction [Gloria v. CA, G.R. No.
119903 (2000)].
b. Limitations
Immunity is coextensive with tenure. After
tenure, the Chief Executive cannot invoke
immunity from suit for civil damages arising out
of acts done by him while he was President
which were not performed in the exercise of
official duties [Estrada v. Desierto, G.R. Nos.
146710-15 (2001)].
This presidential privilege of immunity cannot
be invoked by a non-sitting president even for
acts committed during his or her tenure [Saez
v. Macapagal-Arroyo, G.R. No. 183533
(2012)].
Cause of Action Accrues
Act
complained:
Official Act
Before
Presidential
Tenure
(e.g.,
preexisting
civil claims,
or for facts in
prior office)
During
Presidential
Tenure
Suit may not
be
filed
during tenure
Suit cannot
be
filed
during
tenure.
Unoffical
Act (or acts
beyond
authority)
Suit may not
be
filed
during
tenure.
Suit cannot
be
filed
during tenure
Suit may be
filed
after
tenure ends.
C. Concept of Executive
Privilege
Executive privilege is not a personal privilege,
but one that adheres to the Office of the
President. It exists to protect public interest, not
to benefit a particular public official. Its
purpose, among others, is to assure that the
nation will receive the benefit of candid,
objective and untrammeled communication
and exchange of information between the
President and his/her advisers in the process
of shaping or forming policies and arriving at
decisions in the exercise of the functions of the
Presidency under the Constitution. The
confidentiality of the President’s conversations
and correspondence is not unique. It is akin to
the confidentiality of judicial deliberations. It
possesses the same value as the right to
privacy of all citizens and more, because it is
dictated by public interest and the
constitutionally
ordained
separation
of
governmental powers. [Neri v. Senate, G.R.
No. 180643, (2008)]
1. Types
Suit cannot
be filed even
after tenure if
a. Presidential Communications Privilege
(President):
communications
are
presumptively privileged; the president
must be given freedom to explore
alternatives in policy-making.
b. Deliberative
Process
Privilege
(Executive Officials): refer to materials
that comprise part of a process by which
governmental decisions and policies are
Page 48 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
formulated. This includes diplomatic
processes [Akbayan v. Aquino, G.R. No.
170516 (2008)].
Varieties
While there certainly are privileges grounded
on the necessity of safeguarding national
security such as those involving military
secrets, not all are founded thereon. One
example is the informer’s privilege, or the
privilege of the Government not to disclose the
identity of a person or persons who furnish
information of violations of law to officers
charged with the enforcement of that law.
Also illustrative is the privilege accorded to
presidential communications, which are
presumed privileged without distinguishing
between those which involve matters of
national security and those which do not. In the
same way that the privilege for judicial
deliberations does not depend on the nature of
the case deliberated upon, so presidential
communications are privileged whether they
involve matters of national security.
It bears emphasis, however, that the privilege
accorded to presidential communications is not
absolute, one significant qualification being
that “the Executive cannot, any more than the
other branches of government, invoke a
general confidentiality privilege to shield its
officials and employees from investigations by
the proper governmental institutions into
possible
criminal
wrongdoing.”
This
qualification applies whether the privilege is
being invoked in the context of a judicial trial or
a congressional investigation conducted in aid
of legislation.
The deliberative process [privilege] covers
documents reflecting advisory opinions,
recommendations
and
deliberations
comprising part of a process by which
governmental decisions and policies are
formulated. Notably, the privileged status of
such documents rests, not on the need to
protect national security but, on the “obvious
realization that officials will not communicate
candidly among themselves if each remark is a
potential item of discovery and front page
news.”
The diplomatic negotiations privilege seeks,
through the same means, to protect the
independence in decision-making of the
President, particularly in its capacity as “the
sole organ of the nation in its external relations,
and its sole representative with foreign
nations.” And, as with the deliberative process
privilege, the privilege accorded to diplomatic
negotiations arises, not on account of the
content of the information per se, but because
the information is part of a process of
deliberation which, in pursuit of the public
interest, must be presumed confidential.
[Akbayan v. Aquino, supra]
2. Who May Invoke
Only the President or the Executive Secretary
(by authority of the President) can invoke the
privilege.
In light of this highly exceptional nature of the
privilege, the Court finds it essential to limit to
the President the power to invoke the privilege.
She may of course authorize the Executive
Secretary to invoke the privilege on her behalf,
in which case the Executive Secretary must
state that the authority is "By order of the
President", which means that he personally
consulted with her. The privilege being an
extraordinary power, it must be wielded only by
the highest official in the executive hierarchy.
In other words, the President may not authorize
her subordinates to exercise such power.
There is even less reason to uphold such
authorization in the instant case where the
authorization is not explicit but by mere silence
[Senate v. Ermita, G.R. No. 169777 (2006)].
D. Qualifications, Election, Term
of the President and VicePresident,
and
Rules
on
Succession
1. Qualifications
a.
b.
c.
d.
Natural-born citizen of the Philippines;
A registered voter;
Able to read and write;
At least 40 years of age on the day of the
election; and
e. A resident of the Philippines for at least 10
years immediately preceding such
Page 49 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
election [Section 2, Article VII, 1987
Constitution].
2. Election
a. Regular Election: Second Monday of
May
b. National Board of Canvassers (President
and Vice-President): Congress
i. Returns shall be transmitted to
Congress, directed to the Senate
President
ii. Joint public session: not later than 30
days after election date; returns to be
opened in the presence of the Senate
and HOR in joint session
b. Congress, upon determination of the
authenticity and due execution, shall
canvass the votes
c. Person having the highest number of
votes shall be proclaimed elected
d. In case of tie, one will be chosen by the
vote of majority of all the Members of both
Houses of Congress, voting separately
3. Jurisprudence on Canvassing
Congress may validly delegate the initial
determination of the authenticity and due
execution of the certificates of canvass to a
Joint Congressional Committee, composed of
members of both houses [Lopez v. Senate,
G.R. No. 163556 (2004)].
Even after Congress has adjourned its regular
session, it may continue to perform this
constitutional duty of canvassing the
presidential and vice-presidential election
results without need of any call for a special
session by the President. Only when the board
of canvassers has completed its functions is it
rendered functus officio [Pimentel, Jr. v. Joint
Committee of Congress, G.R. No. 163783
(2004)].
4. The Supreme Court as Presidential
Electoral Tribunal
The Supreme Court, sitting en banc, shall be
the sole judge of all contests relating to the
election, returns and qualifications of the
President or Vice-President, and may
promulgate its rules for the purpose.
5. Term of Office
6 years, which shall begin at noon on the 30th
day of June next following the day of the
election and shall end at noon of the same day
6 years thereafter [Section 4, Article VII, 1987
Constitution].
Note:
● The President is not eligible for any
reelection.
○ The Supreme Court has not yet
decided whethera run for second
non-consecutive
term
is
reelection.[Pormento v. Estrada G.R.
No. 191988 (2010)]
● No person who has succeeded as
President and has served as such for
more than four years shall be qualified for
election to the same office at any time
[Section 4, Article VII, 1987 Constitution].
○ “Succeeded as President” — refers
to Vice President as automatic
successor or elected President by
virtue of special election, and serves
the unexpired term; ineligible to run
for President if he has served for
more than four years
The Acting President is not included (as an
Acting President does not succeed to the office
of the President).
6. Rules on Succession
a. Who shall act as or become President
In cases where the Constitution provides that
an official shall act as president, such Acting
President does notbecome President as
he/she does not succeed to the office.
Situation
Who shall act as
President
Before/at the beginning of the term
President-elect
to qualify
Page 50 of 384
UP Law Bar Operations Commission 2023
fails Vice-President-elect
(until the Presidentelect
shall
have
qualified)
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
Situation
POLITICAL LAW
Who shall act as
President
Situation
Who shall act as
President
President shall not Vice-President-elect
have been chosen
(until a President
shall have been
chosen and qualified)
First
written Vice-President
declaration
by Acting President
majority
of
the
Cabinet
Beginning of the term: Vice-President-elect
President-elect died shall
become
or
became President
permanently disabled
Determination
by
Congress by ⅔ vote
of all members, voting
separately, acting on
the second written
declaration
by
majority
of
the
Cabinet
No President and
Vice-President have
been chosen or shall
have qualified
Senate President or,
in case of his
inability, the Speaker
of the House shall act
as President (until a
Both President and President or a ViceVice-President died President shall have
or
became been chosen and
permanently disabled qualified)
[Strictly
not
succession.
Temporary only.]
a
Death,
permanent Vice-President
to
disability,
removal serve the unexpired
from
office,
or term
resignation of the
President
Senate President or,
in case of his
inability, the Speaker
of the House shall act
as President (until a
President or a VicePresident shall have
been chosen and
qualified)
[Strictly
not
a
succession.
Temporary only.]
Temporary disability resulting to vacancy
Voluntary
declaration
President
written Vice-President
of the Acting President
⅔
vote:
VicePresident as Acting
President
Otherwise: President
continues exercising
his
powers
and
duties
[Strictly
not
succession.
Temporary only.]
a
b. What if the Senate President and
Speaker are also not capable to act as
President?
Vacancy before the term: Congress shall, by
law, provide the manner of selecting the one
who will act as President until President or Vice
President have either been chosen and
qualified pursuant to special elections.
During the term
Death,
permanent
disability,
removal
from
office,
or
resignation of both
the President and
Vice-President
as
as
Vacancy during the term: Congress shall, by
law, provide who will be acting President until
President or Vice President have either been
elected and qualified pursuant to special
elections.
Congress has yet to pass a law providing for
such manner of selection.
c. Vacancy in the Office of the President
At the Beginning of Term
1987 Constitution
Section 7, Article VII. The President-elect and the
Vice-President-elect shall assume office at the
beginning of their terms.
Order of succession:
1. Vice-President;
2. Senate President (as acting President
only);
Page 51 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
3. Speaker of the House(as acting President
only);
4. Congress, by law, shall provide the
manner in which one who is to act as
President shall be selected [Section 7,
Article VII, 1987 Constitution].
1. Temporary or Permanent Vacancy in the
Presidency before the Term
Permanent vacancy occurs when:
1. The President dies; or
2. The
President
is
permanently
incapacitated.
Effect of permanent incapacity: Order of
succession in Section 7, Article VII is followed.
election shall be deemed certified under paragraph
2, Section 26, Article VI of this Constitution and shall
become law upon its approval on third reading by the
Congress. Appropriations for the special election
shall be charged against any current appropriations
and shall be exempt from the requirements of
paragraph 4, Section 25, Article VI of this
Constitution. The convening of the Congress cannot
be suspended nor the special election postponed.
No special election shall be called if the vacancy
occurs within eighteen months before the date of the
next presidential election.
During Term
1. Permanent Vacancy in the Presidency
during the Term
1987 Constitution
1987 Constitution
Section 7 (2)-(6), Article VII. If the President-elect
fails to qualify, the Vice-President-elect shall act as
President until the President-elect shall have
qualified.
If a President shall not have been chosen, the VicePresident-elect shall act as President until a
president shall have been chosen and qualified.
If at the beginning of the term of the President, the
President-elect shall have died or shall have
become permanently disabled, the Vice-Presidentelect shall become President.
Where no President and Vice-President shall have
been chosen or shall have qualified, 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 qualified.
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 qualified, in case of death, permanent
disability, or inability of the officials mentioned in the
next preceding paragraph.
Section 10, Article VII. The Congress shall, at ten
o’clock in the morning of the third day after the
vacancy in the offices of the President and VicePresident occurs, convene in accordance with its
rules without need of a call 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 forty-five days nor later than sixty days from the
time of such call. The bill calling such special
Section 8, Article Vii. In case of death, permanent
disability, removal from office, or resignation of the
President, the Vice-President shall become the
President to serve the unexpired term. In case of
death, permanent disability, removal from office, or
resignation of both the President and VicePresident, the President of the Senate or, in case of
his inability, the Speaker of the House of
Representatives, shall then act as President until the
President or Vice-President shall have been elected
and qualified.
The Congress shall, by law, provide who shall serve
as President in case of death, permanent disability,
or resignation of the Acting President. He shall serve
until the President or the Vice-President shall have
been elected and qualified, and be subject to the
same restrictions of powers and disqualifications as
the Acting President.
Four possibilities for permanent vacancy
during term of office
1. Death;
2. Removal (by impeachment);
3. Resignation;
4. Permanent Disability.
In case of Temporary Disability
1. Temporary Vacancy in the Presidency
during the Term
A temporary vacancy in the Presidency arising
from his disability can occur in any of the
following ways:
● Voluntary written declaration of the
President;
Page 52 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
● First written declaration by majority of the
Cabinet;
● Determination by Congress by 2/3 vote of
all members, voting separately, acting on
the second written declaration by majority
of the Cabinet.
In all these cases, the Vice-President assumes
the powers and duties of the office as Acting
President.
2. Section 11, Article VII
a. Voluntary written declaration
President
of
the
Whenever the President transmits to the
President of the Senate and the Speaker of the
House of Representatives his written
declaration that he is unable to discharge the
powers and duties of his office.
b. First written declaration by majority of the
Cabinet
Whenever a majority of all the Members of the
Cabinet transmit to the President of the Senate
and to the Speaker of the House of
Representatives their written declaration that
the President is unable to discharge the
powers and duties of his office.
c. Determination by Congress by 2/3 vote of all
members, voting separately, acting on the
second written declaration by majority of the
Cabinet
Thereafter, when the President transmits to the
President of the Senate and to the Speaker of
the House of Representatives his written
declaration that no inability exists, he shall
reassume the powers and duties of his office.
Meanwhile, should a majority of all the
Members of the Cabinet transmit within five
days to the President of the Senate and to the
Speaker of the House of Representatives their
written declaration that the President is unable
to discharge the powers and duties of his office,
the Congress shall decide the issue. For that
purpose, the Congress shall convene, if it is not
in session, within 48 hours, in accordance with
its rules and without need of call.
If the Congress, within 10 days after receipt of
the last written declaration, or, if not in session,
within 12 days after it is required to assemble,
determines by a 2/3 vote of both Houses,
voting separately, that the President is unable
to discharge the powers and duties of his office,
the Vice-President shall act as the President;
otherwise, the President shall continue
exercising the powers and duties of his office.
3. Constitutional Duty of Congress in Case
of Double Vacancy in the Offices of the
President and the Vice- President
1987 Constitution
Section 10, Article VII. The Congress shall, at
10AM of the 3rd day after the vacancy in the offices
of the President and Vice-President occurs:
1. Convene in accordance with its rules without
need of a call; and
2. Within seven days, enact a law calling for a
special election to elect a President and a VicePresident to be held not earlier than forty-five
days nor later than sixty days from the time of
such call.
The bill calling such special election shall be
deemed certified under paragraph 2, Section 26,
Article VI of this Constitution and shall become law
upon its approval on third reading by the Congress.
Appropriations for the special election shall be
charged against any current appropriations and shall
be exempt from the requirements of paragraph 4,
Section 25, Article VI of this Constitution. The
convening of the Congress cannot be suspended
nor the special election postponed. No special
election shall be called if the vacancy occurs within
eighteen months before the date of the next
presidential election.
4. Vacancy timetable
a. 0 days – Vacancy occurs
b. 3 days – Congress convenes
c. 10 days – Law providing for special
elections should be enacted
d. 55–70 days – Elections should be held
within this period
e. 85–100 days – Canvassing by
Congress should be done within this
period
Page 53 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
d. Vacancy in the Office of the VicePresident
1987 Constitution
SECTION 9, ARTICLE VII. Whenever there is a
vacancy in the Office of the Vice-President during
the term for which he was elected, the President
shall nominate a Vice-President from among the
Members of the Senate and the House of
Representatives who shall assume office upon
confirmation by a majority vote of all the Members of
both Houses of the Congress, voting separately.
E. Other Privileges, Inhibitions,
and Disqualifications
1. Official residence
The president shall have an official residence
[Section 6, Article VII, 1987 Constitution].
2. Salary
This shall be determined by law. It shall not be
decreased during tenure. No increase shall
take effect until after the expiration of the term
of the incumbent during which such increase
was approved [Section 6, Article VII, 1987
Constitution].
3. Presidential Privilege
Note: Case law uses the term presidential
privilege to refer to either (a) immunity from suit
(i.e., immunity from judicial processes, see Neri
v. Senate, infra, and Saez v. MacapagalArroyo, supra); or (b) executive privilege
[Akbayan v. Aquino, infra], both discussed
above.
4. The Vice President
Qualifications, election and term of office and
removal are the same as the President, except
that no Vice-President shall serve for more
than 2 successive terms.
The Vice-President may be appointed as a
member of the Cabinet; such requires no
confirmation
by
the
Commission
of
Appointments.
5. Prohibitions on the Executive
Department
The following prohibitions apply to:
a. President;
b. Vice-President;
c. The members of the Cabinet, and their
deputies or assistants.
6. Multiple Offices
Compensation
and
Double
a. Shall not receive any other emoluments
from the government or any other source
[For President and Vice-President,
Section 6, Article VII, 1987 Constitution].
b. Unless otherwise provided in the
Constitution, shall not hold any other office
or employment [Section 13, Article VII,
1987 Constitution].
Exceptions
i. Constitutional Exceptions
ii. Ex-Officio Exception: The prohibition
does not include posts occupied by
executive officials without additional
compensation in an ex officio capacity,
as provided by law and as required by
the primary functions of the said official’s
office [National Amnesty Commission v.
COA, G.R. No. 156982 (2004)].
iii. The Vice-President being appointed as a
member of the cabinet.
iv. The Secretary of Justice sitting as ex
officio member of the Judicial and Bar
Council [Section 8(1), Article VIII, 1987
Constitution; Civil Liberties Union v.
Executive Secretary, supra].
c. Shall not directly or indirectly:
1. Practice any other profession;
2. Participate in any business; or
3. Be financially interested in any contract
with, or in any franchise or special
privilege granted by the government or
any
subdivision,
agency,
or
instrumentality
thereof,
including
government-owned
or
-controlled
corporations or their subsidiaries
[Section 14, Article VII, 1987
Constitution].
d. Strictly avoid conflict of interest in the
conduct of their office [Section 13, Article
VII, 1987 Constitution].
Page 54 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
e. May not appoint (a) spouse; or (b)
relatives by consanguinity or affinity within
the fourth civil degree as members of
Constitutional Commissions, or the Office
of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of
bureaus or offices, including government
owned or controlled corporation and their
subsidiaries.
a. President’s spouse and relatives
President's spouse and relatives by
consanguinity or affinity within the fourth civil
degree cannot be appointed during his tenure
as: (COSUCH)
a. Members
of
the
Constitutional
Commissions
b. The Office of the Ombudsman
c. Secretaries, Undersecretaries, Chairmen
or Heads of bureaus or offices (including
GOCCs and subsidiaries)
The stricter prohibition applied to the President
and his official family under Article VII, Section
13, as compared to the prohibition applicable
to appointive officials in general under Article
IX-B, Section 7, par. 2, is proof of the intent of
the 1987 Constitution to treat them as a class
by itself and to impose upon said class stricter
prohibitions [Civil Liberties Union v. Executive
Secretary, G.R. No. 83896 (1991)].
b. Exceptions to the rule prohibiting
executive
officials
from
holding
additional positions
President
The President can assume any or all Cabinet
posts because the departments are mere
extensions of his personality, according to the
Doctrine of Qualified Political Agency and the
Unitary (Single) Executive Doctrine. Hence, no
objection can be validly raised based on
Section 13, Article VII.
The President can assume ex officio positions
(e.g., The President is the Chairman of NEDA)
[Section 9, Article XII, 1987 Constitution].
Vice-President
The Vice-President may be appointed as a
member of the Cabinet. Such appointment
requires no confirmation [Section 3, Article VII,
1987 Constitution].
Cabinet
The Constitution allows a Cabinet member to
hold another office provided:
i. It is in an ex-officio capacity and without
additional compensation;
ii. Such is necessitated by the primary
functions of his position (e.g., Secretary of
Trade and Industry as Chairman of NDC;
Secretary of Agrarian Reform as Chairman
of the Land Bank); and
iii. Such is provided by law [Civil Liberties
Union v. Executive Secretary, supra].
F. Powers of the President
1. Executive
Powers
and
Administrative
1987 Constitution
Section 1, Article VII. The executive power shall be
vested in the President of the Philippines.
a. Executive Power
This refers to the President’s power to enforce,
implement, and administer laws. The President
shall ensure that the laws be faithfully executed
[Section 17, Article VII, 1987 Constitution].
The
President’s
power
to
conduct
investigations to aid him in ensuring the faithful
execution of laws is inherent in the President’s
powers as the Chief Executive. The purpose of
allowing ad hoc investigating bodies to exist is
to allow an inquiry into matters which the
President is entitled to know so that he can be
properly advised and guided in the
performance of his duties relative to the
execution and enforcement of the laws of the
land [Biraogo v. Philippine Truth Commission,
G.R. Nos. 192935-36 (2010)].
b. Summary of Presidential Powers
1.
Executive Power: This is the power to
enforce and administer laws.
Page 55 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
2.
Power of Appointment: The Legislative
can create office, but only the Executive
can fill it; Congress cannot circumvent
this by setting very narrow qualifications,
such that only one person is qualified to
hold office [Flores v. Drilon, G.R. No.
104732 (1993)].
3.
Power of Control: The President may
(a) nullify, modify judgments of
subordinates [See Section 17, Article VII,
1987 Constitution]; (b) undo or redo
actions of subordinates; and (c) lay down
rules
for
the
performance
of
subordinates’ duties.
4.
Power of Supervision: This refers to
the oversight function. The Executive
must see to it that rules, which it did not
make, are followed.
5.
Commander-in-Chief Powers [Section
18, Article VII, 1987 Constitution]:
a. Call Out Power: Armed forces to
suppress lawless violence.
b. Suspension of the privilege of the
Writ of Habeas Corpus: Only (i) in
times of rebellion or invasion; and (ii)
when required by public safety.
c. Martial law: Does not suspend the
Constitution or result in the closure of
Congress or the courts (which
continue to perform their legislative
and judicial functions).
6. Power as to Legislation
a. Veto Power
b. Power to Declare Emergency: The
President only has the power to
declare a state of emergency. The
exercise of emergency power is
vested in Congress, but may be
delegated by it to the President.
c. Integrative Power: Powers shared
with legislative (e.g., appointments
requiring confirmation, rule-making);
legislation
during
times
of
emergency
7.
POLITICAL LAW
a. These are rulemaking powers
of the President furtherto his
implementation of directives by
the
Constitution
or
statutes/legislation.
b. This includes the power to
declare a state of facts or to
mark
events.
Hence,
a
Declaration of a State of
Emergency is within the
ordinance power of the
President. Howerver, this does
not vest him with Emergency
Powers (including the power to
issue decrees in the nature of
statutes), which can only be
done by Congress through a
law. [See David v. MacapagalArroyo, supra]
8.
Diplomatic Powers: Includes the power
to ratify treaties (subject to the consent
of the Senate) and enter into executive
agreements.
9.
Residual Power: To protect the general
welfare of people; founded on duty of
President as steward of the people;
includes powers unrelated to execution
of any provision of law [See Marcos v.
Manglapus, G.R. No. 88211 (1989)]
10. Other Powers
i.
Power to Pardon: Reprieve,
commute, pardon, remit fines and
forfeitures after final judgment
[Section 19(1), Article VII, 1987
Constitution].
ii.
Power to Grant Amnesty: With
concurrence of majority of all
members of Congress.
iii.
Borrowing Power: Contract or
guarantee foreign loans with
concurrence of Monetary Board
[Section 20, Article VII, 1987
Constitution].
iv.
Budgetary Power: Submit to
Congress budget of bills and
expenditures [Section 22, Article VII,
1987 Constitution].
Ordinance Power: The power to issue
executive orders, administrative orders,
proclamations, memorandum orders,
10. Informing Power: Address Congress
memorandum circulars, and general and
during opening of session, or at any
special orders
Page 56 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
other time [Section 23, Article VII, 1987
Constitution].
Note: The presidential power of control over
the Executive Branch of Government is a selfexecuting provision of the Constitution and
does not require statutory implementation, nor
may its exercise be limited, much less
withdrawn, by the Legislature [Ocampo v.
Enriquez, G.R. No. 225973 (2016)].
2. Power of Appointment
1987 Constitution
Section 16, Article VII. The President shall
nominate and, with the consent of the Commission
on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the
rank of colonel or naval captain, and other officers
whose appointments are vested in him in this
Constitution. He shall also appoint all other officers
of the Government whose appointments are not
otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or
in the heads of departments, agencies,
commissions, or boards.
1. Appointment: Selection by the proper
authority of an individual who is to exercise
the powers and functions of a given office.
Appointee has a right to claim
compensation
as
stated
in
the
appointment.
2. Designation: Imposition of additional
duties, usually by law, upon a person
already in the public service by virtue of an
earlier appointment. Does not entail
payment of additional benefits or grants
upon the person so designated [National
Amnesty Commission v. COA, G.R. No.
156982 (2004)].
3. Commission: Written evidence of the
appointment.
4. Elements of a valid appointment:
i. Authority to appoint and evidence of
the exercise of authority;
ii. Transmittal of the appointment paper
and evidence of the transmittal
(preferably through the Malacañang
Records Office);
iii.
Vacant position at the time of
appointment;
iv. Receipt of the appointment papers and
acceptance of the appointment by the
appointee
who
possesses
all
qualifications and none of the
disqualifications [Velicaria-Garafil v.
Office of the President, G.R. No.
203372 (2015)].
5. Four Groups of Officers whom the
President may appoint:
i. With Consent of the Commission on
Appointments:
● Heads of the executive departments
● Ambassadors,
other
public
ministers and consuls
● Officers of the armed forces from
the rank of colonel or naval captain
● Other officers whose appointments
are vested in him by the
Constitution:
● Regular Members of the JBC (exofficio members do not need the
confirmation of the CA)
● Chairman and Commissioners of
the CSC, COMELEC, and COA.
● Members of the Regional and
Consultative Commissions
ii. All other officers of the government
whose appointments are not otherwise
provided by law;
iii. Those whom the President may be
authorized by law to appoint (e.g.,
Chairman and Members of the
Commission on Human Rights
[Bautista v. Salonga, G.R. No. 86439
(1989)]; and
iv. Officers lower in rank whose
appointments Congress may by law
vest in the President alone [Sarmiento
III v. Mison, G.R. No. 79974 (1987)]
Consent of the Commission on Appointments
is not required for 2, 3, and 4 as these are not
positions whose appointments are granted by
the Constitution
Note: Appointments to the Philippine Coast
Guard, which is no longer under the AFP, need
not undergo confirmation [Soriano v. Lista,
G.R. No. 153881 (2003)].
Page 57 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
The Philippine National Police (PNP) [Section
6, Article XVI, 1987 Constitution] is separate
and distinct from the Armed Forces of the
Philippines (AFP) [Section 4, Article XVI, 1987
Constitution]. The police force is different from
and independent of the armed forces and that
the ranks in the military are not similar to those
in the PNP. Thus, directors and chief
superintendents of the PNO do not fall under
the first category of presidential appointees
requiring confirmation by the COA [Manalo v.
Sistoza, G.R. No. 107369 (1999)].
Note: Re: “Congress may by law vest in the
appointment of other officers lower in rank in
the President alone.”
● The inclusion of the word “alone” was an
oversight. The Constitution should read:
“The Congress may, by law, vest the
appointment of other officers lower in rank
in the President” [Sarmiento v. Mison,
supra]
6. Other cases where confirmation is not
required:
i. When Congress creates inferior
officers but omits to provide for
appointment thereto, or provides in an
unconstitutional manner for such
appointments – power to appoint is
vested upon the President by default,
but this will not require confirmation;
ii. Appointment of the Vice-President as
member of the Cabinet [Section 3,
Article VII, 1987 Constitution];
iii. Appointments upon recommendation
of the Judicial Bar Council;
iv. Appointments solely by the President.
7. Appointments upon nomination of the
Judicial and Bar Council (does not
require
confirmation
by
the
Commission on Appointments)
i. Members of the Supreme Court and all
other courts [Section 9, Article VIII,
1987 Constitution].
Note: The appointment must be made
90 days from when the vacancy occurs
[Section 4(1), Article VIII, 1987
Constitution]
For lower courts, appointments shall be
issued within 90 days from submission
of the list.
ii. Ombudsman and his 5 deputies (for
Luzon, Visayas, Mindanao, general
and military) [Section 9, Article XI, 1987
Constitution].
8.
Clustering of JBC Nominations
Clustering: A previous JBC practice where,
when there are multiple vacancies in a court
(e.g., Associate Justice A, B, and C in the
Sandiganbayan), candidates (e.g., Candidates
1 to 9) who meet the criteria for the position are
nominated by the JBC only for specific
vacancies (e.g., Candidates 1-3 for Associate
Justice A, Candidates 4-6 for AssociateJustice
B, and Candidates 7-9 for Associate Justice C).
In Aguinaldo v. Aquino, G.R. No. 224302
(2017), the Court ruled that clustering impinged
upon the President’s appointment power in
appointing the Associate Justices in the
Sandiganbayan.
The President’s option for every vacancy was
limited to the 5 to 7 nominees in each cluster.
Once the President chose an appointee from
one cluster, he was proscribed from
considering other nominees in the same cluster
for the other vacancies. All the nominees
applied for and were qualified for appointment
to any of the vacant Associate Justice positions
in the Sandiganbayan, however, the JBC did
not explain why one nominee should be
considered for appointment to the position
assigned to one specific cluster only.
The nominees' chance for appointment was
restricted to the consideration of the one
cluster in which they were included, even
though they applied for and were qualified for
all vacancies.
9. Steps in the appointing process (for
appointees requiring confirmation):
Nomination by the President
!
Page 58 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Confirmation by the Commission on
Appointments
!
Issuance of the Commission
!
Acceptance by the Appointee
Note: In the case of ad interim appointments,
steps 1, 3 and 4 precede step 2.
An appointment is deemed complete only upon
acceptance [Lacson v. Romero, G.R. No. L3081 (1949)].
Appointment is essentially a discretionary
power, the only condition being that the
appointee, if issued a permanent appointment,
should possess the minimum qualification
requirements, including the Civil Service
eligibility prescribed by law for the position.
Discretion also includes the determination of
the nature or character of the appointment.
a. Process of Confirmation by the
Commission
appointment cannot have the effect of recalling
or setting aside said appointment. The
Constitution is clear — there must be a
rejection by the Commission on Appointments
or non-action on its part for the confirmation to
be recalled.
b. By-Passed Appointments and their
Effects
A by-passed appointment is one that has not
been finally acted upon on the merits by the
Commission on Appointments at the close of
the session of Congress. There is no final
decision by the Commission on Appointments
to give or withhold its consent to the
appointment as required by the Constitution.
Absent such decision, the President is free to
renew the ad interim appointment of a bypassed appointee [Matibag v. Benipayo, G.R.
No. 149036 (2002)].
A by-passed appointee, or one whose
appointment was not acted upon the merits by
the CA, may be appointed again by the
President, because failure by the CA to confirm
an ad interim appointment is not disapproval.
c. Appointments by Acting President
1987 Constitution
Types of Appointment
● Regular
● Recess (Ad Interim)
Two Kinds of Appointments Requiring
Confirmation:
1. Regular: If the CA (Congress) is in
session; and
2. Ad Interim: during the recess of Congress
(because the CA shall meet only while
Congress is in session) [Section 19, Article
VI, 1987 Constitution]
Regular Appointment
1. Made by the President while Congress is
in session
2. Takes effect only after confirmation by the
Commission on Appointments (CA)
3. Once approved, continues until the end of
the term.
Note: The mere filing of a motion for
reconsideration of the confirmation of an
Section 14, Article VII. Appointments extended by
an Acting President shall remain effective, unless
revoked by the elected President, within ninety days
from his assumption or reassumption of office.
Midnight appointments ban applies to the
acting President.
d. Scope of Midnight Appointments
General Rule: 2 months immediately before
the next presidential elections (2nd Monday of
March), and up to the end of his “term” (June
30), a President (or Acting President) shall not
make appointments [Section 15, Article VII,
1987 Constitution].
Exception: Temporary appointments to
executive positions, when continued vacancies
will: (1) Prejudice public service; or (2)
endanger public safety.
Page 59 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Limited to Executive Departments: The
prohibition against midnight appointment
applies only to positions in the executive
department [De Castro v. JBC, G.R. No. 91002
(2010)].
Limited to Caretaker Capacity: While
“midnight appointments” (i.e., made by
outgoing President near the end of his term)
are not illegal, they should be made in the
capacity of a “caretaker” [a new president
being elected], doubly careful and prudent in
making the selection, so as not to defeat the
policies of the incoming administration. Hence,
the issuance of 350 appointments in one night
and planned induction of almost all of them a
few hours before the inauguration of the new
President may be regarded as abuse of
presidential prerogatives [Aytona v. Castillo,
G.R. No. L-19313 (1962)]. It must be shown
that there is regard for the fitness of appointees
and the filling up must be few and so spaced
which indicates there was a deliberate action
taken by the appointing power.
Applies only to the President: Ban does not
extend to appointments made by local elective
officials. There is no law that prohibits local
elective officials from making appointments
during the last day of his/her tenure [De Rama
v. CA, G.R. No. 131136 (2001)].
e. Recess of Ad Interim appointments
The President shall have the power to make
appointments during the recess of the
Congress, whether voluntary or compulsory,
but such appointments shall be effective only
until disapproval by the Commission on
Appointments or until the next adjournment of
the Congress [Section 16(2), Article VII, 1987
Constitution].
Hence, when an ad interim appointment is
bypassed, it expires during the adjournment of
Congress and must be re-extended by the
President.
f. Power of Removal
General Rule: The power of removal is implied
from the power of appointment.
Exception: The President cannot remove
officials appointed by him where the
Constitution prescribes certain methods for
separation of such officers from public service,
e.g., Chairman and Commissioners of
Constitutional Commissions who can be
removed only by impeachment, or judges who
are subject to the disciplinary authority of the
Supreme Court.
Career Civil Service: Members of the career
civil service who are appointed by the
President may be directly disciplined by him,
but their removal is subject to compliance with
civil service rules. [Villaluz v. Zaldivar, G.R. No.
L-22754 (1965)].
Serve at the pleasure of the President:
Cabinet members and such officers whose
continuity in office depends upon the pleasure
of the president may be replaced at any time,
but legally speaking, their separation is
effected not by removal but by expiration of
their term of the appointee (as their “term” is
only until the President is pleased with their
continuance).
3. Power of Control and Supervision
1987 Constitution
Section 17, Article VII. The President shall have
control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be
faithfully executed.
Control is essentially the power to (1) alter or
modify or nullify or set aside what a subordinate
officer had done in the performance of his
duties; and to (2) substitute the judgment of the
former with that of the latter [Biraogo v.
Philippine Truth Commission, G.R. No. 192935
(2010)].
The power of control includes:
● Acting directly whenever a specific
function is entrusted by law or regulation
to a subordinate
● Directing the performance of a duty
● Restraining the commission of certain acts
● Reviewing,
approving,
reversing,
modifying acts and decisions of
subordinate officials or units
Page 60 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
● Determining priorities in the execution of
plans and programs
● Prescribing
guidelines,
plans
and
programs
● Reorganization (transfer of unit, transfer of
functions, abolish, consolidate, or merge
units)
Supervision is the overseeing or the power of
the officer to see that subordinate officers
perform their duties, and if the latter fail or
neglect to fulfill them, then the former may take
such action or steps as prescribed by law to
make them perform these duties. This does not
include the power to overrule their acts, if these
acts are within their discretion.
a. Doctrine of Qualified Political Agency
All the different executive and administrative
organizations are mere adjuncts of the
Executive Department. This is an adjunct of the
Doctrine of the Unitary (Single) Executive.
The heads of the various executive
departments are assistants and agents of the
Chief Executive [Villena v. Secretary of Interior,
G.R. No. L-45670 (1939)]. In the regular course
of business, acts of executive departments,
unless disapproved or reprobated by the Chief
Executive, are presumptively acts of the Chief
Executive [Free Telephone Workers Union v.
Minister of Labor and Employment, G.R. No. L581184 (1981)].
There is a special class of powers which the
President cannot delegate (e.g., declaration of
martial law, suspension of the privilege of the
writ of habeas corpus, executive clemency,
among others), which are textually committed
by the Constitution to the President. However,
the power of administrative review is not
among these quintessential presidential
powers. Thus, the President can choose not to
review the decision of the DOJ and delegate
such power to the Secretary by virtue of the
Qualified Agency Doctrine [Angeles v. Gaite,
G.R. 165276 (2009)].
b. Executive Departments and Offices
General Rule: The multifarious executive and
administrative functions of the Chief Executive
are performed by and through the executive
departments.
Exceptions:
a. Cases where the Chief Executive is
required by the Constitution or by law to
act in person; or
b. The exigencies of the situation demand
that he acts personally.
The President may, by executive or
administrative order, direct the reorganization
of government entities under the Executive
Department. This is also sanctioned under the
Constitution, as well as the Admin Code. This
recognizes the recurring need of every
President to reorganize his or her office "to
achieve simplicity, economy and efficiency," in
the manner the Chief Executive deems fit to
carry out presidential directives and policies
[Tondo Medical Employees v. CA, G.R. No.
167324 (2007)].
Power to Abolish Offices
Generally, the power to abolish a public office
is legislative (as it is correlative of the power to
create a public office). However, as far as
bureaus, offices or agencies of the executive
department are concerned, the power of
control may justify him to inactivate functions of
a particular office [Buklod ng Kawaning EIIB v.
Zamora, G.R. No. 142801-802 (2001)].
In establishing an executive department,
bureau, or office, the legislature necessarily
ordains an executive agency's position in the
scheme of administrative structure. Such
determination is primary, but subject to the
President's continuing authority to reorganize
the administrative structure [Anak Mindanao v.
Executive Secretary, G.R. No. 166052 (2007)].
Power to Reorganize
The Administrative Code delegated to the
President the power to reorganize the Office of
the President in the interest of “simplicity,
economy, and efficiency” (cf. Admin. Code, Bk.
III, Ch.10, Sec.31).
Note: A distinction is made in the Admin. Code
between the power to reorganize the Office of
the President Proper and that for the Office of
the President.
Page 61 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Office of the
President Proper
Office of the
President
The President has the
power to abolish,
consolidate, merge
units of the Office of
the President Proper.
Power
of
the
President
to
reorganize is limited
to merely transferring
functions. This refers
to outside the Office
of the President
Proper but still within
the Office of the
President.
[Pichay v. Office of the Deputy Executive
Secretary, G.R. No. 196425 (2012)].
The Office of the President Proper is a smaller
office that includes the Private Office, the
Executive Office, the Common Staff Support
System, and the Presidential Special
Assistants/Advisers System. [See Admin.
Code, Bk. III, Ch. 8, Sec. 22].
c. General Supervision over Local
Government Units
The President shall exercise general
supervision over local governments [Section 4,
Article X, 1987 Constitution].
The President shall exercise general
supervision over autonomous regions to
ensure that laws are faithfully executed
[Section 16, Article X, 1987 Constitution].
The President may suspend or remove local
officials by virtue of the power delegated to him
by Congress through the Local Government
Code. The Constitution also places local
governments under the general supervision of
the President, and also allows Congress to
include in the local government code
provisions for removal of local officials [Section
3, Article X, 1987 Constitution; See also
Ganzon v. CA, G.R. No. 93252 (1991)].
orders, or local ordinance) as he only exercises
general supervision over LGUs, not control
4. Emergency Powers
a. Emergency Powers
Delegated by the Congress. It covers such
power necessary to carry out a declared
national policy of Congress.
b. Nature of Grant
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.
a. Limited period — Ceases upon withdrawal
by Congress through a resolution, or
failing to adopt it upon next voluntary
adjournment.
b. Subject to restrictions from Congress.
[See Rodriguez v. Gella, G.R. No. L-6266
(1953) on the Nature of Emergency
Power]
c. Requisites of Grant of Emergency
Powers
a. There must be a war or other emergency;
b. The delegation must be for a limited period
only;
c. The delegation must be subject to such
restrictions as the Congress may
prescribe; and
d. The emergency powers must be exercised
to carry out a national policy declared by
Congress.
[See David v. Macapagal-Arroyo, G.R. No.
171396 (May 3,2006)]
d. Concept of Emergency
Emergency, as a generic term, connotes the
existence of conditions suddenly intensifying
the degree of existing danger to life or
wellbeing beyond that which is accepted as
normal. Implicit in these definitions are the
In relation to local government units (LGUs),
elements of intensity, variety, and perception.
supervision includes the authority to ensure
Emergencies, as perceived by legislature or
that LGUs are operating and acting in
executive in the United States have been
accordance with law and not ultra vires.
occasioned by a wide range of situations,
However, the President cannot directly
classifiable under three principal heads: (a)
overrule the acts of LGUs (e.g., local executive
economic, (b) natural disaster, and (c) national
Page 62 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
security. Emergency as contemplated in the
1987 Constitution, is of the same breadth. It
may include rebellion, economic crisis,
pestilence or epidemic, typhoon, flood, or other
similar catastrophe of nationwide proportions
or effect.
In David v. Macapagal-Arroyo, G.R. No.
171396 (2006), the Court made it clear that
Presidential Proclamation 1017 (Declaring a
State of National Emergency) was woven out
of the “calling out” and “take care” powers of
the President joined with the “temporary
takeover” provision under Section 17, Article
XII. PP 1017 purports to grant the President,
without delegation from Congress, to take over
or direct operation of any privately-owned
public utility or business affected with public
interest.
Pursuant to her ordinance power, the President
may declare the existence of a state of national
emergency without Congressional enactment
however the exercise of emergency powers
requires a delegation from Congress which is
the repository of emergency powers.
5. Commander-In-Chief Powers
1987 Constitution
Section 18, Article VII. The President shall be the
Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof
under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President
shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of
at least a majority of all its Members in regular or
special session, may revoke such proclamation or
suspension, which revocation shall not be set aside
by the President. Upon the initiative of the President,
the Congress may, in the same manner, extend
such proclamation or suspension for a period to be
determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
suspension, convene in accordance with its rules
without any need of a call.
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
A state of martial law does not suspend the
operation of the Constitution, nor supplant the
functioning of the civil courts or legislative
assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply
only to persons judicially charged for rebellion or
offenses inherent in or directly connected with the
invasion.
During the suspension of the privilege of the writ, any
person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be
released.
The President is the commander-in-chief of all
armed forces of the Philippines. The ability of
the President to require a military official to
secure prior consent before appearing before
Congress pertains to a wholly different and
independent species of presidential authority
— the commander-in-chief powers of the
President. By tradition and jurisprudence, the
commander-in-chief powers of the President
are not encumbered by the same degree of
restriction as that which may attach to
executive privilege or executive control
[Gudani v. Senga, G.R. No. 170165 (2006)].
Graduated Powers (From most to least
benign)
a. Calling out power: He may call out such
armed forces to prevent or suppress
lawless violence, invasion, or rebellion.
b. Power to suspend PWHC: He may
suspend the privilege of the writ of habeas
corpus.
c. Power to declare ML: He may proclaim
martial law over the entire Philippines or
any part thereof [Sanlakas v. Executive
Secretary, G.R. No. 159085 (2004)].
The Congress, if not in session, shall, within twentyfour hours following such proclamation or
Page 63 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Conditions for the exercise of calling out
power:
1. An actual invasion or rebellion; AND
2. Public safety requires the exercise of such
power.
These conditions are not required in the
exercise of 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.’ [Sanlakas v. Executive
Secretary, supra]
Outside explicit constitutional limitations, the
commander-in-chief clause vests in the
President, as commander-in-chief, absolute
authority over the persons and actions of the
members of the armed forces. Such authority
includes the ability of the President to restrict
the travel, movement and speech of military
officers, activities which may otherwise be
sanctioned under civilian law [Gudani v.
Senga, supra].
a. Calling Out Powers
This is merely a police measure meant to quell
disorder. As such, the Constitution does not
regulate its exercise radically.
State of Rebellion
Since the Constitution did not define the term
"rebellion," it must be understood to have the
same meaning as the crime of "rebellion" in the
Revised Penal Code (RPC).
In determining the existence of rebellion, the
President only needs to convince himself that
there is probable cause or evidence showing
that more likely than not a rebellion was
committed or is being committed. To require
him to satisfy a higher standard of proof would
restrict the exercise of his [commander-inchief] powers [Lagman v. Medialdea, G.R. No.
231658 (2017)].
b. Declaration of Martial Law and the
Suspension of the Privilege of the Writ
of Habeas Corpus (Including Extension
of Period)
Requisites of Proclaiming Martial Law
1. There must be an in invasion or rebellion.
2. Public safety requires the proclamation of
martial law all over the Philippines or in
any part thereof.
The power to declare martial law and to
suspend the privilege of the writ of habeas
corpus
involve
curtailment
and
suppression of civil rights and individual
freedom. Thus, the declaration of martial
law serves as a warning to citizens that the
Executive Department has called upon the
military assist in the maintenance of law
and order, and while the emergency
remains, the citizens must, under pain of
arrest and punishment, not act in a
manner that will render it more difficult to
restore order and enforce the law [Lagman
v. Medialdea, supra].
The following cannot be done by a
proclamation of Martial Law [Section 18,
Article VII, 1987 Constitution]:
1. Suspend the operation of the Constitution;
2. Supplant the functioning of the civil courts
and legislative assemblies;
3. Confer jurisdiction upon military courts
and agencies over civilians, where civil
courts are able to function.
Open Court Doctrine: Civilians cannot be
tried by military courts if the civil courts are
open and functioning. Martial law usually
contemplates a case where the courts are
already closed and the civil institutions
have already crumbled, i.e., a "theater of
war." [Olaguer v. Military Commission No.
34, G.R. No. L-54558 (1987)].
4. Automatically suspend the privilege of the
writ of habeas corpus. The President must
expressly suspend the privilege.
Suspension of the Privilege of the Writ of
Habeas Corpus
Requisites for suspension of the privilege
of the writ of habeas corpus:
1. There must be an actual invasion or
rebellion; and
2. Public safety requires it.
Note that the privilege of the writ is suspended,
not the writ itself. The writ is an order from the
Page 64 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
court commanding a detaining officer to inform
the court:
1. If he has the person in custody; and
2. His basis for detaining that person.
The privilege is the order from the court to
release the person in the custody of the
respondent/detaining officer.
Effects of the Suspension of the Privilege:
a. The suspension of the privilege of the writ
applies only to persons “judicially charged”
(should be read as one who is suspected
of complicity in) for rebellion or offenses
inherent in or directly connected with
invasion [Section 18, par. 5, Article VII,
1987 Constitution].
i. Such persons suspected of the above
can be arrested and detained without
warrant of arrest.
ii. The suspension of the privilege does
not make the arrest without warrant
legal. But the military is, in effect,
enabled to make the arrest anyway
since, with the suspension of the
privilege, there is no remedy available
against such unlawful arrest (arbitrary
detention).
iii. The arrest without warrant is justified
by the emergency situation and the
difficulty in applying for a warrant
considering the time and the number of
persons to be arrested.
iv. The crime for which he is arrested must
be one related to rebellion or invasion.
As to others, the suspension of the
privilege does not apply.
b. During the suspension of the privilege of
the writ, any person thus arrested or
detained shall be judicially charged within
3 days, or otherwise he shall be released
[Section 18(6), Article VII, 1987
Constitution].
i. The effect therefore is only to extend
the periods during which he can be
detained without a warrant. When the
privilege is suspended, the period is
extended to 72 hours.
ii. What happens if he is not judicially
charged nor released after 72 hours?
The public officer becomes liable under
RPC Article 125 for "delay in the
delivery of detained persons."
iii. The right to bail shall not be impaired
even when the privilege of the writ of
habeas
corpus
is
suspended.
Excessive bail shall not be required
[Section
13,
Article
III,
1987
Constitution].
The suspension of the privilege does not
destroy petitioners' right and cause of action for
damages for illegal arrest and detention and
other violations of their constitutional rights
[Aberca v. Ver, G.R. No. L-69866 (1988)].
The President may exercise the power to call
out the Armed Forces independently of the
power to suspend the privilege of the writ of
habeas corpus and to declare martial law,
although, of course, it may also be a prelude to
a possible future exercise of the latter powers,
as in this case [Lagman v. Medialdea, supra].
Four (4) ways for the Proclamation of Martial
Law or the Suspension of the Privilege of the
Writ of Habeas Corpus to be Lifted:
1. Lifting by the President himself
2. Revocation by Congress
3. Nullification by the Supreme Court
4. Operation of law after 60 days
Either may also be extended for a period to be
determined by Congress, upon the initiative of
the President, and if the invasion or rebellion
shall persist and public safety requires it.
The Role of Congress [See Section 18, par.
1 & 2, Article VII, 1987 Constitution]
1. Congress may revoke the proclamation of
martial law or suspension of the privilege
of the writ of habeas corpus before the
lapse of 60 days from the date of
suspension or proclamation.
2. Upon such proclamation or suspension,
Congress shall convene at once. If it is not
in session, it shall convene in accordance
with its rules without need of a call within
24 hours following the proclamation or
suspension.
The houses of Congress may convene
separately at this point, i.e., in their
respective chambers [See Padilla v.
Congress, G.R. No. 231671 (2017)].
Page 65 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
3. Within 48 hours from the proclamation or
the suspension, the President shall submit
a report, in person or in writing, to the
Congress of the action he has taken.
4. The Congress shall then vote jointly, by a
majority of all its members, if it desires to
avail of two options:
a. To revoke such proclamation or
suspension. When it is so revoked, the
President cannot set aside (or veto) the
revocation as he normally would do in
the case of bills.
b. To extend it beyond the 60-day period
of its validity.
Congress need only meet in joint session
to revoke (or extend) the proclamation
(such as when one of the houses has
expressed an intent to revoke it, thereby
compelling the houses to meet in joint
session). If Congress simply intends to
respect or support the President’s initial
proclamation, it need not meet in joint
session [See Padilla v. Congress, supra].
Congress can only so extend the
proclamation or suspension upon the
initiative of the President. The period need
not be 60 days; it could be more, as
Congress would determine, based on the
persistence of the emergency.
Note: If Congress fails to act before the
measure expires, it can no longer extend
it until the President again re-declares the
measure.
If Congress extends the measure, but
before the period of extension lapses the
requirements for the proclamation or
suspension no longer exist, Congress can
lift the extension, since the power to confer
implies the power to take back.
The Role of the Supreme Court [See Section
18, par. 3, Article VII, 1987 Constitution]
1. The Supreme Court may review, in an
appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of:
i.
The proclamation of martial law or
the suspension of the privilege of
the writ; or
ii.
The extension thereof. It must
promulgate its decision thereon
within 30 days from its filing.
In reviewing the sufficiency of the factual
basis of the proclamation or suspension, the
Court considers only the information and
data available to the President prior to or at
the time of the declaration; it is not allowed
to "undertake an independent investigation
beyond the pleadings." On the other hand,
Congress may take into consideration not
only data available prior to, but likewise
events supervening the declaration.
Thus, the power to review by the Court and
the power to revoke by Congress are not
only
totally
different
but
likewise
independent from each other although
concededly, they have the same trajectory,
which is, the nullification of the presidential
proclamation. Needless to say, the power of
the Court to review can be exercised
independently from the power of revocation
of Congress [Lagman v. Medialdea, supra].
Petition for Habeas Corpus
i. When a person is arrested without a warrant
for complicity in the rebellion or invasion, he
or someone else on his behalf has the
standing to question the validity of the
proclamation or suspension.
ii. Before the SC can decide on the legality of
his detention, it must first pass upon the
validity of the proclamation or suspension.
Cf. R.A. No. 7055 (1991)
An Act Strengthening Civilian Supremacy
over the Military by Returning to the Civil
Courts the Jurisdiction over Certain
Offenses involving Members of the Armed
Forces of the Philippines, other Persons
Subject to Military Law, and the Members of
the Philippine National Police, Repealing
for the Purpose Certain Presidential
Decrees
R.A. No. 7055 provides that when these
individuals commit crimes or offenses
penalized under the RPC, other special penal
laws, or local government ordinances,
regardless of whether civilians are co-accused,
Page 66 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
victims, or offended parties which may be
natural or juridical persons, they shall be tried
by the proper civil court, except when the
offense, as determined before arraignment by
the civil court, is service-connected in which
case it shall be tried by court-martial.
The assertion of military authority over civilians
cannot rest on the President's power as
Commander in Chief or on any theory of martial
law. As long as civil courts remain open and are
regularly functioning, military tribunals cannot
try and exercise jurisdiction over civilians for
offenses committed by them and which are
properly cognizable by civil courts [Olaguer v.
Military Commission No. 34, supra].
6. Pardoning Powers
1987 Constitution
Section 19, Article VII. Except in cases of
impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves,
commutations and pardons, and remit fines and
forfeitures, after conviction by final judgment.
a.
Scope and Limitations: When
clemency may not be extended by the
President:
1. In case of impeachment;
2. As otherwise provided in this Constitution,
including:
a. For election offenses, without
the favorable recommendation
of the COMELEC: [Section 5,
Article IX-B, 1987 Constitution]
b. For amnesties, without the
concurrence of a majority of all
members of Congress [Section
5, Article IX].
3. In cases of legislative and civil contempt
(rationale: these infringe upon legislative
and judicial prerogatives)
4. Before conviction by final judgment
(except amnesty).
b. Forms of Executive Clemency
POLITICAL LAW
time, a postponement of execution, a
temporary suspension of execution
[People v. Vera, G.R. No. L-45685 (1937)].
● Commutations: Reduction of sentence
[Black’s Law Dictionary]. It is a remission
of a part of the punishment; a substitution
of a lesser penalty for the one originally
imposed [People v. Vera, supra].
● Amnesty: A sovereign act of oblivion for
past acts, granted by government
generally to a class of persons who have
been guilty usually of political offenses and
who are subject to trial but have not yet
been convicted, and often conditioned
upon their return to obedience and duty
within a prescribed time [Black’s Law
Dictionary; Brown v. Walker, 161 US 591
(1896)].
1. Requires concurrence of majority of all
members of Congress [Sec. 19, Art.
VII, 1987 Constitution].
● Remission of Fines/Forfeitures: After
conviction by final judgment
● Pardons: Permanent cancellation of
sentence [Black’s Law Dictionary]. It is an
act of grace proceeding from the power
entrusted with the execution of the laws,
which exempts the individual on whom it is
bestowed, from the punishment the law
inflicts for the crime he has committed. It is
a remission of guilt, a forgiveness of the
offense [People v. Vera, supra].
● Parole: The suspension of the sentence of
a convict granted by a Parole Board after
serving the minimum term of the
indeterminate sentence penalty, without
granting a pardon, prescribing the terms
upon which the sentence shall be
suspended.
Pardon
Plenary or Partial
Plenary: Extinguishes all the penalties
imposed upon the offender, including
accessory disabilities.
Partial: Does not extinguish all penalties
imposed.
● Reprieves: A temporary relief from or
postponement of execution of criminal
penalty or sentence or a stay of execution
[Black’s Law Dictionary]. It is the
withholding of a sentence for an interval of
Page 67 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Conditional or Absolute
Conditional: The offender has the right to
reject the same since he may feel that the
condition imposed is more onerous than the
penalty sought to be remitted.
The determination of whether the conditions
had been breached rests exclusively in the
sound judgment of the Chief Executive [Torres
v. Gonzales, G.R. No. 76872 (1987)].
The right to seek public elective office is
unequivocally considered as a political right.
Hence, upon acceptance of the pardon, the
pardonee regained his full civil and political
rights – including the right to seek elective
office, even though that right is not expressly
mentioned as provided under Article 36 of the
Revised Penal Code [Risos-Vidal v.
COMELEC, G.R. No. 206666 (2015)].
Pardon v. Amnesty
Absolute: The pardonee has no option at all
and must accept it whether he likes it or not. In
this sense, an absolute pardon is similar to
commutation, which is also not subject to
acceptance by the offender.
Limitations on Pardon
a. Cannot be granted for impeachment
[Section 19, Article VII, 1987 Constitution].
b. Cannot be granted in cases of violation of
election laws without the favorable
recommendation of the COMELEC
[Section
5,
Article
IX-C,
1987
Constitution].
c. Can be granted only after conviction by
final judgment [People v. Salle, G.R. No.
103567 (1995)].
Section 19, Article VII prohibits the grant
of pardon, whether full or conditional, to an
accused during the pendency of his
appeal from his conviction by the trial
court. Any application therefore should not
be acted upon or the process toward its
grant should not be begun unless the
appeal is withdrawn [People v. Bacang,
G.R. No. 116512 (1996)].
d. Cannot absolve the convict of civil liability
[People v. Nacional, G.R. Nos. 111294-95
(1995)].
e. Cannot be granted to cases of legislative
contempt or civil contempt
f. Cannot restore public offices forfeited,
even if pardon restores the eligibility for
said offices [Monsanto v. Factoran, G.R.
No. 78239 (1989)].
However, if a pardon is given because he did
not commit the crime, reinstatement and back
wages would be due [Garcia v. COA, G.R. No.
75025 (1993)].
Pardon
Amnesty
Infractions of peace Generally addressed
of the state
to political offenses
Granted to individuals To
classes
persons
Exercised solely by Requires
the executive
concurrence
Congress
of
of
Differentiated from
a. Probation: Disposition where a defendant
after conviction and sentence is released
subject to (1) conditions imposed by the
court and (2) supervision of a probation
officer [Section 3(a), PD No. 968].
b. Parole: Suspension of the sentence of a
convict granted by a Parole Board after
serving the minimum term of the
indeterminate sentence penalty, without
granting a pardon, prescribing the terms
upon which the sentence shall be
suspended [Reyes].
Application of Pardoning Powers to
Administrative Cases
a. If the President can grant reprieves,
commutations and pardons, and remit
fines and forfeitures in criminal cases, with
much more reason can she grant
executive clemency in administrative
cases, which are clearly less serious than
criminal offenses.
b. However, this is limited only to
administrative cases in the Executive
branch [Llamas v. Executive Secretary,
G.R. No. 99031 (1991)].
Page 68 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Denial of Commission of Offenses
Persons invoking the benefit of amnesty must
first admit to their complicity in the crimes
charged.
Amnesty
presupposes
the
commission of a crime, and when the accused
maintains that he has not committed the crime,
he cannot have any use for amnesty [Vera v.
People, G.R. No. L-18184 (1963)].
Amnesty
Who May Avail
Generally: Individuals who form part of the
class of persons covered by an amnesty
proclamation whose acts constitute the political
offenses covered by the same.
Jurisprudence
Amnesty Proclamation No. 76 applies even to
Hukbalahaps already undergoing sentence
upon the date of its promulgation. The majority
of the Court believes that by its context and
pervading spirit the proclamation extends to all
members of the Hukbalahap [Tolentino v.
Catoy, G.R. No. L-2503 (1948)].
The SC agreed with the Sandiganbayan that in
fact the petitioners were expressly disqualified
from amnesty. The acts for which they were
convicted were ordinary crimes without any
political complexion and consisting only of
diversion of public funds to private profit. The
amnesty proclamation covered only acts in the
furtherance of resistance to duly constituted
authorities of the Republic and applies only to
members of the MNLF, or other antigovernment groups [Macagaan v. People, G.R.
No. 77317-50 (1987)].
7. Foreign Relations Powers
a. In General
The President, being the head of state, is
regarded as the sole organ and authority in
external relations and is the country’s sole
representative to foreign nations. As the chief
architect of foreign policy, the President acts as
the country’s mouthpiece with respect to
international affairs.
The President is vested with the authority to:
a. Deal with foreign states and governments;
b. Extend or withhold recognition;
c. Maintain diplomatic relations;
d. Ratify treaties, but subject to the
concurrence of the Senate;
e. Enter into executive agreements; and
f. Transact the business of foreign relations
[See Pimentel v. Executive Secretary,
G.R. No. 158088 (2005)].
b. To Contract or Guarantee Foreign
Loans
Requisites
a. With the concurrence of the monetary
board [Section 20, Article VII, 1987
Constitution]
b. Subject to limitations as may be provided
by law [Section 20, Article XII, 1987
Constitution]
c. Information on foreign loans obtained or
guaranteed shall be made available to the
public [Section 21, Article XII, 1987
Constitution]
Cf. R.A. No. 4860
Congress may provide guidelines for
contracting or guaranteeing foreign loans, and
have these rules enforced through the
Monetary Board. But for Congress to grant
prior approval is a totally different issue. At any
rate, the present power, which was first
introduced in the 1973 Constitution, was based
on R.A. No. 4860 or the Foreign Loan Act.
What used to be a statutory grant of power is
now a constitutional grant which Congress
cannot take away, but only regulate.
Role of Congress in such Foreign Loans
The President does not need prior approval by
Congress:
a. Because the Constitution places the
power to check the President’s power on
the Monetary Board;
b. BUT Congress may provide guidelines
and have them enforced through the
Monetary Board.
c. Entry into Treaties or International
Agreements
Treaty: As defined by the Vienna Convention
on the Law of Treaties, “an international
instrument 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
Page 69 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
its particular designation” [Bayan v. Zamora,
G.R. No. 138570 (2000)].
Note: It is the President who ratifies a treaty
(not the Senate), the Senate merely concurs
[Bayan v. Zamora, supra]. Thus, the President
cannot be compelled to submit a treaty to the
Senate for concurrence; he has the sole power
to submit it to the Senate and/or to ratify it
[Bayan Muna v. Romulo, G.R. No. 159618
(2011)].
Military Bases Treaty
1987 Constitution
Section 25, Article XVIII. After the expiration in
1991 of the Agreement between the Philippines and
the United States of America concerning Military
Bases, foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under
a treaty duly concurred in by the Senate and, when
the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum
held for that purpose, and recognized as a treaty by
the other contracting State.
The President, however, may enter into an
executive agreement on foreign military bases,
troops, or facilities, if:
a. It is not the instrument that allows the
presence of foreign military bases, troops,
or facilities; or
b. It merely aims to implement an existing
law or treaty.
Section 25 refers solely to the initial entry of the
foreign military bases, troops, or facilities.
To determine whether a military base or facility
in the Philippines, which houses or is accessed
by foreign military troops, is foreign or remains
a Philippine military base or facility, the legal
standards are:
a. Independence from foreign control;
b. Sovereignty and applicable law; and
c. National security and territorial integrity
[Saguisag v. Executive Secretary, G.R.
No. 212426 (2016)].
Visiting Forces Agreement (VFA)
The VFA, which is the instrument agreed upon
to provide for the joint RP-US military
exercises, is simply an implementing
agreement to the main RP-US Military Defense
Treaty. The VFA is therefore valid for it is a
presence “allowed under” the RP-US Mutual
Defense Treaty. Since the RP-US Mutual
Defense Treaty itself has been ratified and
concurred in by both the Philippine Senate and
the US Senate, there is no violation of the
Constitutional provision resulting from such
presence [Nicolas v. Romulo, G.R. No. 175888
(2009)].
Executive Agreements
a. Entered into by the President.
b. May be entered into without the
concurrence of the Senate.
c. Distinguished
from
treaties
—
International
agreements
involving
political issues or changes in national
policy and those involving international
agreements of permanent character
usually take the form of treaties. But the
international
agreements
involving
adjustments in detail carrying out wellestablished national policies and traditions
and those involving a more or less
temporary character usually take the form
of executive agreements [Commissioner
of Customs v. Eastern Sea Trading, G.R.
No. L-14279 (1961)].
However, from the point of view of
international law, there is no difference
between
treaties
and
executive
agreements in their binding effect upon
states concerned as long as the
negotiating functionaries have remained
within their powers [USAFFE Veterans
Assn. v. Treasurer, G.R. No. L-10500
(1959)]
Note: An executive agreement that does
not require the concurrence of the Senate
for its ratification may not be used to
amend a treaty that, under the
Constitution, is the product of the ratifying
acts of the Executive and the Senate
[Bayan Muna v. Romulo, supra].
Two (2) Classes of Executive Agreements
1. Agreements made purely as executive
acts affecting external relations and
independent of or without legislative
Page 70 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
authorization, which may be termed as
presidential agreements; and
2. Agreements entered into in pursuance of
acts of Congress, or congressionalexecutive agreements.
Although the President may, under the
American constitutional system, enter into
executive agreements without previous
legislative authority, he may not, by
executive agreement, enter into a
transaction which is prohibited by statutes
enacted prior thereto. He may not defeat
legislative enactments that have acquired
the status of law by indirectly repealing the
same through an executive agreement
providing for the performance of the very
act prohibited by said laws [Gonzales v.
Hechanova, G.R. No. L-21897 (1963)].
Scope of the Power
a. The President’s power to deport aliens
and to investigate them subject to
deportation are provided in Chapter 3,
Book III, of the Admin. Code of 1987.
b. There is no legal or constitutional provision
defining the power to deport aliens
because the intention of the law is to grant
the Chief Executive the full discretion to
determine whether an alien’s residence in
the country is so undesirable as to affect
the security, welfare or interest of the
state.
c. The Chief Executive is the sole and
exclusive judge of the existence of facts
which would warrant the deportation of
aliens [Go Tek v. Deportation Board, G.R.
No. L-23846 (1977)].
8. Tariff-Setting Power
Rules on Withdrawal from Treaties
• The President enjoys leeway in
withdrawing from agreements which he
or she determines to be contrary to the
Constitution or statutes.
• The President cannot unilaterally
withdraw from agreements which were
entered into pursuant to congressional
imprimatur.
• The President cannot unilaterally
withdraw from international agreements
where the Senate concurred and
expressly declared that any withdrawal
must also be made with its concurrence
[Pangilinan v. Cayetano, G.R. No.
238875 (2021)].
Deportation of Undesirable Aliens
The President may deport only according to
grounds enumerated by law, otherwise it would
be unreasonable and undemocratic [Qua Chee
Gan v. Deportation Board, G.R. No. L-10280
(1963)].
Two (2) Ways of Deporting an Undesirable
Alien
a. By order of the President after due
investigation [Chapter 3, Book III, Admin.
Code of 1987];
b. By the Commissioner of Immigration
under Section 37 of the Immigration Law
[Qua Chee Gan v. Deportation Board,
supra]
Preparing and Submitting the Budget
1987 Constitution
Section 22, Article VII. The President shall submit
to the Congress within thirty (30) days from the
opening of every regular session, as the basis of the
general appropriations bill, a budget of expenditures
and sources of financing, including receipts from
existing and proposed revenue measures.
The budget is the plan indicating:
a. Expenditures of the government;
b. Sources of financing; and
c. Receipts from revenue-raising measures.
The budget is the upper limit of the
appropriations bill to be passed by Congress.
Through the budget, therefore, the President
reveals the priorities of the government.
Program of Expenditure
Even upon the enactment of the General
Appropriations Act, the release of funds from
the Treasury is still subject to a Program of
Expenditure, proposed by the Secretary of
Budget, to be approved by the President, and
such approved program of expenditure is to be
the basis for the release of funds [TESDA v.
COA, G.R. No. 204869 (2014); Section 34,
Chapter 5, Book VI, Administrative Code].
Page 71 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Fixing of Tariff Rates [Section 28, Article VI,
1987 Constitution]
The Congress may, by law, authorize the
President to fix (1) within specified limits, and
(2) subject to such limitations and restrictions
as it may impose:
a. Tariff rates;
b. Import and export quotas;
c. Tonnage and wharfage dues;
d. Other duties or imposts within the
framework of the national development
program of the government.
Rationale for Delegation
Highly technical nature of international
commerce, and the need to constantly and with
relative ease adapt the rates to prevailing
commercial standards.
IV. JUDICIAL DEPARTMENT
A. Concept of Judicial Power
1987 Constitution
Section 1, Article VIII. The judicial power shall be
vested in one Supreme Court and in such lower
courts as may be established by law.
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.
On whom vested: The judicial power shall be
vested in:
9. Veto Powers
General Rule
All bills must be approved by the President
before they become law.
Exceptions
a. When the veto of the President is
overridden by 2/3 vote of all the Members
of Congress, the President returns the bill
with his veto message to the House where
the bill originated, which shall then enter
the objections at large in its Journal and
proceed to reconsider it. If, after such
reconsideration, two-thirds of all the
Members of such House shall agree to
pass the bill, it shall be sent, together with
the objections, to the other House by
which it shall likewise be reconsidered,
and if approved by two-thirds of all the
Members of that House, it shall become a
law;
b. The bill lapsed into law because of the
President’s failure to act on the bill within
thirty (30) days [Section 27, Article VI,
1987 Constitution]; and
c. The bill passed is the special law to elect
the President and Vice-President.
Limitations to the Veto Power:
The President may only veto bills as a whole.
(See Legislative Power of Congress)
a. One Supreme Court; and
b. In such lower courts
established by law.
as
may
be
What: Judicial power includes the duty of the
courts of justice to:
a. Settle actual controversies involving rights
which are legally demandable and
enforceable; and
b. To determine whether or not there has
been a grave abuse of discretion
amounting to lack or excess of jurisdiction.
The Supreme Court is entrusted exclusively
with the judicial power to adjudicate with finality
all justiciable disputes, public and private. No
other department or agency may pass upon its
judgments or declare them unjust [In Re
Laureta and Maravilla, G.R. No. L-68635
(1987)].
Absent a showing of a violation of the
Constitution or grave abuse of discretion, the
Court cannot use its judicial power to inquire
into allegations that, in enacting a law, a House
of Congress failed to comply with its own rules
[Arroyo v. De Venecia, G.R. No. 127255
(1997)].
Page 72 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
B. Judicial Review
Where the legislature or executive branch acts
beyond the scope of its constitutional power, it
becomes the duty of the judiciary to declare
what the other branches of the government had
assumed to do so as void [Demetria v. Alba,
G.R. No. 71977 (1987)].
The Court’s exercise of its traditional
jurisdiction is rooted in its power of judicial
review which gives the Court the authority to
strike down acts of the legislative and/or
executive,
constitutional
bodies
or
administrative agencies contrary to the
Constitution. The power of judicial review is
part and parcel of the Court’s judicial power
and is a power inherent in all courts [Villanueva
v. Judicial and Bar Council, G.R. No. 211833
(2015)].
Judicial Power vs. Judicial Review [Miranda
v. Aguirre, G.R. No. 133064 (1999)]
Judicial Power
Judicial Review
Where vested
Supreme Court & lower courts
Definition
(a) Duty to settle
actual controversies
involving rights which
are legally
demandable and
enforceable, and
Power to determine
the constitutionality
of acts of any branch
or instrumentality of
the government
(b) Duty to determine
whether or not there
has been grave
abuse of discretion
amounting to lack or
excess of jurisdiction
on the part of any
branch or
instrumentality of the
government [Article
VIII, Section 1 (2),
Constitution].
Requisites for exercise
Jurisdiction, or the
power to decide and
hear a case and
execute a decision
thereof
(1) Actual case or
controversy;
(2) locus standi;
(3) earliest
opportunity; and
(4) lis mota
1. Requisites
Requisites of Judicial Review
1. There must be an actual case or
controversy;
2. There is locus standi, i.e., person
challenging the act must have “standing”
to challenge;
3. Constitutional question must be raised at
the earliest possible opportunity; and
4. Constitutionality must be the very lis mota
of the case.
Generally, a party will be allowed to litigate only
when these conditions sine qua non are
present, especially when the constitutionality of
an act by a co-equal branch of government is
put in issue [Chavez v. Judicial and Bar
Council, G.R. No. 202242 (2012)].
a. Actual case or controversy
An actual case or controversy exists when a
case involves a clash of legal rights or an
assertion of opposite legal claims that the
courts can resolve through applying law and
jurisprudence. An actual case is ripe for
adjudication when the act being challenged
has a direct adverse effect on the individual
challenging it [De Castro v. Judicial and Bar
Council, G.R. No. 191002 (2010)].
For a case to be considered ripe for
adjudication, the following prerequisites must
concur:
1. An act had been accomplished or
performed by either government branch
before a court may interfere; and
2. Petitioner must allege that an immediate
or threatened injury to himself exists as a
result of the challenged action [Phil.
Constitution
Association
v.
Phil.
Government, G.R. No. 218406 (2016)].
Page 73 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
b. Locus standi
Legal standing or locus standi refers to a
party’s personal and substantial interest in a
case, arising from the direct injury it has
sustained or will sustain as a result of the
challenged government action. The term
“interest” means material interest, an interest in
an issue affected by governmental action, as
distinguished from mere interest in the
question involved, or a mere incidental interest
[CREBA v. Energy Regulatory Commission,
G.R. No. 174697 (2010)].
The interest of the party plaintiff must be
personal and not one based on a desire to
vindicate the constitutional right of some third
and unrelated party [Joya v. PCGG, G.R. No.
96541 (1993)].
Direct injury test - The person who impugns
the validity of a statute must have a personal
and substantial interest in the case such that
he has sustained, or will sustain direct injury as
a result [People v. Vera, G.R. No. L-45685
(1937)].
This may be brushed aside by the court as a
mere procedural technicality in view of public
interest or transcendental importance of the
issues involved [Kilosbayan v. Guingona, G.R.
No. 113375 (1994)].
Special Forms of locus standi / Exceptions
to Direct Injury Test
N.B. In these cases, a party has standing even
if it may not necessarily suffer direct injury.
1. Associational or third-party standing
The association may assert the concerns of its
constituents as long as the interest sought to
be protected is germane to the association’s
purpose [Kilusang Mayo Uno Labor Center v.
Garcia, G.R. No. 115381 (1994)].
Due to the nature of one party’s relation to
another party, the former is allowed standing to
invoke fundamental due process or equal
protection claims of the latter injured by state
action [GMA Network Inc. v. Commission on
Elections, G.R. No. 205357 (2014)].
2. Citizen standing
A plaintiff in a citizen standing is a mere
instrument of the public concern. Plaintiff
invokes at least the right, if not the duty, of
every citizen to interfere and see that a public
offense be properly pursued and punished, and
that a public grievance be remedied [David v.
Macapagal-Arroyo, G.R. No. 171396 (2006)].
3. Environmental standing
Any Filipino citizen in representation of others,
including minors or generations yet unborn,
may file an action to enforce rights or
obligations under environmental laws [Sec. 5,
Rules of Procedure for Environmental Cases
(2010)].
Citizens are allowed to bring a suit to enforce
environmental laws on the principle that
humans are stewards of nature and as part of
their right to a balanced and healthful ecology
[Resident Marine Mammals v. Sec. Reyes,
G.R. No. 180771 (2015)].
4. Governmental standing
The People of the Philippines, represented by
the Solicitor General and the Fiscal, is the
proper party to question the statute because it
is always interested in the integrity of its
Constitution or the statutes involved and can
set aside a law that violated the Constitution
[People v. Vera, supra].
5. Legislative standing
There must be a claim from the legislators that
the official action complained of infringes upon
their legislative prerogatives [David v.
Macapagal-Arroyo, supra].
6. Taxpayer’s standing
In a taxpayer’s suit, the plaintiff is affected by
the expenditure of public funds. There must be
a claim of illegal disbursement of public funds
or that the tax measure is unconstitutional
[David v. Macapagal-Arroyo, supra].
7. Voter’s standing
There must be a showing of obvious interest in
the validity of the election law in question
[David v. Macapagal-Arroyo, supra]
Page 74 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Standing
Requisites
Citizen
Issues must be of
transcendental
importance which
must be settled early
[David v.
Macapagal-Arroyo,
supra]
Environmental
Legislator
Taxpayer
1. Any Filipino
citizen;
2. In representation
of others,
including minors
or unborn
generations
[Resident Marine
Mammals v.
Sec. Reyes,
supra]
Affects legislative
prerogatives
Issue must be of
misappropriation or
illegal disbursement
[David v.
Macapagal-Arroyo,
supra]
c. Earliest Possible Opportunity
General Rule: An act or law’s constitutionality
cannot be raised for the first time at the
appellate level, unless that court has original
jurisdiction over the case. The earliest
opportunity to raise a constitutional issue is
during the pleadings before a competent court
that can resolve the same [Sta. Rosa Realty
Development Corp. v. Amante, G.R. No.
112526 (2005)].
Exceptions:
1. In criminal cases, at the court’s discretion;
2. In civil cases, if necessary to determine
the case itself; and
3. When issue of the court’s jurisdiction is
involved.
Note: The reckoning point is the first competent
court. The question must be raised at the first
court empowered with judicial review. Thus,
failure to raise the constitutional question
before the NLRC is not fatal to the case
[Serrano v. Gallant Maritime Services, G.R.
No. 167614 (2009)].
d. Lis Mota
Lis mota pertains to the determinative issue of
the case, the resolution of which cannot be
done without deciding whether an act or law is
unconstitutional.
2. Political Questions Doctrine
Third-party or
associational
Voter
Litigants must show:
1. Injury-in-fact;
2. Close relation to
third-party; and
3. Third-party’s
inability or
hindrance to
protect its own
interest.
[White Light Corp. v.
City of Manila,
supra]
Obvious interest in
the validity of
election law in
question [David v.
Macapagal-Arroyo,
supra]
A “political question” connotes a question of
policy and refers to: (a) matters to be exercised
by the people in their primary political capacity;
or (b) those specifically delegated to some
other department or particular office of the
government with discretionary power to act.
It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure
[Tañada v. Cuenco, G.R. No. L-10520 (1957)].
A “judicial question” or purely justiciable issue
implies a given right, legally demandable and
enforceable, an act or omission violative of
such right, and a remedy granted and
sanctioned by law, for said breach of right
[Casibang v. Aquino, G.R. No. L-38025
(1979)].
Examples:
Page 75 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
Political Question
POLITICAL LAW
Justiciable
Question
The legislature’s
exercise of
disciplinary power
over its members is
not to be interfered
with by the Court
[Alejandrino v.
Quezon, G.R. No.
22041 (1924)].
Election of Senate
President without
the required quorum
is a justiciable
question [Avelino v.
Cuenco, G.R. No. L2821 (1949)].
The legislature has
the inherent right to
determine who shall
be admitted to its
membership [Vera v.
Avelino, G.R. No. L543 (1946)]
The selection of the
Senate Electoral
Tribunal members is
subject
to
constitutional
limitations [Tañada
v. Cuenco, supra].
Mandamus
and
injunction cannot lie
to enforce or restrain
a duty which is
discretionary, e.g.,
calling a special
local election
[Severino v.
Governor General,
G.R. No. L-6520
(1910)].
The Commission on
Appointments is a
constitutional
creation and does
not derive its power
from
Congress
[Cunanan v. Tan,
G.R. No. L-19721
(1962)].
The
President’s
appointing power is
not to be interfered
with by the Court
[Manalang
v.
Quitoriano, G.R. No.
L-6898 (1954)].
Suspending the
privilege of the writ of
habeas corpus is not
a political question
[Lansang v.
Garcia, G.R. No. L33964 (1971)].
Note: In 2016, the SC ruled that President
Duterte's decision to have the remains of
Marcos interred at the Libingan Ng Mga Bayani
(LNMB) was not a justiciable controversy but a
political question. The issue was a question of
policy which the President decided upon based
on his wisdom that it shall promote national
healing and forgiveness. There being no taint
of grave abuse in the exercise of such
discretion, his decision on that political
question is outside the ambit of judicial review
[Ocampo v. Enriquez, G.R. No. 225973
(2016)].
Guidelines to determine whether a question
is political or not:
1. There is a textually demonstrable
constitutional commitment of the issue to
a political department;
2. Lack of judicially discoverable and
manageable standards for resolving it;
3. The impossibility of deciding without an
initial policy determination of a kind clearly
or non-judicial discretion;
4. Impossibility of a court’s undertaking
independent resolution without expressing
lack of the respect due coordinate
branches of government;
5. An unusual need for unquestioning
adherence to a political decision already
made;
6. Potential
embarrassment
from
multifarious pronouncements by various
departments on one question [Estrada v.
Desierto, G.R. Nos. 146710-15 (2001),
citing Baker v. Carr, 369 US 186 (1962)].
3. Moot Questions
General Rule: A case becomes moot and
academic when there is no more actual
controversy between the parties or no useful
purpose can be served in passing upon the
merits [Quino v. COMELEC, G.R. No. 197466
(2012)]
Exceptions: The Court may decide cases
otherwise moot and academic when:
1. There is a grave constitutional violation;
2. The situation is of exceptional character
and paramount public interest is involved;
3. Constitutional issue requires a formulation
of controlling principles to guide the bench,
the bar, and the public; and
4. The case is capable of repetition yet
evading review [Islamic Da’wah v
Executive Secretary, G.R. No. 216870
(2020)].
4. Operative Fact Doctrine
General Rule: The interpretation or
declaration of unconstitutionality is retroactive
in that it applies from the law’s effectivity.
Page 76 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Exception: Subsequent declaration of
unconstitutionality does not nullify the acts
exercised in line with the law. The past cannot
always be erased by a new judicial declaration
[Municipality of Malabang v. Benito, supra]
The operative fact doctrine recognizes the
existence and validity of a legal provision prior
to its being declared as unconstitutional and
hence, legitimizes otherwise invalid acts done
pursuant thereto because of considerations of
practicality and fairness. In this regard, certain
acts done pursuant to a legal provision which
was just recently declared as unconstitutional
by the Court cannot be anymore undone
because not only would it be highly impractical
to do so, but more so, unfair to those who have
relied on the said legal provision prior to the
time it was struck down [Film Development
Council of the Phils. V. Colon Heritage Realty
Corp., G.R. 203754 (2020)].
The doctrine is applicable when a declaration
of unconstitutionality will impose an undue
burden on those who have relied on the invalid
law, but it can never be invoked to validate an
unconstitutional
act
as
constitutional
[Municipality of Malabang v. Benito, G.R. No.
L-28113 (1969)].
Applicability: The doctrine "applies only to
cases where extraordinary circumstances
exist, and only when the extraordinary
circumstances have met the stringent
conditions that will permit its application."
[Mandanas v. Ochoa, Jr., citing Araullo v.
Aquino III, G.R. Nos. 199802 and 208488)]
C. Judicial Independence and
Fiscal Autonomy
2.
Safeguards
Independence
Judicial
Provision
Safeguards
Article VIII,
Section 4
The SC cannot be abolished
nor may its membership or
the manner of its meetings be
changed by mere legislation.
Article XI,
Section 2
The members of the judiciary
are
not
subject
to
confirmation
by
the
Commission on
Appointments.
The members of the SC may
not be removed from office
except by impeachment.
Article VIII,
Section 2
The SC may not be deprived
of its minimum original and
appellate
jurisdiction
as
prescribed in Article X,
Section 5 of the Constitution.
Article VI,
Section 30
The appellate jurisdiction of
the SC may not be increased
by law without its advice and
concurrence.
Article VIII,
Section 6
The SC has administrative
supervision over all lower
courts and their personnel.
Article VIII,
Section 11
The SC has exclusive power
to discipline judges of lower
courts.
Article VIII,
Section 2
The members of the SC and
all lower courts have security
of tenure, which cannot be
undermined
by
a
law
reorganizing the judiciary.
1. Concepts
The 2 distinct concepts of judicial
independence are:
1. Decisional independence - refers to a
judge’s ability to render decisions solely
based on facts and applicable law, free
from political or popular influence.
2. Institutional independence - refers to the
collective independence of the judiciary or
freedom from outside control, e.g., fiscal
autonomy.
of
Article VII,
Section 12
Article VIII,
Section 10
They shall not be designated
to any agency performing
quasi-judicial
or
administrative functions.
The salaries of judges may
not be reduced during their
continuance in office.
Page 77 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
Provision
POLITICAL LAW
Safeguards
The SC has administrative
supervision over all lower
courts and their personnel.
Article VI,
Section 3
D. Appointments to the Judiciary
1. Qualifications of members
SC and
Collegiate
Court
Justices
RTC Judge
(B.P. 129,
Section 15)
MTC/MCTC
Judge (B.P.
129, Section
26)
Citizenship
Natural-born citizen
At least 40 At least 35 At least 30
years of age
years of age
years of age
Experience
15 years or
more as a
judge of a
lower
court
OR has been
engaged
in
the practice
of law in the
PH for the
same period
At least 5 years in the practice
of law OR has held public
office in the PH requiring
admission to the practice of
law as an indispensable
requisite
Tenure
Hold office in good behavior until the age of 70
OR become incapacitated to discharge their
duties
Character
Person of proven competence, integrity,
probity, and independence
The “practice of law” is not confined to litigation.
It means any activity in and out of the court,
which requires the application of law, legal
procedure,
knowledge,
training,
and
experience [Cayetano v. Monsod, G.R. No.
100113 (1991)].
Constitutional Requirements
Supreme Court
1. Natural born citizens;
2. At least 40 years of age;
3. Engaged in the practice of law or a judge
of 15 years or more; and
4. Must be of proven competence, integrity,
probity and independence.
Lower Collegiate Courts
1. Natural born citizen;
2. Member of the Philippine Bar;
3. Must be of proven competence, integrity,
probity and independence; and
4. Such additional requirements provided by
law.
Lower Courts
1. Filipino citizens (Rules of the Judicial and
Bar Council, Nov. 2000, Rule 2; B.P.129)
2. Member of the Philippine Bar;
3. Must be of proven competence, integrity,
probity and independence; and
4. Such additional requirements provided by
law.
Note: In the case of judges of the lower courts,
the
Congress
may
prescribe
other
qualifications [Section 7(2), Article VIII, 1987
Constitution].
Disqualification from Other Position or
Offices
The Members of the Supreme Court and of
other courts established by law shall not be
designated to any agency performing quasijudicial or administrative functions [Section 12,
Article VIII, 1987 Constitution].
The SC and its members should not and
cannot be required to exercise any power or to
perform any trust or to assume any duty not
pertaining to or connected with the
administering of judicial functions, e.g., serving
as administrators in an out-of-court arbitration
[Meralco v. Pasay Transportation Co., G.R. No.
L-37838 (1932)].
A judge in the CFI shall not be detailed with the
Department
of
Justice
to
perform
administrative functions as this contravenes
Page 78 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
the doctrine of separation of powers [Garcia v.
Macaraig, A.M. No. 198-J (1971)].
2. Judicial and Bar Council
a. Composition
1. Ex-officio members [Section 8(1),
Article VIII, 1987 Constitution]
a. Chief Justice as ex-officio Chairman
b. Secretary of Justice
c. One representative of Congress
2. Regular members [Section 8(2), Article
VIII, 1987 Constitution]
a. Representative of the Integrated Bar
b. Professor of law
c. Retired member of the SC
d. Representative of private sector
3. Secretary ex-officio [Section 8 (3),
Article VIII, 1987 Constitution]
Clerk of Court of the Supreme Court, who
shall keep a record of its proceedings; not
a member of the JBC.
In the absence of the Chief Justice because of
his impeachment, the most Senior Justice of
the Supreme Court, who is not an applicant for
Chief Justice, should participate in the
deliberations for the selection of nominees for
the said vacant post and preside over the
proceedings, pursuant to Section 12 of
Republic Act No. 296, or the Judiciary Act of
1948 [Dulay v. Judicial and Bar Council, G.R.
No. 202143 (2012)]
4. Appointment, tenure, and salary
Ex-officio members
The position in the Council is good only while
the person is the occupant of the office.
Only ONE representative from Congress:
Former practices of giving ½ vote or (more
recently) 1 full vote each for the Chairmen of
the House and Senate Committees on Justice
is invalid. Any member of Congress, whether
from the upper or lower house, is
constitutionally empowered to represent the
entire Congress.
The framers intended the JBC to be composed
of 7 members only. Intent is for each co-equal
branch of gov’t to have one representative.
There is no dichotomy between Senate and
HOR when Congress interacts with other
branches. But the SC is not in a position to say
who should sit (and should be left to the
agreement of the houses). The lone
representative from Congress is entitled to one
full vote [Chavez v. JBC, G.R. No. 202242
(2012)].
Regular Members [Section 8(2), Article VIII,
1987 Constitution]
The regular members shall be appointed by the
President with the consent of the Commission
on Appointments. The term of the regular
members is 4 years (with reappointment).
b. Powers
1. Primary function
Recommend appointees to the judiciary; may
exercise such other functions and duties as the
SC may assign to it [Section 8(5), Article VIII,
1987 Constitution].
Note: Judges may not be appointed in any
acting or temporary capacity as this would
undermine the independence of the judiciary.
2. Supervisory authority of SC over JBC
Section 8, Article VIII of the Constitution
provides “A Judicial and Bar Council is hereby
created under the supervision of the Supreme
Court.” The supervisory authority of the Court
over the JBC covers the overseeing of
compliance with its rule [Jardeleza v. Judicial
and Bar Council, G.R. No. 213181 (2014)].
Supervisory power, when contrasted with
control, is the power of mere oversight over an
inferior body; it does not include any restraining
authority over such body [Aguinaldo v. Aquino,
G.R. No. 224302 (2016)].
3. Appointment procedure
The JBC shall submit a list of at least three (3)
nominees for every covered vacancy to the
President [Section 9, Article VIII, 1987
Constitution].
Afterwards, any vacancy in the Supreme Court
shall be filed within ninety (90) days from the
occurrence thereof [Section 4(1), Article VIII,
1987 Constitution].
Page 79 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
For lower courts, the President shall issue the
appointment within ninety (90) days from the
submission by the JBC of such list [Section 9,
Article VIII, 1987 Constitution].
The prohibition against midnight appointments
does not apply to the judiciary [De Castro v.
JBC, G.R. No. 191002 (2010)].
E. The Supreme Court
(Composition, Powers, and
Functions)
1. Composition
● Chief Justice and 14 Associate Justices
● May sit en banc or in divisions of three,
five, or seven Members (currently sits in
three (3) divisions, each with five (5)
Members)
a. En banc instances
Decided with the concurrence of a majority of
the Members who actually took part in the
deliberations and voted.
1. Those involving the constitutionality,
application, or operation of:
a. Treaty
b. Orders
c. International or executive agreement
d. Law
e. Presidential decrees
f. Instructions
g. Proclamations
h. Ordinances
i. Other regulations
2. In disciplinary cases for judges, when the
penalty
is
dismissal,
disbarment,
suspension for more than 1 year, or fine of
more than P10,000
3. Cases or matters heard by a Division
where the required number of votes to
decide or resolve is not met [Section 4(3),
Article VIII, 1987 Constitution].
4. Modifying or reversing a doctrine or
principle of law laid down by the court in a
decision rendered en banc or in division
[Section
4(3),
Article
VIII,
1987
Constitution].
5. Actions instituted by citizens to test the
validity of a proclamation of Martial law or
suspension of the privilege of the writ
[Section 18, Article VII, 1987 Constitution].
6. When sitting as Presidential Electoral
Tribunal [Section 4, par. 7, Article VII,
1987 Constitution].
7. All other cases which under the Rules of
Court are required to be heard by the SC
en banc [Section 4 (2), Article VIII, 1987
Constitution].
All other cases are heard in divisions.
Note: In the case of Cruz v. Sec’y of
Environment and Natural Resources (G.R. No.
135385, December 6, 2000), the Court
deliberated on the petition and the votes
gathered were equally divided with no majority
vote obtained. Seven (7) Members voted to
dismiss the petition, while seven (7) other
members voted to grant the petition. After
redeliberation, the voting remained the same.
Thus, the petition pursuant to Rule 56, Sec. 7
of the Rules of Civil Procedure, was dismissed.
b. Requirements and procedures in
divisions
1. Cases decided with the concurrence of a
majority of the Members who actually took
part in the deliberations and voted.
2. In no case without the concurrence of at
least three (3) of such Members.
3. When the required number is not obtained,
the case shall be decided en banc on:
a. Cases for decision when required votes
are not obtained;
b. Cases of first instance, or matters after
the first instance such as post-decision
motions.
c. An undecided case due to a tie creating
a failure to resolve a motion [Fortich v.
Corona, G.R. No. 131457 (1999)].
The SC en banc is not an appellate court vis-àvis its Divisions. The only constraint is that any
doctrine or principle of law laid down by the
Court, either rendered en banc or in division,
may be overturned or reversed only by the
Court sitting en banc [PUP v. Firestone
Ceramics, G.R. No. 143513 (2001)].
There is but one Supreme Court of the
Philippine Islands. The Supreme Court
remains a unit notwithstanding it works in
Page 80 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
divisions. Although it may have two divisions, it
is but a single court. Actions considered in any
one of these divisions and decisions rendered
therein are, in effect, by the same Tribunal. The
two divisions of this court are not to be
considered as two separate and distinct courts
but as divisions of one and the same court
[U.S. v. Limsiongco, G. R. No. 16217 (1920)].
2. Powers and Functions
a. Procedural rule-making
The Supreme Court shall have the following
powers: […] (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 [Section 5
(5), Article VIII, 1987 Constitution].
The 1987 Constitution took away the power of
Congress to repeal, alter, or supplement rules
concerning pleading, practice and procedure.
The power to promulgate rules of pleading,
practice and procedure is no longer shared by
the Court with Congress, more so with the
Executive [Echegaray v. Secretary of Justice,
G.R. No. 132601 (1999)].
Because of Article VIII, Section 5, Congress
may no longer grant legislative exemptions
from payment of court fees [Baguio Market
Vendors Multi-Purpose Cooperative v. Cortes,
G.R. No. 165922 (2010)].
b. Limitations
a. Shall provide a simplified and inexpensive
procedure for speedy disposition of cases
b. Uniform for all courts in the same grade
c. Shall not diminish, increase or modify
substantive rights
c. Administrative supervision over
lower courts
1. Assign temporarily judges of lower courts
to other stations as public interest may
require;
2. Shall not exceed 6 months without the
consent of the judge concerned;
3. Order a change of venue or place of trial
to avoid a miscarriage of justice;
4. Appoint all officials and employees of the
Judiciary in accordance with the Civil
Service Law;
5. Supervise over all courts and the
personnel thereof;
6. Discipline judges of lower courts, or order
their dismissal.
Note: The qualifications of judges of lower
courts as stated by the Constitution are
minimum requirements. The JBC may
determine or add more qualifications when
such policies are necessary and incidental to
the function conferred in the Constitution
[Villanueva v. JBC, G.R. No. 211833 (2015)].
d. Period for deciding cases
[Section 5(1), Article VIII, 1987 Constitution]
Supreme
Court
24 months
Lower
Collegiate
Courts
Other Lower
Courts
12 months,
unless
reduced by
the SC
3
months,
unless
reduced by
the SC
Notes:
a. Period counted from date case is
“submitted for decision”
b. Case deemed submitted upon filing of the
last pleading, brief or memorandum
required by the Rules or the court [Section
15(2), Article VIII, 1987 Constitution].
Upon expiration of the period, the Chief Justice
or presiding judge shall issue a certification
stating why the decision or resolution has not
been rendered within the period [Section 15(3),
Article VIII, 1987 Constitution].
This provision is merely directory and failure to
decide on time would not deprive the
corresponding courts of jurisdiction or render
their decisions invalid [De Roma v. CA, G.R.
No. L-46903 (1987)].
The failure to decide cases within the 90-day
period required by law constitutes a ground for
administrative liability against the defaulting
judge. But it does not make the judgment a
nullity. The judgment is valid [People v.
Mendoza, G.R. No. 143702 (2001)].
Page 81 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Even when there is delay and no decision or
resolution is made within the prescribed period,
there is no automatic affirmance of the
appealed decision [Sesbreño v. CA, G.R. No.
161390 (2008)].
The Sandiganbayan, while of the same level as
the Court of Appeals, functions as a trial court.
Therefore, the period for deciding cases which
applies to the Sandiganbayan is the three (3)
month period, not the twelve (12) month period
[In Re Problems of Delays in Cases before the
Sandiganbayan, A. M. No. 00-8-05- SC
(2001)].
b.
c.
d.
e.
of a law or regulation at the first instance
is of paramount importance and
immediately affects the social, economic
and moral well-being of the people
[Moldex Realty v. HLURB, G.R. No.
149719 (2007)];
Cases involving the legality of any tax,
impost, assessment, or toll, or any penalty
imposed in relation thereto;
Cases in which the jurisdiction of any
lower court is in issue;
Criminal cases where the penalty imposed
is reclusion perpetua or higher;
Cases where only a question of law is
involved.
e. Original and appellate jurisdiction
Jurisdiction is the authority to hear and
determine a case [U.S. v. Limsiongco, supra].
f. Original jurisdiction [Section 5(1),
Article VIII, 1987 Constitution]
a. Cases affecting ambassadors,
public ministers and consuls
b. Petition for certiorari
c. Petition for prohibition
d. Petition for mandamus
e. Petition for quo warranto
f. Petition for habeas corpus
other
Note: Original jurisdiction also extends to writs
of amparo, habeas data, and the
environmental writ of kalikasan.
The Supreme Court’s original jurisdiction to
issue writs of certiorari (as well as prohibition,
mandamus, quo warranto, habeas corpus and
injunction) is not exclusive. Its jurisdiction is
concurrent with the CA, and with the RTC in
proper cases [Cruz v. Judge Gingoyon, G.R.
No. 170404 (2011)].
g. Appellate jurisdiction [Section 5(2),
Article VIII, 1987 Constitution]
On appeal or certiorari (as the Rules of Court
provide), the SC may review, revise, reverse,
modify, or affirm final judgments and orders of
lower courts in:
a. Cases involving the constitutionality or
validity of any treaty, international or
executive agreement, law, presidential
decree, proclamation, order, instruction,
ordinance, or regulation, except in
circumstances where the Court believes
that resolving the issue of constitutionality
Note: A party who has not appealed from a
decision may not obtain any affirmative relief
from the appellate court other than what he had
obtained from the lower court, if any, whose
decision is brought up on appeal [Daabay v.
Coca-Cola Bottlers, G.R. No. 199890 (2013)]
h. Doctrine of judicial stability or
noninterference
No court can interfere by injunction with the
judgments or orders of another court of
concurrent jurisdiction having the power to
grant the relief sought by injunction. The
rationale for the rule is founded on the concept
of jurisdiction: a court that acquires jurisdiction
over case and renders judgment therein has
jurisdiction over its judgment, to the exclusion
of all other coordinate courts, for its execution
and over all its incidents, and to control, in
furtherance of justice, the conduct of ministerial
officers acting in connection with this judgment
[United Alloy Philippines v. UCPB, G.R. No.
179257 (2015)].
i. Finality of judgments
A decision that has acquired finality becomes
immutable and unalterable and may no longer
be modified in any respect even if the
modification is meant to correct erroneous
conclusions of fact or law and whether it was
made by the court that rendered it or by the
highest court of the land [Genato v. Viola, G.R.
No. 169706 (2010)].
Page 82 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
j. Requirements for decisions and
resolutions
The conclusions of the Supreme Court in any
case submitted to it for decision en banc or in
division shall be reached in consultation before
the case is assigned to a Member for the
writing of the opinion of the Court. A
certification to this effect signed by the Chief
Justice shall be issued and copy thereof
attached to the record of the case and served
upon the parties. Any Members who took no
part, or dissented, or abstained from a decision
or resolution, must state the reason therefor.
The same requirements shall be observed by
all lower collegiate courts [Section 13, Article
VIII, 1987 Constitution].
No decision shall be rendered by any court
without expressing therein clearly and distinctly
the facts and the law on which it is based.
No petition for review or motion for
reconsideration of a decision of the court shall
be refused due course or denied without
stating the legal basis therefore [Section 14,
Article VIII, 1987 Constitution].
A "Resolution" is not a "Decision" within the
meaning of Section 14 of Article VIII. This
mandate applies only in cases "submitted for
decision," i.e., given due course and after the
filing of Briefs or Memoranda and/or other
pleadings, as the case may be. It does not
apply to an Order or Resolution refusing due
course to a Petition for certiorari [Nunal v.
Commission on Audit, G.R. No. 78648 (1989)].
V. CONSTITUTIONAL
COMMISSIONS (COMELEC,
COA, CSC)
A. Constitutional Safeguards to
Ensure
Independence
of
Commissions
1. They are constitutionally created, hence
may not be abolished by statute.
2. Each commission is vested with powers
and functions which cannot be reduced by
statute.
3. Independent constitutional bodies.
4. The Chairmen and members may not be
removed except by impeachment.
5. Fixed term of office of 7 years.
6. Rotational scheme [See Funa v. Villar,
G.R. No. 192791 (2012)]; staggered terms
of 7 years with uniform reckoning date
(i.e., February 2) is designed to ensure
that at no point is the entire membership
of a commission appointed by a single
president.
Hence,
promotional
appointments are allowed only insofar as
they do not disturb the rotation cycle.
7. The Chairmen and members may not be
appointed in an acting capacity [Matibag v.
Benipayo, G.R. No. 149036 (2002)].
8. The salaries of the Chairmen and
members may not be decreased during
their tenure.
9. The Commissions enjoy fiscal autonomy.
10. Each Commission may promulgate its
own procedural rules, provided they do not
diminish, increase or modify substantive
rights (though subject to disapproval by
the Supreme Court).
11. The Commission may appoint their
own
officials
and
employees
in
accordance with Civil Service Law
B. Common Provisions
Three (3) Constitutional Commissions:
1. The Commission on Elections,
2. Commission on Audit, and
3. Civil Service Commission
Constitutionally-Created
Administrative
Agencies: The grant of a constitutional
commission’s
rulemaking
power
is
untouchable by Congress, absent a
constitutional
amendment
or
revision.
[However,] the laws that the Commission
interprets and enforces fall within the
prerogative of Congress. As an administrative
agency, its quasi-legislative power is subject to
the same limitations applicable to other
administrative bodies [Trade and Investment
Development Corporation of the Philippines v.
Civil Service Commission, G.R. No. 182249
(2013)].
Page 83 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
1987 Constitution
Section 1(2), Article IX-D. The Chairman and the
Commissioners shall be appointed by the President
with the consent of the Commission on
Appointments for a term of seven years without
reappointment. Of those first appointed, the
Chairman shall hold office for seven years, one
Commissioner for five years, and the other
Commissioner
for
three
years,
without
reappointment. Appointment to any vacancy shall be
only for the unexpired portion of the term of the
predecessor. In no case shall any Member be
appointed or designated in a temporary or acting
capacity.
1. Promotional Appointment of
Commissioner to Chairman [Funa v.
Villar, supra]
Section 1(2), Article IX-D of the Constitution
does not prohibit a promotional appointment
from commissioner to chairman as long as:
a. The commissioner has not served the full
term of 7 years; and
b. The appointment to any vacancy shall be
only for the unexpired portion of the term
of the predecessor [Section 1(2), Article
IX-D, 1987 Constitution].
c. The promotional appointment must
conform to the rotational plan or the
staggering of terms in the commission
membership
Examples of promotional appointments:
• If the commissioner has already served
5 years, she cannot be promoted to a
fresh chairmanship of 7 years.
• If the commissioner has already served
5 years, she cannot be promoted to
chair if the unexpired portion of the
latter is anything more than 2 years.
• If the commissioner has already served
2 years and there is a vacancy in the
chair for 4 years, she can be promoted
to the chairmanship. The 1 year (in
what would have been a 7-year tenure
in the commission) is forfeited.
2. Jurisprudence on Section 1(2),
Article IX-D [Funa v. Villar, supra]
The appointment of members of any of the
three constitutional commissions, after the
expiration of the uneven terms of office of the
first set of commissioners, shall always be for
a fixed term of seven (7) years; an appointment
for a lesser period is void and unconstitutional.
The appointing authority cannot validly shorten
the full term of seven (7) years in case of the
expiration of the term as this will result in the
distortion of the rotational system prescribed by
the Constitution,
Appointments to vacancies resulting from
certain causes (death, resignation, disability or
impeachment) shall only be for the unexpired
portion of the term of the predecessor; such
appointments cannot be less than the
unexpired portion [as it will disrupt the
staggering].
Members of the Commission who were
appointed for a full term of seven years and
who served the entire period, are barred from
reappointment to any position in the
Commission. The first appointees in the
Commission under the Constitution are also
covered
by
the
prohibition
against
reappointment.
A commissioner who resigns after serving in
the Commission for less than seven years is
eligible for an appointment as Chairman for the
unexpired portion of the term of the departing
chairman. Such appointment is not covered by
the ban on reappointment, provided that the
aggregate period of the length of service will
not exceed seven (7) years and provided
further that the vacancy in the position of
Chairman resulted from death, resignation,
disability or removal by impeachment. This is
not a reappointment, but effectively a new
appointment.
Any member of the Commission cannot be
appointed or designated in a temporary or
acting capacity.
3. Term of Office of Commission
Members
The terms of the first Chairmen and
Commissioners
of
the
Constitutional
Commissions under the 1987 Constitution
must start on a common date, irrespective of
the variations in the dates of appointments and
qualifications of the appointees, in order that
Page 84 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
the expiration of the first terms of seven, five
and three years should lead to the regular
recurrence of the two-year interval between the
expiration of the terms. This common
appropriate starting point must be on February
02, 1987, the date of the adoption of the 1987
Constitution [Gaminde v. Commission on
Audit, G. R. No. 140335 (2000)].
Term – The time during which the officer may
claim to hold office as of right, and fixes the
interval after which the several incumbents
shall succeed one another.
Tenure – The time during which the incumbent
actually holds and exercises the office The
term of office is not affected by the hold-over.
The tenure may be shorter than the term for
reasons within or beyond the power of the
incumbent.
C. Powers,
Jurisdiction
Functions,
and
and may not be compelled by
mandamus [Torregoza v. Civil
Service Commission, G.R. No.
101526 (1992)].
2. Under the Administrative Code of 1987, the
Civil Service Commission has the power to
hear and decide administrative cases
instituted before it directly or on appeal,
including contested appointments.
3. The Commission has original jurisdiction to
hear and decide a complaint for cheating in
the Civil Service examinations committed by
government employees [Cruz v. CSC, G.R.
No. 144464 (2001)].
4. It is the intent of the Civil Service Law, in
requiring the establishment of a grievance
procedure, that decisions of lower level
officials (in cases involving personnel
actions) be appealed to the agency head,
then to the Civil Service Commission
[Olanda v. Bugayong, G.R. No. 140917
(2003)].
1. Civil Service Commission
1987 Constitution
Section 3, Article IX-B.
The Civil Service
Commission, as the central personnel agency of the
Government, shall establish a career service and
adopt measures to promote morale, efficiency,
integrity, responsiveness, progressiveness, and
courtesy in the civil service. It shall strengthen the
merit and rewards system, integrate all human
resources development programs for all levels and
ranks, and institutionalize a management climate
conducive to public accountability. It shall submit to
the President and the Congress an annual report on
its personnel programs.
As the central personnel agency of the
government, the CSC has broad authority to
pass upon all civil service matters. The
mandate of the CSC should therefore be read
as the comprehensive authority to perform all
functions necessary to ensure the efficient
administration of the entire civil service,
including the Central Executive Service (CES).
Further, the specific powers of the CESB must
be narrowly interpreted as exceptions to the
comprehensive authority granted to the CSC
by the Constitution and relevant statutes
[Career Executive Service Board v. Civil
Service Commission, G.R. No. 197762 (2017)].
b. Scope of Civil Service
a. Functions
1. Implement various laws governing
appointments to, removals from,
discipline, and benefits within the civil
service.
a. In the exercise of its powers to
implement R.A. No. 6850 (granting
civil service eligibility to employees
under provisional or temporary
status who have rendered seven
years of efficient service), the CSC
enjoys a wide latitude of discretion,
Embraces
all
branches,
subdivisions,
instrumentalities and agencies of the
Government, including GOCCs with original
charters [Section 2(1), Article IX-B, 1987
Constitution].
The Civil Service does not include governmentowned or -controlled corporations which are
organized under the general corporation law
(e.g., created as private corporations but
majority-owned by the government) [See
Page 85 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
National Service Corp. v. NLRC, G.R. No. L69870 (1988)].
Note: The University of the Philippines, having
an original charter, is clearly part of the CSC
[University of the Philippines v. Regino, G.R.
No. 88167 (1993)].
c. Jurisdiction
The CSC has been granted by the Constitution
and the Administrative Code jurisdiction over
all civil service positions in the government
service, whether career or non-career [Civil
Service Commission v. Sojor, G.R. No. 168766
(2008); See CSC Resolution No. 991936
detailing the disciplinary and non-disciplinary
jurisdiction].
The Board of Regents (BOR) of a state
university has the sole power of administration
over the university. But…there is no showing
that such power is exclusive. The CSC has
concurrent jurisdiction over a president of a
State university [CSC v. Sojor, supra].
d. Appellate Jurisdiction
The appellate power of the CSC will only apply
when the subject of the administrative cases
filed against erring employees is in connection
with the duties and functions of their office, and
not in cases where the acts of the complainant
arose from cheating in the civil service
examinations [Cruz v. CSC, G.R. No. 144464
(2001)].
In administrative disciplinary cases decided by
the COA, the proper remedy in case of an
adverse decision is an appeal to the Civil
Service Commission and not a petition for
certiorari before SC under Rule 64 [Galindo v.
Commission on Audit, G.R. No. 210788
(2017)].
The Philippine National Red Cross, although
not a GOCC, is sui generis in character. The
sui generis character of PNRC requires the
court to approach controversies involving the
PNRC on a case-to-case basis. Since the issue
involves the enforcement of labor laws and
penal statutes, PNRC can be treated as a
GOCC. Thus, the CSC has jurisdiction.
Moreover, the CSC has appellate jurisdiction
on administrative disciplinary cases involving
the imposition of a penalty of suspension of
more than 30 days or fine in an amount
exceeding 30 days’ salary [Torres v. De Leon,
G.R. No. 199440 (2016)].
e. Classes of service [CSC v. Sojor, G.R.
No. 168766 (2008)]
Career Service: Characterized by entrance (a)
based on merit and fitness to be determined,
as far as practicable, by competitive
examinations, OR (b) based on highly technical
qualifications;
with
opportunity
for
advancement to higher career positions and
security of tenure.
1. Open career positions: Where prior
qualification
in
an
appropriate
examination is required.
2. Closed career positions: e.g. scientific
or highly technical in nature;
3. Career Executive Service: e.g.
undersecretaries, bureau directors
4. Career Officers: Other than those
belonging to the Career Executive
Service who are appointed by the
President, e.g. those in the foreign
service
5. Positions in the AFP, although
governed by a different merit system
6. Personnel of GOCCs with original
charters
7. Permanent laborers, whether skilled,
semi-skilled, or unskilled
Non-career Service: Characterized by
entrance on bases other than those of the
usual tests utilized for the career service;
tenure limited to a period specified by law, or
which is co-terminus with that of the appointing
authority or subject to his pleasure, or which is
limited to the duration
1. Elective officials, and their personal
and confidential staff;
2. Department heads and officials of
Cabinet rank who hold office at the
pleasure of the President, and their
personal and confidential staff;
3. Chairmen
and
members
of
commissions and bureaus with fixed
terms;
4. Contractual personnel;
5. Emergency and seasonal personnel.
Page 86 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Note: Except as otherwise provided by the
Constitution or by law, the Civil Service
Commission shall have the final authority to
pass upon the removal, separation and
suspension of all officers and employees in the
civil service and upon all matters relating to the
conduct, discipline and efficiency of such
officers and employees [CSC v. Sojor, supra].
e. Appointments in the Civil Service
The role of the CSC in the appointing process
is limited to the determination of qualifications
of the candidates for appointments and plays
no role in the choice of the person to be
appointed [Bernas].
General Rule: Appointments are made only
according to merit and fitness to be
determined, as far as practicable, by
competitive examination
Exceptions:
1. Policy determining: Where the officer
lays down principal or fundamental
guidelines or rules; or formulates a
method of action for government or any
of its subdivisions; e.g. department
head.
2. Primarily confidential: Denoting not
only confidence in the aptitude of the
appointee for the duties of the office but
primarily close intimacy which ensures
freedom of intercourse without
embarrassment or freedom from
misgivings or betrayals on confidential
matters of state [De los Santos v.
Mallare, G.R. No. L-3881 (1950)]; OR
one declared to be so by the President
of
the
Philippines
upon
the
recommendation of the CSC, subject to
judicial review [Salazar v. Mathay, G.R.
No. L-44061 (1976)].
3. Highly
technical:
Requires
possession of technical skill or training
in supreme degree [De los Santos v.
Mallare, supra].
f. Disqualifications
1. No candidate who has lost in any
election shall within one (1) year after
such election, be appointed to any
office in the Government or any GOCC
or in any of its subsidiaries [Section 6,
Article IX-B, 1987 Constitution].
2. No elective official shall be eligible for
appointment or designation in any
capacity to any public office or position
during his tenure [Section 7(1), Article
IXB, 1987 Constitution].
3. Unless otherwise allowed by law OR by
the primary functions of his position, no
appointive official shall hold any other
office
or
employment
in
the
Government or any subdivision,
agency or instrumentality thereof
including GOCCs or their subsidiaries
[Section 7(2), Article IX-B, 1987
Constitution].
4. No officer or employee in the civil
service shall engage directly or
indirectly, in any electioneering or
partisan political activity [Section 2(4),
Article IX-B, 1987 Constitution].
g. Removal or suspension only for
cause
No officer or employee of the civil service shall
be removed or suspended except for cause
provided by law [Section 2 (2), Article IX-B,
1987 Constitution].
2. Commission on Elections
a. Powers and Functions
1. Enforce all laws relating to the conduct
of election, plebiscite, initiative,
referendum and recall;
Initiative: The power of the people to propose
amendments to the Constitution or to propose
and enact legislation through an election called
for that purpose. There are 3 systems of
initiative: Initiative on the Constitution, initiative
on statutes, and initiative on local legislation
[Section 3(a), R.A. No. 6735].
Referendum: The power of the electorate to
approve or reject legislation through an
election called for that purpose. Not counting
constitutionally-required ratifications (e.g., on
statutes changing the name of the country),
there are 2 classes: Referendum on statutes or
referendum on local laws [Section 3(c), R.A.
No. 6735].
Page 87 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Recall: The termination of official relationship
of a local elective official for loss of confidence
prior to the expiration of his term through the
will of the electorate.
Plebiscite: The submission of constitutional
amendments or the incorporation (and related
alterations) of LGUs to the people for their
approval.
2. Recommend to the Congress effective
measures
to
minimize
election
spending, and to prevent and penalize
all forms of election frauds, offenses,
malpractices,
and
nuisance
candidacies;
3. Submit to the President and the
Congress, a comprehensive report on
the conduct of each election, plebiscite,
initiative, referendum, or recall;
4. Decide
administrative
questions
pertaining to election except the right to
vote (the jurisdiction of which is with the
judiciary);
Power to declare failure of election: The
COMELEC may exercise such power motu
proprio or upon a verified petition, and the
hearing of the case shall be summary in nature
[Sison v. COMELEC, G.R. No. 134096 (1998)].
5. File petitions in court for inclusion or
exclusion of voters;
6. Investigate and prosecute cases of
violations of election laws;
Note: Section 43, R.A. No. 9369 or the
Automated Election System Law of January
2007 grants to the Department of Justice
concurrent jurisdiction to investigate and
prosecute violations of election law. In contrast,
the Omnibus Election Code exclusively grants
the
equivalent
investigative/prosecutorial
jurisdiction to the COMELEC.
7. Recommend pardon, amnesty, parole
or suspension of sentence of election
law violators;
8. Deputize law enforcement agencies and
instrumentalities of the Government for
the exclusive purpose of ensuring free,
orderly, honest, peaceful, and credible
elections;
COMELEC may validly delegate its power to
investigate and prosecute election law
violations to the Provincial Fiscal [now
provincial prosecutor], pursuant to its
deputization power [People v. Judge Basilia,
G.R. No. 83938 (1989)].
9. Recommend to the President the
removal of any officer or employee it
has deputized for violation or disregard
of, or disobedience to its directive;
10. Registration
of
political
parties,
organizations and coalitions and
accreditation of citizens’ arms;
11. Regulation of public utilities and media
of communication or information;
While respondent COMELEC cited the
Constitution, laws and jurisprudence to support
their position that they had the power to
regulate the tarpaulin, however, all these
provisions pertain to candidates and political
parties. COMELEC does not have the authority
to regulate the enjoyment of the preferred right
to freedom of expression exercised by a noncandidate.
Regulation
of
election
paraphernalia will still be constitutionally valid if
it reaches into speech of persons who are not
candidates or who do not speak as members
of a political party if they are not candidates,
only if what is regulated is declarative speech
that, taken as a whole, has for its principal
object the endorsement of a candidate only.
The regulation (a) should be provided by law;
(b) reasonable; (c) narrowly tailored to meet
the objective of enhancing the opportunity of all
candidates to be heard and considering the
primacy of the guarantee of free expression,
and (d) demonstrably the least restrictive
means to achieve that objective. The regulation
must only be with respect to the time, place and
manner of the rendition of the message. In no
situation may the speech be prohibited or
censored on the basis of its content [The
Page 88 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Diocese of Bacolod v. COMELEC, G.R. No.
205728 (2015)].
12. Decide on election cases
The Commission on Elections may sit en banc
or in two divisions and shall promulgate its
rules of procedure in order to expedite
disposition of election cases [Section 3, Article
IX-C, 1987 Constitution].
The Constitution vested upon the COMELEC
judicial powers to decide all contests relating to
elective local officials as therein provided
[Garcia v. De Jesus, G.R. No. 97108-09
(1992)].
b. Cases which must be heard by
Division
d. Jurisdiction over intra-party disputes
The COMELEC’s powers and functions under
the Constitution, "include the ascertainment of
the identity of the political party and its
legitimate officers responsible for its acts." The
power to register political parties necessarily
involves the determination of the persons who
must act on its behalf. Thus, the COMELEC
may resolve an intra-party leadership dispute,
in a proper case brought before it, as an
incident of its power to register political parties
[Lokin v. COMELEC, G.R. No. 193808 (2012)].
e. Appellate Jurisdiction
All contests involving elected municipal officials
decided by trial courts of general jurisdiction or
involving elective barangay officials decided by
a court of limited jurisdiction [Garcia v. De
Jesus, supra].
ARTICLE IX-C, SECTION 3. The
Commission on Elections may sit en banc or
in two divisions, and shall promulgate its
rules of procedure in order to expedite
disposition of election cases, including preproclamation 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.
f. Limited jurisdiction to issue writs of
certiorari
Hence:
• Election
contests
(e.g.,
preproclamation controversies, recounts)
are decided first by division. The en
banc only decides motions for
reconsideration of those election
contests [See Ong v. COMELEC, G.R.
No. 105717 (1992)].
• In all other instances (e.g., canvassing,
administrative
functions),
the
COMELEC acts en banc.
Hence, the COMELEC may take cognizance of
a petition for certiorari questioning an
interlocutory order of the regional trial court in
an electoral protest case. [Bulilis v. Nuez, G.R.
No. 195953 (2011)].
c. Exclusive jurisdiction
All contests relating to the elections, returns
and qualifications of all elective regional,
provincial, and city officials.
Currently, the enforcement of election laws
may be concurrent when Congress assigns
such enforcement to a different body (e.g., the
Department of Justice).
Interpreting the phrase “in aid of its appellate
jurisdiction,” if a case may be appealed to a
particular court or judicial tribunal or body, then
said court or judicial tribunal or body has
jurisdiction to issue the extraordinary writ of
certiorari, in aid of its appellate jurisdiction
3. Commission on Audit
a. Powers and functions
Examine, audit, and settle accounts pertaining
to government funds or property: its revenue,
receipts, expenditures, and uses.
LGUs, though granted local fiscal autonomy,
are still within the audit jurisdiction of the COA
[Veloso v. COA, G.R. No. 193677 (2011)]. The
Boy Scouts of the Philippines (BSP) is a public
corporation and its funds are subject to the
COA’s audit jurisdiction [Boy Scouts of the
Philippines v. COA, G.R. No. 177131 (2011)].
The Constitution formally embodies the longestablished rule that private entities who
Page 89 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
handle government funds or subsidies in trust
may be examined or audited in their handling
of said funds by government auditors [Blue Bar
Coconut Philippines, Inc. v. Tantuico, G.R. No.
L-47051 (1988)].
b. Post-audit basis
●
●
●
●
Constitutional bodies, commissions,
and offices;
Autonomous state colleges and
universities;
GOCCs with no original charters and
their subsidiaries;
Non-governmental entities receiving
subsidy or equity, directly or indirectly,
from or through the Government, which
are required by law or the granting
institution to submit such audit as a
condition of subsidy or equity.
Complementing the constitutional power of the
COA to audit accounts of “non–governmental
entities receiving subsidy or equity, directly or
indirectly, from or through the government” is
Section 11(1), Book V of the Administrative
Code, which authorizes the COA to audit
accounts of non–governmental entities
“required to pay…or have government share”
but only with respect to “funds…coming from or
through the government.”
COA does not have the exclusive power to
examine and audit government agencies. The
framers of the Constitution were fully aware of
the need to allow independent private audit of
certain government agencies in addition to the
COA audit [DBP v. COA, G.R. No. 88435
(2002)].
The COA’s audit jurisdiction does not allow it to
interfere in how the Supreme Court appraises
the value of properties that can be purchased
by its retired justices, as this would be an
interference in the judiciary’s fiscal autonomy.
[In Re: COA Opinion on Appraised Value, A.M.
No. 11-7-10-SC (2012)]
●
Promulgate accounting and auditing
rules and regulations.
This includes giving the COA Assistant
Commissioner and General Counsel the
authority to deputize a special audit team [The
Special Audit Team, Commission on Audit v.
CA, G.R. No. 174788 (2013)].
Note: No law shall be passed exempting any
entity of the Government or its subsidiaries in
any guise whatsoever, or any investment of
public funds, from the jurisdiction of the
Commission on Audit [Section 3, Article IXD,
1987 Constitution].
Congress cannot exempt foreign grants from
the jurisdiction of the Commission on Audit. Its
jurisdiction extends to all government-owned or
controlled corporations, including those funded
by donations through the Government
[Petitioner
Corporations
v.
Executive
Secretary, G.R. Nos. 147036-37 (2012)].
d. Primary jurisdiction over money
claims
Primary jurisdiction over money claims Limited
to liquidated claims: The COA has primary
jurisdiction to pass upon a private entity’s
money claims against a provincial gov’t.
However, the scope of the COA’s authority to
take cognizance of claims is circumscribed by
cases holding statutes of similar import to
mean only liquidated claims, or those
determined or readily determinable from
vouchers, invoices, and such other papers
within reach of accounting officers [Euro-Med
Laboratories, Phil. Inc. v. Province of
Batangas, G.R. No. 148106 (2006)].
No jurisdiction over their validity or
constitutionality: The jurisdiction of the COA
over money claims against the government
does not include the power to rule on the
constitutionality or validity.
C. Exclusive authority
●
●
Define the scope of its audit and
examination;
Establish techniques and methods
required;
Page 90 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
D.
Composition
Qualifications of Members
and
1. Civil Service Commission
a. Composition
A Chairman and two (2) Commissioners.
b. Qualifications [Section 1(1), Article
IX-B, 1987 Constitution]
a. Natural-born citizens of the Philippines;
b. At the time of their appointment, at
least 35 years of age;
c. With proven capacity for public
administration; and
d. Must not have been candidates for any
elective position in the election
immediately
preceding
their
appointment.
c. Term of office
Seven (7) years (except those first appointed)
2. Commission on Elections
a. Composition
A Chairman and six (6) Commissioners.
b. Qualifications
1.
2.
3.
4.
Must be natural-born citizens;
At least 35 years of age;
Holders of a college degree;
Have not been candidates in the
immediately preceding election;
5. Majority, including the Chairman, must
be members of the Philippine Bar who
have been engaged in the practice of
law for at least ten (10) years. [Section
1, Article IX-C, 1987 Constitution]
3. Commission on Audit
a. Composition
A Chairman and two (2) Commissioners
b. Qualifications
1. Natural born Filipino citizens;
2. At least thirty-five (35) years of age;
3. CPAs with not less than ten (10) years
of auditing experience OR members of
the Philippine bar with at least ten (10)
years practice of law
Note: At no time shall all members belong to
the same profession.
E. Prohibited
Interests
Offices
and
No member of the Constitutional Commissions
shall, during their tenure:
1. Hold any other office or employment.
This is similar to the prohibition against
high executive officers (cf. Art. VII, Sec.
13). It applies to both public and private
offices and employment;
2. Engage in
profession;
the
practice
of
any
3. Engage in the active management or
control of any business which in any
way may be affected by the functions
of his office; or
4. Be financially interested, directly or
indirectly, in any contract with, or in any
franchise or privilege granted by, the
Government, its subdivisions, agencies
or instrumentalities, including GOCCs
or their subsidiaries [Section 2, Article
IX-A, 1987 Constitution].
The CSC Chairman cannot be a member of a
government entity that is under the control of
the
President
without
impairing
the
independence vested in the CSC by the 1987
Constitution
[Funa
v.
Civil
Service
Commission, G.R. No. 191672 (2014)].
F. Judicial Review of Final
Orders,
Resolutions,
and
Decisions
of
Constitutional
Commissions
1. Rendered in Exercise of QuasiJudicial Functions
a. Decisions
Each Commission shall decide by a majority
vote of all its members (NOT only those who
participated in the deliberations) any case or
matter brought before it within 60 days from the
Page 91 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
date of its submission for decision or resolution
[Section 7, Article IX-A, 1987 Constitution].
Any decision, order or ruling of each
Commission may be brought to the SC on
certiorari by the aggrieved party within thirty
(30) days from receipt of the copy thereof.
In resolving cases brought before it on appeal,
respondent COA is not required to limit its
review only to the grounds relied upon by a
government agency’s auditor with respect to
disallowing certain disbursements of public
funds. Such would render COA’s vital
constitutional power unduly limited and thereby
useless and effective [Yap v. COA, G.R. No.
158562 (2010)].
b. Certiorari Jurisdiction
Supreme Court
of
the
For Final Orders in the Exercise of a
Commission's Quasi-Judicial Functions
(via Rule 64): Limited to decisions rendered in
actions or proceedings taken cognizance of by
the Commissions in the exercise of their quasijudicial powers.
The Court exercises extraordinary jurisdiction,
thus, the proceeding is limited only to issues
involving grave abuse of discretion resulting in
lack or excess of jurisdiction, and does not
ordinarily empower the Court to review the
factual findings of the Commission [Aratuc v.
COMELEC, G.R. No. L-49705-09 (1999)].
For Interlocutory Orders: Via Rule 65, in a
proper case. [See Macabago v. COMELEC,
G.R. No. 152163 (2002)]
c. Synthesis on the Rules of Modes of
Review
1. Decisions, order or ruling of the
Commissions in the exercise of their
quasi-judicial functions may be
reviewed by the Supreme Court.
2. General Rule: The mode of review is a
petition for certiorari under Rule 64 (not
Rule 65).
3. Exception: The Rules of Civil
Procedure, however, provides for a
different legal route in the case of the
Civil Service Commission. In the case
of CSC, Rule 43 will be applied, and the
case will be brought to the Court of
Appeals.
2.
Rendered
in
Exercise
Administrative Functions
of
General Rule: Acts rendered in the exercise of
the administrative functions of a Constitutional
Commission (e.g., awarding a contract to a
bidder) are not judicially reviewable.
Rationale: These are in the exercise of the
Commission’s discretion/prerogatives, which
are in the nature of policy and generally not
reviewable by the courts.
Exceptions:
• When they are in violation of statutes
(e.g., procurement laws) or breach civil
law (e.g., obligations and contracts),
they may be challenged through
ordinary civil actions in the regular
courts (e.g., the Regional Trial Court)
[See Filipinas Engineering and
Machine Shop v. Ferrer, G.R. No.
31455 (1985)] This is subject to the
rules on state immunity.
•
When there is a proper case and for
grave abuse of discretion, they may be
challenged via certiorari on Rule 65.
CITIZEN IN RELATION TO
THE STATE
I. CITIZENSHIP
A. Who are Filipino Citizens
The following are citizens of the Philippines:
1. Those who are citizens of the
Philippines at the time of the adoption
of the 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
Page 92 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
4. Those who are naturalized in
accordance with law [Section 1, Article
IV, 1987 Constitution].
Note: A passport is "a document issued by the
Philippine government to its citizens requesting
other governments to allow its citizens to pass
safely and freely, and in case of need, to give
him/her all lawful aid and protection." It is an
official document of identity of Philippine
citizenship of the holder issued for travel
purposes. A passport proves that the country
which issued it recognizes the person named
therein as its national. (Uy-Belleza v. Civil
Registrar of Tacloban City, G.R. No. 218354,
[September 15, 2021])
1. Classification of Citizens
elect Filipino citizenship when she reached the
age of majority.||| [Uy-Belleza v. Civil Registrar
of Tacloban City, G.R. No. 218354,
(September 15, 2021)]
b. Naturalized Citizens
Those who are naturalized in accordance with
the law [Section 1(4), Article IV, 1987
Constitution]
Modes:
(A) By direct conferment of Congress.
Here, Congress passes a private bill conferring
citizenship on a foreigner, subject to approval
or veto of the President).
(B) By application under Naturalization
Statutes.
a. Natural-born Citizens
SECTION 2, ARTICLE IV. Natural-born citizens are
those who are citizens of the Philippines from birth
without having to perform any act to acquire or
perfect their Philippine citizenship. Those who elect
Philippine citizenship in accordance with paragraph
(3), Section 1 hereof shall be deemed natural-born
citizens.
Who are natural-born citizens
1. Citizens of the Philippines from birth
without having to perform any act to
acquire or perfect their Philippine
citizenship [Section 1(1) & Section
1(2), Article IV, 1987 Constitution]; and
2. Those who elect Philippine citizenship
in accordance with Section 1(3), Article
IV
The requirement of electing Filipino citizenship
when a child reached the age of majority under
the Constitution applied only to legitimate
children. These would not apply in the case of
Adelaida who is an illegitimate child,
considering that her Chinese father and Filipino
mother were never married. As such, she was
not required to comply with said constitutional
and statutory requirements to become a
Filipino citizen. By being an illegitimate child of
a Filipino mother, Adelaida automatically
became a Filipino upon birth. Stated differently,
she is a Filipino since birth without having to
i. Via Judicial Action (CA 473)
ii. Via Administrative Action with the Special
Committee on Naturalization (RA 9139)
(1) Naturalization via Judicial Action [CA
473]
Judicial process by which a foreigner is
adopted by the country and clothed with the
privileges of a native-born citizen. The
applicant must prove that he has all of the
qualifications and none of the disqualifications
for citizenship.
(2) Qualifications [Section 2, CA 473]
a. Not less than twenty-one years of age
on the day of the hearing of the
petition;
b. Resided in the Philippines for a
continuous period of 10 years or more;
c. Of good moral character; believes in
the principles underlying the Philippine
Constitution; conducted himself in a
proper and irreproachable manner
during the entire period of his
residence towards the government
and community
d. Must own real estate in the Philippines
worth P5,000 or more OR must have
lucrative trade, profession, or lawful
occupation;
e. Able to speak or write English or
Spanish or anyone of the principal
languages; and
Page 93 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
f. Enrolled his minor children of school
age in any of the recognized schools
where Philippine history, government
and civics are taught or prescribed as
part of the school curriculum, during
the entire period of the residence in the
Philippines required of him.
(3) Special Qualifications [Section 3, CA
473]
ANY will result to reduction of the 10-year
period to 5 years:
a. Having honorably held office under the
Government of the Philippines or
under that of any of the provinces,
cities, municipalities, or political
subdivisions thereof;
b. Established a new industry or
introduced a useful invention in the
Philippines;
c. Married to a Filipino woman;
d. Engaged as a teacher in the
Philippines in a public or recognized
private school not established for the
exclusive instruction of children of
persons of a particular nationality or
race, in any of the branches of
education or industry for a period of 2
years or more; or
e. Born in the Philippines.
(4) Disqualifications [Section 4, CA 473]
a. Persons opposed to organized
government or affiliated with groups
who uphold and teach doctrines
opposing all organized governments;
POLITICAL LAW
Filipinos, or who have not evinced a
sincere desire to learn and embrace
the customs, traditions, and ideals of
the Filipinos;
g. Citizens or subjects of nations with
whom the Philippines is at war; or
h. Citizens or subjects of a foreign
country other than the United States,
whose laws do not grant Filipinos the
right to become naturalized citizens or
subject thereof.
(5) No Petition for Judicial Declaration of
Philippine Citizenship
The Court has consistently ruled that there is
no proceeding established by law, or the Rules
for the judicial declaration of the citizenship of
an individual. There is no specific legislation
authorizing the institution of a judicial
proceeding to declare that a given person is
part of our citizenry.
It should be stressed that there is no specific
statutory or procedural rule which authorizes
the direct filing of a petition for declaration of
election of Philippine citizenship before the
courts. The special proceeding provided under
Section 2, Rule 108 of the Rules of Court on
Cancellation or Correction of Entries in the Civil
Registry, merely allows any interested party to
file an action for cancellation or correction of
entry in the civil registry, i.e.,election, loss and
recovery of citizenship [Republic v. Sagun,
G.R. No. 187567, (February 15, 2012), 682
PHIL 303-317]
b. Persons defending or teaching the
necessity or propriety of violence,
personal assault, or assassination for
the success of their ideas;
(6) Denaturalization
c. Polygamists or believers in polygamy;
e. Persons suffering from mental
alienation or incurable contagious
diseases;
Judgment directing the issuance of a
certificate of naturalization is a mere grant of a
political privilege and that neither estoppel nor
res judicata may be invoked to bar the State
from initiating an action for the cancellation or
nullification of the certificate of naturalization
thus issued [In Re: Yao MunTek v. Republic,
G.R. No. L-23383 (1971)].
f.
(7) Grounds
d. Persons convicted of crimes involving
moral turpitude;
Persons who during the period of their
stay, have not mingled socially with the
Process by which grant of citizenship is
revoked.
Page 94 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
Upon the proper motion of the Sol. Gen. or the
provincial fiscal, naturalization may be
canceled when:
a. Naturalization
certificate
was
fraudulently or illegally obtained [Po
Soon Tek v. Republic, G.R. No. L32408 (1974)];
If obtained fraudulently or via perjury,
naturalization is never final (i.e., does not
attain res judicata) and may be revoked [In Re:
Republic v. Guy, G.R. No. L-41399 (1982)].
b. If, within the 5 years next following the
issuance, he shall return to his native
country or to some foreign country and
establish his permanent residence
there;
c. Remaining for more than one year in
his native country or the country of his
former nationality, or two years in any
other foreign country, shall be
considered as prima facie evidence of
his intention of taking up his
permanent residence in the same;
d. Petition was made on an invalid
declaration of intention;
e. Minor children of the person
naturalized failed to graduate from the
schools mentioned in Section 2,
through the fault of their parents, either
by neglecting to support them or by
transferring them to another school or
schools; or
f.
If he has allowed himself to be used as
a dummy in violation of the
Constitutional or legal provision
requiring Philippine citizenship as a
requisite for the exercise, use or
enjoyment of a right, franchise or
privilege.
2. Foundlings
REP. ACT 11767 FOUNDLING RECOGNITION
AND PROTECTION ACT (MAY 6, 2022)
ARTICLE I, SECTION 5. Citizenship Status of a
Foundling Found in the Philippines and/or in
Philippine Embassies, Consulates and Territories
Abroad. — A foundling found in the Philippines
POLITICAL LAW
and/or in Philippine embassies, consulates and
territories abroad is presumed a natural-born Filipino
citizen regardless of the status or circumstances of
birth. As a natural-born citizen of the Philippines, a
foundling is accorded with rights and protections at
the moment of birth equivalent to those belonging to
such class of citizens whose citizenship does not
need perfection or any further act.
The presumption of natural-born status of a
foundling may not be impugned in any proceeding
unless substantial proof of foreign parentage is
shown. The natural-born status of a foundling shall
not also be affected by the fact that the birth
certificate was simulated, or that there was absence
of a legal adoption process, or that there was
inaction or delay in reporting, documenting, or
registering a foundling.
Are foundlings natural-born citizens?
Yes. As a matter of law, foundlings are, as a
class, natural-born citizens. The presumption
of natural-born citizenship of foundlings stems
from the presumption that their parents are
nationals of the Philippines. While the 1935
Constitution’s enumeration is silent as to
foundlings, there is no restrictive language
which would definitely exclude foundlings
either. No such intent or language permits
discrimination against foundlings. On the
contrary, all three Constitutions (1935, 1973,
1987) guarantee the basic right to equal
protection of the laws. All exhort the State to
render social justice [Poe-Llamanzares v.
COMELEC, G.R. No. 221697 (2016)].
B.
Modes
Citizenship
of
Acquiring
1. By Birth
a. Jus Soli — “Right of soil;” a person’s
nationality is based on place of birth;
formerly effective in the Philippines
[Roa v. Collector of Customs, G.R. No.
L-7011 (1912)].
b. Jus Sanguinis — “Right of blood;” a
person's nationality follows that of his
natural parents. The Philippines
currently adheres to this principle.
2. By Naturalization
Naturalization signifies the act of formally
adopting a foreigner into the political body of a
Page 95 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
nation by clothing him or her with the privileges
of a citizen.
she reaches the age of majority [Republic v.
Lim, G.R. No. 153883 (2004)].
Three modes by which an alien may become a
Filipino citizen by naturalization:
1. Administrative naturalization pursuant
to R.A. No. 9139;
2. Judicial naturalization pursuant to C.A.
437; and
3. Legislative naturalization in the form of
a law enacted by Congress granting
Philippine citizenship to an alien [So v.
Republic, G.R. No. 170603 (2007)].
5. Reglementary Period
3. Derivative Naturalization
Under Sec. 15 of CA 473, foreign women who
are married to Philippine citizens may be
deemed ipso facto Philippine citizens and it is
neither necessary for them to prove that they
possess other qualifications for naturalization
at the time of their marriage nor do they have
to submit themselves to judicial naturalization
[Republic v. Batuigas, G.R. No. 183110
(2013)].
Pursuant to the principle of derivative
naturalization, Section 15 of CA 437, extends
the grant of Philippine citizenship to the minor
children of those naturalized thereunder.
The following are requisites should be applied
to the minor children in order to be entitled to
Philippine citizenship:
1. They are legitimate children of
petitioner
2. They were born in the Philippines, and
3. They were still minors when the
petitioner was naturalized as a Filipino
citizen [Tan Co v. Civil Register of
Manila, G.R. No. 138496 (2004)].
4. Election of Filipino Citizenship
The constitutional and statutory requirements
of electing Filipino citizenship apply only to
legitimate children and not to one who was
concededly an illegitimate child, as her
Chinese father and Filipino mother were never
married. Being an illegitimate child of a Filipino
mother, respondent is a Filipino since birth,
without having to elect Filipino citizenship when
Under Article IV, Section 1(3) of the 1935
Constitution, the citizenship of a legitimate
child born of a Filipino mother and an alien
father followed the citizenship of the father,
unless, upon reaching the age of majority, the
child elected Philippine citizenship. The 1935
Charter only provides that the election should
be made “upon reaching the age of majority.”
The age of majority then commenced upon
reaching 21 years. In the opinions of the
Secretary of Justice on cases involving the
validity of election of Philippine citizenship, this
dilemma is resolved by basing the time period
on the decisions of this Court prior to the
effectivity of the 1935 Constitution.
In these decisions, the proper period for
electing Philippine citizenship, should be made
within “reasonable time” after attaining the age
of majority. This phrase “reasonable time” has
been interpreted to mean the election should
be made within three years from reaching the
age of majority [Re: Application for Admission
to the Philippine Bar, Vicente D. Ching, Bar
Matter No. 914, October 1, 1999].
6. Eligibility under the Administrative
Naturalization Law; Rationale
R.A. No. 9139 is an act providing for the
acquisition of Philippine citizenship for (1)
aliens born in the Philippines and (2) residing
therein since birth by administrative
naturalization subject to certain requirements
dictated by national security and interest.
R.A. No. 9139 was enacted as a remedial
measure intended to make the process of
acquiring Philippine citizenship less tedious,
less technical and more encouraging. It also
addresses the concerns of degree holders
who, by reason of lack of citizenship
requirement, cannot practice their profession,
thus promoting "brain drain for the Philippines
[So v. Republic, supra].
7. Qualifications Prescribed Under Act
473 NOT APPLICABLE to R.A. No.
9139
Page 96 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
The qualifications and disqualifications of an
applicant for naturalization by judicial act are
set forth in Sections 2 and 4 of C.A. 473. On
the other hand, Sections 3 and 4 of R.A. No.
9139 provide for the qualifications and
disqualifications
of
an
applicant
for
naturalization by administrative act.
Rationale:
1. C.A. 473 and R.A. No. 9139 are
separate and distinct laws - the former
covers all aliens regardless of class
while the latter covers native-born
aliens who lived here in the Philippines
all their lives, who never saw any other
country and all along thought that they
were
Filipinos;
who
have
demonstrated love and loyalty to the
Philippines and affinity to customs and
traditions.
2. If the qualifications prescribed in R.A.
No. 9139 would be made applicable
even to judicial naturalization, the
coverage of the law would be
broadened since it would then apply
even to aliens who are not nativeborn.
Applying the provisions of R.A. No. 9139 to
judicial naturalization is contrary to the
intention of the legislature to liberalize the
naturalization procedure in the country [So v.
Republic, G.R. No. 170603 (2007)].
C. Loss and Re-Acquisition of
Philippine Citizenship
1. Grounds for Loss of Philippine
Citizenship
a. Naturalization in a foreign country
[Section 1(1), CA 63];
b. Express renunciation or expatriation
[Section 1(2), CA 63];
c. Taking an oath of allegiance to another
country upon reaching the age of
majority;
d. Accepting a commission and serving in
the armed forces of another country,
unless there is an offensive/defensive
POLITICAL LAW
pact with the country, or it maintains
armed forces in RP with RP’s consent;
e. Denaturalization (The court, upon its
discretion, may cancel certificate of
naturalization subsequent to the
requirements
provided.
This
is
because naturalization is not a natural
right but a political privilege);
f.
Being found by final judgment to be a
deserter of the AFP.
Note: Previously, Marriage by a Filipino woman
to an alien, if by the laws of her husband’s
country, she becomes a citizen thereof. (Now
qualified by Section 4, Article IV. Citizens of the
Philippines who marry aliens shall retain their
citizenship, unless by their act or omission they
are deemed, under the law, to have renounced
it).
2. General Rule
Expatriation is a constitutional right. No one
can be compelled to remain a Filipino if he does
not want to [Go Julian v. Government, G.R. No.
20809 (1923)].
3. Exception
A Filipino may not divest himself of Philippine
citizenship in any manner while the Republic of
the Philippines is at war with any country
[Section 1(3), CA 63].
Loss of Philippine citizenship cannot be
presumed. Considering the fact that
admittedly, Osmeña was both a Filipino and an
American, the mere fact that he has a
certificate stating that he is an American does
not mean that he is not still a Filipino, since
there has been no express renunciation of his
Philippine citizenship [Aznar v. COMELEC,
G.R. No. 83820 (1995)].
4. Reacquisition
a. Naturalization [CA 63 and CA 473]
Now an abbreviated process, no need to wait
for 3 years (1 year for declaration of intent, and
2 years for the judgment to become executory)
Requirements:
1. Must be 21 years of age
2. Must be a resident for 6 months
Page 97 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
3. Must have good moral character
4. Must have no disqualification
b. Repatriation
Repatriation results in the recovery of the
original nationality. Therefore, if he is a naturalborn citizen before he lost his citizenship, he
will be restored to his former status as a
natural-born Filipino [Bengson III v. HRET,
G.R. No. 142840 (2001)].
Mere filing of certificate of candidacy is not a
sufficient act of repatriation. Repatriation
requires an express and equivocal act
[Frivaldo v. COMELEC, G.R. No. 120295
(1989)].
In the absence of any official action or approval
by proper authorities, a mere application for
repatriation does not, and cannot, amount to
an automatic reacquisition of the applicant’s
Philippine citizenship [Labo v. COMELEC,
G.R. No. 86564 (1989)].
Retention
Natural-born citizens of the Philippines who,
after the effectivity of R.A. 9225, become
citizens of a foreign country shall retain their
Philippine citizenship upon taking the aforesaid
oath [Section 3, R.A. No. 9225].
Derivative Citizenship
The unmarried child, whether legitimate,
illegitimate or adopted, below eighteen (18)
years of age, of those who re-acquire
Philippine citizenship upon effectivity of R.A.
No. 9225 shall be deemed citizens of the
Philippines [Section 4, R.A. No. 9225].
Effect of retention or reacquisition:
Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil
and political rights and be subject to all
attendant liabilities and responsibilities under
existing laws of the Philippines.
Conditions for enjoyment of full civil and
political rights
c. Legislative Act
Citizenship can be acquired by an alien thru
legislative naturalization in the form of a law
enacted by Congress bestowing Philippine
citizenship to an alien [So v. Republic, GR
No.170603 (2007)].
Citizenship can be reacquired by natural-born
citizens of the Philippines who have lost their
Philippine citizenship by reason of their
naturalization as citizens of a foreign country
upon taking the oath of allegiance to the
Republic [Section 3, R.A. 9225].
5. R.A. No. 9225 (CITIZENSHIP
RETENTION AND REACQUISITION
ACT OF 2003)
Right
Condition
Suffrage
Meet requirements under
Section 1, Article V of the
1987 Constitution, R.A.
No. 9189 (Overseas
Absentee Voting Act of
2003), other existing
laws.
Seeking
elective
public office
(1)
Meet
the
qualifications for holding
such public office as
required
by
the
Constitution and existing
laws and,
Reacquisition
Natural-born citizens of the Philippines who
have lost their Philippine citizenship by reason
of their naturalization as citizens of a foreign
country are deemed to have reacquired
Philippine citizenship upon taking the oath of
allegiance to the Republic [Section 3, R.A.
9225].
Page 98 of 384
UP Law Bar Operations Commission 2023
(2) at the time of the
filing of the certificate of
candidacy,
make
a
personal and sworn
renunciation of any and
all foreign citizenship
before any public officer
authorized to administer
an oath.
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
Right
Appointment
to public
office
Condition
(1) Subscribe and swear
to an oath of allegiance
to the Republic of the
Philippines and its duly
constituted authorities
prior to their assumption
of office;
(2) provided, that they
renounce their oath of
allegiance to the country
where they took that
oath.
Practice
profession in
the
Philippines
Apply with the proper
authority for a license or
permit to engage in such
practice.
[Section 5, R.A. No. 9225]
The right to vote or be elected or appointed to
any public office in the Philippines cannot be
exercised by, or extended to, those who:
1. Are candidates for or are occupying
any public office in the country of which
they are naturalized citizens; and/or
2. Are in active service as commissioned
or noncommissioned officers in the
armed forces of the country in which
they are naturalized citizens.
6. Repatriation under R.A. No. 8171
R.A. No. 8171, which lapsed into law on
October 23, 1995, is an act providing for the
repatriation (a) of Filipino women who have lost
their Philippine citizenship by marriage to
aliens and (b) of natural-born Filipinos who
have lost their Philippine citizenship on account
of political or economic necessity, including
their minor children [Angat v. Republic, GR No.
132244 (1999)].
Included in the second group are minor
children at the time of repatriation and does not
include one who is no longer minor at the time
of his repatriation or one who lost his Philippine
citizenship by operation of law. The loss of
Philippine citizenship must be on account of
political or economic necessity and not by
operation of law such as derivative
POLITICAL LAW
naturalization, or for the purpose of avoiding
deportation and prosecution in the US [Tabasa
v. CA, G.R. No. 125793 (2006)].
Mode of Repatriation
If Repatriation Under 9225: Repatriation as a
mode of reacquiring Philippine citizenship does
not require the filing of a petition in court. All
that an applicant had to do is to take an oath of
allegiance to the Republic of the Philippines
and register said oath in the Local Civil Registry
of the place where the person concerned
resides or last resided [Angat, supra]. In
addition thereto, registration of the Certificate
of Repatriation in the Bureau of Immigration is
a prerequisite in effecting the repatriation of a
citizen [Altarejos v. COMELEC, G.R. No.
163256 (2004)].
If Repatriation Under 8171: A petition for
repatriation shall be filed with the Special
Committee on Naturalization (SCN) which was
designated to process petitions for repatriation
pursuant to A.O. 285 dated August 22, 2006.
[Tabasa v. CA, supra]
7. Renunciation of Reacquisition
A person who renounces all foreign citizenship
under Section 5(2) of R.A. No. 9225 recants
this renunciation by using his foreign passport
afterwards [Maquiling v. COMELEC, G.R. No.
195649 (2013)].
D. Dual Citizenship and Dual
Allegiance
1. Dual Citizenship
Allows a person who acquires foreign
citizenship to simultaneously enjoy the rights
he previously held as a Filipino citizen. This
may be voluntary or accidental, and results in
the application of different laws of two or more
states to a dual citizen.
2. Dual Allegiance
Completely voluntary, and occurs when:
a. Aliens who are naturalized as Filipinos
but remain loyal to their country of
origin;
Page 99 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
b. Public officers who, while serving the
government, seek citizenship in
another country.
3. Dual citizenship vs. dual
allegiance [Mercado v. Manzano, 307
SCRA 630 (1999)].
Dual Citizenship v. Dual Allegiance: Dual
citizenship arises when, as a result of the
concurrent application of the different laws of
two or more states, a person is simultaneously
considered a national by the said states.
For instance, such a situation may arise when
a person whose parents are citizens of a state
which adheres to the principle of jus sanguinis
is born in a state which follows the doctrine of
jus soli.
Such person, ipso facto is concurrently
considered a citizen of both states.
Dual allegiance on the other hand, refers to a
situation in which a person simultaneously
owes, by some positive acts, loyalty to two or
more states. While dual citizenship is
involuntary, dual allegiance is the result of an
individual’s volition
Local Electoral Disqualification for Dual
Allegiance Only: “Dual citizens” are
disqualified from running for any elective local
position [Section 40(d), Local Government
Code]; this should be read as referring to “dual
allegiance.
Clearly, in including Section 5 in Article IV on
citizenship, the concern of the Constitutional
Commission was not with dual citizens per se
but with naturalized citizens who maintain their
allegiance to their countries of origin even after
their naturalization. Hence, the phrase “dual
citizenship” in Section 40(d), R.A. No. 7160
and in Section 20, R.A. No. 7854 must be
understood as referring to “dual allegiance.”
Consequently, persons with mere dual
citizenship
do
not
fall
under
this
disqualification. For candidates with dual
citizenship, it should suffice if, upon the filing of
their certificates of candidacy, they elect
Philippine citizenship to terminate their status
as persons with dual citizenship considering
that their condition is the unavoidable
POLITICAL LAW
consequence of conflicting laws of different
States.
Automatic
Renunciation
of
Dual
Citizenship: Once a candidate files his
candidacy, he is deemed to have renounced
his foreign citizenship in case of dual
citizenship [Mercado v. Manzano, G.R. No.
135083 (1999)].
II. SOCIAL JUSTICE AND
HUMAN RIGHTS
A. Concept of Social Justice
SECTION 10, ARTICLE II. The State shall promote
social justice in all phases of national development.
SECTION 1. ARTICLE XIII. The Congress shall give
highest priority to the enactment of measures that
protect and enhance the right of all the people to
human dignity, reduce social, economic, and
political inequalities, and remove cultural inequities
by equitably diffusing wealth and political power for
the common good. To this end, the State shall
regulate the acquisition, ownership, use, and
disposition of property and its increments.
SECTION 2, ARTICLE XIII. The promotion of social
justice shall include the commitment to create
economic opportunities based on freedom of
initiative and self-reliance.
Social justice refers to the promotion of the
welfare of all the people, the adoption by the
Government of measures calculated to insure
economic stability of all the competent
elements of society, through the maintenance
of a proper economic and social equilibrium in
the interrelations of the members of the
community, constitutionally, through the
adoption of measures legally justifiable, or
extra constitutionally, through the exercise of
powers underlying the existence of all
governments on the time-honored principle of
salus populi est suprema lex.
Social justice is the humanization of laws and
the equalization of social and economic forces
by the State so that justice in its rational and
objectively secular conception may at least be
approximated. It must be founded on the
recognition
of
the
necessity
of
interdependence among divers and diverse
units of a society and of the protection that
Page 100 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
should be equally and evenly extended to all
groups as a combined force in our social and
economic life, consistent with the fundamental
and paramount objective of the state of
promoting the health, comfort, and quiet of all
persons, and of bringing about "the greatest
good to the greatest number" [Calalang v.
Williams, G.R. 47800 (1940)].
We have repeatedly stressed that social justice
— or any justice for that matter — is for the
deserving, whether he be a millionaire in his
mansion or a pauper in his hovel. It is true that,
in case of reasonable doubt, we are to tilt the
balance in favor of the poor to whom the
Constitution fittingly extends its sympathy and
compassion. But never is it justified to give
preference to the poor simply because they are
poor, or reject the rich simply because they are
rich, for justice must always be served for the
poor and the rich alike according to the
mandate of the law. (Valencia v. Court of
Appeals, G.R. No. 122363, [April 29, 2003],
449 PHIL 711-741)
B. Economic, Social and Cultural
Rights
1. Economic and Social
SECTION 18, ARTICLE II. The State affirms labor
as a primary social economic force. It shall protect
the rights of workers and promote their welfare.
SECTION 3, ARTICLE XIII. The State shall afford
full protection to labor, local and overseas,
organized and unorganized, and promote full
employment and equality of employment
opportunities for all.
It shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations,
and peaceful concerted activities, including the right
to strike in accordance with law. They shall be
entitled to security of tenure, humane conditions of
work, and a living wage. They shall also participate
in policy and decision-making processes affecting
their rights and benefits as may be provided by law.
The State shall promote the principle of shared
responsibility between workers and employers and
the preferential use of voluntary modes in settling
disputes, including conciliation, and shall enforce
their mutual compliance therewith to foster industrial
peace.
The State shall regulate the relations between
workers and employers, recognizing the right of
labor to its just share in the fruits of production and
the right of enterprises to reasonable returns to
investments, and to expansion and growth.
it was ruled that the early retirement of an
employee due to a work-related ailment, as in
the case at bar, proves that he was really
disabled totally to further perform his assigned
task, and to deny permanent total disability
benefits when he was forced to retire would
render inutile and meaningless the social
justice precept guaranteed by the Constitution.
(Government Service Insurance System v.
Cadiz, G.R. No. 154093, [July 8, 2003], 453
PHIL 384-392)
Work is a necessity that has economic
significance deserving legal protection. The
social justice and protection to labor provisions
in the Constitution dictate so. Employers are
also accorded rights and privileges to assure
their self-determination and independence and
reasonable return of capital. This mass of
privileges
comprises
the
so-called
management prerogatives.
Although they may be broad and unlimited in
scope, the State has the right to determine
whether an employer's privilege is exercised in
a manner that complies with the legal
requirements and does not offend the
protected rights of labor [Capitol Medical
Center Inc. v. Meris, G.R. No. 155098 (2005)].
2. Agrarian and Natural Resources
Reform
SECTION 4, ARTICLE XIII. The State shall, by law,
undertake an agrarian reform program founded on
the right of farmers and regular farmworkers who are
landless, to own directly or collectively the lands they
till or, in the case of other farmworkers, to receive a
just share of the fruits thereof. To this end, the State
shall encourage and undertake the just distribution
of all agricultural lands, subject to such priorities and
reasonable retention limits as the Congress may
prescribe, taking into account ecological,
developmental, or equity considerations, and
subject to the payment of just compensation. In
determining retention limits, the State shall respect
the right of small landowners. The State shall further
provide incentives for voluntary land-sharing.
Page 101 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
SECTION 5, ARTICLE XIII. The State shall
recognize the right of farmers, farmworkers, and
landowners, as well as cooperatives, and other
independent farmers’ organizations to participate in
the planning, organization, and management of the
program, and shall provide support to agriculture
through appropriate technology and research, and
adequate financial, production, marketing, and other
support services.
with the private sector, a continuing program of
urban land reform and housing which will make
available at affordable cost, decent housing and
basic services to underprivileged and homeless
citizens in urban centers and resettlement areas. It
shall also promote adequate employment
opportunities to such citizens. In the implementation
of such program the State shall respect the rights of
small property owners.
SECTION 7, ARTICLE XIII. The State shall protect
the rights of subsistence fishermen, especially of
local communities, to the preferential use of the
communal marine and fishing resources, both inland
and offshore. It shall provide support to such
fishermen through appropriate technology and
research, adequate financial, production, and
marketing assistance, and other services. The State
shall also protect, develop, and conserve such
resources. The protection shall extend to offshore
fishing grounds of subsistence fishermen against
foreign intrusion. Fishworkers shall receive a just
share from their labor in the utilization of marine and
fishing resources.
SECTION 10, ARTICLE XIII. Urban or rural poor
dwellers shall not be evicted nor their dwelling
demolished, except in accordance with law and in a
just and humane manner.
General welfare legislation such as land reform
laws is to be construed in favor of the
promotion of social justice to ensure the wellbeing and economic security of the people.
The rationale for holding that the properties of
the Hospicio are covered by P.D. No. 27 and
Rep. Act No. 6657 is so well-grounded in law
that it obviates any resort to the sordid game of
choosing which of the two competing
aspirations is nobler. The body which would
have unquestionable discretion in assigning
hierarchical values on the modalities by which
social justice may be implemented is the
legislature.
Land reform affords the opportunity for the
landless to break away from the vicious cycle
of having to perpetually rely on the kindness of
others. By refusing to exempt properties owned
by charitable institutions or maintained for
charitable purposes from agrarian reform, the
legislature has indicated a policy choice which
the Court is bound to implement [Hospicio de
San Jose de Barili Cebu City v. Department of
Agrarian Reform, G.R. No. 140847 (2005)].
3. Urban Land Reform and Housing
SECTION 9, ARTICLE XIII. The State shall, by law,
and for the common good, undertake, in cooperation
No resettlement of urban or rural dwellers shall be
undertaken without adequate consultation with them
and the communities where they are to be relocated.
The constitutional requirement (under Section
10, Article XIII) that the eviction and demolition
be in accordance with law and conducted in a
just and humane manner does not mean that
the validity or legality of the demolition or
eviction is hinged on the existence of a
resettlement area designated or earmarked by
the government.
What is meant by "in accordance with law" and
"just and humane manner" is that the person to
be evicted be accorded due process or an
opportunity to controvert the allegation that his
or her occupation or possession of the property
involved is unlawful or against the will of the
landowner; that should the illegal or unlawful
occupation be proven, the occupant be
sufficiently notified before actual eviction or
demolition is done; and that there be no loss of
lives, physical injuries or unnecessary loss of
or damage to properties.
Precisely, the enactment of an anti-squatting
law affords the alleged "squatters" the
opportunity to present their case before a
competent court where their rights will be
amply protected and due process strictly
observed [People v. Leachon, G.R. Nos.
108725-26 (1998)].
To ensure that evictions and demolitions are
conducted in a just and human manner,
Section 28, Para. 2 of R.A. No. 7279
commands officials to comply with the
prescribed procedure in executing eviction
and/or demolition orders:
Page 102 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
4. Health
a. Notice upon the affected persons or entities
at least thirty (30) days prior to the date of
eviction or demolition;
b. Adequate consultations on the matter of
settlement
with
the
duly
designated
representatives of the families to be resettled
and the affected communities in the areas
where they are to be relocated;
c. Presence of local government officials or
their representatives during eviction or
demolition;
d. Proper identification of all persons taking
part in the demolition;
e. Execution of eviction or demolition only
during regular office hours from Mondays to
Fridays and during good weather, unless the
affected families consent otherwise;
f. No use of heavy equipment for demolition
except for structures that are permanent and of
concrete materials;
g. Proper uniforms for members of the
Philippine National Police who shall occupy the
first line of law enforcement and observe
proper disturbance control procedures; and
h. Adequate relocation, whether temporary or
permanent: Provided, however, That in cases
of eviction and demolition pursuant to a court
order involving underprivileged and homeless
citizens, relocation shall be undertaken by the
local government unit concerned and the
National Housing Authority with the assistance
of other government agencies within forty-five
(45) days from service of notice of final
judgment by the court, after which period the
said order shall be executed: Provided, further,
That should relocation not be possible within
the said period, financial assistance in the
amount equivalent to the prevailing minimum
daily wage multiplied by sixty (60) days shall be
extended to the affected families by the local
government unit concerned [Kalipunan ng
Damayang Mahihirap v. Robredo, G.R. No.
200903 (2014)].
SECTION 9, ARTICLE XIII. The State shall adopt an
integrated and comprehensive approach to health
development which shall endeavor to make
essential goods, health and other social services
available to all the people at affordable cost. There
shall be priority for the needs of the underprivileged,
sick, elderly, disabled, women, and children. The
State shall endeavor to provide free medical care to
paupers.
With the State's obligation to protect and
promote the right to health of the people and
instill health consciousness among them
(Article II, Section 15, 1987 Constitution), in
order to develop a healthy and alert citizenry
(Article XIV Section 19(1)), it became
mandatory for the government to supervise
and control the proliferation of drugs in the
market.
The BFAD is the government agency vested by
law to make a mandatory and authoritative
determination of the true therapeutic effect of
drugs because it involves technical skill which
is within its special competence. The health of
the citizenry should never be compromised
[People v. Estrada, G.R. No. 124461 (2000)].
The right to health in Articles XV and II is selfexecuting. [Imbong v. Ochoa, supra]
5. Women
SECTION 14, ARTICLE XIII. The State shall protect
working women by providing safe and healthful
working conditions, taking into account their
maternal functions, and such facilities and
opportunities that will enhance their welfare and
enable them to realize their full potential in the
service of the nation.
In Saudia v. Rebesencio [G.R. No. 198587
(2015)], Rebesencio et. al. were not granted
with their maternity leaves and were
subsequently terminated by Saudia due to their
pregnancy.
The Court ruled that Saudia's policy is
discriminatory. There is the glaringly
discriminatory nature of Saudia's policy since it
entails the termination of employment of flight
attendants who become pregnant. At the risk of
Page 103 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
stating the obvious, pregnancy is an
occurrence that pertains specifically to women.
Saudia's policy excludes from and restricts
employment based on no other consideration
but sex. It would be the height of iniquity to view
pregnancy as a disability so permanent and
immutable that it must entail the termination of
one's employment. The respondents were
illegally terminated.
6. Role and
Organization
Rights
of
C. Commission
Rights
on
Human
SECTION 17(1) & (3), ARTICLE XIII.
(1) There is hereby created an independent office
called the Commission on Human Rights.
(3) Until this Commission is constituted, the existing
Presidential Committee on Human Rights shall
continue to exercise its present functions and
powers.
People’s
SECTION 15, ARTICLE XIII. The State shall respect
the role of independent people’s organizations to
enable the people to pursue and protect, within the
democratic framework, their legitimate and collective
interests and aspirations through peaceful and
lawful means.
People’s organizations are bona fide associations of
citizens with demonstrated capacity to promote the
public interest and with identifiable leadership,
membership, and structure.
7. Cultural
SECTION 22, ARTICLE II. The State recognizes
and promotes the rights of indigenous cultural
communities within the framework of national unity
and development.
SECTION 5, ARTICLE XII. The State, subject to the
provisions of this Constitution and national
development policies and programs, shall protect
the rights of indigenous cultural communities to their
ancestral lands to ensure their economic, social, and
cultural well-being.
1. Powers
a. Investigate, on its own or on complaint by
any party, all forms of human rights violations
involving civil and political rights;
b. Adopt its operational guidelines and rules of
procedure, and cite for contempt for violations
thereof in accordance with the Rules of Court;
c. Provide appropriate legal measures for the
protection of human rights of all persons within
the Philippines, as well as Filipinos residing
abroad, and provide for preventive measures
and legal aid services to the underprivileged
whose human rights have been violated or
need protection;
d. Exercise visitorial powers over jails, prisons,
or detention facilities;
e. Establish a continuing program of research,
education, and information to enhance respect
for the primacy of human rights;
SECTION 15, ARTICLE XIV. Arts and letters shall
enjoy the patronage of the State. The State shall
conserve, promote, and popularize the nation’s
historical and cultural heritage and resources, as
well as artistic creations.
f. Recommend to Congress effective measures
to promote human rights and to provide for
compensation to victims of violations of human
rights, or their families;
SECTION 17, ARTICLE XIV. The State shall
recognize, respect, and protect the rights of
indigenous cultural communities to preserve and
develop their cultures, traditions, and institutions. It
shall consider these rights in the formulation of
national plans and policies.
g. Monitor the Philippine Government's
compliance with international treaty obligations
on human rights;
The National Commission on Indigenous
People (NCIP) was established to protect and
promote the interest and well-being of ICCs/IPs
with due regard to their beliefs, customs and
institutions (R.A. 8371).
h. Grant immunity from prosecution to any
person whose testimony or whose possession
of documents or other evidence is necessary
or convenient to determine the truth in any
investigation conducted by it or under its
authority;
Page 104 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
i. Request the assistance of any department,
bureau, office, or agency in the performance of
its functions;
j. Appoint its officers and employees in
accordance with law; and
k. Perform such other duties and functions as
may be provided by law [Section 18, Article
XIII, 1987 Constitution].
The Constitution clearly and categorically
grants to the Commission the power to
investigate all forms of human rights violations
involving civil and political rights. But it cannot
try and decide cases (or hear and determine
causes) as courts of justice, or even quasijudicial bodies do.
To investigate is not to adjudicate or adjudge
[Cariño v. CHR, G.R.No. 96681 (1991)].
The Commission is not a court of justice or a
quasi-judicial body. The Commission cannot
try and resolve cases on merits as it is not
within its power to investigate. Its power to
investigate is only fact-finding. When providing
preventive measures, it can file a case before
a court to represent victims [EPZA v. CHR,
G.R. No. 101476 (1992)].
2. Composition and Qualification of
Members
SECTION 17(2), ARTICLE XIII. The Commission
shall be composed of a Chairman and four Members
who must be natural-born citizens of the Philippines
and a majority of whom shall be members of the Bar.
The term of office and other qualifications and
disabilities of the Members of the Commission shall
be provided by law.
The CHR’s terms and qualifications are defined
in EO 163 series of 1987. Under this:
Qualifications [Sec 2(a)]:
• Natural-born Filipinos
• At least 35 years of age at the time of
appointment.
• must not have been candidates for any
elective position in the elections
immediately
preceding
their
appointment
•
Majority must be members of the
Philippine bar
Terms [Sec. 2(c)]:
• The term of office is fixed at 7 years,
without reappointment.
• The terms of office are not staggered.
• Appointment to a vacancy is only for
the unexpired portion of the term.
Executive Order 163-A, which provided that the
members of the CHR serve “at the pleasure of
the president”, is unconstitutional as it violates
the independence of the CHR. While they may
be sanctioned or even removed (e.g., by the
Ombudsman), it must be for cause. [See
Bautista v. Salonga, supra]
Note: Members of the CHR are not
impeachable officers, and the CHR is not
among the constitutional commissions.
III. EDUCATION, SCIENCE,
TECHNOLOGY, ARTS,
CULTURE, AND SPORTS
A. Academic Freedom
1987 Constitution
Section 5, Article XIV. (1) the State shall take into
account regional and sectoral needs and conditions
and shall encourage local planning in the
development of educational policies and programs.
(2)Academic freedom shall be enjoyed in all
institutions of higher learning.
(3) Every citizen has a right to select a profession or
course of study, subject to fair, reasonable, and
equitable admission and academic requirements.
(4) The State shall enhance the right of teachers to
professional advancement. Non-teaching academic
and non-academic personnel shall enjoy the
protection of the State.
(5) The State shall assign the highest budgetary
priority to education and ensure that teaching will
attract and retain its rightful share of the best
available talents through adequate remuneration
and other means of job satisfaction and fulfillment.
Page 105 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Section 17, Article II. The State shall give priority to
education, science and technology, arts, culture,
and sports to foster patriotism and nationalism,
accelerate social progress, and promote total human
liberation and development.
Article XIV of the 1987 Constitution
guarantees all institutions of higher
learning academic freedom.
This institutional academic freedom includes
the right of the school or college to decide for
itself, its aims, and objectives, and how best to
attain them free from outside coercion or
interference save possibly when the overriding
public welfare calls for some restraint. Indeed,
the Constitution allows merely the State's
regulation and supervision of educational
institutions, and not the deprivation of their
rights [Son v. UST, G.R. No. 211273 (2018)].
The essential freedoms subsumed in the term
academic freedom encompasses the freedom
to determine for itself on academic grounds:
1. Who may teach
2. What may be taught
3. How it shall be taught, and
4. Who may be admitted to study [Pena v.
NLRC, G.R. No. 100629 (1996)]
B.
Constitutional
Tax
Exemptions
for
Certain
Educational Institutions
Section 4(3) & (4), Article XIV.
(3) All revenues and assets of non-stock, non-profit
educational institutions used actually, directly, and
exclusively for educational purposes shall be
exempt from taxes and duties. Upon the dissolution
or cessation of the corporate existence of such
institutions, their assets shall be disposed of in the
manner provided by law.
There is a marked distinction between the
treatment of non-stock, non-profit educational
institutions and proprietary educational
institutions. The tax exemption granted to nonstock, non-profit educational institutions is
conditioned only on the actual, direct and
exclusive use of their revenues and assets for
educational purposes. While tax exemptions
may also be granted to proprietary educational
institutions, these exemptions may be subject
to limitations imposed by Congress [CIR v.
DLSU, G.R. No. 196596 (2016)].
A simple reading of the Constitution would
show that Article XIV, Section 4 (3) does not
require that the revenues and income must
have also been earned from educational
activities or activities related to the purposes of
an educational institution. The phrase "all
revenues" is unqualified by any reference to
the source of revenues. Thus, so long as the
revenues and income are used actually,
directly and exclusively for educational
purposes, then said revenues and income shall
be exempt from taxes and duties [La Sallian
Educational Innovators Foundation v. CIR,
G.R. No. 202792 (2019)].
NATIONAL ECONOMY
PATRIMONY
AND
I. REGALIAN DOCTRINE
SECTION 2, ARTICLE XII. All lands of the public
domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources are owned by the
State. With the exception of agricultural lands, all
other natural resources shall not be alienated.
Nationality and Citizenship Requirement
Provisions
Proprietary educational institutions, including those
cooperatively owned, may likewise be entitled to
such exemptions, subject to the limitations provided
by law, including restrictions on dividends and
provisions for reinvestment.
Filipino
Citizens, or
100% Filipino
Corporations
Filipino
Citizens, or
60-40%
Filipino
Corporations
Filipino
Citizens, or
70-30%
Filipino
Corporations
(4) 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.
Use and
enjoyment of
marine
Coproductio
n, Joint
venture, and
Engagement
in advertising
industry
Page 106 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
Filipino
Citizens, or
100% Filipino
Corporations
Filipino
Citizens, or
60-40%
Filipino
Corporations
wealth,
exclusive to
Filipino
citizens
[Section 2,
par. 2, Article
XII]
Production
sharing
agreements
over natural
resources
[Section
2(1), Article
XII]
Agreements
shall not
exceed a
period of 25
years
renewable
for another
25 years
Filipino
Citizens, or
70-30%
Filipino
Corporations
[Section 11,
Article
XVI]
Rules on
agricultural
lands
[Section 3,
Article XII]
(1) Citizens
may lease
only < 500
ha.
(2) Citizens
may acquire
by purchase,
homestead
or grant only
< 12 ha.
Educational
Institutions
[Section
4(2), Article
XIV]
Practice of
professions,
save in
cases
provided by
law
[Section
14(2), Article
XII]
Areas of
Investment
as Congress
may
prescribe
(Congress
may
prescribe a
higher
percentage)
[Section 10,
Article XII]
Congress
may
increase
Filipino
equity
participation.
Filipino
Citizens, or
100% Filipino
Corporations
Small-scale
utilization of
natural
resources,
as may be
provided by
law
[Section
2(3), Article
XII]
Filipino
Citizens, or
60-40%
Filipino
Corporations
Filipino
Citizens, or
70-30%
Filipino
Corporations
Operation of
public
utilities
[Section 11,
Article XII]
Cannot be
for longer
period than
50 years
Executive
and
managing
officers must
be Filipino
Note: To
stimulate
investment,
the
government
recently
passed R.A.
No. 11659,
approved by
the President
on March 21,
2022 and
effective on
April 9, 2022.
(See more
below).
General Rule: The Constitution holds that
private corporations or associations may not
hold alienable lands of the public domain.
Exception: Qualified corporations may hold
land through lease, for a period not exceeding
25 years, renewable for not more than 25
years, and not to exceed 1000 ha. in area
[Section 3, Article XII, 1987 Constitution].
As land is a natural resource, a qualified
corporation is one that complies with the 60%
Filipino capital requirement in Art. XII, Sec. 2.
Page 107 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
A joint venture falls within the purview of an
“association” pursuant to Section 11, Article
XII. It must comply with the 60-40% Filipino
foreign capitalization requirement [JG Summit
Holdings v. CA, G.R. No. 124293 (2000)].
What “capital” is covered – The 60%
requirement applies to both the voting control
and the beneficial ownership of the public
utility. Therefore, it shall apply uniformly,
separately, and across the board to all classes
of shares, regardless of nomenclature or
category, comprising the capital of the
corporation (e.g., 60% of common stock, 60%
of preferred voting stock, and 60% of preferred
non-voting stock) [Gamboa v. Teves, G.R. No.
176579 (2012)].
2. Tests of Compliance
Requirements
on
National
Level 1: Direct Ownership Level
Capital requirement refers to total voting
stock, not total outstanding shares [Gamboa v.
Teves, G.R. No. 176579 (2011)].
Capital restrictions apply not just to the voting
stock, but also separately to each class of
shares [Gamboa v. Teves, G.R. No. 176579
(2012)].
Level 2: Indirect Ownership Level
Based on Narra Nickel Mining and Dev’t Corp.
v. Redmont Consolidated Mines Corp. [G.R.
No. 195580 (2014)]:
General Rule – Control Test
Shares belonging to juridical entities at least
60% of the capital of which is owned by Filipino
citizens shall be considered as of Philippine
nationality.
Exception – Grandfather Rule
The combined totals in the Investing
Corporation and the Investee Corporation must
be traced (i.e., “grandfathered”) to determine
the total percentage of Filipino ownership.
Indicators of Doubt [Narra Nickel Mining and
Dev’t Corp. v. Redmont Consolidated Mines
Corp., G.R. No. 195580 (2015)]
1. That the foreign investors provide practically
all the funds for the joint investment undertaken
by these Filipino businessmen and their foreign
partner;
2. That the foreign investors undertake to
provide practically all the technological support
for the joint venture;
3. That the foreign investors, while being
minority stockholders, manage the company
and prepare all economic viability studies.
When there is doubt, both Control Test and
Grandfather Rule must be satisfied.
Note: If the Filipino has the voting power of the
"specific stock", or the Filipino has the
investment power over the "specific stock", or
both, then such Filipino is the "beneficial
owner" of that "specific stock."
Being considered Filipino, that "specific stock"
is then to be counted as part of the 60% Filipino
ownership requirement under the Constitution.
The right to the dividends, jus fruendi - a right
emanating from ownership of that "specific
stock" necessarily accrues to its Filipino
"beneficial owner" [Roy III v. Herbosa, G.R. No.
207246 (2016)].
3. Filipino First
SECTION 10, PARA. 2-3, ARTICLE XII. In the
grant of rights, privileges, and concessions
covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over
foreign investments within its national jurisdiction
and in accordance with its national goals and
priorities.
Such provision is per se enforceable and
requires no further guidelines or implementing
rules or laws for its operation [Manila Prince
Hotel v. GSIS, G.R. No. 122156 (1997)].
The Constitution does not impose a policy of
Filipino
monopoly
of
the
economic
environment. It does not rule out the entry of
foreign investments, goods, and services.
While it does not encourage their unlimited
entry into the country, it does not prohibit them
either.
Page 108 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on
foreign competition that is unfair [Tañada v.
Angara, G.R. No. 118295 (1997)].
SECTION 12, ARTICLE XII. The State shall promote
the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt
measures that help make them competitive.
4. R.A. No. 11659 R.A. No. 11659 amended
the 86-year-old Public Service Act (C.A. No.
146).
a. Public Utility Definition [Section 13(d),
C.A. No. 146, as amended by R.A. No.
11659]
Public utility refers to a public service that
operates, manages, or controls, for public use,
any of the following:
1. Distribution of Electricity;
2. Transmission of Electricity;
3. Petroleum and Petroleum Products
Pipeline Transmission Systems;
4. Water Pipeline Distribution Systems
and Wastewater Pipeline Systems,
including sewerage pipeline systems;
5. Seaports; and
6. Public Utility Vehicles.
All concessionaires, joint ventures, and similar
entities that wholly operate, manage, or
control, for public use, the sectors above are
public utilities.
The 60-40 restriction is now limited to entities
classified as a public utility under R.A. No.
11659 in accordance with Section 11, Article
XII of the 1987 Constitution.
These key sectors are considered natural
monopolies where a single firm can effectively
serve the market at a lower cost than two or
more firms.
b. Foreign-Ownership of Public Services
Key industries such as telecommunications,
expressways, airports, and shipping have been
removed from the category of public utility.
Under the new law, these industries may now
be 100% foreign-owned.
c. Safeguards
While the newly amended law may attract
critically-needed investment, some may
consider the law’s liberality as going against
the conservation of national patrimony.
Therefore, to ensure a Filipino-controlled
national economy, below are 5 safeguards:
1. The President has the power to
suspend or prohibit any investment in
public services in the interest of
national security upon the review,
evaluation, and recommendation of the
relevant government agencies;
2. Restrictions are imposed on foreign
state-owned
enterprises
(SOEs)
owning capital in a public service
classified as public utility or critical
infrastructure;
3. Information security clauses ensure
that
entities
engaged
in
the
telecommunications business meet
relevant ISO standards;
4. The reciprocity clause prevents foreign
nationals from owning more than 50%
of capital in the operation and
management of critical infrastructure
unless the foreign nationals’ home
countries
accord
reciprocity
to
Philippine nationals; and
5. The performance audit provision
mandates an independent evaluation
to monitor the cost, the quality of
services provided to the public, and the
ability of the public service provider to
immediately and adequately respond
to emergency cases.
II. PUBLIC TRUST
DOCTRINE
(Maynilad Water Services, Inc. v. Secretary of
the Department of Environment and Natural
Resources, G.R. Nos. 202897, 206823 &
207969, [August 6, 2019])
Public Trust as a Continuing Supervision
Over the Taking and Use of Natural
Resources
Page 109 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
The doctrine speaks of an imposed duty upon
the State and its representative of continuing
supervision over the taking and use of
appropriated water. Thus, "[p]arties who
acquired rights in trust property [only hold]
these rights subject to the trust and, therefore,
could assert no vested right to use those rights
in a manner harmful to the trust."
The doctrine further 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 reaffirms the superiority of public
rights over private rights for critical resources.
It impresses upon states the affirmative duties
of a trustee to manage these natural resources
for the benefit of present and future
generations and embodies key principles of
environmental
protection:
stewardship,
communal responsibility, and sustainability.
Duty of State as Trustee of Natural
Resources
In this framework, a relationship is formed —
"the [s]tate is the trustee, which manages
specific natural resources — the trust principal
— for the trust principal — for the benefit of the
current and future generations — the
beneficiaries."
Essence of Public Trust Doctrine
In essence, "[t]he public trust doctrine is based
on the notion that private individuals cannot
fully own trust resources but can only hold them
subject to a servitude on behalf of the public."
"States can accomplish this goal more
efficiently through statutory regulation" which
was essentially done through the legislation of
the Clean Water Act, and the urgency and
significance of which is now fortified by the
courts under the Public Trust Doctrine as
clamored for by the circumstances of this case.
III. EXPLORATION,
DEVELOPMENT, AND
UTILIZATION OF NATURAL
RESOURCES
1. La Bugal-B’laan Tribal Assn. v.
Ramos [G.R. No. 127882, (2004)]
The State, being the owner of the natural
resources, is accorded the primary power and
responsibility in the exploration, development
and utilization thereof.
As such it may undertake these activities
through four modes:
Directly. The State may directly undertake
such activities
"[T]he [S]tate has an affirmative duty to take the
public trust into account in the planning and
allocation of water resources, and to protect
public trust uses whenever feasible."
Co-Production/JV/Production-Sharing. The
State may enter co-production, joint venture or
production-sharing agreements with Filipino
citizens or qualified corporations
Public as the Beneficial Owner of Trust
Resources
These exigencies forced the public trust
doctrine to evolve from a mere principle to a
resource management term and tool flexible
enough to adapt to changing social priorities
and address the correlative and consequent
dangers thereof. The public is regarded as
the beneficial owner of trust resources, and
courts can enforce the public trust doctrine
even against the government itself.
By Law. Congress may, by law, allow smallscale utilization of natural resources by Filipino
citizens; or
Presidential Agreements. 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 financial assistance subject to the following
limitations:
Page 110 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
As to Parties. Only the President, on
behalf of the State, may enter into
these agreements, and only with
corporations.
FTAA
Service
Contract
only with
corporations
a “foreign person
or entity”
Size of
Activities
Only largescale
exploration,
development
, and
utilization
Contractor
provides
all necessary
services and
technology and
the requisite
financing,
performs the
exploration work
obligations, and
assumes all
exploration risks
i. Consistency with the Provisions of Statute
is necessary. The FTAA must be in
accordance with the terms and conditions
provided by law.
Natural
Sources
Covered
Minerals,
petroleum,
and other
mineral oils
Virtually the
entire range of
the country’s
natural resources
ii. The FTAA must be based on real
contributions to economic growth and general
welfare of the country.
Scope of
Agreement
Involving
either
technical or
financial
assistance
Contractor
provides financial
or technical
resources,
undertakes the
exploitation or
production of a
given resource,
or directly
manages the
productive
enterprise,
operations of the
exploration and
exploitation of
the resources or
the disposition of
marketing or
resources
As to Size of the Activities. Only
large-scale exploration, development
and utilization is allowed, i.e., very
capital-intensive activities
As to intent. The natural resources
subject of the activities is restricted to
minerals, petroleum and other mineral
oils, the intent being to limit service
contracts to those areas where Filipino
capital may not be sufficient.
FTAA Requirements
iii. The FTAA must contain rudimentary
stipulations for the promotions of the
development and use of local scientific and
technical resources.
As to the Notification Requirement. The
President shall notify Congress of every FTAA
entered within 30 days from its execution.
Scope of the FTAA. Only for agreements
involving either financial or technical
assistance and does not include “service
contracts” and “management or other forms of
assistance” [La Bugal-B’Laan Tribal Assn. v.
Ramos, G.R. No. 127882 (2004)].
2. FTAA v. Service Contract
Who may
Participate
3. Service Contracts Not Prohibited
FTAA
Service
Contract
Only the
President (in
behalf of the
State), and
A Filipino citizen,
corporation or
association with
The following are valid:
a. Financial and Technical Assistance
Agreements (FTAA): even supposing
they are service contracts, these are
not prohibited agreements in the
contemplation of the Constitution
Page 111 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
b. Philippine Mining Law (R.A. No. 7942)
c. Its
Implementing
Rules
and
Regulations, insofar as they relate to
financial and technical agreements
The Constitution should be construed to grant
the President and Congress sufficient
discretion and reasonable leeway to enable
them to attract foreign investments and
expertise, as well as to secure for our people
and our posterity the blessings of prosperity
and peace.
It is not unconstitutional to allow a wide degree
of discretion to the Chief Executive, given the
nature and complexity of such agreements, the
humongous amounts of capital and financing
required for large-scale mining operations, the
complicated technology needed, and the
intricacies of international trade, coupled with
the State’s need to maintain flexibility in its
dealings, to preserve and enhance our
country’s competitiveness in world markets [La
Bugal-B’laan Tribal Assn. v. Ramos, supra].
Requisites for a Valid Service Contract
under the Constitution
a. A general law that will set standards or
uniform terms, conditions, and
requirements
b. The president shall be the signatory for
the government
c. Within thirty (30) days of the executed
agreement, the President shall report it
to Congress
IV. ACQUISITION,
OWNERSHIP, AND
TRANSFER OF PUBLICAND
PRIVATE LANDS
A. Lands of Public Domain
Lands of the Public Domain are classified
into:
1. Agricultural Lands
2. Forest or Timber Lands
3. Mineral Lands
4. National Park [Section 3, Article XII,
1987 Constitution]
Note: The classification of public lands is a
function of the executive branch, specifically
the Director of the Land Management Bureau
(formerly Director of Lands). The decision of
the Director, when approved by the Secretary
of the DENR, as to questions of fact, is
conclusive upon the courts [Republic v.
Imperial, G.R. No. 130906 (1999)].
Alienable lands of the public domain shall be
limited to agricultural lands [Section 3, Article
XII, 1987 Constitution].
To prove that the land subject of an application
for registration is alienable, an applicant must
conclusively establish the existence of a
positive act of the government such as a
presidential proclamation or an executive order
or a legislative act or statute [Republic v.
Candymaker, Inc., G.R. No. 163766 (2006)].
Foreshore land is that part of the land which is
between the high and low water, and left dry by
the flux and reflux of the tides. It is part of the
alienable land of the public domain and may be
disposed of only by lease and not otherwise
[Republic v. Imperial, supra].
B. Private Lands
General Rule: No private lands shall be
transferred or conveyed except to individuals,
corporations, or associations qualified to
acquire or hold lands of the public domain
[Section 7, Article XII, 1987 Constitution].
Exceptions:
1. Hereditary succession [Section 7,
Article XII, 1987 Constitution]
2. A natural-born citizen of the Philippines
who has lost his Philippine citizenship
may be a transferee of private lands,
subject to limitations provided by law
[Section
8,
Article
XII,
1987
Constitution].
The
primary
purpose
of
the
constitutional prohibition disqualifying
aliens from acquiring lands of the
Page 112 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
public domain and private lands is the
conservation of the national economy
and patrimony [Muller v. Muller, G.R.
149615 (2006)].
Consequence of sale to non-citizens
Any sale or transfer in violation of the
prohibition is null and void [Ong Ching Po v.
CA, G.R. Nos. 113472-73 (1994)].
When a disqualified foreigner later sells it to a
qualified owner (e.g. Filipino citizen), the defect
is cured. The qualified buyer owns the land
[Godinez v. Pak Luen, G.R. No L-36731
(1983)].
Can a former owner file an action to recover
the property?
Yes. The Court in Philippine Banking Corp. v.
Lui She [G.R. No. L-17587 (1967)] provided an
exception to the application of the principle of
in pari delicto. Thus, the action will lie.
However, land sold to an alien which was later
transferred to a Filipino citizen OR when the
alien later becomes a Filipino citizen can no
longer be recovered by the vendor, because
there is no longer any public policy involved
[Sarsosa vda. de Barsobia v. Cuenco, G.R. No.
L-33048 (1982); Republic v. IAC, G.R. No.
74170 (1989)].
Foreigners are allowed to own condominium
units and shares in condominium corporations
up to not more than 40% of the total and
outstanding capital stock of a Filipino-owned or
controlled corporation. Under this set up, the
ownership of the land is legally separated from
the unit itself.
The land is owned by a Condominium
Corporation and the unit owner is simply a
member in this Condominium Corporation.
Provided that 60% of the members of this
Condominium Corporation are Filipinos, the
remaining members can be foreigners [Hulst v.
PR Builders, G.R. No. 156364 (2008)].
In Matthews v. Taylor [G.R. No. 164584
(2009)], the Court upheld the validity of an
Agreement of Lease of a parcel of land a
Filipino wife entered, without the consent of her
British husband. Being an alien, the husband is
absolutely prohibited from acquiring private
and public lands in the Philippines even if he
claims that he provided funds for such
acquisition.
VI. CONCEPT OF
ANCESTRAL DOMAIN
(INCLUDING ANCESTRAL
LANDS)
SECTION 5, ARTICLE XII. The State, subject to the
provisions of this Constitution and national
development policies and programs, shall protect
the rights of indigenous cultural communities to their
ancestral lands to ensure their economic, social, and
cultural well-being.
The Congress may provide for the applicability of
customary laws governing property rights or
relations in determining the ownership and extent of
ancestral domain.
1. Ancestral domains
Ancestral domain – an all-embracing concept
which refers to lands, inland waters, coastal
areas, and natural resources therein and
includes ancestral lands, forests, pasture,
residential, agricultural, and other lands
individually owned whether alienable or not,
hunting grounds, burial grounds, worship
areas, bodies of water and other natural
resources. They include lands which longer be
exclusively occupied by indigenous cultural
communities but to which they have
traditionally had access for their subsistence
and traditional activities.
Ancestral land – a narrower concept. It refers
to those held under the same conditions as
ancestral domain but limited to lands that are
not merely occupied and possessed but are
also utilized by cultural communities under the
claim of individual or traditional group
ownership. These include but are not limited to
residential lots, rice terraces or paddies, private
forests, farms and tree lots.
2. Ancestral land
Page 113 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 1
POLITICAL LAW
The ancestral lands referred to in Section 5 of
the Constitution include both those outside and
those inside autonomous regions. For the
purpose of protecting indigenous cultural
communities, the provision in effect authorizes
Congress to prescribe how priorities are to be
determined in case of conflict between civil law
and customary law.
The law passed by Congress. R.A. No. 8371,
was assailed as unconstitutional on the ground
that it deprived the State of its ownership over
lands of the public domain and the natural
resources in them. The vote of the Supreme
Court on the subject, in Cruz v. Secretary was
equally divided, 7-7 and therefore meant that
validity was upheld.
The opinion defending constitutionality held the
following:
(1) Ancestral domain and ancestral lands are
not part of lands of the public domain. They are
private and belong to indigenous people.
Section 5 commands the State to protect the
rights of indigenous people. Carino v. Insular
Government recognized native title held by
Filipinos from time immemorial and excluded
them from the coverage of jura regalia.
(2) The right of ownership granted does not
include natural resources. The right to
negotiate terms and conditions over natural
resources covers only exploration to ensure
environmental protection. It is not a grant of
exploration rights. (3) The limited right of
management refers to utilization as expressly
allowed in Section 2, Article XII. (4) What is
given is priority right, not exclusive right. It does
not preclude the State from entering into coproduction, joint venture, or production sharing
agreements with private entities.
The opinion assailing the constitutionality of the
law held the following:
(3) the law contravenes the provision
which says that all natural resources
belong to the state.
VII. PRACTICE OF
PROFESSIONS
1987 Constitution
Section 14, Article XII. The practice of all
professions in the Philippines shall be limited to
Filipino citizens, save in the case prescribed by law.
Like the legal profession, the practice of
medicine is not a right, but a privilege burdened
with conditions as it directly involves the very
lives of the people. A fortiori, this power
includes the power of Congress to prescribe
the qualifications for the practice of professions
or trades which affect the public welfare, the
public health, the public morals, and the public
safety; and to regulate or control such
professions or trades, even to the point of
revoking such right altogether [Imbong v.
Ochoa, supra].
The Philippines allows Japanese nationals to
practice the medical profession, provided he
has taken and passed the medical board
examination and upon submission of a proof of
reciprocity between Japan and the Philippines
in admitting foreigners into the practice of
medicine. It is enough that the laws in the
foreign country permit a Filipino to get license
and practice therein.
However, the power to regulate the exercise of
a profession or pursuit of an occupation cannot
be exercised by the State or its agents in an
arbitrary, despotic or oppressive manner
[Board of Medicine v. Ota, G.R. No. 166097
(2008)].
(1) the law amounts to an abdication of
state authority over a significant area of
the country's patrimony;
(2) it relinquishes full control of natural
resources in favor of indigenous
people;
Page 114 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL AND PUBLIC
INTERNATIONAL LAW
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
CONSTITUTIONAL
LAW 2
I. BILL OF RIGHTS
A. Private Acts and the Bill of
Rights
The Bill of Rights, in General
It is a declaration and enumeration of a
person’s fundamental civil and political rights.
It also imposes safeguards against violations
by the government, by individuals, or by groups
of individuals.
The Bill of Rights governs the relationship
between the individual and the state. Its
concern is not the relation between individuals,
between a private individual and other
individuals. What the Bill of Rights does is to
declare some forbidden zones in the private
sphere inaccessible to any power holder
[People v. Marti, G.R. No. 81561 (1991)].
In a democracy, the preservation and
enhancement of the dignity and worth of the
human personality is the central core as well as
the cardinal article of faith of our civilization.
The inviolable character of man as an
individual must be “protected to the largest
possible extent in his thoughts and in his beliefs
as the citadel of his person.”
The Bill of Rights is designed to preserve the
ideals of liberty, equality and security “against
the assaults of opportunism, the expediency of
the passing hour, the erosion of small
encroachments, and the scorn and derision of
those who have no patience with general
principles
[Philippine
Blooming
Mills
Employment Organization v. Philippine
Blooming Mills, Co., G.R. No. L-31195 (1973)].
It is self-executing. It is recognized that
legislation is unnecessary to enable courts to
effectuate
constitutional
provisions
guaranteeing the fundamental rights of life,
liberty and the protection of property [Gamboa
v. Teves, G.R. No. 176579 (2011)].
Art. III contains the chief protection for human
rights, but the body of the Constitution
guarantees other rights as well.
1. Civil Rights - Rights that belong to an
individual by virtue of his citizenship in a
state or community (e.g., rights to property,
marriage, freedom to contract, equal
protection, etc.).
2. Political Rights - Rights that pertain to an
individual’s citizenship vis-à-vis the
management of the government (e.g., right
of suffrage, right to petition government for
redress, right to hold public office, etc.).
3. Social and Economic Rights – Rights
which are intended to insure the well-being
and economic security of the individual.
4. Rights of the Accused – Civil rights
intended for the protection of a person
accused of any crime.
Application to Private Individuals
The Bill of Rights cannot be invoked against
acts of private individuals. The equal protection
erects no shield against private conduct,
however discriminatory or wrongful [Yrasuegui
v. PAL, G.R. No. 168081 (2008)].
Constitutional protection applies to government
action and is meant as a restraint against
sovereign authority. The Bill of Rights is not
meant to be invoked against private
individuals, and governs relations between
individuals and the state [People v. Marti,
supra].
Private Acts
The principle that the Bill of Rights applies only
to actions taken by state officials does not
necessarily mean that a private individual
cannot violate the liberty of another. Violation
of the Bill of Rights precisely as a constitutional
guarantee can be done only by public officials.
But almost all these liberties are also
guaranteed by Art. 32 of the Civil Code, thus
making private violations actionable even if the
violation does not have a constitutional
consequence [Bernas, the 1987 Constitution of
the Republic of the Philippines: A Commentary,
2009].
Page 116 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
B. Due Process
Article III, Section 1. No person shall be deprived
of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection
of the laws.
Article XIII, Section 1. The Congress shall give
highest priority to the enactment of measures that
protect and enhance the right of all the people to
human dignity, reduce social, economic, and
political inequalities by equitably diffusing wealth
and political power for the common good.
Definition
Due process furnishes a standard to which the
governmental action should conform in order
that deprivation of life, liberty or property, in
each appropriate case, be valid [Ermita-Malate
Hotel and Motel Operators Association v. City
Mayor of Manila, G.R. No. L-24693 (1967)].
Constitutional Due
Process
Statutory Due
Process
Protects the
individual from the
government and
assures him of his
rights in criminal,
civil, or
administrative
proceedings.
Found in the
statutes (e.g., Labor
Code and
Implementing
Rules) and protects
employees from
being unjustly
terminated without
just cause after
notice and hearing.
Lack or deficiency in
constitutional
procedural due
process voids the
decision made by the
State.
Lack or deficiency in
statutory procedural
due process does
NOT void the
decision of the
corporation or
company, if the
dismissal is found to
have been made
with just cause. It
would only give rise
to claims for
nominal damages.
[Agabon v. NLRC, G.R. No. 158693 (2004)].
Scope
Universal in application to all persons without
regard to any difference in race, color or
nationality. Artificial persons are covered by the
protection but only insofar as their property is
concerned [Smith Bell and Co. v. Natividad,
G.R. No. 15574 (1919)].
The guarantee extends to aliens and includes
the means of livelihood [Villegas v. Hiu Chiong,
G.R. No. L-29646 (1978)].
1. Procedural and Substantive
Substantive
Due Process
Nature
Requires that
the law must
be fair,
reasonable,
just.
Procedural
Due Process
Refers to the
method or
manner by
which a law is
enforced.
Essence Fairness and
justice
Notice and
hearing
Who
should
comply
The
adjudicating
body or officer
Lawmakers
a. Substantive Due Process
Requisites of Substantive Due Process
Due process of law simply means that:
1. There shall be a law prescribed in harmony
with the general powers of the legislative
department of the Government;
2. This law shall be reasonable in its
operation;
3. It shall be enforced according to the regular
methods of procedure prescribed;
4. It shall be applicable alike to all the citizens
of the state or to all of a class [Rubi v.
Provincial Board of Mindoro, G.R. No.
14078 (1919)].
Substantive due process requires that the
means employed in depriving persons of
property must not be unduly oppressive [SJS v.
Atienza Jr., G.R. No. 156052 (2008)].
Page 117 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
Expanded Test of Substantive Due
Process
1. Is there public interest, public purpose,
public welfare involved?
2. Is the act reasonably necessary for the
accomplishment of the legislature’s
purpose?
3. Is it not unreasonable, arbitrary, or
oppressive?
4. Is there sufficient foundation or reason in
connection with the manner involved or has
there been capricious use of legislative
power?
5. Can the aims conceived be achieved by
the means used, or is it not merely an
unjustified
interference
[Ichong
v.
Hernandez, G.R. No. L-7995 (1957)]?
Lawful Subject
The interests of the public in general (as
distinguished from those of a particular class)
require the intervention of the State; and
Lawful Means
The means employed are reasonably
necessary for the accomplishment of the
purpose and not unduly oppressive on
individuals.
Publication of Laws
Before a person may be bound by law, he must
be officially and specifically informed of its
contents. For the publication requirement,
“laws” refer to all statutes, including those of
local application and private laws. In other
words, the publication of laws “of a public
nature” or “of general applicability” is mandated
by law.
This does not cover internal regulations issued
by administrative agencies, which are
governed by the Local Government Code.
Publication must be full, or there is none at all
[Tañada v. Tuvera, G.R. No. L-63915 (1986)].
nature of the property involved or the urgency
of the need to protect the general welfare from
a clear and present danger.
Instances when the need for expeditious
action will justify omission of these
requisites, (e.g., summary abatement of a
nuisance per se like a mad dog on the loose,
which may be killed on sight) because of the
immediate danger it poses to the safety and
lives of the people.
2. Void-for-Vagueness
Facial challenge is allowed because of
possible chilling effect upon protected speech.
OVERBREADTH
Both are unconstitutional.
A law is
unconstitutional
because a
government purpose
may not be achieved
by means which
sweep unnecessarily
broadly and thereby
invade the area of
protected freedoms.
A law is
unconstitutional
because it fails to
accord persons fair
notice of the conduct
to avoid. Law
enforcers have
unbridled discretion
in carrying out its
provisions.
An overbroad law
need not.
A vague law must
lack clarity and
precision.
Basis for overbroad
law is the means
sweep unnecessarily
broadly.
Basis for void for
vagueness is the
lack of
comprehensible
standard.
Vague laws violate
due process.
Overbroad laws
invade protected
freedoms.
b. Procedural Due Process
General Rule: The minimum requirements of
due process are notice and hearing.
Exceptions: However, notice and hearing are
not required in every case, for there are an
admitted number of exceptions in view of the
VOID FOR
VAGUENESS
Both the void for vagueness doctrine and the
overbreadth doctrine are subject to the same
principles. For one, it is also an analytical tool
for a “facial” challenge of statutes in free
speech cases. Like overbreadth, it is said that
Page 118 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
a litigant may challenge a statute on its face
only if it is vague in all its possible applications.
Facial Invalidity Test
Whether the language conveys a sufficiently
definite warning as to the proscribed conduct
when measured by common understanding
and practice [Estrada v. Sandiganbayan, G.R.
No. 148560 (2001)].
Applicability to Penal Statutes
General rule: Void for vagueness and
overbreadth are inapplicable to penal statutes.
Rationale: Statutes have a general in terrorem
effect, which is to discourage citizens from
committing the prohibited acts.
Exception:
1. The statute is challenged as applied; or
2. The statute involves free speech.
Rationale: Statute may be facially challenged
in order to counter the “chilling effect” of the
same [Disini v. Sec. of Justice, G.R. No.
203335 (2014)].
As-Applied vs. Facial Challenges
A facial invalidation is an examination of the
entire law, pinpointing its flaws and defects, not
only on the basis of its actual operation to the
parties, but also on the assumption or
prediction that its very existence may cause
others not before the court to refrain from
constitutionally protected speech or activities.
On the other hand, an as-applied challenge
considers only extant facts affecting real
litigants [Disini v. Sec. of Justice, supra].
3. Judicial and Administrative Due
Process
a. Due
Process
Proceedings
in
Judicial
Requisites of Due Process in Civil
Proceedings [Banco Español v. Palanca,
G.R. No. L-11390 (1918)]:
1. There must be a court or tribunal clothed
with judicial power to hear and determine
the matter before it.
2. Jurisdiction must be lawfully acquired over
the person of the defendant or over
property which is the subject of proceeding.
Service of summons is not only required to
give the court jurisdiction over the person
of the defendant but also to afford the latter
the opportunity to be heard on the claim
made against him. Thus, compliance with
the rules regarding the service of summons
is as much an issue of due process as of
jurisdiction [Samartino v. Raon, G.R. No.
131482 (2002)].
3. The defendant must be given an
opportunity to be heard; and
4. Judgment must be rendered upon lawful
hearing.
5. No decision shall be rendered by any court
without expressing therein clearly and
distinctly the facts and the law on which it
is based. No petition for review or motion
for reconsideration of a decision of the
court shall be refused due course or denied
without stating the legal basis therefor [Art.
VIII, Sec. 14].
Note: The SC reiterated that the right to appeal
is not a natural right nor part of due process
[Alba v. Nitorreda, G.R. No. 120223 (1996)].
In Criminal Proceedings
Article III, Section 14.
(1) No person shall be held to answer for a criminal
offense without due process of law.
Requisites of Criminal Due Process
[Art. III, Sec. 14(2)]
1. Accused is heard by a court of competent
jurisdiction;
2. Accused is proceeded against under the
orderly process of law;
3. Accused is given notice and opportunity to
be heard;
4. Judgment rendered is within the authority
of a constitutional law [Mejia v. Pamaran,
G.R. No. 56741-42 (1988)].
b. Due Process
Proceedings
in
Administrative
Seven Cardinal Rights in Administrative
Proceedings [Ang Tibay v. CIR, G.R. No.
46496 (1940)]:
Page 119 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
1. The right to a hearing, which includes the
right of the party interested or affected to
present his own case and submit evidence
in support thereof.
2. Not only must the party be given an
opportunity to present his case and to
adduce evidence tending to establish the
rights which he asserts, but the tribunal
MUST consider the evidence presented.
3. The decision of the tribunal should be
supported by something. Must be based on
evidence. A decision with absolutely
nothing to support it is a nullity [...].
4. The evidence supporting a finding or
conclusion must be “substantial” (such
relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion). This does not include
uncorroborated hearsay or rumors.
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. Only by confining
the administrative tribunal to the evidence
disclosed to the parties can the latter be
protected in their right to know and meet
the case against them.
6. The body must act on its or his own
independent consideration of the law and
facts of the controversy, and not simply
accept the views of a subordinate in
arriving at a decision.
7. The body must render its decision in such
manner that the parties to the proceeding
can know the various issues involved, and
the reasons for the decisions rendered.
Note: The constitutional requirement that the
judgment be in writing and promulgated is NOT
APPLICABLE to administrative decisions.
Ang Tibay is used as a basis for stating that
quasi-judicial tribunals should render its
decision in such a manner that parties to the
proceeding know the various issues involved
and reasons for the decision [Serrano v. PSC,
G.R. No. L-24165 (1968)
Labor Cases and Academic Disciplinary Proceedings
Labor Cases
Academic Disciplinary Proceedings
Twin requirements which constitute the essential 1. The students must be informed in writing of
elements of due process [Perez v. Philippine
the nature and cause of any accusation
Telegraph and Telephone Company, G.R. No.
against them;
152048, (2009)]:
2. They shall have the right to answer the
charges against them, with the assistance of
Notice
counsel, if desired;
The employer must furnish the employee with 3. They shall be informed of the evidence
two written notices before the termination of
against them;
employment can be effected:
4. They shall have the right to adduce evidence
1. The first is to apprise the employee of the
in their own behalf;
particular acts or omissions for which his 5. The evidence must be duly considered by
dismissal is sought; and
the investigating committee or official
2. The second informs the employee of the
designated by the school authorities to hear
employer’s decision to dismiss him.
and decide the case [Non v. Dames, G.R.
No. 89317 (1990)].
Hearing
Due process of law simply means giving The proceedings may be summary. Crossopportunity to be heard before judgment is examination is not an essential part of the
rendered. This “procedural due process” investigation or hearing. The required proof in a
requirement is not constitutional but merely student disciplinary action is substantial
statutory, hence, a violation of such requirement evidence. What is crucial is that official action
does not render the dismissal void. The must meet minimum standards of fairness to the
employer must be sanctioned for non- individual, which generally encompass the right
compliance with the requirements of, or for of adequate notice and a meaningful opportunity
to be heard [Id.].
Page 120 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
Labor Cases
POLITICAL LAW
Academic Disciplinary Proceedings
failure to observe, due process [Serrano v.
NLRC, G.R. No. 117040. January 27, 2000].
C. Equal Protection
Concept
All persons or things similarly situated must be
similarly treated both as to rights conferred and
responsibilities imposed [Ichong v. Hernandez,
supra].
Scope
Natural and juridical persons. However, the
equal protection clause extends to artificial
persons only insofar as their property is
concerned.
1. Requisites for Valid Classification
[SGEC]
a. It must rest on substantial distinctions or
must make for real differences;
b. It must be germane to the purpose of the
law;
c. It must not be limited to existing conditions
only;
d. It must apply equally to all members of the
same class.
2. Standards of Judicial Review
a. Rational Basis Test
The classification should bear a reasonable
relation to the government’s purpose or
legitimate state interest.
b. Strict Scrutiny Test
Examples:
In Central Bank Employees Association v.
BSP, the challenged proviso operates on the
basis of the salary grade or officer-employee
status. It is akin to a distinction based on
economic class and status, with the higher
grades as recipients of a benefit specifically
withheld from the lower grades. Officers of the
BSP now receive higher compensation
packages that are competitive with the
industry, while the poorer, low-salaried
employees are limited to the rates prescribed
by the SSL.
Considering that majority, if not all, the rankand-file employees consist of people whose
status and rank in life are less and limited,
especially in terms of job marketability, it is they
— and not the officers — who have the real
economic and financial need for the adjustment
[Central Bank Employees Association v. BSP,
G.R. No. 148208 (2004)].
The Supreme Court upheld the constitutionality
of an ordinance which imposed a curfew upon
minors in Quezon City. In evaluating the
ordinance, the Court resorted to the strict
scrutiny test and ruled that under our legal
system’s own recognition of a minor’s inherent
lack of full rational capacity, and balancing the
same against the State’s compelling interest to
promote juvenile crime, it finds that the curfew
imposed is reasonably justified with its
narrowly drawn exceptions and hence, not
constitutionally infirm [SPARK v. Quezon City,
G.R. No. 225442 (2017)].
Applies to legislative classifications which
c. Intermediate Scrutiny Test
impermissibly interfere with the exercise of a
fundamental right, or operates to the peculiar
Under the Intermediate Scrutiny Test, the
disadvantage of a suspect class. Such
government must show that the challenged
classifications are presumed unconstitutional,
classification serves “important governmental
and the government has the burden to prove
objectives and must be substantially related to
that the classification is necessary to achieve a
the achievement of those objectives” [Central
compelling state interest, and that it is the
Bank Employees Association, Inc. v. BSP,
least restrictive means to protect such
supra].
interest [Serrano v. Gallant Maritime, G.R. No.
167614 (2009)].
Page 121 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
Suspect Classes
Refers to classification that violates a
fundamental right, or prejudices a person
accorded special protection by the Constitution
[Serrano v. Gallant Maritime, supra]. Suspect
classes may therefore include an incomebased classification.
3. Examples of Valid Classification
a. Filipino Female Domestics Working
Abroad
They are a class by themselves because of the
special risks to which their class was exposed
[Phil. Association of Service Exporters v.
Drilon, G.R. No. 81958 (1988)].
b. Land-Based v. Sea-based Filipino
Overseas Workers
There is dissimilarity as to work environment,
safety, danger to life and limb, and accessibility
to social, civil and spiritual activities
[Conference of Maritime Manning Agencies v.
POEA, G.R. No. 114714 (1995)].
c. Office of the Ombudsman
Allowing the Ombudsman to start an
investigation based on an anonymous letter
does not violate the equal protection clause.
The Office of the Ombudsman is different from
other investigatory and prosecutory agencies
of government because those subject to its
jurisdiction are public officials who, through
official pressure and influence, can quash,
delay or dismiss investigations against them
[Almonte v. Vasquez, G.R. No. 95367 (1995)].
D. Arrests,
Seizures
Searches,
and
The constitutional right against unreasonable
searches and seizures is a personal right
invocable only by those whose rights have
been infringed or threatened to be infringed.
What
constitutes
a
reasonable
or
unreasonable search and seizure in any
particular case is purely a judicial question,
determinable from a consideration of the
circumstances involved [Valmonte v. General
De Villa, G.R. No. 83988 (1989)].
1. Requisites of a Valid Warrant
a. Existence of probable cause;
b. Probable cause must be personally
determined by the judge;
c. After personal examination under oath
or affirmation of the complainant and
the witnesses he may produce;
d. On the basis of their personal
knowledge of the facts they are
testifying to;
e. There must be particularity in the
description of the places to searched
and the persons or things to be seized;
and
f. The warrant must refer to one specific
offense
(Requisite
added
by
jurisprudence).
General Rule: The warrant must indicate the
particular place to be searched and person or
thing to be seized.
Exception: If the nature of the goods to be
seized cannot be particularly determined:
• The nature of the thing is general in
description;
• The thing is not required of a very
technical description [Alvarez v. CFI of
Tayabas, G.R. No. 45358 (1937)].
The search warrant issued to search
petitioner’s compound for unlicensed firearms
was held invalid for failing to describe the place
with particularity, considering that the
compound was made up of 200 buildings, 15
plants, 84 staff houses, one airship, etc. spread
out over 255 hectares [PICOP v. Asuncion,
G.R. No. 122092 (1999)].
The description of the property to be seized
need not be technically accurate or precise. Its
nature will vary according to whether the
identity of the property is a matter of concern.
The description is required to be specific only
insofar as the circumstances will allow [Kho v.
Judge Makalintal, G.R. Nos. 94902-06 (1999)].
An error in the name of the person in the search
warrant does not invalidate the warrant, as long
Page 122 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
as it contains a description personae [including
additional descriptions] that will enable the
officer to identify the accused without difficulty
[Nala v. Barroso, Jr., G.R. No. 153087 (2003)].
Exception: General descriptions will not
invalidate the entire warrant if other items have
been particularly described [Uy v. BIR, G.R.
No. 129651 (2000)].
A John Doe search warrant is valid. There is
nothing to prevent issue and service of warrant
against a party whose name is unknown
[People v. Veloso, G.R. No. 23051 (1925)].
Effect of a Void Arrest Warrant
A void arrest warrant would render the arrest
invalid and illegal.
General Warrant
Refers to a warrant that:
1. Does not describe with particularity the
things subject of the search and seizure; or
2. Where probable cause has not been
properly established.
Effects of a General Warrant
It is a void warrant [Nolasco v. Paño, G.R. No.
L-69803 (1985)].
Any evidence obtained in violation [of this or
the preceding section] shall be inadmissible for
any purpose in any proceeding [Art. III, Sec. 3].
The unconstitutionality of the search and the
seizure or the use of a void search warrant,
renders the items seized inadmissible in
evidence.
The illegality of an arrest does not bar the state
from the prosecution of the accused. Despite
illegality of both search and arrest thus
inadmissibility of evidence acquired, guilt may
still be established through eyewitness
testimony [People v. Manlulu, G.R. No. 102140
(1994)].
a. Arrest Warrant
A written document issued by a court ordering
any peace officer to bring the person before the
court so that he may be bound to answer for
the commission of an offense.
b. Search Warrant
An order in writing, issued in the name of the
People of the Philippines, signed by a judge
and directed to a peace officer, commanding
him to search for certain personal property and
bring it before the court [Sec. 1, Rule 126,
ROC].
Arrest Warrant v. Search Warrant
Arrest Warrant
Search Warrant
There is a need for a preliminary investigation
conducted by MTC or prosecutor.
No need for a preliminary investigation.
In determining probable cause, the judge need
not examine the complainant and its witnesses
and may rely on the findings of the prosecutor.
Judge may adopt the prosecutor’s findings,
disregard it and require the submission of
additional documents within five (5) days, or
dismiss the case right away.
In determining probable cause, the judge is
required to personally examine the applicant
and the witnesses in searching questions, in
writing, and in oath.
No lifespan
Valid only for 10 days
It may be issued only by a court of competent
jurisdiction.
It can be issued by a court without jurisdiction.
However, if the resultant case is a criminal
case implicating individuals, it must be
transferred to a court with competent
jurisdiction.
Page 123 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
2. Warrantless Arrests and Detention
Valid Warrantless Arrests [Section 5, Rule
113, Rules on Criminal Procedure]
a. In Flagrante Delicto
When in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit an offense. The
person must be arrested after the offense has
been committed and in the presence of a police
officer [People v. Mengote, G.R. No. 87059
(1992)].
Since rebellion is a continuing offense, a rebel
may be arrested without a warrant at any time
of the day or the night as he is deemed to be in
the act of committing rebellion [In re Umil v.
Ramos, G.R. No. 81567 (1991)].
Though kidnapping with serious illegal
detention is deemed a continuing crime, it can
be considered as such only when the
deprivation of liberty is persistent and
continuing from one place to another [Parulan
v. Dir. of Prisons, G.R. No. L-28519 (1968)].
Buy-Bust; When Not Proper
A buy-bust operation is a valid in flagrante
arrest. The subsequent search of the person
arrested and the premises within his immediate
control is valid as an incident to a lawful arrest
[People v. Hindoy, G.R. No. 132662 (2001)].
Instead of arresting the suspect after the sale
in a buy-bust operation, the officer returned to
the police headquarters and filed his report. It
was only in the evening that he, without
warrant, arrested the suspect at his house
where dried marijuana leaves were found
and seized. This is unlawful arrest [People v.
Rodriguez, G.R. No. 138987 (1992)].
b. Hot Pursuit
When an offense has just been committed and
he has probable cause to believe based on
personal knowledge of facts or circumstances
that the person to be arrested has committed it
Requisites:
1. Offense had just been committed; The
person must be immediately arrested after
the commission of the offense [People v.
Manlulu, supra];
2. Person making the arrest has probable
cause to believe based on personal
knowledge
of
the
facts
and
circumstances.
Note: There must be a large measure of
immediacy between the time the offense is
committed and the time of arrest. If there was
an appreciable lapse of time between the
arrest and commission of the crime, a warrant
of arrest must be secured [Nachura].
The warrantless arrest of an accused for selling
marijuana two days after he escaped is invalid
[People v. Kimura, G.R. No. 130805 (2004)].
There is no personal knowledge when the
commission of a crime and identity of the
accused were merely furnished by an
informant, or when the location of the firearm
was given by the wife of the accused. It is not
enough that there is reasonable ground to
believe that the person to be arrested has
committed a crime. That a crime has actually
been committed is an essential precondition
[People v. Burgos, G.R. No. L-68955 (1986)].
c. Escaped Prisoners
When the person to be arrested is a prisoner
who has escaped from a penal establishment
or place where he is serving final judgment or
is temporarily confined while his case is
pending, or has escaped while being
transferred from one confinement to another.
d. Additional Exceptions
When the Right is Voluntarily Waived
(Estoppel)
Appellant is estopped from questioning the
illegality of the arrest when he voluntarily
submitted himself to the jurisdiction of the court
by entering a plea of not guilty and by
participating in the trial [People v. Salvatierra,
G.R. No. 104663 (1997)].
Page 124 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
Failure to raise the question of admissibility
during the trial is a waiver of the right to assert
inadmissibility on appeal [Manalili v. CA, G.R.
No. 113447 (1997)].
Waiver is limited to the illegal arrest. It does not
extend to the search made as an incident
thereto, or the subsequent seizure of evidence
allegedly found during the search [People v.
Peralta, G.R. No. 145176 (2004)].
Drug, Alcohol, and Blood Tests
Randomized Drug Testing (RDT) for students
and employees does not violate the right to
privacy in the Constitution. Students do not
have a rational expectation of privacy since
they are minors and the school is in loco
parentis. Employees and students in
universities, on the other hand, voluntarily
subject themselves to the intrusion because of
their contractual relation to the company or
university.
But it is unconstitutional to subject criminals to
RDT. Subjecting criminals to RDT would
violate their right against self-incrimination.
Absent a valid search warrant, the search is
confined to the person being lawfully arrested.
It is also a general rule that, as an incident of
an arrest, the place or premises where the
arrest was made can also be searched without
a search warrant. In this case, the extent and
reasonableness of the search must be decided
on its own facts and circumstances.
What must be considered is the balancing of
the individual’s right to privacy and the public’s
interest in the prevention of crime and the
apprehension of criminals [Nolasco v. Paño,
supra].
Test for validity
1. Item to be searched was within the
arrester’s custody;
2. Search was contemporaneous with the
arrest
An “arrest being incipiently illegal, it logically
follows that the subsequent search was
similarly illegal” [People v. Aruta, supra].
b. Plain View Doctrine
It is also unconstitutional to subject public
officials whose qualifications are provided for in
the Constitution (e.g., members of Congress)
to RDT. Subjecting them to RDT would amount
to imposing an additional qualification not
provided for in the Constitution [SJS v.
Dangerous Drugs Board, G.R. No. 157870
(2008)].
Warrantless Searches
Probable cause (warrantless searches) must
be “based on reasonable ground of suspicion
or belief that a crime has been committed or is
about to be committed” [People v. Aruta, G.R.
No. 120915 (1998)].
3. Valid Warrantless Searches
a. Warrantless Search Incidental to a
Lawful Arrest
A person lawfully arrested may be searched for
dangerous weapons or anything which may be
used as proof of the commission of an offense,
without a search warrant [Sec. 12, Rule 126,
ROC].
Things seized are within plain view of a
searching party.
Requisites
1. Prior valid intrusion based on valid
warrantless arrest in which the police are
legally present in the pursuit of their official
duties;
2. Evidence was inadvertently discovered by
the police who had the right to be where
they are;
3. Evidence must be immediately apparent;
4. “Plain view” justified mere seizure of
evidence without further search [People v.
Aruta, supra; N.B. substantially the same
as Nala v. Barroso requirements].
An object is in “plain view” if the object itself is
plainly exposed to sight. Where the seized
object is inside a closed package, the object is
not in plain view and, therefore, cannot be
seized without a warrant. However, if the
package proclaims its contents, whether by its
distinctive configuration, its transparency, or if
its contents are obvious to an observer, then
Page 125 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
the contents are in plain view, and may be
seized [Caballes v. CA, G.R. No. 136292
(2002)].
It must be immediately apparent to the police
that the items that they observe may be
evidence of a crime, contraband or otherwise
subject to seizure [People v. Nuevas, G.R. No.
170233 (2007)].
c. Search of a Moving Vehicle
“Stop and search” without a warrant at military
or police checkpoints has been declared not to
be illegal per se so long as it is required by
exigencies of public order and conducted in a
way least intrusive to motorists [Valmonte v. de
Villa, G.R. No. 83988 (1989)].
These are permissible if limited to the
following:
1. Where the officer merely draws aside the
curtain of a vacant vehicle which is parked
on the public fair grounds;
2. Simply looks into a vehicle;
3. Flashes a light therein without opening the
car’s doors;
4. Where the occupants are not subjected to
a physical or body search;
5. Where the inspection of the vehicles is
limited to a visual search or visual
inspection; and
6. Where the routine check is conducted in a
fixed area.
It is well to clarify, however, that routine
inspections do not give police officers carte
blanche discretion to conduct warrantless
searches in the absence of probable cause.
When a vehicle is stopped and subjected to an
extensive search - as opposed to a mere
routine inspection - such a warrantless search
has been held to be valid only as long as the
officers conducting the search have
reasonable or probable cause to believe before
the search that they will find the instrumentality
or evidence pertaining to a crime, in the vehicle
to be searched [People v. Manago, G.R. No.
212340 (2016)].
d. Consented Warrantless Search
Requisites
1. Must appear that right exists;
2. Person involved had actual or constructive
knowledge of the existence of such right;
3. Said person had an actual intent to
relinquish the right [People v. Aruta, supra].
The mere failure to object to the search and
seizure does not constitute a waiver.
The waiver may be express or implied. When
one voluntarily submits to a search or consents
to have it made of his person/premises, he is
precluded from later complaining [People v.
Kagui Malasugui, G.R. No. 44335 (1936)].
There is presumption against waiver by the
courts. It is the State that has the burden of
proving, by clear and convincing evidence, that
the necessary consent was obtained and that it
was voluntarily and freely given [Caballes v.
CA, supra].
e. Customs Search (Enforcement of
Fishing, Customs, and Immigration
Law)
The police are allowed to conduct warrantless
searches on behalf of the Department of
Customs.
They are authorized to open and examine any
box, trunk, or other containers where he has
reasonable cause to believe that such items
were hidden from customs search [Papa v.
Mago, G.R. No. L-27360 (1968)].
Sec. 219 of the Customs Modernization and
Tariff Act states that no warrant is required for
police or authorized persons to pass, enter,
search any land, enclosure, building,
warehouse, vessels, aircrafts, vehicles but not
dwelling.
Purpose of Customs Search
To verify whether or not custom duties and
taxes were paid for their importation.
Page 126 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
f. Routine Security Checks
The Court held that the search and seizure of
an illegal drug during a routine airport
inspection made pursuant to the aviation
security procedures is a constitutionally
reasonable administrative search.
While the right of the people to be secure in
their persons, houses, papers, and effects
against unreasonable searches and seizures is
guaranteed by Section 2, Article III of the 1987
Constitution, a routine security check being
conducted in air and sea ports has been
recognized exception [People v. O’Cochlain,
G.R. No. 229071 (2018)].
activity to compel the arresting officer to
investigate further [Manibog v. People, supra].
h. Exigent
and
Circumstances
Emergency
The raid and seizure of firearms and
ammunition at the height of the 1989 coup
d’état, was held valid, considering the exigent
and emergency situation. The military
operatives had reasonable ground to believe
that a crime was being committed, and they
had no opportunity to apply for a search
warrant from the courts because the latter were
closed. Under such urgency and exigency, a
search warrant could be validly dispensed with
[People v. de Gracia, G.R. Nos. 102009-10
(1994)].
g. Stop and Frisk
For a valid stop and frisk search, the arresting
officer must have had personal knowledge of
fact, which would engender a reasonable
degree of suspicion of an illicit act [Manibog v.
People, G.R. No. 211214 (2019)].
Test
Whether or not a reasonably prudent man in
the circumstances would be warranted in the
belief that his safety or that of others was in
danger [Terry v. Ohio, 392 US 1(1968)].
Test for Validity of a Stop-and-Frisk
Search as Established by Jurisprudence:
1. There must be specific and articulable facts
which, taken together with rational
inferences, reasonably warrant the
intrusion.
2. The officer must identify himself and make
reasonable inquiries.
3. The “frisk” is permitted to search for
weapons for the protection of the police
officer, where he has reason to believe that
he is dealing with an armed and dangerous
individual, regardless of probable cause for
a crime.
4. The scope of the search is limited to the
outer surface of the subject’s clothing.
Accordingly, to sustain the validity of a stop and
frisk search, the arresting officer should have
personally observed two (2) or more suspicious
circumstances, the totality of which would then
create a reasonable inference of criminal
Administrative Arrests
Arrests made as an incident to a deportation
proceeding. The power to deport aliens is an
attribute of sovereignty and essential to selfpreservation of every state [De Leon].
The
constitutional
provision
against
unreasonable searches and seizures does not
require judicial intervention in the execution of
a final order of deportation issued in
accordance with law. It contemplates an order
of arrest in the exercise of judicial power as a
step preliminary or incidental to prosecution or
proceedings or for a given offense or
administrative action, not as a measure
indispensable to carry out a valid decision by a
competent official, such as a legal order of
deportation issued by the Commissioner of
Immigration in pursuance of a valid legislation
[Morano v. Vivo, 20 SCRA 562 (1967)].
In deportation cases, an arrest (of an
undesirable alien) ordered by the President or
his duly authorized representatives, in order to
carry out a final decision of deportation is valid.
It is valid, however, because of the recognized
supremacy of the Executive in matters
involving foreign affairs [Salazar v. Achacoso,
G.R. No. 81510 (1990)].
4. Exclusionary Rule
All evidence obtained in violation of Sec. 2, Art.
III shall be inadmissible for any purpose in any
Page 127 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
proceeding [Stonehill v. Diokno, G.R. No. L19550 (1967)].
1. Private
and
Communications
The exclusionary rule extends to evidence
obtained through uncounseled confession
[People v. Alicando, G.R. No. 117487 (1995)].
The Fruit of the Poisonous Tree
The Exclusionary Rule is also extended to
exclude evidence which is derived or directly
obtained from that which was illegally seized
[Bautista, Basic Criminal Procedure (2010),
hereinafter Bautista].
The Constitution does not have a specific
provision protecting the right to privacy. It is a
penumbral right formed from the shadows
created by several constitutional provisions.
That is to say, the right to privacy is located
within the zones created by various provisions
of the Constitution and various statutes which
protect aspects of privacy [Ople v. Torres, G.R.
No. 127685 (1998)].
Once the primary source (tree) is shown to
have been unlawfully obtained, any secondary
or derivative evidence (fruit) derived from it is
also inadmissible.
In Ople v. Torres, different provisions in the
1987 Constitution also constitute zones of
privacy:
a. Sec. 3 – Privacy of communication
b. Sec. 1 – Life, liberty, and property
c. Sec. 2 – Unreasonable searches and
seizures
d. Sec. 6 – Liberty of abode
e. Sec. 8 – Right to form associations
f. Sec. 17 – Right against self-incrimination
Effects of Unreasonable Searches and
Seizures
An unlawful search will result in the exclusion
from admission as evidence of that which was
obtained from such unlawful search and
seizure.
Further, an unlawful search and seizure may
justify:
1. The use of self-help in the form of
resistance to such unlawful search and
seizure;
2. The criminal prosecution of the searching
officer;
3. Civil damages against such officer; and
4. Disciplinary action against the officer by his
administrative officers [Bautista].
E. Privacy of Communications
and Correspondence
Article III, Section 3.
(1) The
privacy
of
communication
and
correspondence shall be inviolable except upon
lawful order of the court, or when public safety
or order requires otherwise as prescribed by
law.
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in any proceeding.
Public
Three Strands of the Right to Privacy
1. Decisional Privacy - Liberty in the
constitutional sense must mean more than
freedom from unlawful governmental
restraint; it must include privacy as well, if
it is to be a repository of freedom. The right
to be let alone is indeed the beginning of all
freedom … The concept of liberty would be
emasculated if it does not likewise compel
respect for his personality as a unique
individual whose claim to privacy and
interference demands respect [Morfe v.
Mutuc, G.R. No. L-20387 (1968)].
2. Informational Privacy - Right of an
individual not to have private information
about himself disclosed; and the right of an
individual to live freely without surveillance
and intrusion [Whalen v. Roe, 429 US 589,
(1977)].
3. Locational or Situational Privacy Privacy that is felt in physical space, such
as that which may be violated by trespass
or unwarranted searches and seizure
[Vivares v. St. Therese College, G.R. No.
202666 (2014)].
Page 128 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
Requisites of the Existence of the Right to
Privacy:
1. Subjective: A person has exhibited an
actual expectation of privacy; and
2. Objective: The expectation be one that
society is prepared to recognize as
reasonable [Pollo v. Constantino-David,
G.R. No. 181881 (2011)].
Forms
of
Correspondence
and
Communication Covered:
1. Letters
2. Messages
3. Telephone calls
4. Telegrams
5. Others analogous to the foregoing [Bernas]
Right of Privacy v. Freedom of Speech and Communications
RIGHT OF PRIVACY
It is not a preferred right,
thus there is no
presumption of invalidity
on encroachments of right
to privacy.
FREEDOM OF SPEECH AND COMMUNICATION
Because of the preferred character of the constitutional rights of the
freedom of speech and of expression, a weighty presumption of
invalidity vitiates measures of prior restraint upon the exercise of
such freedoms [Ayer Productions Pty. Ltd. v. Capulong, G.R. No.
82380 (1988)].
2. When Intrusion is Allowed
General rule: An encroachment on the right to
privacy is invalid when there is a reasonable
expectation of privacy; and if there is no
compelling state interest.
When Allowed:
1. Lawful order of the Court [Art. III, Sec. 3]
2. When public safety or public order required
otherwise as may be provided by law
E.O. No. 424 (s. 2005), adopting a unified
multi- purpose ID system for government, does
not violate the right to privacy because it (1)
narrowly limits the data that can be collected,
recorded, and released compared to existing
ID systems, and (2) provides safeguards to
protect the confidentiality of the data collected
[KMU v. Director-General, G.R. No. 167798
(2006)].
An intrusion into the privacy of workplaces is
valid if it conforms to the standard of
reasonableness. Under this standard, both
inception and scope of intrusion must be
reasonable. It is justified at inception if there
are reasonable grounds for suspecting that it
will turn up evidence that the employee is guilty
of work-related misconduct. Scope of intrusion
is reasonable if measures used in the search
are reasonably related to the search’s
objectives, and it is not highly intrusive [Pollo v.
Constantino-David, supra].
Right may be invoked against the wife who
went to the clinic of her husband and there took
documents
consisting
of
private
communications between her husband and his
alleged paramour [Zulueta v. CA, G.R. No.
107383 (1996)].
Public Figure
A limited intrusion into a person’s privacy is
permissible where that person is a public figure
and the information sought to be elicited from
him or to be published about him constitute
matters of a public character. The interest
sought to be protected by the right to privacy is
the right to be free from unwarranted publicity
from the wrongful publicizing of the private
affairs and activities of an individual which are
outside the realm of legitimate public concern
[Ayer Productions Pty. Ltd. v. Capulong,
supra].
But as held in Lagunzad v. Vda. de Gonzales
[G.R. No. L-32066 (1979)], being a public
figure does not automatically destroy in toto a
person’s right to privacy.
Online Privacy
It is first necessary that said user, manifest the
intention to keep certain posts private, through
the employment of measures to prevent
access thereto or to limit its visibility (This case;
OSN Privacy Tools). Therefore, a Facebook
user who opts to make use of a privacy tool to
grant or deny access to his or her post or profile
detail should not be denied the informational
Page 129 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
privacy right which necessarily accompanies
said choice [Vivares v. St. Theresa’s College,
supra].
3. Exclusionary Rule
Any evidence obtained in violation of Secs. 2
or 3, Art. III shall be inadmissible for any
purpose in any proceeding [Art. III, Sec. 3(2)].
This applies not only to testimonial evidence
but also to documentary and object evidence.
The Anti-Wire Tapping Act (R.A. No. 4200)
clearly and unequivocally makes it illegal for
any person, not authorized by all the parties to
any private communication, to secretly record
such communications by means of a tape
recorder. The law does not make any
distinction [Ramirez v. CA, G.R. No. 93833
(1995)].
Effect of violation: The communication shall
not be admissible in evidence in any judicial,
quasi-judicial, legislative, or administrative
hearing or investigation [R.A. No. 4200, Sec.
4].
Generally, the provisions in the Bill of Rights
are protections against the government.
However, In the case of Zulueta v. CA the
Court has recognized an instance where it may
also be applied as against a private individual.
Note: While Zulueta seems to be an exception
to the State Action Requirement, Zulueta’s
application of the exclusionary rule has only
been cited once but to a state action.
In that case, the wife took her husband’s
private documents and papers to be used as
evidence in the case, without the husband’s
knowledge and consent, the Court held that the
intimacies between husband and wife do not
justify any one of them in breaking the drawers
and cabinets of the other and in ransacking
them for any telltale evidence of marital
infidelity. A person, by contracting marriage,
does not shed his/her integrity or his right to
privacy as an individual and the constitutional
protection is ever available to him or her.
F. Freedom of
Expression
Speech
and
Article III, Section 4. No law shall be passed
abridging the freedom of speech, of expression, or
of the press, or the right of the people peaceably to
assemble and petition the government for redress of
grievances.
Concept
The scope of freedom of expression is so broad
that it extends protection to nearly all forms of
communication. It protects speech, print and
assembly regarding secular as well as political
causes, and is not confined to any particular
field of human interest [Chavez v. Gonzales,
G.R. No. 168338 (2008)].
In the Philippines, the primacy and high esteem
accorded freedom of expression is a
fundamental postulate of our constitutional
system.
Free speech and free press may be identified
with the liberty to discuss publicly and truthfully
any matter of public interest without censorship
and punishment [Newsounds Broadcasting
Network, Inc. v. Dy, G.R. No. 170270 (2009)].
The right to freedom of expression applies to
the entire continuum of speech from utterances
made to conduct enacted, and even to inaction
itself as a symbolic manner of communication
[Diocese of Bacolod v. COMELEC, G.R. No.
205728, (2015)].
Communication is an essential outcome of
protected speech. Communication exists when
“(1) a speaker, seeking to signal others, uses
conventional actions because he or she
reasonably believes that such actions will be
taken by the audience in the manner intended;
and (2) the audience so takes the actions”
[Diocese of Bacolod v. COMELEC, supra].
The right is not limited to vocal communication.
Conduct is also included.
Conduct - sometimes referred to as ‘symbolic
speech’ such that “‘when ‘speech’ and ‘nonspeech’ elements are combined in the same
course of conduct,’ the ‘communicative
element’ of the conduct may be ‘sufficient to
Page 130 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
bring into play the [right to freedom of
expression].
Scope
Expression and speech include:
1. Written or spoken words (recorded or not
recorded);
2. Symbolic speech (e.g., wearing of
armbands as a symbol of protest)
However, in NUWHRAIN-APL-IUF Dusit
Hotel Nikko Chapter v. CA [G.R. No.
163942 (2008)], it was held that the labor
union members’ violation of the hotel’s
grooming standards constitutes an illegal
strike, which is not protected by the right to
freedom of expression;
3. Films and television programs [Iglesia ni
Cristo v. CA, G.R. No. 119673 (1996)].
While the right has a widespread scope, it is
not absolute. Examples of unprotected speech
are obscenity, child pornography, and libel.
1. Prior Restraint and Subsequent
Punishment
a. Prior Restraint
Refers to official governmental restrictions on
the press or other forms of expression in
advance of actual publication or dissemination
[Newsounds Broadcasting Network v. Dy,
supra].
Not all prior restraint is invalid. But all prior
restraints are presumed invalid (“any act that
restrains speech is hobbled by the presumption
of invalidity and should be greeted with
furrowed brows”).
Every man shall have a right to speak, write,
and print his opinions upon any subject
whatsoever, without any prior restraint, so
always that he does not injure any other person
in his rights, person, property, or reputation,
and so always that he does not thereby disturb
the public peace or attempt to subvert the
government [Near v. Minnesota, 283 U.S. 697
(1931)].
Examples
● Censorship: Censorship conditions the
exercise of freedom of expression upon the
●
●
prior approval of the government. The
censor therefore serves as the political,
moral, social and artistic arbiter for the
people, usually applying only their own
subjective standards in determining what is
good and what is not;
Permits;
Business closure.
General Rules
1. Any system of prior restraints of expression
comes to the Court bearing a heavy
presumption against its constitutionality,
giving the government a heavy burden to
show justification for the imposition of such
restraint [New York Times Co. v. US, 403
US 713 (1971)].
2. There need not be total suppression. Even
restriction of circulation constitutes
censorship [Grosjean v. American Press
Co., Inc., 297 U.S. 233 (1936)].
Examples of Unconstitutional Prior
Restraint
● COMELEC prohibition against radio
commentators and newspaper columnists
from commenting on the issues involved in
a scheduled plebiscite [Sanidad v.
COMELEC, G.R. No. 90878 (1990)].
● Arbitrary closure of a radio station [Eastern
Broadcasting Corp. v. Dans, Jr., G.R. No.
L-59329 (1985)]; or even when there is
legal justification, such as lack of mayor’s
permit [Newsounds Broadcasting Network
v. Dy, supra].
● COMELEC resolution prohibiting the
posting of decals and stickers in mobile
units such as cars and other vehicles
[Adiong v. COMELEC, G.R. No. 103956
(1992)].
● Searching, padlocking, and sealing of the
offices of newspaper publishers by military
authorities [Burgos, Sr. v. Chief of Staff,
G.R. No. 64261 (1984)].
● An announcement by a public official
prohibiting the media from airing or
broadcasting the Garci tapes [Chavez v.
Gonzales, supra].
Examples
of
Constitutional
Prior
Restraint
● Law which prohibits, except during the
prescribed election period, making
Page 131 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
●
●
POLITICAL LAW
speeches,
announcements,
or
commentaries for or against the election of
any candidate for office [In re: Gonzales v.
COMELEC, G.R. No. L-27833 (1969)].
Prohibiting any person making use of the
media from selling or giving print space or
airtime free of charge for campaign or other
political purposes. Ratio: Police power of
the State to regulate media for the purpose
of ensuring equal opportunity, time, and
space for political campaigns, which
COMELEC is authorized to carry out
[National Press Club v. COMELEC, G.R.
No.
102653
(1992);
Osmeña
v.
COMELEC, G.R. No. 132231 (1998)].
Film censorship: The power of the MTRCB
can be exercised only for purposes of
reasonable classification, not censorship
[Nachura, citing Gonzalez v. Katigbak,
G.R. No. L-69500 (1985) and Ayer Prod.
PTY. LTD. v. Judge Capulong, G.R. No.
82380 (1988)].
b. Subsequent Punishment
Freedom of speech includes freedom after
speech. Without this assurance, citizens would
hesitate to speak for fear that they might be
provoking the vengeance of the officials they
criticized (chilling effect).
Examples
of
Valid
Subsequent
Punishment
● Libel – Every defamatory imputation is
presumed to be malicious, even if it be true
[Alonzo v. CA, G.R. No. 110088 (1995)].
Exceptions to the Presumption [Art. 354,
Revised Penal Code]
1. Private communication in the performance
of any legal, moral, or social duty;
2. Fair and true report of any judicial,
legislative, or other official proceedings;
3. Obscenity – Determination of what is
obscene is a judicial function [Pita v. CA,
G.R. No. 80806 (1989)];
4. Contempt for criticism or publications
tending to impede, obstruct, embarrass, or
influence the courts in administering justice
in a pending suit or proceeding (subjudice)
[People v. Alarcon, G.R. No. 46551
(1939)];
5. Right of students to free speech on school
premises must not infringe on the school’s
right to discipline its students [Miriam
College Foundation, Inc. v. CA, G.R. No.
127930 (2000)].
Exceptions
1. Fair comment on matters of public
interest – Fair comment is that which is
true or, if false, expresses the real opinion
of the author based upon reasonable
degree of care and on reasonable grounds.
2. Criticism of official conduct is given the
widest latitude [US v. Bustos, G.R. No. L12592 (1918)].
2. Content-Based
and
Neutral Regulations
Content-
A government regulation is sufficiently
justified if:
1. It is within the constitutional power;
2. It furthers an important or substantial
government interest;
3. The government interest is unrelated to the
suppression of free expression;
4. The incident restriction is no greater than
essential to the furtherance of that interest.
[US v. O’Brien, 391 U.S. 367 (1968)].
Content-Based v. Content-Neutral
CONTENT-BASED
CONTENT-NEUTRAL
Object of restraint
The content: The message or idea of the
expression.
Incidents of speech: the time, manner, place
of the expression in public places, not the
content.
Page 132 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
CONTENT-BASED
CONTENT-NEUTRAL
Test
a. Clear and present danger test: There must
be a clear and present danger of a
substantive evil that the State has a right to
prevent [Reyes v. Bagatsing, supra].
b. Balancing of interests
c. Dangerous Tendency
d. Direct Incitement
3. Facial
Challenges
Overbreadth Doctrine
and
General Rule: A party can question the validity
of a statute only if, as applied to him, it is
unconstitutional
[Southern
Hemisphere
Engagement Network, Inc. v. Anti-Terrorism
Council, G.R. No. 178552 (2010)].
Exception: Facial challenges.
A facial challenge may be directed against a
vague statute or to one which is overbroad
because of the possible “chilling effect” the
statute will have on protected speech. The
theory is that “[w]hen statutes regulate or
proscribe speech and no readily apparent
construction suggests itself as a vehicle for
rehabilitating the statutes in a single
prosecution, the transcendent value to all
society of constitutionally protected expression
is deemed to justify allowing attacks on overly
broad statutes with no requirement that the
person making the attack demonstrate that his
own conduct could not be regulated by a
statute drawn with narrow specificity” [Gooding
v. Wilson, 405 U.S. 518 (1972)].
The possible harm to society in permitting
some unprotected speech to go unpunished is
outweighed by the possibility that the protected
speech of others may be deterred, and
perceived grievances left to fester because of
possible inhibitory effects of overly broad
statutes.
This rationale does not apply to penal statutes
without a free speech aspect. Criminal statutes
have general in terrorem effect resulting from
their very existence and, if facial challenges
were allowed for this reason alone, the State
Only a substantial governmental interest is
required for its validity.
Intermediate approach: Somewhere between
the mere rationality that is required of any other
law and the compelling interest standard applied
to content-based restrictions [Chavez v.
Gonzales, supra].
may well be prevented from enacting laws
against socially harmful conduct. In the area of
criminal law, the law cannot take chances as in
the area of free speech [Southern Hemisphere
Engagement Network, Inc. v. Anti-Terrorism
Council, supra].
However, Said Doctrine Applies to Penal
Statutes When:
a. The statute is challenged as applied; or
b. The statute involves free speech [Disini v.
Sec. of Justice, supra].
Overbreadth Doctrine
The overbreadth doctrine decrees that a
governmental purpose to control or prevent
activities constitutionally subject to state
regulations may not be achieved by means
which sweep unnecessarily broadly and
thereby invade the area of protected freedoms
[Southern Hemisphere Engagement Network,
Inc. v. Anti-Terrorism Council, supra].
The statute must be carefully drawn or be
authoritatively construed to punish only
unprotected speech and not be susceptible of
application to protected expression [Gooding v.
Wilson, supra].
A governmental purpose may not be achieved
through means which sweep too broadly and
thereby invade the area of protected freedoms.
Void For Vagueness Doctrine
A law is vague when it lacks comprehensive
standards that men of common intelligence
must necessarily guess at its common
meaning and differ as to its application.
Page 133 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
A statute establishing a criminal offense must
define the offense with sufficient definiteness
that persons of ordinary intelligence can
understand what conduct is prohibited by the
statute. It can only be invoked against that
specie of legislation that is utterly vague on its
face, i.e., that which cannot be clarified either
by a saving clause or by construction.
administration of justice [Cabansag
Fernandez, G.R. No. L-8974 (1957)].
A statute or act may be said to be vague when
it lacks comprehensible standards that men of
common intelligence must necessarily guess at
its meaning and differ in its application [Estrada
v. Sandiganbayan, G.R. No. 148560 (2001)].
When a particular conduct is regulated in the
interest of public order, and the regulation
results in an indirect, conditional and partial
abridgement of speech, the duty of the courts
is to determine which of the two conflicting
interests
demands
greater
protection
[American Communications v. Douds, 339 U.S.
382 (1950)].
4. Tests to Determine the Validity of
Governmental Regulation
a. Clear and Present Danger Test
The question in every case is whether the
words used are used in such circumstances
and are of such a nature as to create a clear
and present danger that they will bring about
the substantive evils that Congress has a right
to prevent. It is a question of proximity and
degree [Schenck v. US, 249 U.S. 47 (1919)].
Burden of proof: With the government
This rule also requires that “the danger created
must not only be clear and present but also
traceable to the ideas expressed”.
1. CLEAR – there must be a connection with
the danger of the substantive evil arising
from the utterance questioned.
2. PRESENT - involves the time element,
identified with imminent and immediate
danger. The danger must not only be
probable but very likely inevitable
[Gonzales v. COMELEC, supra].
The evil consequence of the comment or
utterance must be “extremely serious and the
degree of imminence extremely high” before
the utterance can be punished. The danger to
be guarded against is the “substantive evil”
sought to be prevented. And this evil is
primarily
the
“disorderly
and
unfair
administration of justice.” [...] Under this rule,
the advocacy of ideas cannot constitutionally
be abridged unless there is a clear and present
danger that such advocacy will harm the
v.
Note: This test has been adopted by SC and is
the test most applied to cases re: freedom of
expression.
b. Balancing of Interests Test
The test is applied when two legitimate values
not involving national security crimes compete
[Gonzales v. COMELEC, supra].
Factors to Consider
1. Social value of the freedom restricted;
2. Specific thrust of the restriction, i.e., direct
or indirect, affects many or few;
3. Value of the public interest sought to be
secured by the regulation;
4. Whether the restriction is reasonably
appropriate and necessary for the
protection of the public interest;
5. Whether the necessary safeguarding of the
public interest may be achieved by a
measure less restrictive of the protected
freedom [Soriano v. Laguardia, G.R. No.
164785 (2010)].
c. Dangerous Tendency Test
In each case, courts must ask whether the
gravity of the “evil,” discounted by its
improbability, justifies such invasion of free
speech as is necessary to avoid the danger
[Dennis v. US, 341 US 494 (1951)].
Under this test, the question is whether the
words will create a dangerous tendency that
the state has a right to prevent. It looks at the
probability that a substantive evil will result,
and it is not necessary that some definite or
immediate acts of force, violence, or
unlawfulness be advocated [Cabansag v.
Fernandez, supra].
Page 134 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
It is sufficient if the natural tendency and the
probable effect of the utterance were to bring
about the substantive evil that the legislative
body seeks to prevent [Cabansag v.
Fernandez, supra].
POLITICAL LAW
But all forms of media, whether print or
broadcast, are entitled to the broad protection
of the freedom of expression clause. The test
for limitations on freedom of expression
continues to be the clear and present danger
test [Eastern Broadcasting v. Dans, Jr., supra].
d. O’brien Test
6. Commercial Speech
A government regulation is sufficiently justified
if:
1. It is within the constitutional power;
2. It furthers an important or substantial
government interest;
3. The government interest is unrelated to
the suppression of free expression;
The incident restriction is no greater than
essential to the furtherance of that interest [US
v. O’Brien, supra].
5. State Regulation of Different Types
of Mass Media
Article XVI, Section 11(1). … 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 …
Four Aspects of Freedom of the Press
1. Freedom from prior restraint;
2. Freedom from punishment subsequent to
publication;
3. Freedom of access to information; and
4. Freedom of circulation [Chavez v.
Gonzales, supra].
Print vs. Broadcast Media
While all forms of communication are entitled
to the broad protection of freedom of
expression clause, the freedom of film,
television, and radio broadcasting is somewhat
lesser than the freedom accorded to
newspapers and other print media [Chavez v.
Gonzales, supra].
Commercial speech is a separate category of
speech which is not accorded the same level of
protection as that given to other constitutionally
guaranteed forms of expression but is
nonetheless entitled to protection.
Test to be Applied to Regulations on
Commercial Speech
1. Speech must not be false, misleading, or
proposing an illegal activity;
2. Government interest sought to be served
by regulation must be substantial;
3. The regulation must advance government
interest; and
4. The regulation must not be overbroad
[Central Hudson Gas & Elec. v. Public Svc.
Comm’n, 447 US 557 (1980)].
Political Speech
Political speech is pure and protected speech.
The government is required to prove a “true
threat,” it cannot punish mere political
hyperbole [Watts v. US, 394 US 705 (1969)].
A tarpaulin that expresses a political opinion
constitutes political speech. Speech that
promotes dialogue on public affairs, or airs out
grievances and political discontent, should be
protected and encouraged [Diocese of Bacolod
v. COMELEC, supra].
Political Speech v. Commercial Speech
Political Speech
Speech “both
intended and
received as a
contribution to public
deliberation about
some issue,”
“foster[ing] informed
and civic minded
deliberation.”
Radio and television are accorded less
protection because of:
1. The scarcity of the frequencies by which
the medium operates, i.e., airwaves are
physically limited while print medium may
be limitless;
2. Its pervasiveness as a medium; and
3. Its unique accessibility to children [FCC v.
Pacifica Foundation, 438 US 726 (1978)].
Page 135 of 384
UP Law Bar Operations Commission 2023
Commercial Speech
Speech that does “no
more than propose a
commercial
transaction.”
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
7. Unprotected Speech
a. Hate Speech
Speech designed to promote hatred on the
basis of race, religion, ethnicity or national
origin
[Rosenfield,
Hate
Speech
in
Constitutional Jurisprudence].
International Covenant on Civil and
Political Rights
The Covenant mandates State Parties to
prohibit by law “[a]ny advocacy of national,
racial or religious hatred that constitutes
incitement to discrimination, hostility or
violence” [ICCPR, Art. 20].
In Philippine jurisdiction, it is arguable that
“hate speech” is not protected speech. In
Diocese of Bacolod v. COMELEC, the Court
recognized that the right to freedom of
expression is not absolute [and that] some
forms of speech are still subject to some
restrictions.
b. Defamation and Libel
Libel
Libel is not constitutionally protected speech.
The government has an obligation to protect
individuals from defamation [Disini v. Sec. of
Justice, supra].
The onus of proving malice shifts to the plaintiff,
who must prove that the defendants were
actuated by ill will in what they caused to be
published, with a design to injure the plaintiff.
In US v. Bustos, supra, a criminal action was
instituted against defendants for allegedly
publishing writings which were libelous against
a justice of the peace. The SC held that the
said writings constitute qualifiedly privileged
matter as public opinion, therefore, they cannot
be presumed malicious.
In In Re: Jurado [A.M. No. 93-2-037 SC
(1995)], the SC held that false reports about a
public official or other person are not shielded
from sanction by the right to free speech. Free
speech has never countenanced the
publication of falsehoods, especially the
persistent and unmitigated dissemination of
patent lies.
Group Libel
Where the defamation is alleged to have been
directed at a group or class, it is essential that
the statement must be so sweeping or allembracing as to apply to every individual in that
group or class, or sufficiently specific so that
each individual in the class or group can prove
that the defamatory statement specifically
pointed to him, so that he can bring the action
separately, if need be [Newsweek, Inc. v. IAC,
G.R. No. L-63559 (1986)].
As the size of these groups increases, the
chances for members of such groups to
recover damages for tortious libel become
elusive. This principle is said to embrace two
important public policies:
1. Where the group referred to is large, the
courts presume that no reasonable reader
would take the statements as so literally
applying to each individual member; and
2. The
limitation
on
liability
would
satisfactorily safeguard freedom of speech
and expression, as well as of the press,
effecting a sound compromise between the
conflicting fundamental interests involved
in libel cases [MVRS v. Islamic Da’wah
Council of the Philippines, G.R. No.
135306 (2003)].
c. Sedition and Speech in Relation to
Rebellion
Heckler’s Veto
Heckler’s veto is an attempt to limit unpopular
speech. This occurs when an acting party’s
right to freedom of speech is curtailed or
restricted by the government in order to
prevent a reacting party’s behavior.
For example, an unpopular group wants to hold
a rally and asks for a permit. The government
is not allowed to refuse the permit based on the
beliefs of the applicants, but the government
may deny the permit on the ground of fear that
many people will be outraged and cause
violent protests, not because the government
disapproves of the group’s message.
Page 136 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
Under the free speech clause, the government
may not silence speech based on the reaction
(or anticipated reaction) of a hostile audience,
unless there is a clear and present danger
of grave and imminent harm, which is not
easy to prove.
d. Obscenity/Pornography
Obscenity
The State in pursuing its mandate to protect, as
parens patriae, the public from obscene,
immoral and indecent materials must justify the
regulation or limitation.
One such regulation is Article 201 of the
Revised Penal Code. To be held liable, the
prosecution must prove that (a) the materials,
publication, picture or literature are obscene;
and (b) the offender sold, exhibited, published
or gave away such materials. Necessarily, that
the confiscated materials are obscene must be
proved
Various Tests Previously Developed to Determine Obscenity
Roth v. US
Memoirs v. Massachusetts
Whether, to the average A work is obscene if:
person, applying contemporary 1. The dominant theme of the
community standards, the
material taken as a whole
dominant theme of the material,
appeals to prurient interest
taken as a whole, appeals to
in sex;
prurient interest [354 US 476 2. Material
is
patently
(1957)].
offensive
because
it
affronts
contemporary
community
standards
relating to the description or
representation of sexual
matters;
3. Material is utterly without
redeeming social value
[383 US 413 (1966)].
Freedom of Expression and Obscenity
Determination: Community Standard
Pictures depicting inhabitants of the country in
their native dress as they appear and can be
seen in the regions in which they live are not
obscene or indecent. The pictures in question
merely depict persons as they actually live,
without attempted presentation of persons in
unusual postures or dress [People v. Kottinger,
G.R. No. 20569 (1923)].
A dance portraying the life of a widow who lost
her husband cannot be considered protected
speech if the audience, about a hundred
customers, was howling and shouting, “sige
Miller v. California (Most
recent)
A work is obscene if:
1. Whether
the
average
person,
applying
contemporary community
standards, would find that
the work, taken as a whole,
appeals to the prurient
interest;
2. Whether the work depicts or
describes, in an offensive
way, sexual conduct or
excretory
functions,
specifically defined by
applicable state law; and
3. Whether the work, taken as
a whole, lacks serious
literary, artistic, political, or
scientific value [413 US 15
(1973)].
muna, sige nakakalibog” (go ahead, go ahead,
it is erotic), during the performance [People v.
Aparici, 52 OG 249 (1955)].
Child Pornography
The State is entitled to greater leeway in the
regulation of pornographic depictions of
children because:
a. A state’s interest in safeguarding the
physical and psychological well-being of a
minor is compelling. The prevention of
sexual exploitation and abuse of children
constitutes a government objective of
surpassing importance.
Page 137 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
b. Distribution of photographs and films
depicting sexual activity by juveniles is
intrinsically related to the sexual abuse of
children.
and
selling
of
child
c. Advertising
pornography provide an economic motive
for, and are thus an integral part of, the
production of such materials.
d. Value of permitting live performances and
photographic reproductions of children
engaged in lewd sexual conduct is
exceedingly modest.
profession of faith to an active power that binds
and elevates man to his Creator. Twenty years
later, the Court cited the Aglipay definition in
American Bible Society v. City of Manila, a
case involving the Free Exercise clause. The
latter also cited the American case of Davis in
defining religion, viz: “(i)t has reference to one’s
views of his relations to His Creator and to the
obligations they impose of reverence to His
being and character and obedience to His Will”
[Estrada v. Escritor, A.M. No. P-02-1651
(2003)].
G. Freedom of Religion
Note: The Davis definition has been expanded
to include non-theistic beliefs, but only in U.S.
jurisprudence [Estrada v. Escritor, supra].
Article III, Section 5. No law shall be made
respecting an establishment of religion; or
prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall
forever be allowed. No religious test shall be
required for the exercise of civil or political rights.
1. Non-Establishment Clause
Article II, Section 6. The separation of Church and
State shall be inviolable.
Article IX-C, Section 2(5). Religious denominations
and sects shall not be registered [as political
parties].
Article VI, Section 5(2). For three consecutive
terms after the ratification of this Constitution, onehalf of the seats allocated to party-list
representatives shall be filled, as provided by law,
by selection or election from [...] sectors as may be
provided by law, except the religious sector.
Purpose
The twin clauses of free exercise and nonestablishment express an underlying relational
concept of separation between religion and
secular government. [Bernas].
Concept of Religion
“In Philippine jurisprudence, religion, for
purposes of the religion clauses, has thus far
been interpreted as theistic. In 1937, the
Philippine case of Aglipay v. Ruiz involving the
Establishment Clause, defined religion as a
Non-Establishment Clause
The clause prohibits excessive government
entanglement with endorsement or disapproval
of religion [Victoriano v. Elizalde Rope Workers
Union, G.R. No. L-25246 (1974)].
Principle of Separation of Church and
State
The principle of separation of Church and State
is based on mutual respect. Generally, the
State cannot meddle in the internal affairs of
the church, much less question its faith and
dogmas or dictate upon it. It cannot favor one
religion and discriminate against another. On
the other hand, the church cannot impose its
beliefs and convictions on the State and the
rest of the citizenry. It cannot demand that the
nation follow its beliefs, even if it sincerely
believes that they are good for the country”
[Spouses Imbong v. Ochoa, Jr., G.R. No.
204819 (2014), on the constitutionality of the
RH Law].
Separation
Protects the principle of church-separation with
a rigid reading of the principle.
Strict Separation
● The wall of separation is meant to protect
the state from the church.
● There is an absolute barrier to formal
interdependence of religion and state.
● There is hostility between the two.
Page 138 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
Strict Neutrality or Tamer Separation
● Requires the state to be neutral in its
relation with groups of religious believers;
the relationship is not necessarily
adversarial.
● Allow for interaction between church and
state, but is strict with regard to state action
which would threaten the integrity of
religious commitment.
● The basis of government action has a
secular criteria and religion may not be
used as a basis for classification of
purposes.
● Public policy and the constitution require
the government to avoid religion-specific
policy.
Acts not Permitted by Non-Establishment
Clause
● Prayer and Bible-reading in public schools
[Abington School District v. Schemp, 374
US 203 (1963)].
● Financial subsidy for parochial schools
[Lemon v. Kurtzman, 403 US 602 (1971)].
● Religious displays in public spaces:
Display of granite monument of 10
commandments in front of a courthouse is
unconstitutional for being unmistakably
non-secular [Glassroth v. Moore, 335 F.3d
1282 (2003)].
● Mandatory religious subjects or prohibition
of secular subjects (evolution) in schools
[Epperson v. Arkansas, 393 US 97 (1968)].
● Mandatory bible reading in school (a form
of preference for belief over non-belief)
[Abington School District v. Schempp,
supra].
Jurisprudence
The non-establishment of religion clause is not
equivalent to indifference to religion. It bears to
emphasize that the Constitution establishes
separation of the Church and the State, and not
separation of religion and state [Peralta v.
Philippine Postal Corporation, G.R. No.
223395 (2018)].
The Constitutional “wall” between the Church
and the State, has been jurisprudentially
recognized to stem from the country’s
unfortunate collective experience when the two
institutions are commingled into one entity,
exercising both power and influence,
oftentimes to the detriment of the populace.
However, as apparent from the Constitution,
the “wall” between the Church and the State
exists along with the recognition of freedom of
religion. In fact, review of jurisprudence would
reveal that this Court has carefully weighed
these principles as to allow the broadest
exercise of religious freedom without infringing
the non-establishment clause [Peralta].
Permissible
Acts;
Constitutionally
Created
Tax Exemption
Article VI, Section 28(3). Charitable institutions,
churches and personages or convents appurtenant
thereto, mosques, non-profit cemeteries, and all
lands, buildings, and improvements, actually,
directly, and exclusively used for religious,
charitable, or educational purposes shall be exempt
from taxation.
Operation of Sectarian Schools
Article XIV, Section 4(2). Educational institutions,
other than those established by religious groups and
mission boards, shall be owned solely by citizens of
the Philippines or corporations or associations at
least sixty per centum of the capital of which is
owned by such citizens.
Religious Instruction in Public Schools
Article XIV, Section 3(3). At the option expressed
in writing by the parents or guardians, religion shall
be allowed to be taught to their children or wards in
public elementary and high schools within the
regular class hours by instructors designated or
approved by the religious authorities of the religion
to which the children or wards belong, without
additional cost to the Government.
Limited Public Aid to Religion
Article VI, Section 29(2). No public money or
property shall be appropriated, applied, paid, or
employed, directly or indirectly, for the use, benefit,
or support of any sect, church, denomination,
sectarian institution, or system of religion, or of any
priest, preacher, minister, other religious teacher, or
dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the
armed forces, or to any penal institution, or
government orphanage or leprosarium.
Page 139 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
Free Exercise Clause
a. Freedom to believe – Absolute
b. Freedom to act on one’s belief – Subject to
regulation
Conduct remains subject to regulation for the
protection of society. The freedom to act must
have appropriate definitions to preserve the
enforcement of that protection. In every case,
the power to regulate must be so exercised, in
attaining a permissible end, as not to unduly
infringe on the protected freedom.
In a nutshell, the Constitution guarantees the
freedom to believe absolutely, while the
freedom to act based on belief is subject to
regulation by the State when necessary to
protect the rights of others and in the interest of
public welfare [Valmores v. Achacoso, G.R.
No. 217453 (2017)].
Laws and Acts Justified under the Free
Exercise Clause
● Exemption from flag salute in school
[Ebralinag v. Division Superintendent of
Schools of Cebu, G.R. No. 95770 (1993)].
● Freedom to propagate religious doctrines.
The power to tax the exercise of the
privilege is the power to control or suppress
its enjoyment [American Bible Society v.
City of Manila, G.R. No. L-9637 (1957)].
● Non-disqualification of religious leaders
from local government office [Pamil v.
Teleron, G.R. No. L-34854 (1978)].
● Working hours from 7:30am to 3:30pm
without break during Ramadan [Re:
Request of Muslim Employees in the
Different Courts of Iligan City, A.M. No. 022-10-SC (2005)].
● Exemption from administrative charge on
immorality: Cohabiting with a married man
with church sanction evidenced by a
document of “Declaration of Pledging
Faithfulness” [Estrada v. Escritor, supra].
2. Benevolent
Neutrality
Conscientious Objector
and
Benevolent Neutrality and the Doctrine of
Accommodation
● It protects religious realities, tradition, and
established practice with a flexible reading
of the principle of separation of church and
state.
●
●
●
The Doctrine of Accommodation allows the
government to take religion into account
when creating government policies to allow
people to exercise their religion without
hindrance. The government may take
religion into account to exempt, when
possible, from generally applicable
governmental regulation individuals whose
religious beliefs and practices would be
infringed, or to create without state
involvement, an atmosphere in which
voluntary religious exercise may flourish.
The breach in the wall between church and
state is allowed in order to uphold religious
liberty, which is the integral purpose of the
religion clauses. The purpose of
accommodation is to remove the burden on
a person’s exercise of his religion.
Although morality contemplated in laws is
secular, benevolent neutrality could allow
for accommodation of morality based on
religion, provided it does not offend
compelling state interests [Estrada v.
Escritor, supra].
The Use of Benevolent Neutrality as a
Standard Could Result in Three
Situations of Accommodation:
Mandatory Accommodation
Those where the accommodation is required to
preserve free exercise protections and not
unconstitutionally infringe on religious liberty or
create penalties for religious freedom.
Permissive Accommodation
The state may, but is not required to,
accommodate religious interests.
Prohibited Accommodation
It is when establishment concerns prevail over
potential accommodation interests [Estrada v.
Escritor, supra].
Note: In Estrada v. Escritor, the petitioner filed
a complaint against the respondent, who was a
court employee, praying for her dismissal on
account of immorality for cohabiting with a man
not her husband. The respondent claims that
their arrangement is permitted by her religion.
Page 140 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
Estrada is a carefully crafted doctrine, the use
of which is limited for the protection of religious
minorities.
●
Conscientious Objectors
●
Conscientious Objector in the RH Law
Sections 7, 23, and 24 of R.A. No. 10354
(Reproductive Health Law) impose upon the
conscientious objector the duty to refer the
patient seeking reproductive health services to
another medical practitioner.
A conscientious objector should be exempt
from compliance with the mandates of the RH
Law. If he is compelled to act contrary to his
religious belief and conviction, it would be
violative of “the principle of non-coercion”
enshrined in the constitutional right to free
exercise of religion.
The Court found no compelling state interest
which would limit the free exercise of
conscientious objectors. Only the prevention of
an immediate danger to the security and
welfare of the community can justify the
infringement of religious freedom [Spouses
Imbong v. Ochoa, Jr., supra].
Test to Determine the Constitutionality of
Policies
Challenged
under
the
Establishment Clause (Lemon Test)
a. The statute must have a secular legislative
purpose;
b. Its primary or principal effect must be one
that neither advances nor inhibits religion;
c. The statute must not foster an excessive
entanglement with religion [Estrada v.
Escritor, supra].
Jurisprudence
● Religious
activities
with
secular
purpose/character. – Postage stamps
depicting the Philippines as the site of a
significant religious event – promotes
Philippine tourism [Aglipay v. Ruiz, G.R.
No. 45459 (1937)].
● Government sponsorship of town fiestas. –
has secular character [Garces v. Estenzo,
G.R. No. L-53487 (1981)].
● Book lending program for students in
parochial schools. – benefit to parents and
●
students [Board of Education v. Allen, 392
US 236 (1968)].
Display of crèche in a secular setting –
depicts origins of the holiday [Lynch v.
Donnelly, 465 US 668 (1984)].
Financial support for secular academic
facilities (i.e., library and science center) in
parochial schools – has secular use [Tilton
v. Richardson, 403 US 672 (1971)].
Exemption from zoning requirements to
accommodate
unique
architectural
features of religious buildings i.e.,
Mormon’s tall-pointed steeple [Martin v.
Corporation of the Presiding Bishop, 434
Mass. 141 (2001)].
3. Tests to Determine the Validity of
Governmental Regulation
a. Clear and Present Danger
Used for religious speech.
In order to justify restraint the court must
determine whether the expression presents a
clear and present danger of any substantive
evil, which the state has a right to prevent
[American Bible Society v. City of Manila,
supra, citing Tañada and Fernando on the
Constitution of the Philippines, Vol. 1, 4th ed.,
p. 297].
b. Compelling State Interest
Benevolent Neutrality
Under the Benevolent Neutrality Doctrine, this
is the proper test where conduct arising from
religious belief is involved.
1. Has the government’s action created a
burden on the free exercise? Court must
look into sincerity (but not truth) of belief.
2. Is there a compelling state interest to justify
the infringement?
3. Are the means to achieve the legitimate
state objective the least intrusive [Estrada
v. Escritor, supra]?
Page 141 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
H. Liberty of Abode and Right to
Travel
Article III, Section 6. The liberty of abode and of
changing the same within the limits prescribed by
law shall not be impaired except upon lawful order
of the court. Neither shall the right to travel be
impaired except in the interest of national security,
public safety or public health, as may be provided
by law.
1. Scope and Limitations
Scope
Freedom of movement includes two rights:
1. Liberty of abode
2. Liberty of travel
Limitations
a. Liberty of Abode
May be impaired only upon lawful order of the
court.
The court itself is to be guided by the limits
prescribed by law.
A condition imposed by the court in connection
with the grant of bail is an example of a valid
limitation to liberty.
b. Liberty of Travel
May be impaired even without a lawful order of
the court.
The right to travel may be impaired, if
necessary, in interest of national security,
public safety or public health. Apart from the
presence of these exclusive grounds, there is
a further requirement that there must be a law
authorizing the impairment. The requirement
for a law ensures that the necessity for the
impairment has undergone the validation and
deliberation of Congress before its enactment.
The strict requirement for the concurrence of
these two elements are formidable enough to
serve as safeguard in the full enjoyment of the
right to travel. [Garcia v. Sandiganbayan, G.R.
Nos. 205904-06 (2018)].
POLITICAL LAW
Right to Travel
To “restrict” is to restrain or prohibit a person
from doing something, to “regulate” is to govern
or direct according to rule [OCA v. Macarine,
A.M. No. MTJ-10-1770 (2012)].
A person’s right to travel is subject to usual
constraints imposed by the very necessity of
safeguarding the system of justice [Marcos v.
Sandiganbayan, G.R. Nos. 115132-34 (1995)].
Proclamation No. 475 does not constitute an
impairment of the right to travel. Any bearing
that Proclamation No. 475 may have on the
right to travel is merely corollary to the closure
of Boracay and the ban of tourists and nonresidents therefrom which were necessary
incidents of the island’s rehabilitation [Zabal v.
Duterte, G.R. No. 238467 (2019)].
Several laws recognized as constituting an
impairment on the right to travel which directly
impose restriction on the right, viz.:
● The law restricts the right to travel of an
individual charged with the crime of
terrorism even though such person is out
on bail [The Human Security Act of 2007 or
R.A. No. 9372].
● Pursuant to said law, the Secretary of
Foreign Affairs or his authorized consular
officer may refuse the issuance of, restrict
the use of, or withdraw, a passport of a
Filipino citizen [The Philippine Passport Act
of 1996 or R.A. No. 8239].
● Pursuant to the provisions thereof, the
Bureau of Immigration, in order to manage
migration and curb trafficking in persons,
issued Memorandum Order Radjr No.
2011-011, allowing its Travel Control and
Enforcement Unit to ‘offload passengers
with fraudulent travel documents, doubtful
purpose of travel, including possible
victims of human trafficking’ from our ports
[The Anti-Trafficking in Persons Act of
2003 or R.A. No. 9208].
● In enforcement of said law, the Philippine
Overseas Employment Administration
(POEA) may refuse to issue deployment
permit[s] to a specific country that
effectively prevents our migrant workers to
enter such country [The Migrant Workers
and Overseas Filipinos Act of 1995 or R.A.
No. 8042, as amended by R.A. No. 10022].
Impairment of this liberty is subject to judicial
review.
Page 142 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
2. Watch-List and Hold Departure
Orders
There was no legal basis for Department
Circular No. 41 because of the absence of a
law authorizing the Secretary of Justice to
issue Hold Departure Orders (HDO), Watch
List Orders (WLO), or Allow Departure Order
(ADO).
The Court ruled that the issuance of DOJ
Circular No. 41, without a law to justify its
action, is an unauthorized act of the DOJ of
empowering itself under the pretext of dire
exigency or urgent necessity. [Genuino v. De
Lima, G.R. No. 197930 (2018)].
Note: the following have been struck down by
the Supreme Court as unconstitutional in
[Genuino v. De Lima, supra] but is included in
the bar syllabus.
Watch List Orders v. Hold Departure Orders
Watch List Orders
Hold Departure Orders
Against whom issued
a. Accused in criminal cases (irrespective of
nationality in the RTC or below);
b. The respondent, irrespective of nationality,
in cases pending before the DOJ or any of
its provincial or city prosecution offices;
c. Any person, motu proprio, upon the request
of any government agency, including
commissions, task forces or similar entities
created by the Office of the President,
pursuant to the Anti-Trafficking in Persons
Act of 2003 and/or in connection with any
investigation being conducted by it, or in the
interest of national security, public safety or
public health.
a. Accused on criminal cases (irrespective of
nationality in courts below RTC);
b. Aliens (defendant, respondent, and witness
in pending civil or labor case, or any case
pending before an administrative agency of
the government); and
c. Any person motu proprio by the Secretary
of Justice or request of heads of
departments, Constitutional Commissions,
Congress, or Supreme Court.
Issuing authority
Secretary of Justice [Department Circular No. 41, June 7, 2010]
A hold departure order is but an exercise of the
[Sandiganbayan’s] inherent power to preserve
and to maintain the effectiveness of its
jurisdiction over the case and the person of the
accused [Santiago v. Vasquez, G.R. Nos.
99289-90 (1993)].
Holding an accused in a criminal case within
the reach of the courts by preventing his
departure from the Philippines must be
considered as a valid restriction on his right to
travel so that he may be dealt with in
accordance with law [Silverio v. CA, G.R. No.
94284 (1991)].
Precautionary Hold Departure Order
It is an order in writing issued by a court,
commanding the Bureau of Immigration to
prevent any attempt by a person suspected of
a crime to depart from the Philippines which
shall be issued ex-parte in cases involving
crimes where the minimum of the penalty
prescribed by law is at least six years and one
day or when the offender is a foreigner
regardless of the imposable penalty [Rule on
Precautionary Hold Departure Order, A.M. No.
18-07-05-SC, Sec. 1].
Who Files an Application for a PHDP?
Prosecutor.
Page 143 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
Where Filed?
General Rule: A PHDO is filed with any RTC
within whose territorial jurisdiction the alleged
crime was committed.
Exceptions: For compelling reasons, it can be
filed with ANY RTC within the judicial region
where the crime was committed if the place of
the commission of the crime is known.
Article XVI, Section 10. The State shall provide the
policy environment for the full development of
Filipino capability and the emergence of
communication structures suitable to the needs and
aspirations of the nation and the balanced flow of
information into, out of, and across the country, in
accordance with a policy that respects the freedom
of speech and of the press.
1. Scope and Limitations
The RTCs in the City of Manila, Quezon City,
Cebu City, Iloilo City, Davao City and Cagayan
de Oro City shall also have the authority to act
on the applications filed by the prosecutor
based on complaints instituted by the NBI,
regardless where the alleged crime was
committed [Rule on Precautionary Hold
Departure Order, A.M. No. 18-07-05-SC, Sec.
2].
Conditions for the issuance of a PHDO
1. Probable cause exists as determined by
the judge in whose court the application is
filed; and
2. There is a high probability that the
respondent will depart from the Philippines
to evade arrest and prosecution of crime
against him or her.
Validity of the PHDO
The order shall be valid until lifted by the
issuing court as may be warranted by the
preliminary
investigation
[Rule
on
Precautionary Hold Departure Order, A.M. No.
18-07-05-SC, Sec. 6].
I. Right to Information
Article III, Section 7. The right of the people to
information on matters of public concern shall be
recognized. Access to official records, and to
documents and papers pertaining to official acts,
transactions, or decisions, as well as to government
research data used as basis for policy development,
shall be afforded the citizen, subject to such
limitations as may be provided by law.
Article II, Section 28. Subject to reasonable
conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its
transactions involving public interest.
Policy of Full Public Disclosure
● Covers all transactions involving public
interest, including any matter contained in
official communications and public
documents of the government agency.
● Does not require demand.
● Pertains to duty to disclose of the
government, pursuant to the policy of full
public disclosure [Art. II, Sec. 28].
Right to Information on Matters of Public
Concern
● Covers matters of public concern [Art. III,
Sec. 7].
The people’s right to information is not
absolute. The constitutional guarantee to
information “does not open every door to any
and all information” [Legaspi v. CSC, G.R. No.
72119 (1987)]. It is limited to matters of public
concern, and is subject to such limitations as
may be provided by law. Also, the State’s policy
of full disclosure is restricted to transactions
involving public interest, and is further subject
to reasonable conditions prescribed by law
[Sereno v. CTRM-NEDA, G.R. No. 175210
(2016)].
There is no rigid test in determining whether or
not a particular information is of public concern
or public interest. Both terms cover a wide
range of issues that the public may want to be
familiar with either because the issues have a
direct effect on them or because the issues
“naturally arouse the interest of an ordinary
citizen.” As such, whether or not the
information sought is of public interest or public
concern is left to the proper determination of
the courts on a case-to-case basis [Sereno v.
CTRM-NEDA, supra].
Page 144 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
Right to Information Covers Matters of
Public Concern:
1. Official records
2. Documents pertaining to official acts
3. Government research date used as basis
for policy development
6. Offers exchanged during diplomatic
negotiations [Akbayan Citizens Action
Party v. Aquino, G.R. No. 170516 (2008)]
7. Other confidential matters (i.e., RA 6713,
closed door Cabinet meetings, executive
sessions, or internal deliberations in the
Supreme Court) [Chavez v. PCGG,
supra]
Matters
of
Public
Concern
in
Jurisprudence
● Loanable funds of GSIS [Valmonte v.
Belmonte, Jr. G.R. No. 74930 (1989)]
● Civil service eligibility of sanitarian
employees [Legaspi v. CSC, supra]
● Appointments made to public offices and
the utilization of public property [Gonzales
v. Narvasa, G. R. No. 140835 (2000)]
● National board examinations such as the
CPA Board Exams [Antolin v. Domondon,
G.R. No.165036 (2010)]
● Presidential and Vice-Presidential Debates
[Rappler, Inc. v. Bautista, G.R. No. 222702
(2016)]
Two requisites must concur before the
right to information may be compelled by
writ of mandamus:
1. The information sought must be in relation
to matters of public concern or public
interest;
2. It must not be exempt by law from the
operation of the constitutional guarantee
[Sereno v. CTRM-NEDA, supra].
c. Based on Availability
The right is available only to citizens.
Restrictions to Right to Information
The right of the people to information must be
balanced against other genuine interests
necessary for the proper functioning of the
government [Bernas].
1. Concept
a. Based on Kinds of Information;
Exempted information
information
rooted
in
1. Privileged
separation of powers
2. Information of military and diplomatic
secrets
3. Information affecting national and
economic security
4. Information on investigations of crimes by
law enforcers before prosecution [Chavez
v. PEA and Amari, G.R. No. 133250
(2002)]
5. Trade secrets and banking transactions
[Chavez v. PCGG, G.R. No. 130716
(1998)]
b. Based on Access
1. Opportunity to inspect and copy records
at his expense [Chavez v. PEA and
Amari, supra]
2. Not the right to compel custodians of
official records to prepare lists, abstracts,
summaries and the like [Valmonte v.
Belmonte, Jr., supra]
In case of denial of access, the government
agency has the burden of showing that the
information requested is not of public concern,
or if it is of public concern, that the same has
been exempted by law from the operation of
the guarantee [Legaspi v. CSC, supra].
J. Eminent Domain
Article III, Section 9. Private property shall not be
taken for public use without just compensation.
The power of eminent domain is the inherent
right of the State to forcibly acquire needed
property upon just compensation, in order to
devote it to the intended public use [Cruz].
It is also called the power of expropriation.
Section 9, Article III merely imposes a limit on
the government’s exercise of this power
[Republic v. Tagle, G.R. No. 129079 (1998)].
The exercise of the right of eminent domain,
whether directly by the State or by its
authorized agents, is necessarily in derogation
of private rights. The authority to condemn is to
be strictly construed in favor of the owner and
against the condemnor. When the power is
granted, the extent to which it may be
Page 145 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
exercised is limited to the express terms or
clear implication of the statute in which the
grant is contained [National Power Corp. v.
Tarcelo, G.R. No. 198139 (2014)].
Who May Exercise
The repository of eminent domain powers is
the legislature (i.e., exercised through the
enactment of laws). But the power of eminent
domain may be delegated to LGUs and other
government entities (via charter); however,
such delegation must be made by law
[Manapat v. CA, G.R. No. 110478 (2007)].
Under the existing laws, the following
may exercise the power of expropriation:
1. Congress
2. President
3. Local legislative bodies
4. Certain public corporations, like the
National Housing Authority (NHA) and
water districts [Metropolitan Cebu Water
District v. J. King and Sons Company, Inc.,
G.R. No. 175983 (2009)]
5. Quasi-public
corporations
like
the
Philippine National Railways (PNR), PLDT,
and Meralco
Requisites for Valid Exercise
1. Private property;
2. Genuine necessity — Inherent/presumed
in legislation, but when the power is
delegated (e.g., LGUs), necessity must be
proven;
3. For public use - Court has adopted a broad
definition of “public use”;
4. Payment of just compensation;
5. Due process [Manapat v. CA, supra].
How Exercised
Our laws require that the State’s power of
eminent domain shall be exercised through
expropriation proceedings in court. Whenever
private property is taken for public use, it
becomes the ministerial duty of the concerned
office or agency to initiate expropriation
proceedings [Department of Transportation
and Communication v. Sps. Abecina, G.R. No.
206484 (2016)].
Prior filing of an expropriation case is a
condition sine qua non before the government
is allowed to enter the property being reclaimed
and without which, the government’s
possession over the subject property becomes
illegal [Secretary of the Department of Public
Works and Highways v. Sps. Tecson, G.R. No.
179334 (2015)].
However, full payment of just compensation is
not a prerequisite for the Government’s
effective taking of the property. When the
taking of the property precedes the payment of
just compensation, the Government shall
indemnify the property owner by way of interest
[Republic v. Mupas, G.R. No. 181892 (2015)].
Taking vs. Transfer of Title
There is taking when the owner is actually
deprived or dispossessed of his property, or
when there is a practical destruction or a
material impairment of the value of his
property, or when he is deprived of the ordinary
use thereof [Republic v. Heirs of Borbon, 750
Phil. 37-56 (2015), citing Ansaldo v. Tantuico,
Jr., 266 Phil. 319 (1990)].
Two Phases of Expropriation:
a. The condemnation of the property after it is
determined that its acquisition will be for a
public purpose or public use; and
b. The determination of just compensation to
be paid for the taking of private property to
be made by the court with the assistance of
not more than three commissioners
[Republic v. Mupas, supra].
Eminent Domain vs. Regulatory Taking
a. Eminent domain is an inherent power of the
state. Just compensation must be paid.
b. Regulatory taking is done in the exercise of
the state’s police power. In this case, just
compensation need not be paid.
Examples from Jurisprudence
The imposition of an aerial easement of rightof-way was held to be compensable taking.
The exercise of the power of eminent domain
does not always result in the taking or
appropriation of title to the expropriated
property; it may also result in the imposition of
a burden upon the owner of the condemned
property, without loss of title or possession
[National Power Corporation v. Gutierrez, G.R.
No. 60077 (1991)].
Page 146 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
A municipal ordinance prohibiting a building
which would impair the view of the plaza from
the highway was considered regulatory taking
[People v. Fajardo, G.R. No. L-12172 (1958)].
2. Public Use
Any use directly available to the general public
as a matter of right and not merely of
forbearance of accommodation.
Public use may also cover uses which, while
not directly available to the public, redound to
their indirect advantage or benefit.
The requirement of public use is deemed
satisfied because of the vicarious advantages
enjoyed by the people as a whole, by the
promotion of social justice objectives (e.g.,
equitable diffusion of property ownership;
agrarian reform; enhancement of the dignity;
welfare and security of the underprivileged).
Under the new concept, “public use” means
public advantage, convenience or benefit,
which tends to contribute to the general welfare
and the prosperity of the whole community, like
a resort complex for tourists or housing project
[Heirs of Juancho Ardona v. Reyes, G.R. Nos.
L-60549, 60553-60555 (1983); Sumulong v.
Guerrero, G.R. No. L-48685 (1987)].
3. Just Compensation
a. Definition
The property’s fair market value at the time of
the filing of the complaint, or that sum of money
which a person desirous to buy but not
compelled to buy, and an owner willing but not
compelled to sell, would agree on as price to
be given and received therefor [National Power
Corporation v. De Veyra, G.R. No. L-15763
(2008)].
b. Determination
Compensation
of
Just
Determination of just compensation is a judicial
function that cannot be “usurped by any other
branch or official of the government” [National
Power Corporation v. Sps. Zabala, G.R. No.
173520 (2013)].
No legislative enactments or executive
issuances can prevent the courts from
determining whether the right of the property
owners to just compensation has been
violated.
Section 3(a) of R.A. No. 6395, which limits its
liability to easement fee of not more than 10%
of the market value of the property traversed by
its transmission lines, cannot restrict the
constitutional power of the courts to determine
just compensation.
Statutes and executive issuances fixing or
providing for the method of computation just
compensation are not binding on courts and, at
best, are treated as mere guidelines in
ascertaining the amount thereof.
General Rule: Just compensation is
determined as of the date of the taking of the
property, or the filing of the complaint,
whichever came first [Sec. 4, Rule 67, Rules of
Court]. If the filing of the complaint takes place
at the same time as the taking or entry, it is
computed at the time of filing [City of Iloilo v.
Judge Contreras-Besana, G.R. No. 168967
(2010)].
When the taking of the property sought to be
expropriated
coincides
with
the
commencement
of
the
expropriation
proceedings, or takes place subsequent to the
filing of the complaint for eminent domain, the
just compensation should be determined as of
the date of the filing of the complaint [City of
Iloilo v. Judge Contreras-Besana, supra].
Exception: When the property is taken before
the filing of the complaint, assessment should
be made as of the time of taking or entry.
The Court uniformly ruled in Secretary of the
Department of Public Works and Highways v.
Sps. Tecson [G.R. No. 179334 (2013)] that in
a long line of cases, the fair market value of the
property at the time of taking is controlling for
purposes of determining just compensation
[Estate of Rodriguez v. National Transmission
Corporation, G.R. No. 245377 (2020)].
In cases where the fair market value of the
property is difficult to ascertain, the court may
use other just and equitable market methods of
valuation in order to estimate the fair market
Page 147 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
value of the property [Republic v. Mupas,
supra].
In order to determine just compensation, the
trial court should first ascertain the market
value of the property by considering the cost of
acquisition, the current value of like properties,
its actual or potential uses, and in the particular
case of lands, their size, shape, location, and
the tax declarations thereon [Republic v. Sps.
Salvador, G.R. No. 205428 (2017)].
If as a result of the expropriation, the remaining
lot suffers from an impairment or decrease in
value, consequential damages may be
awarded by the trial court, provided that the
consequential benefits which may arise from
the expropriation do not exceed said damages
suffered by the owner of the property [Republic
v. Sps. Salvador, supra].
Prevailing Rate of Interest
6% per annum [BSP Circular No. 799 (s. 2013),
effective July 1, 2013] .
Just compensation contemplates just and
prompt payment, and ‘prompt’ payment, in
turn, requires the payment in full of the just
compensation as finally determined by the
courts.
Absent full payment of just compensation,
interest on the unpaid portion (i.e., the just
compensation determined by the court at the
time the decision becomes final and executory
minus the initial deposit), likewise runs as a
matter of law and follows as a matter of course
[Republic v. Decena, et al., G.R. No. 212786
(2018)]
R.A. No. 8974 Requires the Government
to Pay at Two Stages:
1. Immediately upon the filing of the
complaint, the initial deposit which is 100%
of the value of the property based on the
current relevant zonal valuation of the BIR,
and the value of the improvements and/or
structures sought to be expropriated;
2. The just compensation as determined by
the court, when the decision becomes final
and executory, in which case the
implementing agency shall pay the owner
the
difference
between
the
just
compensation as determined by the court
and the amount already or initially paid
[Republic v. Decena, et al., supra].
c. Effect of Delay
General Rule: For non-payment, the remedy
is the demand of payment of the fair market
value of the property and not the recovery of
possession of the expropriated lots [Republic v.
Court of Appeals, G.R. No. 146587 (2002);
Reyes v. National Housing Authority, G.R. No.
147511 (2003)].
Exception: When the government fails to pay
just compensation within five years from the
finality of the judgment in the expropriation
proceedings, the owners concerned shall have
the right to recover possession of their property
[Republic v. Lim, G.R. No. 161656 (2005)].
4. Expropriation
by
Government Units
Local
Requisites
1. Enactment of an ordinance, not a
resolution;
2. Must be for a public use, purpose or
welfare, or for the benefit of the poor and
the landless;
3. Payment of just compensation;
4. Must be preceded by a valid and definite
offer made to the owner, who rejects the
same [Sps. Yusay v. CA, G.R. No. 156684
(2011)].
K. Right to Association
Article III, Section 8. The right of the people,
including those employed in the public and private
sectors, to form unions, association, or societies for
purposes not contrary to law shall not be abridged.
Article XIII, Section 3. The State shall afford full
protection to labor, local and overseas, organized
and unorganized, and promote full employment and
equality of employment opportunities for all.
It shall guarantee the rights of all workers to selforganization, collective bargaining negotiations, and
peaceful concerted activities including the right to
strike in accordance with law. They shall be entitled
Page 148 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
to security of tenure, humane conditions of work,
and a living wage. They shall also participate in
policy and decision-making processes affecting
their rights and benefits as may be provided by law.
xxx
Article IX-B, Section 2(5). The right to selforganization shall not be denied to government
employees.
How Should the Limitation “For Purposes
not Contrary to Law” be Interpreted?
Unless an association or society could be
shown to create an imminent danger to public
safety, there is no justification for abridging the
right to form associations.
The government must comply with the heavy
burden of showing that the organization in fact
presents a clear and present danger of
substantive evil which the State has the right to
protect [Bernas].
1. Scope and Limitations
The right is recognized as belonging to people
whether employed or unemployed, and
whether in the government or in the private
sector includes the right to unionize.
The State does not infringe on the fundamental
right to form lawful associations when it leaves
to citizens the power and liberty to affiliate or
not affiliate with labor unions [Victoriano v.
Elizalde Rope Workers Union, supra].
Every group has a right to join the democratic
process, association itself being an act of
expression of the member’s belief, even if the
group offends the sensibilities of the majority.
Any restriction to such requires a compelling
state interest to be proven by the State [Ang
Ladlad LGBT Party v. COMELEC, G.R. No.
190582 (2010)].
Political parties may freely be formed although
there is a restriction on their activities [...] but
the ban is narrow, not total. It operates only on
concerted or group action of political parties.
POLITICAL LAW
controversial political issues in order to find
solutions capable of satisfying everyone
concerned. Only if a political party incites
violence or puts forward policies that are
incompatible with democracy does it fall
outside the protection of the freedom of
association guarantee [Ang Ladlad LGBT Party
v. COMELEC, supra].
Freedom not to Associate
Freedom of association presupposes freedom
not to associate [Roberts v. United States
Jaycees, 468 U.S. 609 (1984)].
Government actions that unconstitutionally
burden that right may take many forms, one of
which is intrusion into a group’s internal affairs
by forcing it to accept a member it does not
desire.
Such
forced
membership
is
unconstitutional if the person’s presence
affects in a significant way the group’s ability to
advocate public or private viewpoints [Boy
Scouts of America v. Dale, 530 US 640 (2000)].
L. Non-Impairment of Contracts
Article III, Section 10. No law impairing the
obligation of contracts shall be passed.
1. Scope and Limitations
The non-impairment clause ensures that the
integrity of contracts is protected from any
unwarranted State interference. It ensures that
the terms of a contract mutually agreed upon
by the parties are not tampered with or
modified by a subsequent law [BDO, Inc. v.
ICEC, G.R. Nos. 218485-86 & 218493-97
(2021)].
The non-impairment clause is limited in
application to laws that derogate from prior acts
or contracts by enlarging, abridging or in any
manner changing the intention of the parties
[PADPAO v. COMELEC, G.R. No. 223505
(2017)].
This provision prohibits the passing of a law
that changes the terms of an already existing
contract which:
1. Changes the terms of a contract between
the parties;
A political group should not be hindered solely
because it seeks to publicly debate
Page 149 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
2. Imposes new conditions;
3. Dispenses with those agreed upon; or
4. Withdraws remedies for the enforcement of
the rights of the parties [PADPAO v.
COMELEC, supra].
A change in procedural remedies which does
not diminish substantive rights or increase
substantive obligations does not violate the
guarantee.
Substantial impairment is a law which changes
the terms of a legal contract between parties,
either in the time or mode of performance, or
imposes new conditions, or dispenses with
those expressed, or authorizes for its
satisfaction something different from that
provided in its terms, is law which impairs the
obligation of a contract and is therefore null and
void [Lepanto Consolidated Mining Co. v.
WMC Resources Int’l. Pty. Ltd., G.R. No.
162331 (2006)].
Contemporary Application of the NonImpairment Clause
a. When Non-Impairment Clause Prevails
1. Against the removal of tax exemptions,
where the consideration for the
contract is the tax exemption itself.
2. Regulation on loans. New regulations
on loans making redemption of
property sold on foreclosure stricter are
not allowed to apply retroactively [Co v.
Philippine National Bank, G.R. No. L51767 (1982)]
b. When Non-Impairment Clause Yields
1. Valid exercise of police power (i.e.,
zoning regulation) [Presley v. Bel-Air
Village Association, Inc., G.R. No.
86774 (1991)].
2. Premature campaign ban [Chavez v.
COMELEC, G.R. No. 162777 (2004)].
3. Liquidation of a chartered bank
[Philippine Veterans Bank Employees
Union v. Philippine Veterans Bank,
G.R. No. 67125 (1990)].
4. Statute that exempts a party from any
on class of taxes.
5. Against freedom of religion [Victoriano
v. Elizalde Rope Workers, supra].
6. Judicial or quasi-judicial order.
Examples of Valid Impairment of
Contracts
1. Invalidating contracts concerning forest
lands. Preservation of forest lands could
entail intrusion upon contractual rights if it
is for the benefit of the many [Land Bank of
the Phils. v. Republic, G.R. No. 150824
(2008)].
2. Caps on the rates that cooperatives can
charge [SURNECO v. Energy Regulatory
Commission, G.R. No. 183626 (2010)].
3. Municipal
ordinance,
invalidating
restrictions set by private developers
regarding the use of land [Learning Child,
Inc. v. Ayala Alabang Village Association,
G.R. No. 134269 (2010)].
c. Exclusions
The non-impairment clause is a limit on
legislative power, and not of judicial or quasijudicial power [BPI v. SEC, G.R. No. 164641
(2007)].
Examples of Contracts Not Included in
the Provision:
1. Timber license contracts [Republic v.
Pagadian City Timber Co., Inc., G.R. No.
159308 (2008)].
2. Franchise contracts [PAGCOR v. BIR,
G.R. No. 208731 (2016)].
3. Exercise of quasi-judicial powers of a
department, even if affirmed by the
President [Hacienda Luisita v. PARC, G.R.
No. 171101 (2011)].
Note: Timber licenses, permits, and license
agreements are the principal instruments by
which the State regulates the utilization and
disposition of forest resources to the end that
public welfare is promoted. They are not
deemed contracts within the purview of the due
process of law clause [Oposa v. Factoran, Jr.,
G.R. No. 101083 (1993)].
The Court held that the non-impairment clause
does not apply to the 1992 Memorandum of
Agreement (MOA) between The Government
of the Republic of the Philippines and the
Marcos family. If one Congress cannot limit or
reduce the plenary legislative power of
succeeding Congresses, so, too, the exercise
of executive power by the past president
cannot emasculate that of the incumbent
Page 150 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
president. The discretionary act of the former is
not binding upon and cannot tie the hands of
the latter, who may alter the same” [Ocampo v.
Enriquez, G.R. No. 225973 (2017)].
M. Free Access to Courts and
Adequate Legal Assistance
Article III, Section 11. Free access to the courts
and quasi-judicial bodies and adequate legal
assistance shall not be denied to any person by
reason of poverty.
Rules of Court, Rule 3, Section 21. Indigent party.
— … If the court should determine after hearing that
the party declared as an indigent is in fact a person
with sufficient income or property, the proper docket
and other lawful fees shall be assessed and
collected by the clerk of court.
Rules of Court, Rule 141, Section 19. Indigent
litigants exempt from payment of legal fees. —
Indigent litigants (a) whose gross income and that of
their immediate family do not exceed four thousand
(P4,000.00) pesos a month if residing in Metro
Manila, and three thousand (P3,000.00) pesos a
month if residing outside Metro Manila, and (b) who
do not own real property with an assessed value of
more than fifty thousand (P50,000.00) pesos shall
be exempt from the payment of legal fees.
The legal fees shall be a lien on any judgment
rendered in the case favorably to the indigent
litigant, unless the court otherwise provides.
To be entitled to the exemption herein provided, the
litigant shall execute an affidavit that he and his
immediate family do not earn a gross income above
mentioned, nor they own any real property with the
assessed value aforementioned, supported by an
affidavit of a disinterested person attesting to the
truth of the litigant’s affidavit.
Extending fee exemption to a juridical person
may be prone to abuse by corporations and
entities bent on circumventing the rule thereof.
Indigent Party
A party may be authorized to litigate his action,
claim or defense as an indigent if the court,
upon an ex parte application and hearing, is
satisfied that the party is one who has no
money or property sufficient and available for
food, shelter and basic necessities for himself
and his family.
Such authority shall include an exemption from
payment of docket and other lawful fees, and
of transcripts of stenographic notes which the
court may order to be furnished to him.
If the applicant for exemption meets the salary
and property requirements under Section 19 of
Rule 141, then the grant of the application is
mandatory. When the application does not
satisfy one or both requirements, then the
application should not be denied outright;
instead, the court should apply the “indigency
test” under Section 21 of Rule 3 and use its
sound discretion in determining the merits of
the prayer for exemption [Sps. Algura v. LGU
of Naga City, G.R. No. 150135 (2006)].
Free Access to the Court Does NOT Mean
the Courts Cannot Impose Filing Fees
Exemption of cooperatives from payment of
court and sheriff fees no longer stands.
Cooperatives can no longer invoke R.A. No.
6938, as amended by R.A. No. 9520, as basis
for exemption from the payment of legal fees
[Re: Perpetual Help Community Cooperative,
A.M. No. 12-2-03-0 (2012)].
Any falsity in the affidavit of a litigant or disinterested
person shall be sufficient cause to strike out the
pleading of that party, without prejudice to whatever
criminal liability may have been incurred.
Concept
The Constitution explicitly premised the fee
access clause on a person’s poverty, a
condition from which only a natural person can
suffer.
Page 151 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
N. Custodial Investigation
1. Meaning of Custodial Investigation
Article III, Section 12.
(1) Any person under investigation for the
commission of an offense shall have the right to
be informed of his right to remain silent and to
have competent and independent counsel
preferably of his own choice. If the person
cannot afford the services of counsel, he must
be provided with one. These rights cannot be
waived except in writing and in the presence of
counsel.
(2) No torture, force, violence, threat, intimidation,
or any other means which vitiate the free will
shall be used against him. Secret detention
places, solitary, incommunicado, or other
similar forms of detention are prohibited.
(3) Any confession or admission obtained in
violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
(4) The law shall provide for penal and civil
sanctions for violations of this section as well as
compensation to the rehabilitation of victims of
torture or similar practices, and their families.
Miranda Warning
The person under custodial investigation must
be informed that:
1. He has a right to remain silent and that any
statement he makes may be used as
evidence against him;
2. That he has a right to have competent and
independent counsel of his choice;
3. That he has a right to be informed of the
first two rights.
2. Rights of a Person Under Custodial
Investigation
RA 7438: Rights of Persons Under Custodial
Investigation
Section 1. Statement of Policy. – It is the policy of
the State to value the dignity of every human being
and guarantee full respect for human rights.
Section 2. Rights of Persons Arrested, Detained or
Under Custodial Investigation; Duties of Public
Officers. –
(b) Any public officer or employee, or anyone acting
under his order or his place, who arrests, detains or
investigates any person for the commission of an
offense: 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 officer.
a. Availability
a. When the person is already under
custodial investigation;
b. During “critical pre-trial stages” in the
criminal process.
Custodial Investigation
Involves any questioning initiated by law
enforcement.
When the investigation is no longer a general
inquiry unto an unsolved crime but has begun
to focus on a particular suspect, as when the
suspect has been taken into police custody and
the police carries out a process of interrogation
that lends itself to eliciting incriminating
statements [People v. Marra y Zarate, G.R. No.
108494 (1994)].
Includes issuing an invitation to a person under
investigation in connection with an offense he
is suspected to have committed [Sec. 2, R.A.
No. 7438].
Custodial Investigation Report
a. Reduced to writing by the investigating
officer;
b. It shall be read and adequately explained
to person arrested or detained by counsel
or assisting counsel in a language or
dialect known to him.
Non-compliance with the second requirement
will render the report null and void and of no
effect whatsoever [Sec. 2(c), R.A. No. 7438].
Critical Pre-Trial Stage
Any critical confrontation by the prosecution at
pretrial proceedings where the results might
well determine his fate and where the absence
of counsel might derogate from his right to a
fair trial [U.S. v. Wade, 388 U.S. 218 (1967)].
Page 152 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
Show-up and Police Line-up
General Rule: No right to counsel.
Exception: Right to counsel if accusatory. The
moment there is a move or even an urge of said
investigators
to
elicit
admissions
or
confessions or even plain information which
may appear innocent or innocuous at the time,
from said suspect [Gamboa v. Cruz, G.R. No.
L-56291 (1988)].
Show-up
● Out-of-court identification;
● Accused is brought face-to-face with the
witness for identification.
Police Line-up
● Suspect is identified by witness from a
group of persons gathered for that
purpose;
● When the petitioner was identified by the
complainant at the police line-up, he had
not been held yet to answer for a criminal
offense. The police line-up is not a part of
the custodial inquest, hence, he was not
yet entitled to counsel.
b. Requisites
Effective communication by the investigator of
rights of accused [People v. Agustin, G.R. No.
110290 (1995)].
1. Right to Remain Silent
The warning is needed simply to make the
person under custodial investigation aware of
the existence of the right.
This warning is the threshold requirement for
an intelligent decision as to its exercise.
Further, the warning will show the individual
that his interrogators are prepared to recognize
his privilege should he choose to exercise it.
The warning of the right to remain silent must
be accompanied by the explanation that
anything said can and will be used against the
individual in court. This warning is needed in
order to make him aware not only of the
privilege to remain silent, but also of the
consequences of forgoing it.
2. Right to Counsel
Section 2. Rights of Persons Arrested, Detained or
Under Custodial Investigation; Duties of Public
Officers. – (a) Any person arrested, detained or
under custodial investigation shall at all times be
assisted by counsel.
Competent
and
independent
counsel
preferably of the suspect’s own choice.
Not independent counsel: special counsel,
prosecutor, counsel of the police or a municipal
attorney whose interest is adverse to that of the
accused [People v. Fabro, G.R. No. 95089
(1997)], mayor [People v. Taliman, G.R. No.
109143 (2000)], barangay captain [People v.
Tomaquin, G.R. No. 133188 (2004)].
A lawyer who was applying for work in the NBI
cannot be considered independent because he
cannot be expected to work against the interest
of a police agency he was hoping to join, as a
few months later, he in fact was admitted into
its work force [People v. Januario, G.R. No.
98252 (1997)].
Not competent counsel: lawyer signing only as
witness [People v. Ordoño, G.R. No. 132154
(2000)], mayor of town where accused is
detained [People v. Velarde y Bandojo, G.R.
No. 139333 (2002)].
Failure to ask for a lawyer does not constitute
a waiver.
No effective waiver of the right to counsel
during interrogation can be recognized unless
specifically made after the warnings have been
given.
Request for assistance of counsel before any
interrogation cannot be ignored/denied by
authorities. Not only right to consult with an
attorney but right to be given a lawyer to
represent him if he’s indigent.
Page 153 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
3. Rights to Visitation and Conference
Section 2. Rights of Persons Arrested, Detained or
Under Custodial Investigation; Duties of Public
Officers. – xxx (f) 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 or priest or
religious minister chosen by him or by any member
of his immediate family or by his counsel, or by any
national non-governmental organization duly
accredited by the Commission on Human Rights or
by any international non-governmental organization
duly accredited by the Office of the President. The
person’s “immediate family” shall include his or her
spouse, fiancé or fiancée, parent or child, brother or
sister, grandparent or grandchild, uncle or aunt,
nephew or niece, and guardian or ward.
Burden Of Proving Voluntariness of
Waiver
Presumption is against the waiver. Burden of
proof lies with the prosecution.
Prosecution must prove with strongly
convincing evidence to the satisfaction of the
Court that indeed the accused:
a. Willingly and voluntarily submitted his
confession; and
b. Knowingly and deliberately manifested that
he was not interested in having a lawyer
assist him during the taking of that
confession [People v. Jara, G.R. No. L61356-57 (1986)].
4. Exclusionary Doctrine
3. Requisites of a Valid Waiver
What can be waived?
The right to remain silent and the right to
counsel.
What cannot be waived?
The right to be given the Miranda warnings.
Rule on Waiver [Art. III, Sec. 12]
a. Must be in writing;
b. Made in the presence of counsel.
Section 2. Rights of Persons Arrested, Detained or
Under Custodial Investigation; Duties of Public
Officers. – xxx (c) The custodial investigation report
shall be reduced to writing by the investigating
officer, provided that before such report is signed, or
thumbmarked 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 officer 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.
Any waiver by a person arrested or detained under
the provisions of Article 125 of the Revised Penal
Code, or under custodial investigation, shall be in
writing and signed by such person in the presence
of his counsel; otherwise the waiver shall be null and
void and of no effect.
Exclusionary Rule
According to this rule, once the primary source
(the tree) is shown to have been unlawfully
obtained, any secondary or derivative evidence
(the fruit) derived from it is also inadmissible.
The fruit of the poisonous tree is at least once
removed from the illegally seized evidence, but
it is equally inadmissible. The rule is based on
the principle that evidence illegally obtained by
the State should not be used to gain other
evidence because the originally illegally
obtained evidence taints all evidence
subsequently
obtained
[People
v.
Samontañez, G.R. No. 134530 (2000)].
Violations of the Miranda rights render
inadmissible only the extrajudicial confession
or admission made during the custodial
investigation. The admissibility of other
evidence is not affected even if obtained or
taken in the course of the custodial
investigation [People v. Malimit, G.R. No.
109775 (1996)].
Extrajudicial Confession by a Person
Arrested, Detained or Under Custodial
Investigation
1. Shall be in writing; and
2. Signed in the presence of his counsel or in
the latter’s absence:
a. upon a valid waiver; and
b. in the presence of any of the following:
i.
Any of the parents;
ii.
Older brother and sisters;
iii.
Spouse;
Page 154 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
iv.
v.
vi.
vii.
POLITICAL LAW
Municipal mayor;
Municipal judge;
District school supervisor;
Priest or minister of the gospel as
chosen by him.
Otherwise, such extrajudicial confession shall
be inadmissible as evidence in any proceeding
[Sec. 2d, R.A. No. 7438].
In the absence of a valid waiver, any
confession obtained from the appellant during
the police custodial investigation relative to the
crime, including any other evidence secured by
virtue of the said confession is inadmissible in
evidence even if the same was not objected to
during the trial by the counsel of the appellant
[People v. Samontañez, supra].
d.
e.
f.
O. Rights of the Accused
Article III, Section 14.
(1) No person shall be held to answer for a criminal
offense without due process of law.
(2) In all criminal prosecutions, the accused shall
be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by
himself and counsel, to be informed of the
nature and cause of the accusation against
him, to have a speedy, impartial, and public
trial, to meet the witnesses face to face, and to
have compulsory process to secure the
attendance of witnesses and the production of
evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding
the absence of the accused provided that he
has been duly notified and his failure to appear
is unjustifiable.
Rules of Court, Rule 115, Section 1. Rights of
accused at the trial. — In all criminal prosecutions,
the accused shall be entitled to the following rights:
a. To be presumed innocent until the contrary is
proved beyond reasonable doubt.
b. To be informed of the nature and cause of the
accusation against him.
c. To be present and defend in person and by
counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment.
The accused may, however, waive his
presence at the trial pursuant to the stipulations
set forth in his bail, unless his presence is
specifically ordered by the court for purposes of
identification.
The absence of the accused without justifiable
cause at the trial of which he had notice shall
be considered a waiver of his right to be present
g.
h.
i.
thereat.
When an accused under custody escapes, he
shall be deemed to have waived his right to be
present on all subsequent trial dates until
custody over him is regained. Upon motion, the
accused may be allowed to defend himself in
person when it sufficiently appears to the court
that he can properly protect his 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 cannot with
due diligence be found in the Philippines,
unavailable or otherwise unable to testify, given
in another case or proceeding, judicial or
administrative, involving the same parties and
subject matter, the adverse party having the
opportunity to cross-examine him.
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.
1. Criminal Due Process
In criminal proceedings then, due process is
satisfied if the accused is “informed as to why
he is proceeded against and what charge he
shall meet, with his conviction being made to
rest on evidence that is not tainted with falsity
after full opportunity for him to rebut it and the
sentence being implied in accordance with a
valid law. It is assumed, of course, that the
court that rendered the decision is one of
competent jurisdiction [Mejia v. Pamaran,
supra].
Requisites
1. Accused is heard by a court of competent
jurisdiction;
2. Accused is proceeded against under the
orderly process of law;
3. Accused is given notice and opportunity to
be heard; and
4. Judgment rendered is within the authority
of a constitutional law.
Page 155 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
2. Bail
Article III, Section 13. All persons, except those
charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties,
or be released on recognizance as may be provided
by law. The right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
Rules of Court, Rule 114, Section 1. Bail defined.
— Bail is the security given for the release of a
person in custody of the law, furnished by him or a
bondsman, to guarantee his appearance before any
court as required under the conditions hereinafter
specified. Bail may be given in the form of corporate
surety, property bond, cash deposit, or
recognizance. (1a)
Purpose of Bail
“The purpose for bail is to guarantee the
appearance of the accused at the trial, or
whenever so required by the Court. The
amount should be high enough to assure the
presence of the accused when required but no
higher than is reasonably calculated to fulfill
this purpose. To fix bail at an amount
equivalent to the civil liability of which petitioner
is charged is to permit the impression that the
amount paid as bail is an exaction of the civil
liability that accused is charged of; this we
cannot allow because bail is not intended as a
punishment, nor as a satisfaction of civil liability
which should necessarily await the judgment of
the appellate court” [Yap, Jr., v. CA, G.R. No.
141529 (2001)].
Basis of Right: Presumption of Innocence
The right to bail springs from the presumption
of innocence accorded every accused upon
whom should not be inflicted incarceration at
the outset since, after the trial, he would be
entitled to acquittal, unless his guilt be
established
beyond
reasonable
doubt
[Paderanga v. CA, G.R. No. 115407 (1995)].
Who May Avail of Bail
General Rule: All persons under custody of
the law
Exceptions:
a. Those charged with a capital offense, or an
offense punishable by reclusion perpetua
or life imprisonment when evidence of guilt
is strong, regardless of the stage of the
criminal prosecution [Sec. 7, Rule 114,
ROC].
b. Military men who participated in failed coup
d’état because of their threat to national
security [Comendador v. De Villa, G.R. No.
93177 (1991)].
When Available
General Rule: From the very moment of arrest
(which may be before or after the filing of formal
charges in court) up to the time of conviction by
final judgement (which means after appeal.
Arraignment of the accused is not essential to
the approval of the bail bond. When bail is
authorized, it should be granted before
arraignment. Otherwise, the accused may be
precluded from filing a motion to quash. Also,
the court will be assured of the presence of the
accused at the arraignment precisely by
granting bail and ordering his presence at any
stage of the proceeding [Lavides v. CA, G.R.
No. 129670 (2000)].
Rules of Court, Rule 114, Section 18. Notice of
application to prosecutor. — In the application for
bail under section 8 of this Rule, the court must give
reasonable notice of the hearing to the prosecutor
or require him to submit his recommendation.
In this jurisdiction, before a judge may grant an
application for bail, whether bail is a matter of
right or discretion, the prosecutor must be
given reasonable notice of hearing or he must
be asked to submit his recommendation
[Taborite v. Sollesta, A.M. No. MTJ-02-1388
(2003)].
The prosecution must first be accorded an
opportunity to present evidence. It is on the
basis of such evidence that judicial discretion
is exercised in determining whether the
evidence of guilt of the accused is strong. In
other words, discretion must be exercised
regularly, legally and within the confines of
procedural due process, that is, after
evaluation of evidence submitted by the
prosecution [Taborite v. Sollesta, supra].
Bail for the provisional liberty of the accused
regardless of the crime charged should be
Page 156 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
allowed independently of the merits of the
charge, provided his continued incarceration is
clearly shown to be injurious to his health or to
endanger his life [Enrile v. Sandiganbayan,
G.R. No. 213847 (2015)].
Bail As a Matter of Right
All persons, except those charged with
offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or
be released on recognizance as may be
provided by law. The right to bail shall not be
impaired even when the privilege of the writ of
habeas corpus is suspended.
Excessive bail shall not be required [Art. III,
Sec. 13].
Bail As a Matter of Discretion
When the accused has been convicted in the
RTC of an offense not punishable by death,
reclusion perpetua or life imprisonment, the
admission to bail becomes discretionary [Sec.
5, Rule 114, ROC].
Note: Since the grant of bail is a matter of
discretion, a hearing must be conducted
whether or not the prosecution refuses to
present evidence and the prosecutor must be
notified to require him to submit his
recommendation. This notice of hearing
applies in all cases whether bail is a matter of
right or a matter of discretion [Zuño v. Cabebe,
A.M. OCA No. 03-1800-RTJ, (2004) citing
Cortes v. Catral, A.M. No. RTJ-97-1387,
(1997)].
In the cases where the grant of bail is
discretionary, due process requires that the
prosecution must be given an opportunity to
present, within a reasonable time, all the
evidence that it may desire to introduce before
the court should resolve the motion for bail
[People v. Judge Donato, G.R. No. 79269
(1991)].
a. In Case the Evidence of Guilt is Strong
In such a case, according to People v. San
Diego [G.R. No. L-29676 (1966)] the court’s
discretion to grant bail must be exercised in the
light of a summary of the evidence presented
by the prosecution.
Thus, the order granting or refusing bail must
contain a summary of the evidence for the
prosecution followed by the conclusion on
whether or not the evidence of guilt is strong.
The clear implication therefore, is that if an
accused who is charged with a crime
punishable by reclusion perpetua is convicted
by the trial court and sentenced to suffer such
a penalty, bail is neither a matter of right on the
part of the accused nor of discretion on the part
of the court. In such a situation, the court would
xxx have xxx ruled that the accused’s guilt has
been proven beyond reasonable doubt. Bail
must not then be granted to the accused during
the pendency of his appeal from the judgment
of conviction [People v. Nitcha, G.R. No.
113517 (1995)]”
b. In Extradition Proceedings
Extradition courts do not render judgements of
conviction or acquittal so it does not matter
whether or not the crimes the accused is being
extradited for is punishable by reclusion
perpetua [US Government v. Judge Puruganan
and Mark Jimenez, G.R. No. 148571 (2002)].
While our extradition law does not provide for
the grant of bail to an extradite, however, there
is no provision prohibiting him or her from filing
a motion for bail, a right to due process under
the Constitution. [Government of Honk Kong
SAR v. Olalia, G.R. No. 153675 (2007)].
Standards for Fixing Bail
Rules of Court, Rule 114, Section 9. Amount of
bail; guidelines. — The judge who issued the
warrant or granted the application shall fix a
reasonable amount of bail considering primarily, but
not limited to, the following factors:
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that accused was a fugitive from justice
when arrested; and
(j) Pendency of other cases where the accused is
on bail.
Page 157 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
Excessive bail shall not be required.
innocence [Alejandro v. Pepito, G.R. L-52090
(1980)].
Discretion is with the court called upon to rule
on the question of bail. We must stress,
however, that where conditions imposed upon
a defendant seeking bail would amount to a
refusal thereof and render nugatory the
constitutional right to bail, we will not hesitate
to exercise our supervisory powers to provide
the required remedy [De La Camara v. Enage,
G.R. No. L-32951-52 (1971)].
The presumption of regularity in official duties
cannot by itself prevail over the presumption of
innocence of the accused. But where it is not
the sole basis for conviction, the presumption
of regularity of performance of official functions
may prevail over the constitutional presumption
of innocence [People v. Acuram, G.R. No.
117954 (2000); People v. Abenes y Pascua,
G.R. No. 210878 (2016)].
Duties of a Trial Judge in Case an
Application for Bail is Filed:
1. In all cases, whether bail is a matter of right
or of discretion, notify the prosecutor of the
hearing of the application for bail or require
him to submit his recommendation (Sec.
18, Rule 114, ROC);
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 (Sec. 7 and 8,
Rule 114, ROC);
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 upon approval of
the bail bond (Sec. 19, Rule 114, ROC)
[Cortes v. Catral, A.M. No. RTJ-97-1387
(1997)].
A corporate entity has no personality to invoke
the right to be presumed innocent which right
is available only to an individual who is an
accused in a criminal case [Feeder
International Line, Pte. v. CA, G.R. No. 94262
(1991)].
3. Presumption of Innocence
The requirement of proof beyond reasonable
doubt is a necessary corollary of the
constitutional right to be presumed innocent
[People v. Dramayo, G.R. No. L-21325 (1971)].
The presumption of innocence in favor of the
accused imposes upon the People of the
Philippines, “as the plaintiff in criminal cases, to
prove beyond reasonable doubt not only each
element of the crime but also the identity of the
accused as the criminal” [People v. Espera y
Cuyacot, G.R. No. 202868, (2013)].
The accused cannot present evidence before
the prosecution does so, even if the accused
pleads guilty. It violates the presumption of
Equipoise Rule
The presumption of innocence has given rise
to a jurisprudential rule referred to as the
equipoise rule.
Where the evidence adduced by the parties is
evenly
balanced,
the
constitutional
presumption of innocence should tilt the
balance in favor of the accused [Corpuz v.
People, G.R. No. 180016 (1991)].
The application of the rule is triggered by a
situation where:
a. The court is faced with conflicting versions
of the prosecution and the defense; and
b. The evidence, facts, and circumstances
are capable of two or more explanations,
one of which is consistent with the
innocence of the accused and the other
consistent with his guilt.
Proof Beyond Reasonable Doubt
Proof beyond reasonable doubt does not mean
such a degree of proof, excluding possibility of
error, produces absolute certainty. Moral
certainty only is required, or that degree of
proof which produces conviction in an
unprejudiced mind [Sec. 2, Rule 133, ROC].
In order that circumstantial evidence may
warrant conviction, the following requisites
must concur:
1. There is more than once circumstance;
Page 158 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
2. The facts from which the inferences are
derived from are proven; and
3. The combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt [People v. Bato, G.R. No.
113804 (1998)].
4. Right to be Heard
Article III, Section 14(2).
(2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and
counsel.
Article III, Section 12(1).
(1) Any person under investigation for the
commission of an offense shall have the right to be
informed of his right to remain silent and to have
competent and independent counsel preferably of
his own choice. If the person cannot afford the
services of counsel, he must be provided with one.
These rights cannot be waived except in writing and
in the presence of counsel.
It means the accused is amply accorded legal
assistance extended by a counsel who
commits himself to the cause of the defense
and acts accordingly. It is an efficient and truly
decisive legal assistance, and not simply a
perfunctory representation [People v. Bermas,
G.R. No. 120420 (1999)].
The right of the accused to present evidence is
guaranteed by no less than the Constitution
itself. Article III, Section 14(2) thereof, provides
that in all criminal prosecutions, the accused
shall enjoy the right to be heard by himself and
counsel. This constitutional right includes the
right to present evidence in one’s defense, as
well as the right to be present and defend
oneself in person at every stage of the
proceedings. Stripping the accused of all his
pre-assigned trial dates constitutes a patent
denial of the constitutionally guaranteed right to
due process [Villareal v. People, G.R. No.
151258 (2012)].
5. Right to Counsel
Article III, Section 12(1).
(1) Any person under investigation for the
commission of an offense shall have the right to be
informed of his right to remain silent and to have
competent and independent counsel preferably of
his own choice. If the person cannot afford the
services of counsel, he must be provided with one.
These rights cannot be waived except in writing and
in the presence of counsel.
Rules of Court, Rule 115, Section 1(c). Rights of
accused at the trial. — In all criminal prosecutions,
the accused shall be entitled to the following rights:
(c) To be present and defend in person and by
counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment.
R.A. No. 7438, Section 2(a). Rights of Persons
Arrested, Detained or Under Custodial Investigation;
Duties of Public Officers. – (a) Any person arrested
detained or under custodial investigation shall at all
times be assisted by counsel.
It means the accused is amply accorded legal
assistance extended by a counsel who
commits himself to the cause of the defense
and acts accordingly. It is an efficient and truly
decisive legal assistance, and not simply a
perfunctory representation.
The right to counsel proceeds from the
fundamental principle of due process which
basically means that a person must be heard
before being condemned. The due process
requirement is part of a person’s basic rights; it
is not a mere formality that may be dispensed
with or performed perfunctorily [People v.
Bermas, G.R. No. 120420, (1999)].
One need not, however, be an accused to avail
of the right to counsel and the right to counsel
does not commence only during trial. Every
person under custody of the law enjoys the
right. Even a person under investigation for an
offense has the right to have a competent and
independent counsel preferably of his own
choice [Riano].
Elements of the Right to Counsel:
a. Court’s duty to inform the accused of right
to counsel before being arraigned;
b. It must ask him if he desires the services of
counsel;
c. If he does, and is unable to get on, the
Court must give him one; if the accused
Page 159 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
wishes to procure private counsel, the
Court must give him time to obtain one.
d. Where no lawyer is available, the Court
may appoint any person resident of the
province and of good repute for probity and
ability.
6. Right to be Informed of the Nature
and Cause of Accusation
Procedural due process requires that the
accused must be informed why he is being
prosecuted and what charge he must meet
[Vera v. People, G.R. No. L-31218 (1970)].
7. Right to Speedy, Impartial and
Public Trial
See: P. Right to Speedy Trial and Speedy
Disposition of Cases
8. Right of Confrontation
Serves as the basis of the right to crossexamination.
Two-Fold Purpose
a. To afford the accused an opportunity to test
the testimony of the witness by crossexamination.
b. To allow the judge to observe the
deportment of [the] witness [Go v. People,
G.R. No. 185527 (2012)].
9. Right to Compulsory Processes
The right to compulsory process may be
invoked by the accused to secure the
attendance of witnesses and the production of
witnesses in his behalf. This is a constitutional
right embodied in Sec. 14(2), Art. III of the Bill
of Rights.
In case of the unjustified failure of the witness
to comply, the court or judge issuing the
subpoena, upon proof of the service of such
subpoena and proof of his failure to attend,
may issue a warrant for his arrest [ROC, Rule
21, Sec. 8].
Compulsory Process
a. Right to Secure Attendance of Witness
b. Right to Production of Other Evidence
c. Subpoena
10. Trial in Absentia
Requisites
a. Accused failed to appear for trial despite
postponement and notice;
b. Failure to appear is unjustified;
c. After arraignment.
Consequences of the Accused’s Failure
to Appear for Trial
Waiver of right to cross-examine and present
evidence [Gimenez v. Nazareno, G.R. No. L37933 (1988)].
When Presence of the Accused is a Duty
General Rule:
a. Arraignment and Plea
Section 1(b) of Rule 116 requires that the
“accused must be present at the
arraignment and must personally enter his
plea.”
b. During Trial for Identification
Common reason suggests that the
prosecution must be afforded the right to
identify the accused as the perpetrator of
the offense and the very person named or
described in the complaint or information
because rights during the trial are not
designed to be for the accused alone.
c. Promulgation of Sentence
P. Right to Speedy Trial and
Speedy Disposition of Cases
Article III, Section 16. All persons shall have the
right to a speedy disposition of their cases before all
judicial, quasi-judicial, or administrative bodies.
The right to speedy disposition of cases is not
limited to the accused in criminal proceedings
but extends to all parties in all cases, be it civil
or administrative in nature, as well as all
proceedings, either judicial or quasi-judicial
[Coscolluela v. Sandiganbayan, G.R. No.
191411 (2013)].
Page 160 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
While the right to speedy trial is invoked against
courts of law, the right to speedy disposition of
cases may be invoked before quasi-judicial or
administrative tribunals in proceedings that are
adversarial and may result in possible criminal
liability [Cagang v. Sandiganbayan, Fifth
Division, G.R. Nos. 206438, 210141-42
(2018)].
Due regard must be given to the facts and
circumstances surrounding each case xxx.
What
the
Constitution
prohibits
are
unreasonable, arbitrary and oppressive delays
which render rights nugatory [Ombudsman v.
Jurado, G.R. No. 154155 (2008)].
Note: The following show rulings of the Court
wherein the delay caused by the judge was not
excused:
● A judge’s illness should not be an excuse
for his failure to render the corresponding
decision or resolution within the prescribed
period [Balajedeong v. Del Rosario, A.M.
No. MTJ-07-1662 (2007)].
● A heavy workload due to additional work,
as acting presiding judge in other courts, is
not sufficient justification for the delay
because judges are allowed, upon motion
or letter-requests, extensions of the
reglementary period in deciding cases [Re:
Report on the Judicial and Financial Audit
Conducted in MTC’s of Bayombong and
Solano and MCTC, Aritao-Sta. Fe, Nueva
Vizcaya, A.M. No. 05-3-83-MTC (2007)].
● The absence of a branch clerk of court
should not affect the prompt disposition of
cases. It is the duty of the judge to
recommend to the Supreme Court the
immediate appointment of a branch clerk of
court [Office of the Court Administrator v.
Laron, A.M. No. RTJ-04-1870 (2007)].
● The non-submission of the transcript of the
stenographic notes by stenographers
would not relieve judges of their duty to
render a decision within the required period
as judges are directed to take down notes
of salient portions of the hearing and
proceed in the preparation of decisions
without waiting for the transcribed
stenographic notes [Office of the Court
Administrator v. Janolo Jr., A.M. No. RTJ06-1994 (2007)].
●
The defects in a motion are not reasons for
a judge not to act on the same [Heirs of
Simeon Piedad v. Estrera, A.M. No. RTJ09-2170 (2009)].
Inordinate delay in the resolution and
termination of a preliminary investigation
violates the accused’s right to due process and
the speedy disposition of cases, and may result
in the dismissal of the case against the
accused. The burden of proving delay depends
on whether delay is alleged within the periods
provided by law or procedural rules. If the delay
is alleged to have occurred during the given
periods, the burden is on the respondent or the
accused to prove that the delay was inordinate.
If the delay is alleged to have occurred beyond
the given periods, the burden shifts to the
prosecution to prove that the delay was
reasonable under the circumstances and that
no prejudice was suffered by the accused as a
result of the delay [Cagang v. Sandiganbayan,
Fifth Division, supra].
Dismissal Based on Violation of the Right
to Speedy Disposition of Cases
A criminal case may be dismissed for violation
of a person’s right to speedy disposition of
cases [Coscolluela v. Sandiganbayan, supra].
Q. Right
Against
Incrimination
Self-
Article III, Section 17. No person shall be
compelled to be a witness against himself.
The right against self-incrimination secures to
a witness, whether she/he is a party or not, the
right to refuse to answer any particular
incriminating question.
It prescribes an “option of refusal to answer
incriminating questions and not a prohibition of
inquiry” [People v. Ayson, G.R. No. 85215
(1989)].
Purpose
The self-incrimination clause is meant to avoid:
1. Placing the witness against the strongest
temptation to commit perjury; and
2. Extorting a confession by force.
Page 161 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
1. Scope and Limitations
The right applies only to testimonial
compulsion and production of documents,
papers, and chattels in court, except when
books of account are to be examined in the
exercise of police power and the power of
taxation.
The right is available in:
1. Criminal proceedings;
2. Governmental proceedings;
3. Administrative actions wherein the hearing
partakes the nature of a criminal
proceeding because of the nature of the
penalty;
4. Legislative investigations;
5. Civil actions.
Exclusions
An accused may be compelled to be
photographed or measured, his garments may
be removed, and his body may be examined.
The Court has also declared as constitutional
several procedures performed on the accused
such as pregnancy tests for women accused of
adultery, expulsion of morphine from one’s
mouth and the tracing of one’s foot to
determine its identity with bloody footprints.
The Court has even authorized the
examination of a woman’s genitalia, in an
action for annulment filed by her husband, to
verify his claim that she was impotent, her
orifice being too small for his penis.
Some of these procedures were, to be sure,
rather invasive and involuntary, but all of them
were constitutionally sound. DNA testing and
its results are now similarly acceptable [Agustin
v. CA, G.R. No. 162571 (2005)].
Other exclusions:
1. Handwriting in connection with a
prosecution for falsification is not allowed
[Beltran v. Samson, G.R. No. 32025
(1929); Bermudez v. Castillo, Per. Rec. No.
714-A (1937)].
2. Accused may be made to take off her
garments and shoes and be photographed
[People v. Carreon, G.R. No. L-2154
(1950)]; compelled to show her body for
physical investigation to see if she is
pregnant by an adulterous relation [Villaflor
v. Summers G.R. No. 16444 (1920)].
Note: Re-enactment of the crime by the
accused is not allowed.
When to Invoke:
1. This right may only be invoked for that
specific incriminating question and cannot
be claimed for any other time [Sabio vs.
Gordon, G.R. Nos. 174340, 174318 &
174177 (2006)];
2. It does not give a witness the right to
disregard a subpoena and decline to testify
altogether. The witness must still take the
stand, be sworn, and answer questions. It
is the duty of his/her counsel to advise
him/her of his/her right against selfincrimination [People v. Ayson, supra].
Right Against Self-incrimination
Accused vs. Ordinary Witness
of
ACCUSED
ORDINARY
WITNESS
The defendant in a
criminal case
cannot be
compelled by
subpoena or any
other process or
order of the court to
testify or produce
evidence in the
criminal case in
which he is the
accused or one of
the accused. In
other words, s/he
can refuse to testify
altogether.
An ordinary witness
may be compelled to
testify and invoke the
right only against
each question
requiring an
incriminating answer
[People vs. Ayson,
supra].
If the witness is
accused, he may
totally refuse to take
the stand.
Note: The right against self-incrimination is not
self- executing. 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
Page 162 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
impliedly, as by a failure to claim it at the
appropriate time [People v. Ayson, supra].
Effects of Denial of Privilege
1. Exclusionary Rule (under Sec. 17, Art. III in
relation to Sec. 12): When the privilege
against self-incrimination is violated
outside of court (e.g., police), then the
testimony, as already noted, is not
admissible.
2. Ousted of Jurisdiction: When the privilege
is violated by the Court itself, that is, by the
judge, the court is ousted of its jurisdiction,
and all its proceedings, and even judgment
are null and void [Chavez v. CA, G.R. No.
L-29169 (1968)].
Application
General Rule: The privilege is available in any
proceedings, even outside the court, for they
may eventually lead to a criminal prosecution.
Expanded Application
1. The right of the accused against selfincrimination is extended to respondents in
administrative investigations that partake
of the nature of or are analogous to criminal
proceedings. The privilege has consistently
been held to extend to all proceedings
sanctioned by law; and to all cases in which
punishment is sought to be visited upon a
witness, whether a party or not [Standard
Chartered Bank v. Senate Committee on
Banks G.R. No. 167173 (2007)].
2.
Administrative proceedings with penal
aspect i.e., medical board investigation
[Pascual, Jr. v. Board of Medical
Examiners, G.R. No. L-25018 (1969)],
forfeiture proceeding [Cabal v. Kapunan
Jr., G.R. No. L-19052 (1962)].
3. Fact-Finding investigation by an ad hoc
body [Galman v. Pamaran, G.R. Nos.
71208-09 (1985)].
2. Immunity Statutes
Nature and Purpose
Immunity
statutes
seek
a
rational
accommodation between the imperatives of an
individual’s constitutional right against selfincrimination and the legitimate governmental
interest in securing testimony. By voluntarily
offering to give information on the commission
of a crime and to testify against the culprits, a
person opens himself to investigation and
prosecution if he himself had participated in the
criminal act. To secure his testimony without
exposing him to the risk of prosecution, the law
recognizes that the witness can be given
immunity from prosecution. In this manner, the
state interest is satisfied while respecting the
individual’s constitutional right against selfincrimination [Quarto v. Marcelo G.R. No.
169042 (2011)].
Note: The following is a list of immunity statutes
included in the footnote 59 of Quarto v.
Marcelo:
a. P.D. No. 749 (Granting Immunity from
Prosecution to Givers of Bribes and Other
Gifts and to their Accomplices in Bribery
and Other Graft Cases against Public
Officers, July 18, 1975);
b. P.D. No. 1731 (Providing for Rewards and
Incentives to Government Witnesses and
Informants and other Purposes, October 8,
1980);
c. P.D. No. 1732 (Providing Immunity from
Criminal Prosecution to Government
Witnesses and for other Purposes, October
8, 1980);
d. P.D. No. 1886 (creating the Agrava FactFinding Board, October 22, 1983);
e. 1987 Constitution, Article XIII, Section
18(8) (empowering the Commission on
Human Rights to grant immunity);
f. R.A. No. 6646 (An Act Introducing
Additional Reforms in the Electoral System
and for other Purposes, January 5, 1988);
g. Executive Order No. 14, August 18, 1986;
h. R.A. No. 6770 (Ombudsman Act of 1989,
November 17, 1989);
i. R.A. No. 6981 (Witness Protection,
Security and Benefit Act, April 24, 1991);
j. R.A. No. 7916 (The Special Economic
Zone Act of 1995, July 25, 1994);
k. R.A. No. 9165 (Comprehensive Dangerous
Drugs Act of 2002, June 7, 2002);
l. R.A. No. 9416 (An Act Declaring as
Unlawful Any Form of Cheating in Civil
Service Examinations, etc., March 25,
2007); and
m. R.A. No. 9485 (Anti-Red Tape Act of 2007,
June 2, 2007).
Page 163 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
Transactional Immunity
constitute some of the elements of the
1st offense);
e. Offense that necessarily includes the
1st offense (All the elements of the 1st
constitute some of the elements of the
2nd offense).
2. Prosecution for the same act
a. If punished by law and at the same
time punished by an ordinance;
b. There is conviction or acquittal under
either.
Article XIII, Section 18. The Commission on
Human Rights shall have the following powers and
functions: xxx (8) Grant immunity from prosecution
to any person whose testimony or whose
possession of documents or other evidence is
necessary or convenient to determine the truth in
any investigation conducted by it or under its
authority;
Use and Fruit of Immunity
“Use immunity” prohibits use of a witness’
compelled testimony and its fruits in any
manner in connection with the criminal
prosecution of the witness.
“Transactional immunity” grants immunity to
witnesses from prosecution for an offense to
which his compelled testimony relates [Galman
v. Pamaran, supra].
R. Right
Against
Jeopardy
Double
Article III, Section 21. No person shall be twice put
in jeopardy of punishment for the same offense. If
an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a
bar to another prosecution of the same act.
Application
1. In administrative cases: Not applicable
[Cayao-Lasam v. Sps. Ramolete, G.R. No.
159132 (2008)].
2. Contempt:
Applicable.
Acquittal
effectively bars a second prosecution
[Santiago v. Anunciacion, Jr., G.R. No.
89318 (1990)].
Termination of Jeopardy
1. By acquittal;
2. By final conviction;
3. By dismissal without express consent of
accused;
4. By “dismissal” on the merits.
Two Types of Double Jeopardy [People v.
Relova, G.R. L-45129 (1987)]:
1. Prosecution for the same offense
a. Same offense charged;
b. Attempt of the same offense;
c. Frustration of the same offense;
d. Offense necessarily included in the 1st
offense (All the elements of the 2nd
Examples Where There is No Double
Jeopardy:
1. Conviction of a crime under a special law,
which also constitutes an offense under the
RPC, may not be a bar to the prosecution
under the RPC because the former is
malum prohibitum while the other is malum
in se.
2. Where two informations are filed charging
the same accused with two different
offenses arising from the act, where the two
offenses
have
different
elements
[Example: B.P.22 and the issuance of
bouncing checks for estafa].
1. Requisites and Limitations
a. First jeopardy attached prior to the second;
b. First jeopardy must have been validly
terminated;
c. Second jeopardy must be for the same
offense or the second offense includes or
is necessarily included in the first offense;
or is an attempt or frustration thereof.
Requisites for First Jeopardy to Attach:
A previous case must be filed and must contain
the following:
1. There must be a complaint or information
or other formal charge sufficient in form and
substance to sustain a conviction;
2. The complaint or information must be filed
before a court of competent jurisdiction;
3. The accused has been arraigned and has
pleaded to the charges;
4. The accused must have been convicted or
acquitted or the case against him was
dismissed or otherwise terminated without
his express consent [Sec. 7, Rule 117;
People v. Obsania, G.R. No. L-24447
(1968)].
Page 164 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
Limitations; Exceptions to the Rule on
Double Jeopardy
The conviction of the accused shall not be a bar
to another prosecution for an offense which
necessarily includes the offense charged in the
former complaint or information under the
following instances, pursuant to Sec. 7, Rule
117, Rules of Court:
a. Supervening Event: The graver offense
developed due to “supervening facts”
arising from the same act or omission
constituting the former charge (e.g., A
person convicted of physical injuries may
still be prosecuted for homicide if the victim
dies later).
b. Newly Discovered Event: The facts
constituting the graver charge became
known or were discovered only after the
filing of the former complaint or information.
c. Defective Plea Bargain: The plea of guilty
to the lesser offense was made without the
consent of the fiscal and the offended
party, except as provided in Sec. 1 (f) of
Rule 116.
Note: In case of failure of the offended party to
appear despite due notice, the court may allow
the accused to enter a plea of guilty to a lesser
offense which is necessarily included in the
offense charged with the conformity of the trial
prosecutor alone.
Appeal by Prosecution; When Allowed
General Rule: A judgment of acquittal is final
and no longer reviewable. It cannot be
reconsidered because it places the accused in
jeopardy for the same offense. [Cruz
Commentary, p. 777]
Exceptions: Appeal from acquittal is not
double jeopardy if: (DuMi-GAD)
1. Deprivation of due process: Where the
prosecution is deprived of a fair opportunity
to prosecute and prove its case [Villareal v.
People, G.R. No. 151258 (2012)].
Provided, that the judge considered the
evidence, even if the appreciation of the
evidence leading to the acquittal is
erroneous, an appeal or motion for
reconsideration by the prosecution will not
be allowed. [People v. Judge Velasco, G.R.
No. 127444 (2000)].
2. Mistrial [Galman v. Sandiganbayan, G.R.
No. 72670 (1986)].
3. Grave abuse of discretion amounting to
lack or excess of jurisdiction [People v. Uy,
G.R. No. 158157 (2005)].
Remedy for the above cases: special civil
action of certiorari under Rule 65 of the Rules
of Court.
The private complainant or the offended party
may question such acquittal or dismissal only
insofar as the civil liability of the accused is
concerned [Villareal v. Aliga, G.R. No. 166995
(2014)].
The prosecution can appeal where the
accused is deemed to have waived or is
estopped from invoking his right against double
jeopardy [Cruz, p. 778].
Waiver of Right Against Double Jeopardy
The right against double jeopardy is deemed
waived if he appeals his conviction.
If the accused had been prosecuted for a
higher offense but was convicted for a lower
offense, he has technically been acquitted of
the higher offense. His appeal would give the
Court the right to impose a penalty higher than
that of the original conviction imposed on him
[Trono v. U.S. 199 US 521 (1905)].
General Rule: Dismissal with consent of
accused waives double jeopardy.
When the case is dismissed other than on the
merits, upon motion of the accused personally,
or through counsel, such dismissal is regarded
as “with express consent of the accused”, who
is therefore deemed to have waived the right to
plea double jeopardy.
Provisional Dismissal – A case shall not be
provisionally dismissed except with the
express consent of the accused and with notice
to the offended party [ROC, Rule 117, Sec. 8,
par. 1].
Page 165 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
Exceptions
a. When the dismissal is based on
insufficiency of the evidence of the
prosecution [People v. City Court of Silay,
G.R. No. L-43790 (1976)].
b. When the dismissal is based on the denial
of his right to a speedy trial [People v.
Judge Abaño G.R. No. L-23599 (1955)].
c. When accused is discharged to be a state
witness.
A mere verbal dismissal is not final until written
and signed by the judge [Rivera, Jr. v. People
G.R. No. 93219 (1990)].
S. Right Against
Servitude
Involuntary
Article III, Section 18. No person shall be detained
solely by reason of his political beliefs and
aspirations.
No involuntary servitude in any form shall exist
except as a punishment for a crime whereof the
party shall have been duly convicted.
Involuntary Servitude refers to a condition of
enforced and compulsory service induced by
means of any scheme, plan or pattern,
intended to cause a person to believe that if he
or she did not enter into or continue in such
condition, he or she or another person would
suffer serious harm or other forms of abuse or
physical restraint, or threat of abuse or harm,
or coercion including depriving access to travel
documents and withholding salaries, or the
abuse or threatened abuse of the legal process
[R.A. No. 9208, as amended by R.A. No.
10364].
Slavery and involuntary servitude, together
with their corollary peonage, all denote “a
condition of enforced, compulsory service of
one to another” [Hodges v. U.S., 203 US 1
(1906) cited in Rubi v. Provincial Board of
Mindoro, supra].
A private person who contracts obligations of
rendering services in a civil capacity to the
Army as an employee in its offices cannot, by
law, either civil or military, be compelled to fulfill
them by imprisonment and deportation from his
place of residence [In Re Brooks, G.R. No. 507
(1901)].
Domestic services are always to be
remunerated, and no agreement may subsist in
law in which it is stipulated that any domestic
service shall be absolutely gratuitous [De los
Reyes v. Alojado, G.R. No. 5671 (1910)].
Exceptions to the Prohibition against
Involuntary Servitude
a. If punishment is for a crime after conviction
[Art. III, Sec. 18].
b. In the interest of national defense, all
citizens may be compelled by law to render
personal military or civil service [Art. II, Sec.
4].
c. A return to work order. “So imperative is the
order in fact that it is not even considered
violative of the right against involuntary
servitude.”
d. A worker must obey the order if he wants
to retain his work even if his inclination is to
strike [Sarmiento v. Tuico, G.R. No. 7527173 (1988)].
e. Naval enlistment [Robertson v. Baldwin,
165 US 275 (1897)].
f. Posse comitatus - obligation of the
individual to assist in the protection of the
peace and good order of his community
[Kaisahan ng Manggagawa sa Kahoy v.
Gotamco Sawmills, G.R. No. L-1573,
(1948)].
The police power of the state may be said to
embrace the whole system of internal
regulation, by which the state seeks not only to
preserve public order and to prevent offenses
against the state, but also to establish, for the
intercourse of citizen with citizen, those rules of
good manners and good neighborhood, which
are calculated to prevent a conflict of rights,
and to insure to each the uninterrupted
enjoyment of his own, so far as is reasonably
consistent, with a like enjoyment of the rights of
others. The police power of the state includes
not only the public health and safety, but also
the public welfare, protection against
impositions, and generally the public’s best
interest. It is so extensive and all pervading,
that the courts refuse to lay down a general rule
defining it, but decide each specific case on its
Page 166 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
merits [Harding vs. People, 32 L.R.A., 445; US
v. Pompeya, 31 Phil. 245 (1915)].
T. Right
Against
Excessive
Fines, and Cruel and Inhuman
Punishments
Article III, Section 19.
(1) Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted.
Neither shall death penalty be imposed, unless,
for compelling reasons involving heinous
crimes, the Congress hereafter provides for it.
Any death penalty already imposed shall be
reduced to reclusion perpetua.
(2) The employment of physical, psychological, or
degrading punishment against any prisoner or
detainee or the use of substandard or
inadequate penal facilities under subhuman
conditions shall be dealt with by law.
Cruel Punishment
● Involve torture of lingering death [Legarda
v. Valdez G.R. No. 513 (1902)].
● Not only severe, harsh, or excessive but
flagrantly and plainly oppressive.
● Wholly or disproportionate to the nature of
the offense as to shock the moral sense of
the community [People v. Estoista, G.R.
No. L-5793 (1953)].
The constitutional limit must be reckoned on
the basis of the nature and of punishment
measured in terms of physical pain.
What is prohibited is cruel and unusual
punishment. Unusual punishment is not
prohibited, especially if it makes the penalty
less severe.
The prohibition of cruel and unusual
punishment is generally aimed at the form or
character of the punishment rather than its
severity in respect of duration or amount, and
applies to punishments which public sentiment
has regarded as cruel or obsolete. Fine and
imprisonment would not thus be within the
prohibition [People v. Dela Cruz, G.R. No. L5790 (1953)].
by Lethal Injection is hereby repealed. R.A. No.
7659, otherwise known as the Death Penalty
Law, and all other laws, executive orders and
decrees, insofar as they impose the death
penalty are hereby repealed or amended
accordingly [Sec. 1, R.A. No. 9346].
The import of the grant of power to Congress
to restore the death penalty requires:
1. That the Congress defined or describe
what is meant by heinous crimes;
2. That Congress specify and penalize by
death, only crimes that qualify as heinous
in accordance with the definition or
description set in the death penalty bill
and/or designate crimes punishable by
reclusion perpetua to death in which latter
case, death can only be imposed upon the
attendance of circumstances duly proven
in court that characterize the crime to be
heinous in accordance with the definition or
description set in the death penalty bill;
3. That Congress, in enacting this death
penalty bill be singularly motivated by
“compelling reasons involving heinous
crimes.”
For a death penalty bill to be valid, Sec. 19(1)
does not require that there be a positive
manifestation in the form of higher incidence of
crime first perceived and statistically proven.
Neither does the said provision require that the
death penalty be resorted to as a last recourse
when all other criminal reforms have failed to
abate criminality in society [People v.
Echegaray, G.R. No. 117472 (1997)].
As regards the imposable penalty for a crime,
the Supreme Court cannot suspend the
execution of a sentence on the ground that the
strict enforcement of the provisions of the
Revised Penal Code would cause excessive or
harsh penalty. All that the Court could do in
such an event is to report the matter to the
Chief Executive with a recommendation for an
amendment or modification of the legal
provisions which it believes to be harsh
[Corpuz v. People, 724 SCRA 1 (2014)].
The imposition of the penalty of death is hereby
prohibited. Accordingly, R.A. No. 8177,
otherwise known as the Act Designating Death
Page 167 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
U. Non-Imprisonment for Debts
property, but an offense against public order
[Lozano v. Martinez, 146 SCRA 323 (1986)].
Article III, Section 20. No person shall be
imprisoned for debt or non-payment of a poll tax.
V. Ex Post Facto Laws and Bill of
Attainder
Debt
Any civil obligation arising from a contract. It
includes even debts obtained through fraud
since no distinction is made in the Constitution
[Ganaway v. Quillen, G.R. No. 18619 (1922)].
Poll Tax
A specific sum levied upon any person
belonging to a certain class without regard to
property or occupation (e.g., community tax).
In a case where the accused was convicted
and imprisoned for estafa (where the accused
failed to render promised service to the injured
in exchange for the latter’s retrieval of the
former’s cedula), the Court held that the
imprisonment was correct since it was for
estafa and not involuntary servitude or
imprisonment for debt [Ramirez v. De Orozco,
G.R. No. 11157 (1916)].
No person may be imprisoned for debt in virtue
of a civil proceeding [Makapagal v.
Santamaria, G.R. No. 34616 (1930)].
A person may be imprisoned as a penalty for a
crime arising from a contractual debt and
imposed in a proper criminal proceeding. Thus,
the conversion of a criminal fine into a prison
term does not violate the right to nonimprisonment for debts because in such a
case, imprisonment is imposed for a monetary
obligation arising from a crime [Ajeno v.
Inserto, A.M. No. 1098-CFI (1976)].
Definition
An ex post facto law is one that would make a
previous act criminal although it was not so at
the time it was committed [Cruz, p. 589].
Concept
In general, ex post facto laws prohibits
retrospectivity of penal laws. Moreover, the
mode of procedure provided for in the right to
appeal, which is statutory and not natural, is not
included in the prohibition against ex post facto
laws [Lacson v. Executive Secretary, G.R. No.
128096 (1999)].
Equivalent of the impairment clause in criminal
matters.
What are Considered Ex Post Facto Laws
● Makes criminal an action done before the
passage of the law which was innocent
when done, and punishes such action;
● Aggravates a crime or makes it greater
than when it was committed;
● Changes the punishment and inflicts a
greater punishment than the law annexed
to the crime when it was committed;
● Alters the legal rules of evidence and
receives less or different testimony than
the law required at the time of the
commission of the offense in order to
convict the defendant [Mekin v. Wolfe, G.R.
No. 1251 (1903)];
● Assumes to regulate civil rights and
remedies only but in effect imposes a
penalty or deprivation of a right which when
done was lawful;
● Deprives a person accused of a crime of
some lawful protection of a former
conviction or acquittal, or a proclamation of
amnesty [In re: Kay Villegas Kami, G.R.
No. L-32485 (1970)].
The gravamen of the offense punished by BP
22 is the act of making and issuing a worthless
check or a check that is dishonored upon its
presentation for payment. It is not the nonpayment of an obligation which the law
punishes. The law is not intended or designed
to coerce a debtor to pay his debt. The thrust
of the law is to prohibit, under pain of penal
sanctions, the making of worthless checks and
Characteristics of an Ex-Post Facto Law
putting them in circulation. Because of its
(CReP)
deleterious effects on the public interest, the
1. Refer to criminal matters;
practice is proscribed by the law. The law
2. Be retroactive in its application;
punishes the act not as an offense against
Page 168 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
3. To the prejudice of the accused [Cruz
Commentary, p. 591].
“The prohibition applies only to criminal or
penal matters and not to laws which concern
civil matters or proceedings generally, or which
affect or regulate civil or private rights”
[Republic v. Vda. de Fernandez, G.R. No. L9141 (1956)].
Examples
● In Bayot v. Sandiganbayan [G.R. No. L61776 to No. L-61861 (1984)], an
amendment to R.A. 3019, which provides
for suspension pendente lite of any public
officer or employee accused of offenses
involving fraudulent use of public funds or
property, including those charged earlier, is
not an ex post facto law. The suspension
was not punitive, but only preventive in
nature.
● In People v. Estrada [G.R. Nos. 164368-69
(2009)], R.A. 9160, which was made to
apply to the accused for acts allegedly
committed prior to its enactment, was
considered ex post facto. Prior to its
enactment, numbered accounts or
anonymous accounts were permitted
banking transactions, whether they be
allowed by law or by a mere banking
regulation.
Bill of Attainder
Refers to a legislative act that inflicts
punishment without trial. The essence of a bill
of attainder is the substitution of legislative fiat
for a judicial determination of guilt. There is a
bill of attainder when a statute applies to either
named individuals or to easily ascertainable
individuals,
and
such
statute
inflicts
punishment unto them without trial.
Elements
1. There must be a law;
2. The law imposes a penal burden on a
named individual or easily ascertainable
members of a group;
3. There is a direct imposition of penal
burden without judicial trial.
In Relation to Ex Post Facto Law
“Frequently a bill of attainder was doubly
objectionable because of its ex post facto
features.
Therefore, if a statute is a bill of attainder, it is
also an ex post facto law. But if it is not an ex
post facto law, the reasons that establish that it
is not are persuasive that it cannot be a bill of
attainder” [People v. Ferrer, G.R. No. L-3261314 (1972)].
Examples of Laws Which Are NOT Bills of
Attainder
● R.A. 9335, which provides for the removal
of the Bureau of Customs’ employees who
would not be able to meet their revenue
targets, as prescribed by law. RA 9335
does not seek to inflict punishment without
judicial trial, but it merely lays down the
grounds for the termination of a BIR or
BOC official or employee and provides for
the consequences thereof [Bureau of
Customs Employees Association v. Teves,
G.R. No. 181704 (2011)].
●
●
●
In other words, if a legislation only states
the grounds for a violation, then it is not
considered as a bill of attainder.
Sec. 20 of the Cybercrime Law, which
imposes a penalty of imprisonment upon
those who would fail to comply with certain
provisions of Chapter IV of the said law, is
not a bill of attainder.
The Court held that since the noncompliance would be punished as a
violation of PD 1829, Sec. 20 of the
Cybercrime Law necessarily incorporates
elements of the offense which are defined
therein. The act of non-compliance, for it to
be punishable, must still be done
“knowingly or willfully.” There must still be
a judicial declaration of guilt, during
which, defense and justifications for noncompliance may be raised [Disini v. Sec. of
Justice, supra].
R.A. 1700 which declared the Communist
Party of the Philippines a clear and present
danger to Philippine security, and thus
prohibited
membership
in
such
organization, was contended to be a bill of
attainder. Although the law mentions the
CPP in particular, its purpose is not to
Page 169 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
define a crime but only to lay a basis or to
justify the legislative determination that
membership in such organization is a crime
because of the clear and present danger to
national security [People v. Ferrer, supra].
W. Writ of Habeas Corpus,
Kalikasan, Habeas Data, and
Amparo
Article III, Section 15. The privilege of the writ of
habeas corpus shall not be suspended except in
cases of invasion or rebellion when the public safety
requires it.
Suspension of the Privilege of the Writ
Article VII, Section 18. The President shall be the
Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof
under martial law.
xxx
A state of martial law does not suspend the
operation of the Constitution, nor supplant the
functioning of the civil courts or legislative
assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply
only to persons judicially charged for rebellion or
offenses inherent in or directly connected with
invasion.
1. Writ of Habeas Corpus
Definition
A writ issued by a court directed to a person
detaining another, commanding him to produce
the body of the prisoner at a designated time
and place, with the day and cause of his
caption and detention, to do, to submit to, and
to receive whatever the court or judge
awarding the writ shall consider in his behalf
[Sombong v. CA, G.R. No. 111876 (1990)].
Availability
1. Involuntary restraint of liberty.
2. Voluntary restraint of liberty i.e., right of
parents to regain custody of minor child
even if the child is in the custody of a third
person of her own free will [Sombong v.
CA, supra].
3. Illegal arrest with supervening event when
restraint of liberty is already by virtue of the
complaint or information [Velasco v. CA,
G.R. No. 118644 (1995)].
a. The issuance of a judicial process
preventing the discharge of the detained
person.
b. Another is the filing of a complaint or
information for the offense for which the
accused is detained [Sec. 4, Rule 102].
4. Where a sentence imposes punishment in
excess of the power of the court to impose,
such sentence is void as to the excess
[Gumabon v. Director of Prisons, G.R. No.
L-30026 (1971)].
5. “Habeas corpus is the proper remedy for a
person deprived of liberty due to mistaken
identity. In such cases, the person is not
under any lawful process and is
continuously being illegally detained” [In re
Salibo v. Warden, G.R. No. 197597
(2015)].
Restraint of Liberty
The nature of the restraint of liberty need not
be related to any offense so as to entitle a
person to the efficient remedy of habeas
corpus. It may be availed of as a postconviction remedy or when there is an alleged
violation of the liberty of abode. In other words,
habeas corpus effectively substantiates the
implied autonomy of citizens constitutionally
protected in the right to liberty in Article III,
Section 1 of the Constitution. Habeas corpus
being a remedy for a constitutional right, courts
must apply a conscientious and deliberate level
of scrutiny so that the substantive right to liberty
will not be further curtailed in the labyrinth of
other processes [In re Salibo v. Warden,
supra].
Not only physical restraint but any restraint on
freedom of action is sufficient i.e., (1) curtailed
freedom of movement by the condition that he
must get approval of respondents for any travel
outside Metro Manila; (2) abridged liberty of
Page 170 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
abode because prior approval of respondent is
required in case petitioner wants to change
place of residence; (3) abridged freedom of
speech due to prohibition from taking any
interviews inimical to national security; and (4)
petitioner is required to report regularly to
respondents or their representatives [Moncupa
v. Enrile, G.R. No. L-63345 (1986)].
This Court has held that a restrictive custody
and monitoring of movements or whereabouts
of police officers under investigation by their
superiors is not a form of illegal detention or
restraint of liberty [Ampatuan v. Macaraig, G.R.
No. 182497 (2010)].
Restrictive custody is, at best, nominal restraint
which is beyond the ambit of habeas corpus. It
is neither actual nor effective restraint that
would call for the grant of the remedy prayed
for. It is a permissible precautionary measure
to assure the PNP authorities that the police
officers concerned are always accounted for
[Ampatuan v. Macaraig, supra].
Note: The fact that the party to whom the writ
is addressed has illegally parted with the
custody of a person before the application for
the writ is no reason why the writ should not
issue [Villavicencio v. Lukban, G.R. No. 14639
(1919)].
Test for Valid Suspension of the Privilege
of the Writ
Arbitrariness, not correctness.
2. Writ of Kalikasan
A.M. No. 09-6-8-SC (13 April 2010)
Definition: Remedy against violation or threat
of violation of constitutional right to a balanced
and healthful ecology by an unlawful act or
omission of a public official or employee, or
private individual or entity, involving
environmental damage of such magnitude as
to prejudice the life, health or property of
inhabitants in two or more cities or provinces.
Requisites for the Issuance of the Writ
1. There is an actual or threatened violation of
the constitutional right to a balanced and
healthful ecology;
2. The actual or threatened violation arises
from an unlawful act or omission of a public
official or employee, or private individual or
entity; and
3. The actual or threatened violation involves
or will lead to an environmental damage of
such magnitude as to prejudice the life,
health or property of inhabitants in two or
more cities or provinces [Segovia v.
Climate Change Commission, G.R. No.
211010 (2017)].
Who May File
Natural or juridical persons, NGO or public
interest groups in behalf of persons whose right
is violated.
Who Has Jurisdiction
Supreme Court or Court of Appeals.
When is Writ Issued
Within three (3) days from the date of filing of
the petition, if the petition is sufficient in form
and substance.
Return of Respondent
Within a non-extendible period of ten (10) days
after service of the writ, the respondent shall
file a verified return which shall contain all
defenses; all defenses not raised are deemed
waived.
Hearing
Preliminary conference; same priority as other
writs (no more than 60 days).
Reliefs
Permanent cease and desist order against the
respondent, directive to respondent to protect,
preserve,
rehabilitate
or
restore
the
environment; to monitor strict compliance with
the decision and orders of the court, to make
periodic reports on the execution of the final
judgment, and other reliefs [Sec. 15, Rule 7].
“A rehabilitation or restoration program to be
implemented at the cost of the violator is also a
major relief that may be obtained under a
judgment rendered in a citizens’ suit under the
Rules” [Arigo v. Swift, G.R. No. 206510
(2014)].
Page 171 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
3. Writ of Habeas Data [A.M. No. 08-116-SC (2008)]
The writ of habeas data is an independent and
summary remedy designed to protect the
image, privacy, honor, information, and
freedom of information of an individual, and to
provide a forum to enforce one’s right to the
truth and to informational privacy.
There must be a nexus between the right to
privacy on the one hand, and right to life, liberty
and security on the other [Lee v. Ilagan, G.R.
No. 203254 (2014)].
Right to Informational Privacy v.
Legitimate State Interest
The determination of whether the privilege of
the writ of habeas data, being an extraordinary
remedy, may be granted in this case entails a
delicate balancing of the alleged intrusion upon
the private life of a person and the relevant
state interest involved [Gamboa v. Chan, G.R.
No. 193636 (2012)].
Without an actionable entitlement in the first
place to the right to informational privacy, a
habeas data petition will not prosper [Vivares v.
St. Theresa’s College, et al., G.R. No. 202666
(2014)].
4. Writ of Amparo
A.M. No. 07-9-12-SC, Section 1. Petition. — The
petition for a writ of amparo is a remedy available to
any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful
act or omission of a public official or employee, or of
a private individual or entity.
Concept
An amparo proceeding does not determine
guilt nor pinpoint criminal culpability for the
disappearance [threats thereof or extrajudicial
killings]; it determines responsibility, or at least
accountability for purposes of imposing the
appropriate remedies to address the
disappearance [Razon Jr. v. Tagitis, G.R. No.
182498 (2009)].
Scope
The Amparo Rule was intended to address the
intractable problem of “extralegal killings” and
“enforced disappearances,” and its coverage,
in its present form is confined to these
instances or to threats thereof.
If what is involved is the issue of child custody
and the exercise of parental rights over a child,
who, for all intents and purposes, has been
legally considered a ward of the State, the
Amparo rule cannot be properly applied
[Caram v. Segui, G.R. No. 193652 (2014)].
Extralegal Killings
Killings committed without due process of law.
Enforced Disappearances; Elements
1. That there be an arrest, detention,
abduction or any form of deprivation of
liberty;
2. That it be carried out by, or with the
authorization, support or acquiescence of,
the State or a political organization;
3. That it be followed by the State or political
organization’s refusal to acknowledge or
give information on the fate or whereabouts
of the person subject of the amparo
petition; and,
4. That the intention for such refusal is to
remove subject person from the protection
of the law for a prolonged period of time.
Basis
Article VIII, Section 5. The Supreme Court shall
have the following powers: xxx
(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, xxx.
Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same
grade, and shall not diminish, increase, or modify
substantive rights.
Petition for Writ; Form
The petition shall be signed and verified [A.M.
No. 07-9-12-SC, Sec. 5].
Petition for Writ; Contents
The petition shall allege the following:
1. The personal circumstances of
petitioner;
Page 172 of 384
UP Law Bar Operations Commission 2023
the
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
2. The name and personal circumstances of
the respondent responsible for the threat,
act or omission, or, if the name is unknown
or uncertain, the respondent may be
described by an assumed appellation;
3. The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of
the respondent, and how such threat or
violation is committed with the attendant
circumstances detailed in supporting
affidavits;
4. The investigation conducted, if any,
specifying
the
names,
personal
circumstances, and addresses of the
investigating authority or individuals, as
well as the manner and conduct of the
investigation, together with any report;
5. The actions and recourses taken by the
petitioner to determine the fate or
whereabouts of the aggrieved party and
the identity of the person responsible for
the threat, act or omission; and
6. The relief prayed for.
The petition may include a general prayer for
other just and equitable reliefs [Sec. 5]
Where to File
Filed
Enforced
RTC of the place where the
threat, act, or omission was
committed or any of its
elements occurred.
Anywhere in the Philippines.
Sandiganbayan or any of its
justices.
Court of Appeals or any of its
justices.
Supreme Court or any of its
justices.
Returnable
Before the issuing court or
judge.
1. Before the issuing court any
justice thereof; or
2. any RTC of the place where
the threat, act or omission was
committed or any of its
elements occurred.
1. Before the issuing court any
justice thereof;
or
2. before the Sandiganbayan
or any CA or any of their
justices
3. any RTC of the place where
the threat, act or omission was
committed or
any of its elements occurred.
Return
Within 72 hours after service of the writ, the
respondent shall file a verified written return
together with supporting affidavits which shall,
among other things, contain his defenses. A
general denial is not allowed [Sec. 9].
Hearing
Summary or court may call for a preliminary
conference; given same priority as petition for
habeas corpus [Sec. 13].
Proof Required: Substantial Evidence
For the protective writ of amparo to issue,
allegation and proof that the persons subject
thereof are missing are not enough. It must
also be shown by the required quantum of
proof that their disappearance was carried out
by, or with the authorization, support or
acquiescence of, [the government] or a political
organization, followed by a refusal to
acknowledge [the same or] give information on
the fate or whereabouts of [said missing]
Page 173 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
CONSTITUTIONAL LAW 2
POLITICAL LAW
persons [Navia v. Pardico, G.R. No. 184467
(2012)].
Defense
1. Private individual – ordinary diligence;
2. Public official – extraordinary diligence, no
presumption of regularity of duties [Sec.
17].
Note: Command responsibility is a way of
impleading a superior of the accused (subject
of the writ) to be made responsible for the
crimes committed by his subordinates — by
failing to prevent or punish the said accused.
As regards the relief granted, the Court held
that the production order under the Amparo
rule is different from a search warrant and may
be likened to the production of documents or
things under Rule 27.1, ROC [Secretary of
National Defense v. Manalo, G.R. No. 180906
(2008)].
Page 174 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL AND PUBLIC
INTERNATIONAL LAW
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
b. Not a Property Right
LAW ON PUBLIC
OFFICERS
I.
GENERAL PRINCIPLES
A. Public Office
1. Definition, Purpose, Nature
Public Office, Defined:
1. A right, authority and duty;
2. Created and conferred by law, by which, for
a given period, either fixed by law or
enduring at the pleasure of the creating
power;
3. Individual is invested with some portion of
the sovereign functions of the government,
to be exercised by him for the benefit of the
public [Laurel v. Desierto, G.R. No. 145368
(2002)].
General Rule: A public office is not property
within the sense of the constitutional
guaranties of due process of law, but is a public
trust or agency. Congress may amend at any
time the law to change or even withdraw the
statutory right [Montesclaros v. COMELEC,
G.R. No. 152295 (2002)].
XPN: Analogous to property in limited context.
Due process may be invoked when dispute
concerns constitutional right to security of
tenure [Lumiqued v. Exevea, G.R. No. 117565
(1997)].
c. Not a Contract
Differs from a contract, which is limited in its
duration and specific in its objects. Terms
agreed upon define rights and obligations of
parties; neither may depart from them without
assent of other [Mechem].
d. Public Office is Personal
1987 Constitution
Article II, Section 1, 2nd Sentence. The Philippines
is a democratic and republican State. Sovereignty
resides in the people and all government authority
emanates from them.
Article XI, Section 1. Public office is a public trust.
Public officers and employees must, at all times, be
accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency; act
with patriotism and justice, and lead modest lives.
Administrative Code of 1987, Introductory
Provisions, Sec. 2 (9). Office refers, within the
framework of governmental organization, to any
major functional unit of a department or bureau
including regional offices. It may also refer to any
position held or occupied by individual persons,
whose functions are defined by law or regulation.
2. Characteristics
a. Public office is a Public Trust
Public office being personal, the death of a
public officer terminates his right to occupy the
contested office and extinguishes his
counterclaim for damages. His widow and/or
heirs cannot be substituted in the counterclaim
suit [Abeja v. Tañada, G.R. No. 112283
(1994)].
e. Right to Public Office Is Not a
Natural Right
The right exists only by virtue of a law expressly
or impliedly creating and conferring it [Mathay,
Jr. v. CA, G.R. No. 124374 (1999)].
f. There Is No Such Thing as a Vested
Interest or an Estate in an Office, or
Even an Absolute Right to Hold It.
Except constitutional offices which provide for
special immunity as regards salary and tenure,
no one can be said to have any vested right in
an office or its salary [National Land Titles and
Deeds Registration Commission v. Civil
Service Commission, G.R. No. 84301 (1993)].
Page 176 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
3. Elements
a. Created by the Constitution or by the
legislature or created by a municipality or
other body through authority conferred
by the legislature;
b. Must possess a delegation of a portion of
the sovereign power of government, to
be exercised for the benefit of the public;
c. The powers conferred and the duties to
be discharged must be defined, directly
or impliedly, by the legislature or
through legislative authority;
d. Duties
must
be
performed
independently and without control of a
superior power, other than law, unless
they be those of an inferior or subordinate
office, created or authorized by the
legislature and by it placed under the
general control of a superior officer or
body;
e. Must have some permanency and
continuity and not be only temporary or
occasional.
(Note:
elements
of
permanence
and
continuity
not
indispensable [Laurel v. Desierto, G.R. No.
145368 (2002)].
A salary is a usual but not a necessary criterion
for determining the nature of the position. It is
not conclusive. The salary is a mere incident
and forms no part of the office [Laurel v.
Desierto, supra].
4. Creation modification, abolition
a. Modes of Creation
1. By Constitution;
2. By statute/law;
3. By authority of law [Secretary of DOTC
v. Mabalot, G.R. No. 138200 (2002)].
b. Modification/Abolition
General Rule: Power to create an office
includes the power to modify or abolish it.
(Hence, the power to modify or abolish an
office is also primarily legislative)
Exception: Where the Constitution prohibits
such modification/abolition.
The President has power to reorganize the
Executive. The President’s power of control
gives him authority to deactivate the functions
of particular offices. As far as bureaus,
agencies or offices in the executive department
are concerned, the President's power of control
may justify him to inactivate the functions of a
particular office, or certain laws may grant him
the broad authority to carry out reorganization
measures [Buklod ng Kawaning EIIB v.
Zamora, G.R. Nos. 142801-802 (2001)].
B. Public Officer
Public officer, Defined
1. An individual vested with some portion of
sovereign functions of government;
2. To be exercised for the benefit of the public
[Alba v. Evangelista, G.R. Nos. L-10360
and L-10433 (1957)].
Powers Conferred to Public Official
Must Be Part of Sovereign Functions
of Government
The creation and conferring of an office involve
a delegation to the individual of some of the
sovereign functions of government, to be
exercised by him for the benefit of the public; –
that some portion of the sovereignty of the
country, either legislative, executive or judicial,
attaches, for the time being, to be exercised for
the public benefit. Unless the powers
conferred are of this nature, the individual
is not a public officer [Laurel v Desierto,
supra].
Who Are Public Officers
1. According to the Administrative Code
Administrative Code, Introductory Provisions,
Section 2.
(14) “Officer” as distinguished from “clerk” or
“employee”, refers to a person whose duties, not
being of a clerical or manual nature, involves the
exercise of discretion in the performance of the
functions of the government. When used with
reference to a person having authority to do a
particular act or perform a particular function in the
exercise of governmental power, “officer” includes
any government employee, agent or body having
Page 177 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
authority to do the act or exercise that function.
(15) “Employee” when used with reference to a
person in the public service, includes any person in
the service of the government or any of its agencies,
divisions, subdivisions or instrumentalities.
2. According to the Revised Penal Code
Revised Penal Code, Article 203. Who are public
officers. – For the purpose of applying the provisions
of this and the preceding titles of this book, any
person who, by direct provision of the law,
popular election or appointment by competent
authority, shall take part in the performance of
public functions in the Government of the
Philippine Islands, or shall perform in said
Government or in any of its branches public
duties as an employee, agent or subordinate
official, of any rank or class, shall be deemed to
be a public officer.
II. MODES OF ACQUIRING
TITLE TO PUBLIC OFFICE
Four Modes
1.
2.
3.
4.
Appointment
Election
Succession
Operation of law
A. Appointment
Appointment
1.
2.
3.
4.
Designation of a person;
By person/persons having authority;
To fill an office or public function;
To discharge the duties of the office or trust
[Flores v. Drilon, G.R. No. 104732 (1993)].
Characteristics of Appointment
3. Under the Anti-Graft
Practices Act
and
Corrupt
R.A. No. 3019, Section 2. Definition of terms.
(b) "Public officer" includes elective and appointive
officials and employees, permanent or temporary,
whether in the classified or unclassified or exempt
service receiving compensation, even nominal, from
the government as defined in the preceding
subparagraph.
Definition of Public Officer Under R.A.
No. 3019 Not Restrictive
The word "includes" used in defining a public
officer in Sec. 2(b) indicates that the
definition is not restrictive. The terms
"classified, unclassified or exemption service"
were the old categories of positions in the civil
service which have been reclassified into
Career Service and Non-Career Service by
P.D. No. 807 providing for the organization of
the Civil Service Commission and by the
Administrative Code of 1987 [Preclaro vs.
Sandiganbayan, G.R. No. 111091 (1995)].
1. Discretionary in nature, performed by
officer in which it is vested; only condition
being that the appointee should possess
qualifications required by law [Luego v.
CSC,
G.R.
No.
69137
(1986)].
GR: A political question involving
considerations of wisdom which only the
appointing
authority
can
decide.
XPN: Appointments requiring confirmation
by the Commission of Appointments;
Commission may review wisdom of
appointment and has power to refuse to
concur even if President’s choice
possessed all qualifications prescribed by
law
[Luego
v.
CSC,
supra].
2. Generally an executive function:
Appointment to office is intrinsically an
executive act involving the exercise of
discretion [Concepcion v. Paredes, G.R.
17539
(1921)].
XPN: Congress may appoint its own
officials and staff [See Springer v.
Government of the Philippine Islands, 277
U.S. 189 (1928)].
a. When the Constitution vests the
powers in another branch of the State
(i.e., Judiciary, Sec. 5(6), Art. VIII) or an
independent office (e.g., Constitutional
Commissions, Sec. 4, Art. IX-A;
Page 178 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
Ombudsman, Sec. 6, Art. XI;
Commission on Human Rights, Sec.
18(10), Art. XIII).
3. Cannot be hindered by Congress:
GR: Exclusive prerogative of the President
[Manalang v. Quitoriano, G.R. No. 6898
(1954)].
When Congress clothes the President with
the power to appoint an officer, it
(Congress) cannot at the same time limit
the choice of the President to only one
candidate. Once the power of appointment
is conferred on the President, such
conferment necessarily carries the
discretion of whom to appoint. Even on the
pretext of prescribing the qualifications of
the officer, Congress may not abuse such
power as to divest the appointing authority,
directly or indirectly, of his discretion to pick
his own choice. Consequently, when the
qualifications prescribed by Congress can
only be met by one individual, such
enactment effectively eliminates the
discretion of the appointing power to
choose and constitutes an irregular
restriction on the power of appointment
[Flores v. Drilon, supra].
XPN: Those resulting:
1. From the need of securing the
concurrence of the Commission on
Appointments; and
III.
2. From the exercise of the limited
legislative power to prescribe the
qualifications to a given appointive
office [Manalang v. Quitoriano, supra].
1987 Constitution, Article IX-B, Section 2(2).
(2) Appointments in the civil service shall be made
only according to merit and fitness to be determined,
as far as practicable, and, except to positions which
are policy-determining, primarily confidential, or
highly technical, by competitive examination.
B. Election
Election
The choice or selection of candidates to public
office by popular vote through the use of the
ballot [Rulloda v. COMELEC, G.R. No. 154198
(2003)].
C. Succession
Example: In case of death, permanent
disability, removal from office, or resignation of
the President, Vice-President becomes
president to serve unexpired term [Art. VII,
Sec. 8].
D. Operation of Law
Example: By direct provision of law, such as
Sec. 8, Art. VIII, which provides that the Chief
Justice of the SC is the ex officio Chairman of
the JBC.
MODES AND KINDS OF APPOINTMENT
Appointments
As to term
1. Permanent
2. Temporary
Appointments by the President
Those under Sec. 16, Art. VII of the Constitution.
Appointments to the Civil
Service
1. Career Service
2. Non-career Service
3. Career Executive Service
Page 179 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
A. As to term
Permanent Appointment
Eligibility
Temporary Appointment
Issued to a person who meets all the
requirements for the positions to which
he is being appointed issued to a
person who meets all the requirements
for the positions to which he is being
appointed, including the appropriate
eligibility prescribed [Sec. 27, Chapter
5, Subtitle A, Title I, Book V, E.O. No.
292].
Issued to a person who meets all the
requirements for the position to which
he is being appointed except the
appropriate civil service eligibility,
provided the following conditions are
present:
(1) absence of appropriate eligibles;
(2) it becomes necessary in the public
interest to fill a vacancy
[Sec. 27, Chapter 5, Subtitle A, Title I,
Book V, E.O. No. 292].
Confirmation
Yes, if required by the Constitution.
by CA
Not subject to confirmation by the CA.
Such confirmation, if given erroneously,
will not make the incumbent a
permanent appointee [Valencia v.
Peralta, Jr., G.R. No. L-20864 (1963)].
Security of
Tenure
No. Appointment is revocable at will
and without the necessity of just cause
or a valid investigation.
Yes.
1. Permanent
Presidential Appointments
2. Temporary
a. “Acting” appointment is a temporary
appointment and revocable in character
[Marohombsar v. Alonto, Jr., G.R. No.
93711 (1991)].
b. Mere designation does not confer security
of tenure, as the person designated
occupies the position only in an acting
capacity [Sevilla v. CA, 209 SCRA 637].
c. Shall not exceed 12 months, but the
appointee may be replaced sooner if a
qualified civil service eligible becomes
available [Section 25(b), P.D. No. 807].
When Temporary Appointments Are
Not Allowed
In no case shall any Member (or Chair) of the
(a) Civil Service Commission, (b) Commission
on Elections, or (c) Commission on Audit be
appointed or designated in a temporary or
acting capacity [Sec. 1(2), Art. IX-B; Sec. 1(2),
Art. IX-C; Sec. 1(2), Art. IX-D, 1987
Constitution].
1987 Constitution, Article VII, Section 16. The
President shall nominate and, with the consent of
the Commission on Appointments, appoint the
heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval
captain, and other officers whose appointments are
vested in him in this Constitution. He shall also
appoint all other officers of the Government whose
appointments are not otherwise provided for by law,
and those whom he may be authorized by law to
appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until after
disapproval by the Commission on Appointments or
until the next adjournment of the Congress.
Page 180 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
Four (4) groups of officers whom the
President shall appoint:
1. (a) Heads of the executive departments,
ambassadors, (b) other public ministers
and consuls, (c) officers of the armed
forces from the rank of colonel or naval
captain, and (d) other officers whose
appointments are vested in him in this
Constitution;
2. All other officers of the Government whose
appointments are not otherwise provided
for by law;
3. those whom the President may be
authorized by law to appoint;
4. Officers lower in rank whose appointments
the Congress may by law vest in the
President alone
Presidential Appointments
1st Group:
Specifically
enumerated
under Article VII,
Section 16 of the
Constitution
1.
2.
3.
4.
5.
Heads of the executive departments;
Ambassadors;
Other public ministers and consuls;
Officers of the armed forces from the rank of colonel or naval captain;
Other officers whose appointments are vested in him by the Constitution:
a. Regular members of the Judicial and Bar Council;
b. The Chairman and Commissioners of the Civil Service Commission;
c. The Chairman and Commissioners of the COMELEC;
d. The Chairman and Commissioners of the Commission on Audit;
2nd Group:
All other officers of the Government whose appointments are not otherwise
provided for by law.
3rd Group:
Officers whom the President may be authorized by law to appoint.
Examples:
Heads of GOCCs;
Undersecretaries;
Heads of bureaus and offices.
4th Group:
Officers lower in rank whose appointments the Congress may by law vest in
the President alone.
List of Appointments Requiring
Confirmation by Commission on
Appointments (CA) Is Exclusive
The list of appointments requiring confirmation
is exclusive. Congress cannot, by law, require
confirmation by the CA for a public office
created by statute. This would be
unconstitutional as it expands the powers of
the CA [Calderon v. Carale, G.R. No. 91636
(1992)].
Commission on Appointments Confirmation Requirement
When CA Confirmation Required
When CA Confirmation NOT Required
Those specifically enumerated under the 1st 1. All other officers whose appointments are
sentence of Section 16, Article VII of the
not otherwise provided for by law;
Constitution:
2. Officers whom the President may be
1. Heads of the executive departments;
authorized by law to appoint;
2. Ambassadors;
3. Other public ministers and consuls;
Page 181 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
When CA Confirmation Required
When CA Confirmation NOT Required
4. Officers of the armed forces from the rank of 3. Appointments explicitly exempted from the
colonel or naval captain;
confirmation
requirement
under
the
5. Other officers whose appointments are
Constitution:
vested in him by the Constitution.
a. Vice-President as a member of the
cabinet [Sec. 3, Art. VII];
b. Members of the Supreme Court and
judges of lower courts [Sec. 9, Art. VIII];
c. The Ombudsman and his deputies [Sec.
9, Art. XI].
4. The CHR Commissioners [Bautista v.
Salonga, G.R. No. 86439 (1989)].
B. Regular or Ad Interim Appointment
Regular Appointment
Ad Interim Appointment
When made by the While Congress is in session [Sec.
President
16(2), Art. VII].
During the recess of the Congress,
whether voluntary or compulsory
[Sec. 16(2), Art. VII].
Nature of
appointment
Permanent
Permanent
Effectivity
Upon confirmation by the CA.
Immediately effective.
Duration
Until the end of the term.
Ceases to be valid:
a. If disapproved by the CA; or
b. If bypassed by the CA upon the
next adjournment of Congress.
1. Ad Interim Appointment and
Appointment in an Acting Capacity
Nature
1. Permanent in nature – takes effect
immediately and cannot be withdrawn
once the appointee has qualified into office.
Effective until disapproved by the
Commission on Appointments or until the
next adjournment of Congress [Matibag v.
Benipayo, G.R. No. 149036 (2002)].
2. No condition on the effectivity of an ad
interim appointment – appointee can at
once assume office and exercise, as a de
jure officer, all the powers pertaining to the
office [Matibag v. Benipayo, supra].
While an ad interim appointment is permanent
and irrevocable except as provided by law, an
appointment or designation in a temporary or
acting capacity can be withdrawn or revoked at
the pleasure of the appointing power. A
temporary or acting appointee does not enjoy
any security of tenure, no matter how briefly.
This is the kind of appointment that the
Constitution prohibits the President from
making to the three independent constitutional
commissions, including the COMELEC
[Matibag v. Benipayo, supra].
2. Disapproval vs. Bypass
An ad interim appointee disapproved by the
CA cannot be reappointed. But a by-passed
appointee, or one whose appointment was not
Page 182 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
acted upon the merits by the CA, may be
appointed again by the President, because
failure by the CA to confirm an ad interim
appointment is not disapproval.
Renewal of By-Passed Appointment
“A by-passed appointment is one that has not
been finally acted upon on the merits by the
Commission on Appointments at the close of
the session of Congress. There is no final
decision by the Commission on Appointments
to give or withhold its consent to the
appointment as required by the Constitution.
Absent such decision, the President is free to
renew the ad interim appointment of a bypassed appointee” [Matibag v. Benipayo,
supra].
General Rule: A President or Acting President
shall not make appointments two (2) months
immediately before the next presidential
elections and up to the end of his term [Art. VII,
Sec. 15].
Exceptions: When prejudicial to public
service/safety; members of judiciary/SC.
1. Temporary appointments to executive
positions when continued vacancies
therein will prejudice public service or
endanger public safety [Sec. 15, Art. VII,
1987 Constitution];
2. The prohibition does not apply to Members
of the Supreme Court and the judiciary [De
Castro v. JBC, G.R. No. 191002 (2010)].
Note: This provision applies only to presidential
appointments. There is no law that prohibits
local executive officials from making
appointments during the last days of their
tenure [De Rama v. CA, G.R. No. 131136
(2001)];
Eligibility
Ineligibility
1. Lack of qualifications prescribed by the
Constitution or applicable law;
2. Legally or otherwise disqualified to hold an
office; disqualified to be elected to an
office; disqualified to hold an office if
elected or appointed to it [Topacio v.
Paredes, 23 Phil. 238-258 (1912)].
Qualification
C. Midnight Appointments
IV. ELIGIBILITY
QUALIFICATION
REQUIREMENTS
2. Eligibility to a public office is of a continuing
nature and must exist both at the
commencement and during the occupancy
of an office [Aguila v. Genato, 103 SCRA
(1981)].
3. Integrity is a continuing requirement
[Republic v. Sereno, G.R. No. 237428
(2018)].
AND
1. May
refer
to
endowment
or
accomplishment that fits one for office;
Every particular job in an office calls for both
formal and informal qualifications. Formal
qualifications such as age, number of
academic units in a certain course, seminars
attended, etc., may be valuable but so are such
intangibles as resourcefulness, team spirit,
courtesy, initiative, loyalty, ambition, prospects
for the future, and best interests of the service
[Gaspar v. CA, 190 SCRA 774 (1990)].
Administrative Code, Book V, Sections 21(1),
21(7), and 22(1).
Section 21. Recruitment and Selection of
Employees. – (1) Opportunity for government
employment shall be open to all qualified citizens
and positive efforts shall be exerted to attract the
best qualified to enter the service. Employees shall
be selected on the basis of fitness to perform the
duties and assume the responsibilities of the
positions.
(7) Qualification in an appropriate examination shall
be required for appointment to positions in the first
and second levels in the career service in
accordance with the Civil Service rules, except as
otherwise provided in this Title: Provided, That
whenever there is a civil service eligible actually
available for appointment, no person who is not
such an eligible shall be appointed even in a
temporary capacity to any vacant position in the
career service in the government or in any
government-owned or controlled corporation with
original charter, except when the immediate filling of
the vacancy is urgently required in the public
1. State of being legally fitted or qualified to
be chosen [De Leon].
Page 183 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
interest, or when the vacancy is not permanent, in
which cases temporary appointments of noneligibles may be made in the absence of eligibles
actually and immediately available.
Section 22. Qualification Standards. – (1) A
qualification standard expresses the minimum
requirements for a class of positions in terms of
education, training and experience, civil service
eligibility, physical fitness, and other qualities
required for successful performance. The degree of
qualifications of an officer or employee shall be
determined by the appointing authority on the basis
of the qualification standard for the particular
position.
R.A. No. 9225, Sections 5(3) and 5(5)
Section 5. Civil and Political Rights and Liabilities.
– Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant
liabilities and responsibilities under existing laws of
the Philippines and the following conditions:
(3) Those appointed to any public office shall
subscribe and swear to an oath of allegiance to the
Republic of the Philippines and its duly constituted
authorities prior to their assumption of office:
Provided, that they renounce their oath of allegiance
to the country where they took that oath;
(5) That right to vote or be elected or appointed to
any public office in the Philippines cannot be
exercised by, or extended to, those who:
(a) are candidates for or are occupying any public
office in the country of which they are naturalized
citizens; and/or
(b) are in active service as commissioned or noncommissioned officers in the armed forces of the
country which they are naturalized citizens.
Qualifications Prescribed in Constitution for Certain Officers
1.
2.
President and Vice-President.
3.
(Art. VII, Secs. 2, 3)
4.
5.
Natural-born citizen;
Registered voter;
Able to read and write;
At least forty years of age on the day of the Election;
Resident of the Philippines for at least ten years immediately
preceding such election.
1.
2.
3.
4.
5.
Natural-born citizen;
On the day of the election, is at least thirty-five years of age;
Able to read and write;
Registered voter;
Resident of the Philippines for not less than two years
immediately preceding the day of the election.
1.
2.
Members of the House of 3.
Representatives. (Art VI, Sec. 4.
6)
5.
Natural-born citizen;
On day of election at least 25 years;
Able to read and write;
Except in party-list elections, registered voter in district
where to be elected;
Resident for period of not less than one year immediately
preceding day of election.
Senators. (Art. VI, Sec. 3)
1. Natural-born citizen of the Philippines;
Members of the Supreme 2. SC: must be at least forty years of age;
Court and lower collegiate 3. Must have been for fifteen or more a judge of lower court or
court. (Art. VIII)
engaged in the practice of law in the Philippines;
4. Must be a person of proven competence, integrity, probity,
independence.
Page 184 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
Qualifications Prescribed in Constitution for Certain Officers
1.
2.
Chairman and Commissioners
3.
of the Civil Service. (Art. IX-B)
4.
Natural-born citizen;
At least 35 at time of appointment;
Proven capacity for public administration;
Must not have been candidates for any elective position in
the elections immediately preceding their appointment.
1.
2.
3.
Chairman and Commissioners
4.
of
the
Commission
on
Elections. (Art. IX-C)
5.
Natural-born citizens;
At least 35 at time of appointment;
Holder of college degree;
Must not have been candidates for any elective position in
the immediately preceding elections;
Majority, including Chairman, shall be members of the PH
Bar who have been engaged in the practice of law for at least
ten years.
1. Natural-born citizens;
2. At least 35 at time of appointment;
3. Certified public accountants with not less than ten years of
Chairman and Commissioners
auditing experience or members of PH Bar who have been
of the Commission on Audit.
engaged in practice of law for at least ten years;
(Art. IX-D)
4. Must not have been candidates for any elective positions in
the elections immediately preceding their appointment;
5. At no time shall all Members of the Commission belong to
the same profession.
Chairman and Members of the 1. Natural-born citizens
Commission
on
Human 2. Majority are members of Bar
Rights. (Art. XIII, Sec. 17)
3. Term/other qualifications and disabilities provided by law.
1.
2.
3.
Ombudsman and his deputies. 4.
(Art. XI, Sec. 8)
5.
Natural-born citizens;
At time of their appointment at least 40;
Of recognized probity and independence;
Members of the Bar;
Not candidates for any elective office in the immediately
preceding elections;
6. Ombudsman: must have for ten years and more been a
judge or engaged in the practice of law in the Philippines.
Qualifications Prescribed by Law for Certain Officers
Secretaries of Departments (Admin. Code
of 1987, Book IV, Chapter 10, Sec. 45.)
Citizens of PH;
Not less than 25.
Presiding Justice and Associate Justice of
the CA (B.P. Blg. 129, Sec. 7)
Same qualifications as those provided in the
Constitution for Justices of the SC.
Judges of RTC (B.P. Blg. 129, Sec. 15)
1. Natural-born citizen of PH;
2. At least 35;
3. At least 10 years engaged in the practice of
law in the PH requiring admission to the
Page 185 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
Qualifications Prescribed by Law for Certain Officers
practice of law as an indispensable
requirement.
Judges of Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal
Circuit Trial Courts (B.P. Blg. 129, Sec. 26)
1. Registered voter in barangay, municipality,
city or province, or in case of a member of the
sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the
district where he intends to be elected;
2. Resident therein for at least one (1) year
immediately preceding the day of the election;
3. Able to read and write Filipino or any other
local language or dialect.
Elective local officials, in general
1. Registered voter in barangay, municipality,
city or province, or in case of a member of the
sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the
district where he intends to be elected;
2. Resident therein for at least one (1) year
immediately preceding the day of the election;
3. Able to read and write Filipino or any other
local language or dialect.
Candidates for the position of governor,
vice-governor or member of the
sangguniang panlalawigan, or mayor,
vice-mayor or member of the sangguniang
panlungsod of highly urbanized cities
At least twenty-three (23) years of age on election
day.
Candidates for the position of mayor or
vice-mayor of independent component
cities, component cities, or municipalities
At least twenty-one (21) years of age on election
day.
Candidates for the position of member of
the sangguniang panlungsod or
sangguniang bayan
At least eighteen (18) years of age on election
day.
Candidates for the position of punong
barangay or member of the sangguniang
barangay
At least eighteen (18) years of age on election
day.
V. DISABILITIES
INHIBITIONS OF
OFFICERS
General Disqualifications
AND
PUBLIC
subsidiaries [Sec. 6, Art. IX-B; Sec. 54,
Book
V,
Admin.
Code].
XPN: Losing candidates in Barangay
elections [Sec. 94 (b) LGC].
2. Elective officials: not eligible for
1. Candidate who has lost in any election:
appointment or designation in any capacity
cannot be appointed within one year to any
to any public office or position during his
office in Govt. or in any GOCCs or
Page 186 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
tenure [Sec. 7, Art. IX-B; Sec. 54, Book V,
Admin. Code].
XPN: Unless allowed by the Constitution
(e.g., The VP as Cabinet Member [Sec. 3,
Art. VII, Const.], the President as Chairman
of NEDA [Sec. 9, Art. XII, Const.], a
representative of Congress as member of
JBC [Sec. 8, Art. VIII, Const.]).
3. Appointive officials: cannot hold any
other office or employment in Govt. or any
subdivision, agency or instrumentality
thereof, including government-owned or
controlled corporations or their subsidiaries
unless otherwise allowed by law OR by
the primary functions of position [Sec.
7, Art. IX-B, Const.; Sec. 54, Book V,
Admin. Code].
XPN: Official presidential family [Sec. 13].
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 office or
employment during their tenure.
It bears repeating though that in order that such
additional duties or functions may not
transgress the prohibition embodied in Section
13, Article VII of the 1987 Constitution, such
additional duties or functions must be required
by the primary functions of the official
concerned, who is to perform the same in an
ex-officio capacity as provided by law, without
receiving any additional compensation
therefor. Ex-officio posts held by the executive
official
concerned
without
additional
compensation as provided by law and as
required by the primary functions of his office
do not fall under the definition of "any other
office" within the contemplation of the
constitutional prohibition [Civil Liberties Union
v. Executive Secretary, G.R. Nos. 83896 &
83815 (1991)].
A government official may occupy two
government offices and perform the functions
of both as long as there is no incompatibility
[Public Interest Center Inc. v. Elma, G.R. No.
138965 (2006)].
Doctrine of Incompatibility
Whether one office is subordinate to the other,
in the sense that one office has the right to
interfere with the other. Incompatibility between
two offices, is an inconsistency in the functions
of the two [Id.].
4. Nepotism (Sec. 59, Book V, Admin.
Code):
a. all appointments in the national,
provincial,
city
and
municipal
governments or in any branch or
instrumentality
thereof,
including
government-owned
or
controlled
corporations;
b. made in favor of a relative of the
appointing
or
recommending
authority, or of the chief of the
bureau or office, or of the persons
exercising immediate supervision
over him, are hereby prohibited;
c. Relative/family members: within 3rd
degree of affinity or consanguinity.
XPN: (a) persons employed in a
confidential capacity, (b) teachers, (c)
physicians, and (d) members of the
Armed Forces of the Philippines.
Restriction not applicable to the case of
a member of any family who, after his
or her appointment to any position in an
office or bureau, contracts marriage
with someone in the same office or
bureau, in which event the employment
or retention therein of both husband
and wife may be allowed.
d. Sec. 79, LGC: No person shall be
appointed in the career service of the
local government if he is related within
the fourth civil degree of consanguinity
or affinity to the appointing or
recommending authority.
Not applicable to the case of a
member of any family who, after his
or her appointment to any position in
an office or bureau, contracts
marriage with someone in the same
office or bureau, in which event the
employment or retention therein of
Page 187 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
both husband and wife may be
allowed. [Section 59, Chapter 8,
Title I(A), Book V, EO No. 292]
Covers appointments made by a group of
individuals acting as a body [CSC v. Cortes,
G.R. No. 200103 (2014)].
e. The spouse and relatives by
consanguinity or affinity within the
fourth civil degree of the President shall
not during his tenure be appointed as
members
of
the
Constitutional
Commissions, or the Office of the
Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads
of bureaus or offices, including
government-owned
or
controlled
corporations and their subsidiaries [Art.
VII, Sec. 13, par. 2].
Does not require the existence of a
government position in the plantilla of an
organization, nor budgetary allocation therefor
nor that the appointee received benefits as a
result of the appointment for its application
[Bagaoisan v. Office of the Ombudsman for
Mindanao, Davao City, G.R. No. 242005
(2019)].
Covers promotional appointments (not just
original appointments) [Debulgado v. CSC, 237
SCRA 184 (1994)].
Designation is included under appointment in
this sense, or else, the rules on nepotism would
be meaningless as an appointing authority may
just designate a relative to a vacant position.
What cannot be done directly cannot be done
indirectly [Laurel V v. CSC, G.R. No. 71562
(1991)].
Specific Disqualifications
Specific Disqualifications
Members of
Congress [Const.,
Art. VI, Sec. 13]
1. No Senator or Member of the House of Representatives
2. May hold any other office or employment in the Government, or
any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries
without forfeiting his seat.
3. Neither shall he be appointed to any office which may have been
created or the emoluments thereof increased during the term for
which he was elected.
President, VP,
Cabinet, deputies,
assistants [Const.,
Art. VII, Sec. 13]
1. President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their
tenure.
2. Shall not, during said tenure, directly or indirectly, practice any
other profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special
privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.
3. They shall strictly avoid conflict of interest in the conduct of their office.
Members of SC
and of other courts
[Const., Art. VIII,
Sec. 12]
Shall not be designated to any agency performing quasi-judicial or
administrative functions.
Members of
Constitutional
1. No Member of a Constitutional Commission shall, during his tenure,
hold any other office or employment.
Page 188 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
Specific Disqualifications
Commissions
[Const., Art. IX-A,
Sec. 2]
2. Neither shall he engage in the practice of any profession or in the
active management or control of any business which in any way be
affected by the functions of his office,
3. Nor shall he be financially interested, directly or indirectly, in any
contract with, or in any franchise or privilege granted by the
Government, any of its subdivisions, agencies, or instrumentalities,
including government-owned or controlled corporations or their
subsidiaries.
Civil Service
Commission
[Const., Art. IX-B,
Sec. 1]
Commissioners must not have been candidates for any elective position in
the elections immediately preceding their appointment.
COMELEC [Const.,
Art. IX-C, Sec. 1]
Must not have been candidates for any elective position in the immediately
preceding elections.
Commission on
Audit [Const., Art.
IX-D, Sec. 1]
Must not have been candidates for any elective position in the elections
immediately preceding their appointment. At no time shall all Members of
the Commission belong to the same profession.
Ombudsman
[Const., Art. XI,
Sec. 8, 2nd par.]
Must not have been candidates for any elective office in the immediately
preceding election.
Members of the
Armed Forces
[Const., Art. XVI,
Sec. 5[4]]
No member of the armed forces in the active service shall, at any time, be
appointed or designated in any capacity to a civilian position in the
Government including government-owned or controlled corporations or any
of their subsidiaries.
Note: Members of the Constitutional Commissions and the Ombudsman and Deputies must not have
been candidates (not only losing candidates) in the immediately preceding election.
VI. POWERS AND DUTIES
OF PUBLIC OFFICERS
Sovereignty resides in the people and all
government authority emanates from them
[Sec. 1, Art. II, 1987 Const.].
A. Scope of Power of a Public
Officer
The right to be a public officer, then, or to
exercise the powers and authority of a public
office, must find its source in some provision of
the public law.
a. Expressly conferred upon him by law under
which he has been appointed or elected;
b. Expressly annexed to the office by law
which created it or some other law referring
to it;
c. Attached to the office as incidents to it.
Source of Powers of Public Officer
In the absence of a valid grant, public officials
are devoid of power. A public official exercises
power, not rights. The Government itself is
merely an agency through which the will of the
State is expressed and enforced. Its officers
therefore are likewise agents entrusted with the
responsibility of discharging its functions. As
Page 189 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
such there is no presumption that they are
empowered to act. There must be a delegation
of such authority, either express or implied
[Villegas v. Subido, G.R. No. L-26534 (1969)].
But once the power is expressly granted, it will
be broadly construed in line with the doctrine of
necessary implication [De Leon].
Doctrine of Necessary Implication
All powers necessary for the effective exercise
of the express powers are deemed impliedly
granted [Nachura].
Authority can be exercised only during the term
when the public officer is, by law, invested with
the rights and duties of the office.
Territorial Limitation of Authority of
Public Officers:
●
●
The authority of public officers is limited to
territory where law has effect, by virtue of
which they claim, has sovereign force —
the authority cannot exist in places where
the law has no effect.
Where a public officer authorized by law to
perform his office at a particular place, his
action at a place not authorized by law is
invalid (i.e., judge levying and selling
property outside its jurisdiction is invalid)
[De Leon].
Duration of Authority
Limited to the term during which he is by law
invested with the rights and duties of the office
[De Leon].
Construction of Grant of Powers
Express grants of power are subject to a strict
interpretation and will be construed as
conferring those powers only which are
expressly imposed or necessarily implied [De
Leon; Banco Filipino Savings & Mortgage Bank
v. Monetary Board, G.R. 70054 (1991)].
B. Classification of Powers and
Duties
1. As to Nature
a. Ministerial
A purely ministerial act or duty is one which an
officer or tribunal performs in a given state of
facts, in a prescribed manner, in obedience to
the mandate of a legal authority, without regard
to or the exercise of his own judgment upon the
propriety or impropriety of the act done.
[Espidirion v. CA, G.R. No. 146933 (2006)]
General Rule: Performance of duties of this
nature may be properly delegated to another.
Exceptions
• Delegation is expressly prohibited by law;
or
• The law expressly requires that the act be
performed by the officer in person.
Mandamus will lie but only upon a clear
showing of a legal right [Sec. 3, Rule 65, Rules
of Court].
b. Discretionary
Acts which necessarily require the exercise of
reason in the adaptation of means to an end,
and discretion in determining how or whether
the act shall be done or the course pursued.
When the law commits to any officer the duty
of looking into facts and acting upon them, not
in a way which it specifically directs, but after a
discretion in its nature, the function is
discretionary (e.g., quasi-judicial acts).
General Rule: A public officer cannot delegate
his discretionary duties to another.
Rationale: In cases where the execution of the
office requires exercise of judgment or
discretion by the officer, the presumption is that
he was chosen because he was deemed fit and
competent to exercise such judgment.
Exception: The power to substitute another in
his place has been expressly granted by law.
The rule that requires an administrative officer
to exercise his own judgment and discretion
does not preclude him from utilizing, as a
matter of practical administrative procedure,
the aid of subordinates to investigate and
report to him the facts, on the basis of which
the officer makes his decisions. It is sufficient
that the judgment and discretion finally
exercised are those of the officer authorized by
Page 190 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
law [American Tobacco vs Director of Patents,
G.R. No. L-26803 (1975)].
action or step as prescribed by law to make
them perform their duties [Mondano, supra]
Mandamus will not lie for the performance of a
discretionary duty.
C. Duties of Public Officers
Exception to the Exception: When the
discretion is granted only as to the manner of
its exercise and not the discretion to act or not
to act, the court may require a general action
[BF Homes, Inc. v. National Water Resources
Council, G.R. No. 78529 (1987)].
There are two kinds of duties exercised by
public officers: the "duty owing to the public
collectively" (the body politic), and the "duty
owing to particular individuals, thus:
2. As to the Obligation of the Officers
to Perform Their Powers and Duties
a. Mandatory
Powers conferred on public officers are
generally construed as mandatory although the
language may be permissive, where they are
for the benefit of the public or individuals.
b. Permissive
Statutory provisions define the time and mode
in which public officers will discharge their
duties, and those which are obviously designed
merely to secure order, uniformity, system and
dispatch in public business are generally
deemed directory.
If the act does not affect third persons and is
not clearly beneficial to the public, permissive
words will not be construed as mandatory [De
Leon].
3. As to the Relationship of the
Officers to Their Subordinates
Power of Control – The power of an officer to
alter or modify or nullify or set aside what a
subordinate officer had done in the
performance of his duties and to substitute the
judgment of the former for that of the latter.
[Mondano v Silvosa, G.R. No. L-7708 (1995)]
Power of Supervision
1. Of Duties to the Public. The first of these
classes embraces those officers whose duty is
owing primarily to the public collectively --- to
the body politic --- and not to any particular
individual; who act for the public at large, and
who are ordinarily paid out of the public
treasury.
The officers whose duties fall wholly or partially
within this class are numerous and the
distinction will be readily recognized. Thus, the
governor owes a duty to the public to see that
the laws are properly executed, that fit and
competent officials are appointed by him, that
unworthy and ill-considered acts of the
legislature do not receive his approval, but
these, and many others of a like nature, are
duties which he owes to the public at large and
no one individual could single himself out and
assert that they were duties owing to him alone.
So, members of the legislature owe a duty to
the public to pass only wise and proper laws,
but no one person could pretend that the duty
was owing to himself rather than to another.
Highway commissioners owe a duty that they
will be governed only by considerations of the
public good in deciding upon the opening or
closing of highways, but it is not a duty to any
particular individual of the community.
These illustrations might be greatly extended,
but it is believed that they are sufficient to
define the general doctrine.
2. Of Duties to Individuals. - The second
class above referred to includes those who,
while they owe to the public the general duty of
a proper administration of their respective
offices, yet become, by reason of their
employment by a particular individual to do
some act for him in an official capacity, under a
special and particular obligation to him as an
Supervision means overseeing or the power or
authority of an officer to see that subordinate
officers perform their duties. If the latter fail or
neglect to fulfill them the former may take such
Page 191 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
individual. They serve individuals chiefly and
usually receive their compensation from fees
paid by each individual who employs them.
A sheriff or constable in serving civil process
for a private suitor, a recorder of deeds in
recording the deed or mortgage of an
individual, a clerk of court in entering up a
private judgment, a notary public in protesting
negotiable paper, an inspector of elections in
passing upon the qualifications of an elector,
each owes a general duty of official good
conduct to the public, but he is also under a
special duty to the particular individual
concerned which gives the latter a peculiar
interest in his due performance [Vinzons-Chato
v. Fortune Tobacco Corp., G.R. No. 141309
(2008)].
1. General (Constitutional) Duties
a. To be accountable to the people; to serve
them with utmost responsibility, integrity,
loyalty and efficiency; to act with patriotism
and justice; and to lead modest lives [Sec.
1, Art. IX, 1987 Const.].
b. To submit a declaration under oath of his
assets, liabilities and net worth (SALN)
upon assumption of office and as often
thereafter as may be required by law [Sec.
17, Art. XI, 1987 Const.].
Minor or explainable errors in the SALN,
which cannot be related to an attempt to
conceal illicit activities, should not be
punishable. This Court may relax the rule
on strictly complying with the SALN in
cases where minor errors were committed
since these may simply be used to harass
and obstruct public officers in the
performance of their duties [Iglesias v.
Office of the Ombudsman, G.R. No.
180745 (2017)].
c. To owe the State and the Constitution
allegiance at all times [Sec. 18, Art. XI,
Const.].
Duty to Make Financial Disclosures
for Members of Congress
All Members of the Senate and the House of
Representatives shall, upon assumption of
office, make a full disclosure of their financial
and business interest. They shall notify the
House concerned of a potential conflict of
interest that may arise from the filing of a
proposed legislation of which they are authors
[Art. VI, Sec. 12].
2. Duties of Public
Trustees for the Public
Officers
as
a. In General
1.
2.
3.
4.
Duty to obey the law;
Duty to accept and continue in office;
Duty to accept burden of office;
Duty as to diligence and care in the
performance of official duties;
5. Duty in choice and supervision of
subordinates.
b. Ethical Duties
Bound to perform honestly, faithfully, and to the
best of his ability, and to act primarily for the
benefit of the people. An attempt to exercise
those powers corruptly for some improper
purpose is null and void.
a. Duty to refrain from outside activities that
interfere with the proper discharge of their
duties;
b. Duty not to use his official power to further
his own interest;
c. Duty to act with civility [De Leon].
3. Specific Duties under the Code of
Conduct and Ethical Standards for
Public Officials and Employees
a. Act promptly on letters and requests;
b. All public officials shall, within fifteen
(15) working days from receipt,
respond to letters, telegrams or other
means of communication sent by the
public. The reply must contain the
answer taken on the request;
c. Submit annual performance reports;
d. All heads or other responsible officers
of agencies of the government or of
GOCCs shall, within forty-five (45)
working days from the end of the year,
render a full and complete report of
performance and accomplishments, as
prescribed by existing rules and
Page 192 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
regulations of the agency, office or
corporation concerned;
e. Process documents and papers
expeditiously;
f. All official papers and documents must
be processed and completed within a
reasonable time from the preparation
thereof and must contain, as far as
practicable, not more than three (3)
signatories therein;
g. Act immediately on the public’s
personal transactions;
h. All public officials and employees must
attend to anyone who wants to avail
himself of the services of their offices,
and must, at all times, act promptly and
expeditiously;
i. Make documents accessible to the
public;
j. All public documents must be made
accessible to, and readily available for
inspection by, the public within
reasonable working hours [Sec. 5, R.A.
No. 6713].
VII. RIGHTS
OFFICERS
OF
PUBLIC
A. To Office
B. Security of Tenure
1987 Constitution
Article IX-B, Section 2(3).
(3) No officer or employee of the civil service shall
be removed or suspended except for cause
provided by law.
Article XIII, Section 3, Paragraph 2. [The State]
shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations,
and peaceful concerted activities, including the right
to strike in accordance with law. They shall be
entitled to security of tenure, humane conditions of
work, and a living wage. They shall also participate
in policy and decision-making processes affecting
their rights and benefits as may be provided by law.
Legal Right to Position Is Protected by
Security of Tenure upon Assumption
of Office
The moment the appointee assumes a position
in the civil service under a completed
appointment, he acquires a legal, not merely
equitable right (to the position), which is
protected not only by statute, but also by the
Constitution [Art. IX-B, Sec. 2, par. (3)] and
cannot be taken away from him either by
revocation of the appointment, or by removal,
except for cause, and with previous notice and
hearing [CSC v. Magnaye, Jr., G.R. No.
183337 (2010)].
Security of Tenure Cannot Be
Expanded to Grant Right to Office
When There Is a Change in the Nature
of the Office
Security of tenure in public office means that a
public officer or employee shall not be
suspended or dismissed except for cause, as
provided by law and after due process. It
cannot be expanded to grant a right to public
office despite a change in the nature of the
office held.
Both career and non-career service employees
have a right to security of tenure. All permanent
officers and employees in the civil service,
regardless of whether they belong to the career
or non-career service category, are entitled to
this guaranty; they cannot be removed from
office except for cause provided by law and
after procedural due process [Government of
Camarines Norte vs. Gonzales, G.R. No.
185740
(2013)].
C. Compensation
1987 Constitution, Article IX-B, Sections 5 and 8.
Section 5. The Congress shall provide for the
standardization of compensation of government
officials and employees, including those in
government-owned or controlled corporations with
original charters, taking into account the nature of
the responsibilities pertaining to, and the
qualifications required for their positions.
Section 8. No elective or appointive public officer or
employee shall receive additional, double, or
indirect
compensation,
unless
specifically
Page 193 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
authorized by law, nor accept without the consent of
the Congress, any present, emolument, office, or
title of any kind from any foreign government.
Pensions or gratuities shall not be considered as
additional, double, or indirect compensation.
The ex-officio positions held by Cabinet
officials are not entitled to additional
compensation. The ex-officio position being
actually and in legal contemplation part of the
principal office, it follows that the official
concerned has no right to receive additional
compensation for his services in the said
position. The reason is that these services are
already paid for and covered by the
compensation attached to his principal office
[Civil Liberties Union v. Executive Secretary,
supra].
This Court, in a long line of cases, has already
applied the double compensation prohibition to
positions outside the Cabinet [Suratos v.
Commission on Audit, G.R. No. 253584
(2022)].
D. Different/Applicable Leaves
"(t)he right to self-organization shall not be
denied to government employees."
With respect to other civil servants, that is,
employees of all branches, subdivisions,
instrumentalities and agencies of the
government including government-owned or
controlled corporations with original charters
and who are, therefore, covered by the civil
service laws, the guidelines for the exercise of
their right to organize is provided for under
Executive Order No. 180 [TUPAS vs. NHA,
G.R. No. L-49677 (1989)].
F. Retirement Pay
Pensions or gratuities shall not be considered
as additional, double, or indirect compensation
[Sec. 8, Art. IX-B, Const.].
This provision simply means that a retiree
receiving pension or gratuity can continue to
receive such pension or gratuity even if he
accepts another government position to which
another compensation is attached [Santos v.
Court of Appeals, G.R. No. 139792 (2000)].
VIII. LIABILITIES OF PUBLIC
OFFICERS
E. Self-Organization
1987 Constitution
Article III, Section 8. The right of the people,
including those employed in the public and private
sectors, to form unions, associations, or societies for
purposes not contrary to law shall not be abridged.
Article XIII, Section 3, 2nd par. [The State] shall
guarantee the rights of all workers to selforganization, collective bargaining and negotiations,
and peaceful concerted activities, including the right
to strike in accordance with law. They shall be
entitled to security of tenure, humane conditions of
work, and a living wage. They shall also participate
in policy and decision-making processes affecting
their rights and benefits as may be provided by law.
Article IX-B, Section 2(5).
(5) The right to self-organization shall not be denied
to government employees.
With respect to government employees, the
right to unionize is recognized in Paragraph (5),
Section 2, Article IX-B which provides that
1987 Constitution, Article XI, Section 15. The
right of the State to recover properties unlawfully
acquired by public officials or employees, from them
or from their nominees or transferees, shall not be
barred by prescription, laches, or estoppel.
Administrative Code, Book I, Section 38. Liability
of Superior Officers. –
(1) A public officer shall not be civilly liable for acts
done in the performance of his official duties,
unless there is a clear showing of bad faith,
malice or gross negligence.
(2) Any public officer who, without just cause,
neglects to perform a duty within a period fixed
by law or regulation, or within a reasonable
period if none is fixed, shall be liable for
damages to the private party concerned without
prejudice to such other liability as may be
prescribed by law.
(3) A head of a department or a superior officer
shall not be civilly liable for the wrongful acts,
omissions of duty, negligence, or misfeasance
Page 194 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
of his authorized by written order the specific
act or misconduct complained of.
Book I, Section 39. Liability of Subordinate
Officers. – No subordinate officer or employee shall
be civilly liable for acts done by him in good faith in
the performance of his duties. However, he shall be
liable for willful or negligent acts done by him which
are contrary to law, morals, public policy and good
customs even if he acted under orders or
instructions of his superiors.
Civil Code, Articles 27, 32, and 34.
Article 27. Any person suffering material or moral
loss because a public servant or employee refuses
or neglects, without just cause, to perform his official
duty may file an action for damages and other relief
against the latter, without prejudice to any
disciplinary administrative action that may be taken.
Article 32. Any public officer or employee, or any
private individual, who directly or indirectly
obstructs, defeats, violates or in any manner
impedes or impairs any of the following rights and
liberties of another person shall be liable to the latter
for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a
periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without
due process of law;
(7) The right to a just compensation when private
property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house,
papers, and effects against unreasonable
searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The
privacy
of
communication
and
correspondence;
(12) The right to become a member of associations
or societies for purposes not contrary to law;
(13) The right to take part in a peaceable assembly
to petition the Government for redress of
grievances;
(14) The right to be a free from involuntary servitude
in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself
and counsel, to be informed of the nature and
cause of the accusation against him, to have a
speedy and public trial, to meet the witnesses
face to face, and to have compulsory process
to secure the attendance of witness in his
behalf;
(17) Freedom from being compelled to be a witness
against one's self, or from being forced to
confess guilt, or from being induced by a
promise of immunity or reward to make such
confession, except when the person confessing
becomes a State witness;
(18) Freedom from excessive fines, or cruel and
unusual punishment, unless the same is
imposed or inflicted in accordance with a
statute which has not been judicially declared
unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether
or not the defendant's act or omission constitutes a
criminal offense, the aggrieved party has a right to
commence an entirely separate and distinct civil
action for damages, and for other relief. Such civil
action shall proceed independently of any criminal
prosecution (if the latter be instituted), and may be
proved by a preponderance of evidence.
The indemnity shall include moral damages.
Exemplary damages may also be adjudicated.
The responsibility herein set forth is not demandable
from a judge unless his act or omission constitutes
a violation of the Penal Code or other penal statute.
Article 34. When a member of a city or municipal
police force refuses or fails to render aid or
protection to any person in case of danger to life or
property, such peace officer shall be primarily liable
for damages, and the city or municipality shall be
subsidiarily responsible therefor. The civil action
herein recognized shall be independent of any
criminal proceedings, and a preponderance of
evidence shall suffice to support such action.
Juxtaposed with Article 32 of the Civil Code,
the principle may now translate into the rule
that an individual can hold a public officer
personally liable for damages on account of an
act or omission that violates a constitutional
right only if it results in a particular wrong or
injury to the former [Vinzons-Chato v. Fortune
Tobacco Corp., supra].
See: Articles 203-245 of the Revised Penal
Code for Title VII - Crimes Committed by Public
Officers.
Local Government Code, Section 24. Liability for
Damages. – Local government units and their
officials are not exempt from liability for death or
injury to persons or damage to property.
Page 195 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
Presumption of Regularity
Such presumption of regularity of performance
of official duty stands only when no reason
exists in the records by which to doubt the
regularity of the performance of official duty.
The presumption is rebuttable by affirmative
evidence of irregularity or of any failure to
perform a duty [People v. Arposeple y
Sanchez, G.R. No. 205787 (2017)].
Liability of Superior Officers
General Rule: Superior officers are NOT civilly
liable for acts done in the performance of their
official duties.
Exceptions:
1. Where there is a clear showing of bad faith,
malice, or gross negligence;
2. There is neglect in the performance of a
duty within the period fixed by law or
regulation, or within a reasonable period if
none is fixed;
3. Where the superior officer has actually
authorized by written order the specific act
or omission complained of.
penal sanction, the erring officer may also be
punished criminally. Finally, such violation may
also lead to suspension, removal from office, or
other administrative sanctions [Ramiscal v.
Commission on Audit, G.R. No. 213716
(2017)].
General Rule: The action that may result for
each liability may proceed independently of
one another, as the quantum of evidence
required in each case is different.
Exception: Where the very basis of the
administrative case is conviction in the criminal
action which was later on set aside upon a
categorical and clear finding that the acts for
which the officer was administratively held
liable are not unlawful and irregular, the
acquittal of the officer in the criminal case
necessarily entails the dismissal of the
administrative action against them [Larin v.
Executive Secretary, G.R. No. 112745 (1997)].
IX. IMMUNITY OF PUBLIC
OFFICERS
Liability of Subordinate Officers
General Rule: Subordinate officers are NOT
civilly liable for acts done in the performance of
their official duties.
Exception: They are liable for willful or
negligent acts done by them contrary to law,
morals, public policy and good customs even if
they acted under orders of their superiors.
Threefold Liability Rule
Under the threefold liability rule, a public
officer may be held civilly, criminally, and
administratively liable for a wrongful act or
omission. The administrative liability is
separate and distinct from the penal and civil
liabilities. Thus, the dismissal of an
administrative case does not necessarily bar
the filing of a criminal prosecution for the same
or similar acts, which were the subject of the
administrative
complaint
[Tecson
v.
Sandiganbayan, G.R. No. 123045 (1999)].
If such violation or wrongful act results in
damages to an individual, the public officer
may be held civilly liable to reimburse the
injured party. If the law violated attaches a
1987 Constitution, Article XVI, Section 3. The
State may not be sued without its consent.
Doctrine of State Immunity
The State’s immunity from suit extends to
public officers when they are acting in the
performance of their duties. The rationale is
that a contrary rule would result in public
officers being unduly hampered, deterred and
intimidated in the discharge of their duties.
The rule (on state immunity) applies only when
the state or its subdivision is actually made a
party upon the record, or is actually necessary
to be made a party in order to furnish the relief
demanded by the suit. It does not apply when
the suit is against an officer or agent of the
state, and the relief demanded by the suit
requires no affirmative official action on the part
of the state [Ruiz v. Cabahug, G.R. No. L-9990
(1957)].
Government immunity from suit will also not
shield the public official being sued if the
government no longer has an interest to protect
in the outcome of the suit (i.e., there is no
Page 196 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
charge or financial liability against the
government), or if the liability of the officer is
personal because it arises from a tortious act in
the performance of his/her duties [Philippine
Agila Satellite Inc. v. Trinidad-Lichauco, G.R.
No. 142362 (2006)].
X. DISTINGUISH:
FACTO AND DE
OFFICERS
DE
JURE
b. There was a want of power in the
electing or appointing body or of some
defect or irregularity in its exercise.
Such ineligibility, want of power or defect
being unknown to the public.
4. Under color of an election or
appointment, by or pursuant to a public
unconstitutional law, before the same is
adjudged to be such.
De Facto Doctrine
Insofar as the public or third persons are
concerned, the actions of a de facto officer,
during the period of such officer’s wrongful
tenure, are accorded validity.
A. De Facto Officers
Definition
De Jure Officer
A de jure officer is one who is deemed, in all
respects, legally appointed and qualified and
whose term of office has not expired [Funa v.
Chairman, Civil Service Commission, G.R. No.
191672 (2014)].
Basis of the De Facto Doctrine
This principle was born of necessity, as the
public cannot be expected to investigate the
right of a public official to an office before
transacting with them.
An officer de jure is one who is exercising the
office as a matter of right or according to law
[Luna v. Rodriguez, G.R. No. L-12647 (1917)].
On this basis, it is apparent that the de facto
officer doctrine is primarily for protecting those
who rely on the official acts of persons
discharging the duties of a public office, without
being lawful officers. It is meant to ensure the
functioning of the government “despite
technical defects in [the official’s] title to office
[Arroyo v. CA, G.R. No. 202860 (2019)].
De Facto Officer
A de facto officer is one who has the reputation
of being the officer he assumes to be, and yet
is not a good officer in point of law [Torres v.
Ribo, G.R. No. L-2051 (1948)].
In Luna v. Rodriguez [G.R. No. L-12647
(1917)], the Court held that a person is
considered a de facto officer where the duties
of the office are exercised:
1. Without a known appointment or
election, but under such circumstances of
reputation or acquiescence as were
calculated to induce people, without
inquiry, to submit to or invoke his action,
supposing him to be the officer he
assumed to be; or
2. Under color of a known and valid
appointment or election, but where the
officer has failed to conform to some
precedent requirement or condition (e.g., to
take an oath, give a bond, etc).; or
3. Under the color of a known election or
appointment, but VOID because:
a. The officer was not eligible;
Usurper
One who takes possession of the office without
any color of right or authority, either actual or
apparent.
Elements of De Facto Officership
1. There must be a de jure office;
2. There must be a color of right or general
acquiescence by the public; and
3. There must be actual physical possession
of the office in good faith [Tuanda v.
Sandiganbayan, G.R. No. 110544, (1995)].
Note: In Arroyo v. CA [G.R. No. 202860
(2019)], the Court held that good faith is
no longer necessary. The primordial
concern that the doctrine seeks to address
remains to be the protection of the public,
who rely on the acts of a person performing
Page 197 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
the duties of an office pursuant to an
irregular or defective authority. Precluding
its application to cases where there was no
good faith possession of the office, despite
having a color of authority or right to the
office, would render the doctrine's purpose
nugatory [Arroyo v. CA, supra].
Entitlement to Salary of De Facto
Officer
General rule: The rightful incumbent of a
public office may recover from an officer de
facto the salary received by the latter during the
time of his wrongful tenure, even though he
entered into the office in good faith and under
color of title [Monroy v. CA, G.R. No. L-23258
(1967)].
Exceptions: The rightful incumbent, however,
cannot recover the salary from the de facto
officer when:
1. The de facto officer was duly proclaimed
and assumed office, but was issued due to
the protest by the de jure officer. The de
jure officer cannot recover the salary during
the incumbency of the de facto officer
[Rodriguez, Sr. v. Tan, G.R. No. L-3913
(1952)].
2. There is no de jure officer and a de facto
officer, who, in good faith has had
possession of the office and has
discharged the duties [Funa v. Chairman,
Civil Service Commission, G.R. No.
191672 (2014)].
3. The
rightful
incumbent
received
emoluments in a different position. In this
case, the incumbent may only recover back
pay differentials from the de facto officer,
which is the difference in salary between
the rightful position and the position served
[General Manager v. Montserate, G.R. No.
129616 (2002)].
B. De Facto v. De Jure Officers
De Facto
De Jure
Definition
An officer de facto is one who has the
reputation or appearance of being the
officer he assumes to be but who,
under the law, has no right or title to the
office he assumes to hold [Codilla v.
Martinez, G.R. No. L- 14569 (1960)].
An officer de jure is one who is
exercising the office as a matter of
right or according to law [Luna v.
Rodriguez, G.R. No. L- 12647 (1917)].
Requisites
1. Existence of a de jure office;
2. Assumption of office under a color
of right or general acquiescence by
the public;
3. Actual physical possession of the
office [Tuanda vs. Sandiganbayan,
G.R. No. 110544 (1995)].
Basis of
Authority
Rests on reputation.
Matter of right.
How Ousted
Direct proceeding of quo warranto (but
seen mandamus, infra).
Cannot be ousted even in a direct
proceeding.
Validity of
Official Acts
Valid as to the public until his title to the
office is adjudged insufficient.
Valid, subject to exceptions (e.g.,
acting beyond his scope of authority,
etc.).
1.
2.
3.
4.
Existence of a de jure office;
He is legally qualified to the office;
He is lawfully chosen to the office;
He undertakes to perform the
duties of the office.
Page 198 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
De Facto
De Jure
Conditionally entitled to receive only
Compensation when no de jure officer is declared and
only for actual services rendered.
For clarity, the de facto officer doctrine confers
validity to the actions of an officer having
illegitimate title to the office, as if he or she was
acting as a de jure officer. Its effect is similar
to the ratification of acts done outside the
scope of one's authority [Arroyo v. CA, supra].
Remedies
Distinguish
Mandamus
Quo
Warranto
and
Rightfully entitled to compensation;
“no work, no pay” principle is
inapplicable to him.
XI. TERMINATION
OFFICIAL RELATION
OF
A. Involuntary Retirement
[See Re: Ma. Cristina Roco
Corona, A.M. No. 20-07-10-SC
(2021)]
Concept
1. As to objective
Quo warranto seeks the ouster of a usurper
of a public office, position, or franchise, and
the entry therein of the person entitled
thereto; while mandamus lies to restore the
petitioner into a right or office, and not to try
disputed titles.
2. As to who has standing to file the
petition
Quo warranto may be filed by the Solicitor
General, a public prosecutor, or the person
entitled to the contested office; while
mandamus is available only to one who
holds a clear, well-defined, and certain
entitlement to a right or office.
3. As against whom the remedy is directed
Quo warranto is directed against an
usurper of a public office, position, or
franchise; while mandamus is directed
against one who unlawfully excludes
another from a right or office [Municipality
of Payao, Zamboanga Sibugay v.
Municipality of Imelda, Zamboanga
Sibugay, G.R. No. 243167 (2021)].
Retirement is the termination of one’s own
employment or career, especially upon
reaching a certain age or for health reasons. To
withdraw is to withdraw from one’s position or
occupation, or to conclude one’s active working
life or professional career.
Retirement is involuntary when one’s
profession is terminated for reasons outside
the control and discretion of the worker.
Impeachment resulting in removal from holding
office falls under the column on involuntary
retirement.
Having been removed by the Congress from
office with a lifetime ban from occupying any
and all future public posts, but without a
proper determination of or even a basis for
any recoverable liability under the law due
to causes beyond his control, Chief Justice
Corona may be considered involuntarily retired
from public service [Re: Ma. Cristina Roco
Corona, supra].
B. Death or Permanent Disability
Effect of Death of Respondent Public
Officer
General Rule: Death of the respondent in an
administrative case does not preclude a finding
of administrative liability [Civil Service
Commission v. Juen, G.R. No. 200577 (2016)].
Page 199 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
Exception: Death of the respondent in an
administrative case precludes the finding of
administrative liability when:
1. Due process may be subverted;
2. On equitable and humanitarian reasons;
and
3. The penalty imposed would render the
proceedings useless [Civil Service
Commission v. Juen, supra].
A respondent’s death during the pendency of
an administrative proceeding was cause to
dismiss the case, due to the futility of the
imposition of any penalty [Flores-Concepcion
v. Castañeda, A.M. No. RTJ-15-2438 (2020)].
C. Abolition of Office
Abolishing an office also abolishes an
unexpired term. The legislature’s abolition of
an office (e.g., a court) also abolishes the
unexpired term. The legislative power to create
a court carries with it the power to abolish it
[Ocampo v. Secretary of Justice, G.R. No. L7910 (1955)].
The President has power to reorganize the
Executive. The President’s power of control
gives him authority to deactivate the functions
of particular offices. As far as bureaus,
agencies or offices in the executive department
are concerned, the President’s power of control
may justify him to inactivate the functions of a
particular office, or certain laws may grant him
the broad authority to carry out reorganization
measures [Buklod ng Kawaning EIIB v.
Zamora, G.R. No. 142801-802 (2001)].
D. Expiration of Term or Tenure
It is an established rule that the tenure of those
holding primarily confidential positions ends
upon loss of confidence, because their term of
office lasts only as long as confidence in them
endures. Their termination can be justified on
the ground of loss of confidence, in which case,
their cessation from office involves no removal
but the expiration of their term of office
[CSC vs. Pilila Water District, G.R. No. 190147
(2013)].
POLITICAL LAW
appointed or chosen and has qualified. The
legislative intent of not allowing holdover must
be clearly expressed or at least implied in the
legislative enactment, otherwise it is
reasonable to assume that the law-making
body favors the same [Lecaroz vs
Sandiganbayan, G.R.No. 130872 (1999)].
The application of the hold-over principle
preserves continuity in the transaction of
official business and prevents a hiatus in
government pending the assumption of a
successor into office. As held in Topacio
Nueno v. Angeles, cases of extreme necessity
justify the application of the hold-over principle
[Sambarini vs. COMELEC, G.R.No. 160427
(2004)].
E. Resignation
Concept
Resignation implies an expression of the
incumbent in some form, express or implied, of
the intention to surrender, renounce, and
relinquish the office and the acceptance by
competent and lawful authority [Gamboa v. CA,
G.R. No. L-41054 (1975)].
Requisites
In order for resignation to be complete and
operative, there must be:
(a) An intention to relinquish a part of the term;
(b) The act of relinquishment, and;
(c) An acceptance by the proper authority
[Republic v. Singun, G.R. No. 149356
(2008)].
Acceptance of Resignation Necessary
Mere presentation of resignation does not work
as a vacancy. Until acceptance by proper
authority, the tender or offer to resign is
revocable, unless otherwise provided by
statute [Joson III v. Nario, G.R. No. 91548
(1990)].
Acceptance is necessary for resignation of a
public officer to be operative and effective.
Otherwise, the officer is subject to the penal
provision of Art. 238 of the Revised Penal Code
on Abandonment of Office or Position.
Although a public officer cannot abandon his
Absent an express or implied constitutional or
office or position before his resignation is
statutory provision to the contrary, an officer is
accepted, the incumbent official would not be
entitled to stay in office until his successor is
Page 200 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
in a position to determine the acceptance of his
resignation unless he has been duly notified
thereof [Gamboa v. CA, supra].
Totality Test
Since petitioner Estrada did not write any
formal letter of resignation before he evacuated
Malacañang Palace, whether or not he
resigned has to be determined from his act and
omissions before, during and after January 20,
2001, or by the totality of prior,
contemporaneous and posterior facts and
circumstantial evidence bearing a material
relevance on the issue.
The validity of a resignation is not governed by
any formal requirement as to form. It can be
oral. It can be written. It can be express. It can
be implied. As long as the resignation is clear,
it must be given legal effect [Estrada v.
Desierto, G.R. No. 146710-15 (2001)].
F. Abandonment of Office
Concept
Abandonment of office has been defined as the
voluntary relinquishment of an office by the
holder, with the intention of terminating his
possession and control thereof.
A person holding a public office may abandon
such office by nonuser or acquiescence.
Non-user refers to a neglect to use a right
or privilege or to exercise an office.
However, nonperformance of the duties of an
office does not constitute abandonment where
such nonperformance results from temporary
disability or from involuntary failure to perform.
Abandonment may also result from an
acquiescence by the officer in his wrongful
removal or discharge, for instance, after a
summary removal, an unreasonable delay by
an officer illegally removed in taking steps to
vindicate his rights may constitute an
abandonment of the office [Canonizado vs.
Aguirre, G.R. No. 133132 (2001)].
Elements of Abandonment
The two elements of abandonment of office
are:
1. An intention to abandon;
2. An overt or external act by which the
intention is carried into effect [Canonizado
v. Aguirre, supra].
Distinguish Between Resignation and Abandonment
Resignation
Abandonment
[Gamboa v. CA, supra].
Definition
Resignation implies an expression of
the incumbent in some form, express
or implied, of the intention to
surrender, renounce, and relinquish
the office and the acceptance by
competent and lawful authority
[Gamboa v. CA, supra].
Kind of
Either voluntary or involuntary.
Relinquishment
Elements
1. Intention to relinquish a part of the
term;
2. An act of relinquishment;
3. An acceptance by the proper
authority.
Abandonment of office has been
defined as the voluntary
relinquishment of an office by the
holder, with the intention of
terminating his possession and control
thereof. [Sangguniang Bayan of San
Andres v. CA, supra].
Always voluntary.
1. Intention to abandon;
2. An overt act by which the intention
is carried into effect.
Page 201 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
G. Acceptance of Incompatible
Office
Concept
The general rule in Article IX-B, Section 7
permits an appointive official to hold more than
one office only if allowed by law or by the
primary functions of his position. There is no
legal objection to a government official
occupying two government offices and
performing the functions of both as long as
there is no incompatibility.
Incompatibility exists when one office is
subordinate to the other, in the sense that one
office has the right to interfere with the other.
[Public Interest Center, Inc. v. Elma, G.R. No.
138965 (2006)].
Recall under the LGC
The termination of the official relationship of a
local elective official for loss of confidence prior
to the expiration of his term through the will of
the electorate [Sec. 69, LGC].
Recall under
Admin. Code
Recall under LGC
The CSC has the
power to recall an
appointment which
has been initially
approved when it is
shown that the same
was issued in
disregard of pertinent
CSC laws, rules and
regulations.
Recall under Section
69-75 of the Local
Government Code is
a mode of removal
of a public official by
the people before
the end of his term
of office.
I. Criminal Conviction
H. Recall
See: RPC for Effect of Penalties
Grounds
1. Non-compliance
with
the
procedures/criteria provided by the
agency’s Merit Promotion Plan;
2. Failure to pass through the agency’s
Selection/Promotion Board;
3. Violation of existing collective agreement
between management and employees
relative to promotion;
4. Violation of other existing civil service laws,
rules and regulations [Sec. 20, Rule VI, IRR
of Administrative Code; De Rama v. CA,
G.R. No. 131136 (2001)].
The CSC may recall an appointment for not
meeting the qualification standard. The recall
or invalidation of an appointment does not
require a full-blown, trial-type proceeding. In
approving or disapproving an appointment, the
CSC only examines the conformity of the
appointment with applicable provisions of law
and whether the appointee possesses all the
minimum qualifications and none of the
disqualifications. Thus, in contrast to
administrative disciplinary actions, a recall
does not require notice and hearing [Civil
Service Commission v. Cutao, G.R. No.
225151 (2020)].
J. Impeachment
See: C. Impeachment v. Quo Warranto under
Part XIII of the Law on Public Officers part of
the reviewer for a thorough discussion of
Impeachment.
Effects of Impeachment
a. Removal from office of the official
concerned;
b. Disqualification to hold any office;
c. Impeached officer still liable to prosecution,
trial, and punishment if the impeachable
offense committed also constitutes a felony
or crime.
K.
Removal
through
Quo
Warranto/Prescription of Right
to Office
See: C. Impeachment vs. Quo Warranto under
Part XIII of the Law on Public Officers part of
the reviewer for a thorough discussion of Quo
Warranto.
L. Dismissal as Penalty
Disciplinary Action
Page 202 of 384
UP Law Bar Operations Commission 2023
of
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
XII. THE CIVIL SERVICE
A. Scope
1987 Constitution, Article IX-B
Section 2(1). The Civil Service embraces all
branches, subdivisions, instrumentalities and
agencies of the Government, including
government-owned and controlled corporations
with original charters.
Section 3. The Civil Service Commission, as the
central personnel agency of the Government, shall
establish a career service and adopt measures to
promote
morale,
efficiency,
integrity,
responsiveness, progressiveness, and courtesy
in the civil service.
Civil Service laws, rules, and regulations apply
to all branches, subdivisions, instrumentalities
and agencies of the government, including
GOCCs with original charters [Laya, Jr., v.
Philippine Veterans Bank, G.R. No. 205813
(2018)].
Note: As to the power of the CSC to review an
appointee’s qualifications: The only function of
the CSC is to review the appointment in the
light of the requirements of the Civil Service
Law, and when it finds the appointee to be
qualified and all other legal requirements have
been otherwise satisfied, it has no choice but
to attest to the appointment [Lapinid v. CSC,
G.R. No. 96298 (1991)].
In TIDCORP v. CSC [G.R. No. 182249 (2013)],
the Court clarified that the CSC’s rulemaking
power, albeit constitutionally granted, is still
limited to the implementation and
interpretation of the laws it is tasked to
enforce. Thus, a law which exempts an
agency from rules on position classification
cannot be overridden by a CSC Memorandum
Circular.
Limitations on the
Commission’s Powers
Civil
Service
a. It cannot order the replacement of the
appointee simply because it considers
another employee to be better qualified
[Lapinid v. CSC, supra].
b. The CSC cannot co-manage or be a
surrogate administrator of government
offices and agencies.
c. It cannot change the nature of the
appointment extended by the appointing
officer [Luego v. CSC, G.R. No. L-69137
(1986)].
B. Appointments to the Civil
Service
Appointments in the civil service shall be made
only according to merit and fitness to be
determined, as far as practicable, and, except
to positions which are policy-determining,
primarily confidential, or highly technical, by
competitive examination [Const., Art. IX-B,
Sec. 2(2)].
Administrative Code of 1987, Book V, Section 7.
Career Service. – The Career Service shall be
characterized by:
(1) Entrance based on merit and fitness to be
determined as far as practicable by competitive
examination, or based on highly technical
qualifications;
(2) Opportunity for advancement to higher career
positions; and
(3) Security of tenure.
The Career Service shall include:
(1) Open Career positions for appointment to which
prior qualification in an appropriate examination
is required;
(2) Closed Career positions which are scientific, or
highly technical in nature; these include the
faculty and academic staff of state colleges and
universities, and scientific and technical
positions in scientific or research institutions
which shall establish and maintain their own
merit systems;
(3) Positions in the Career Executive Service;
namely, Undersecretary, Assistant Secretary,
Bureau Director, Assistant Bureau Director,
Regional Director, Assistant Regional Director,
Chief of Department Service and other officers
of equivalent rank as may be identified by the
Career Executive Service Board, all of whom
are appointed by the President;
(4) Career officers, other than those in the Career
Executive Service, who are appointed by the
President, such as the Foreign Service Officers
in the Department of Foreign Affairs;
(5) Commissioned officers and enlisted men of the
Armed Forces which shall maintain a separate
merit system;
Page 203 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
(6) Personnel of government-owned or controlled
corporations,
whether
performing
governmental or proprietary functions, who do
not fall under the non-career service; and
(7) Permanent laborers, whether skilled, semiskilled, or unskilled.
1. Career Service
The career service is characterized by:
1. Entrance based on merit and fitness to be
determined by competitive examinations
or highly technical qualifications;
2. Opportunity for advancement to higher
career positions;
3. Security of tenure [Administrative Code,
Book V, Sec. 7].
Three Major Levels in the Career
Service
1. First level - Includes clerical, trades,
crafts, and custodial service positions
which involve non-professional or
subprofessional work in a nonsupervisory or supervisory capacity
requiring less than four years of collegiate
studies;
2. Second level - Include professional,
technical and scientific positions which
involve professional, technical or
scientific work in a non-supervisory or
supervisory capacity requiring at least
four years of college work up to Division
Chief level; and
3. Third level - Covers positions in the
Career Executive Service [Administrative
Code, Book V, Sec. 8].
2. Non-Career Service
Administrative Code of 1987, Book V, Section 9.
Non-Career Service. – The Non-Career Service
shall be characterized by
(1) Entrance on bases other than those of the usual
tests of merit and fitness utilized for the career
service; and
(2) Tenure which is limited to a period specified by
law, or which is coterminous with that of the
appointing authority or subject to his pleasure,
or which is limited to the duration of a particular
project for which purpose employment was
made.
(1) Elective officials and their personal or
confidential staff;
(2) Secretaries and other officials of Cabinet rank
who hold their positions at the pleasure of the
PResident and their personal or confidential
staff(s);
(3) Chairman and members of commissions and
boards with fixed terms of office and their
personal or confidential staff;
(4) Contractual personnel or those whose
employment in the government is in accordance
with a special contract to undertake a specific
work or job, requiring special or technical skills
not available in the employing agency, to be
accomplished within a specific period, which in
no case shall exceed one year, and performs or
accomplishes the specific work or job, under his
own responsibility with a minimum of direction
and supervision from the hiring agency; and
(5) Emergency and seasonal personnel.
The Non-Career service is characterized by:
1. Entrances on bases other than those of the
usual tests of merit and fitness; and
2. Tenure which is limited to:
a. A period specified by law; or
b. Coterminous with the appointing
authority; or
c. Subject to the pleasure of the
appointing authority; or
d. Limited to the duration of a particular
project.
Includes:
a. Elective officials and their personal or
confidential staff;
b. Department heads who hold positions at
the pleasure of the President, including
their staff;
c. Chairman and members of commissions
and boards with fixed terms of office,
including their staff;
d. Contractual personnel;
e. Emergency and seasonal personnel
[Admin. Code, Book V, Sec. 9].
C. Personnel Actions
Concept
Any action denoting the movement or progress
of personnel in the civil service shall be known
as personnel in the civil service shall be known
as personnel action.
The Non-Career Service shall include:
Page 204 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
Such action shall include appointment through
certification,
promotion,
transfer,
reinstatement,
re-employment,
detail,
reassignment, demotion and separation.
All personnel actions shall be in accordance
with such rules, standards, and regulations as
may be promulgated by the Commission [Sec.
26, Par. 2, Chapter 5, Subtitle A, Title I, Book
V, Administrative Code].
1.
Original
Appointment
or
Appointment through Certification
Original
The initial entry into the career or non-career
service.
Appointment through Certification
An appointment through certification to a
position in the civil service, except as herein
otherwise provided, shall be issued to a person
who has been selected from a list of qualified
persons certified by the Commission from an
appropriate register of an eligible, and who
meets all the other requirements of the
position.
Six-month Probationary Period
Original appointees in the career service with
permanent status of appointment, shall
undergo probationary period for a thorough
assessment of his/her performance and
character.
A probationer may be dropped from the service
for unsatisfactory conduct or want of capacity
any time before the expiration of the
probationary period: Provided, that such action
is appealable to the Commission [Sec. 26(1),
Chapter 5, Subtitle A, Title I, Book V,
Administrative Code].
2. Promotion
POLITICAL LAW
Subtitle A, Title I, Book V, Administrative
Code].
Within the same level, no civil service
examination shall be required for promotion to
a higher position in one or more related
occupational groups. A candidate for
promotion should, however, have previously
passed the examination for that level [Sec.
8(3), Chapter 2, Subtitle A, Title I, Book V,
Administrative Code].
The pendency of an administrative case
against any employee shall not be a bar to
promotion.
Next-in-Rank Rule
Administrative Code of 1987, Book V, Title I,
Subtitle A, Chapter 5, Section 21(6). … For
purposes of this Section, “qualified next-in-rank”
refers to an employee appointed on a permanent
basis to a position previously determined to be nextin-rank and who meets the requirements for
appointment thereto as previously determined by
the appointing authority and approved by the
Commission.
In promotions, the appointing authority must
automatically consider the employees next in
rank as candidates for appointment. However,
the next-in-rank rule is a rule of preference on
who to consider for the promotion. The rule
does not give employees next in rank a vested
right to the position next higher to theirs should
that position become vacant [Abad v. Dela
Cruz, G.R. No. 207422 (2015)].
3. Transfer
A transfer is a movement from one position
to another which is of equivalent rank, level,
or salary without break in service involving the
issuance of an appointment. It shall not be
considered disciplinary when made in the
interest of public service, in which case, the
employee concerned shall be informed of the
reasons therefor. If the employee believes that
there is no justification for the transfer, he may
appeal his case to the Commission.
A promotion is a movement from one
position to another with an increase in
duties and responsibilities as authorized by
law and usually accompanied by an increase in
pay. The movement may be from one
department or agency to another or from one
The transfer may be from one department or
organizational unit to another in the same
agency to another or from one organizational
department or agency [Sec. 26(2), Chapter 5,
unit to another in the same department or
Page 205 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
agency: Provided, however, that any
movement from the non-career service to the
career service shall not be considered a
transfer [Sec. 26(3), Chapter 5, Subtitle A, Title
I, Book V, Administrative Code].
4. Reinstatement
Any person who has been permanently
appointed to a position in the career service
and who has, through no delinquency or
misconduct, been separated therefrom, may
be reinstated to a position in the same level for
which he is qualified [Sec. 26(4), Chapter 5,
Subtitle A, Title I, Book V, Administrative
Code].
Note: Pardon does not ipso facto restore a
convicted felon to public office. A new
appointment must be given.
However, when a person is acquitted because
he did not truly commit the offense, he is
relieved from all punitive consequences of the
criminal act. He needs no longer apply for
reinstatement; he is restored to his office ipso
facto upon the issuance of the clemency, and
he is entitled to back wages [Garcia v.
Commission on Audit, G.R. No. 75025 (1993)].
Reinstatement
Position
to
Comparable
The restoration of a person, as a result of a
decision, to a career position from which
he/she has been separated but subject position
is already abolished, requiring the issuance of
an appointment to a comparable position to the
separated employee [Sec. 11(f), par. 1, Rule
IV, 2017 Omnibus Rules on Appointments and
Other Human Resource Actions].
No employee of the civil service shall be
removed from office except for cause provided
by law. An employee illegally dismissed from
office is entitled to reinstatement. Any other
employment he or she obtains while the case
challenging his or her dismissal is pending
does not bar his or her right to be reinstated.
[Campol v Balo-as, G.R. 197634 (2016)]
5. Reemployment
Names of persons who have been appointed
permanently to positions in the career service
and who have been separated as a result of
reduction in force or reorganization, shall be
entered in a list from which selection for
reemployment shall be made [Sec. 26(5),
Chapter 5, Subtitle A, Title I, Book V,
Administrative Code].
6. Detail
A detail is the movement of an employee of one
agency to another without the issuance of an
appointment and shall be allowed, only for a
limited period in the case of employees
occupying professional, technical and scientific
positions.
If the employee believes that there is no
justification for the detail, he may appeal his
case to the Commission. Pending appeal, the
decision to detail the employee shall be
executory unless otherwise ordered by the
Commission [Sec. 26(6), Chapter 5, Subtitle A,
Title I, Book V, Administrative Code].
No detail or reassignment whatever shall be
made within three (3) months before any
election [Sec. 58, Chapter 8, Subtitle A, Title I,
Book V, Administrative Code].
7. Reassignment
An employee may be reassigned from one
organizational unit to another in the same
agency: Provided, that such reassignment
shall not involve a reduction in rank, status or
salary [Sec. 26(7), Chapter 5, Subtitle A, Title
I, Book V, Administrative Code].
Reassignments differ from transfers, and
public employees with appointments that are
not station-specific may be reassigned to
another station in the exigency of public
service. In such instances, the reassignment
may be indefinite and exceed one (1) year
[Yangson v. Department of Education, G.R.
No. 200170 (2019)].
Page 206 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
Reassignment should
constructive dismissal.
POLITICAL LAW
not
amount
to
A reassignment may be deemed a constructive
dismissal if the employee is moved to a position
with a more servile or menial job as compared
to his previous position. It may occur if the
employee was reassigned to an office not in the
existing organizational structure, or if he or she
is not given a definite set of duties and
responsibilities. It may be deemed constructive
dismissal if the motivation for the reassignment
was to harass or oppress the employee on the
pretext of promoting public interest. This may
be inferred from reassignments done twice
within a year, or during a change of
administration of elective and appointive
officials. However, demotion and constructive
dismissal are never presumed and must be
sufficiently proven [Yangson v. Department of
Education, supra].
In cases where the demotion is voluntary or at
the instance of the employee, he/she shall be
allowed to receive the same step of the salary
grade of the position where he/she voluntarily
sought to be appointed. A written consent shall
be secured from the demoted employee [Sec.
11(g), Rule IV, 2017 Omnibus Rules on
Appointments and other Human Resource
Actions].
Demotion and constructive dismissal are never
presumed and must be sufficiently proven
[Yangson v. Department of Education, supra].
10. Reappointment
The issuance of an appointment as a result of
reorganization,
devolution,
salary
standardization,
re-nationalization,
recategorization, rationalization or similar
events.
8. Secondment
11. Reclassification
A secondment is a movement of an employee
from one department or agency to another
which is temporary in nature. It may or may not
require the issuance of an appointment and
may involve an increase in compensation and
benefits. Acceptance of a secondment is
voluntary on the part of the employee.
A form of staffing modification and/or position
classification action which is applied only when
there is a substantial change in the regular
duties and responsibilities of the position.
This may result in a change in any or all of the
position attributes: position title, level and/or
salary grade. It generally involves a change in
the position title and may be accompanied by
an upward or downward change in salary.
Payment of salaries of a seconded employee
shall be borne by the receiving agency, and the
seconded employee shall be on leave without
pay in his mother agency for the duration of his
secondment [Señeres v. Sabido IX, G.R. No.
172902 (2015).]
XIII. ACCOUNTABILITY OF
PUBLIC OFFICERS
9. Demotion
A. Types of Accountability
The movement of an employee from a higher
position to a lower position where he/she
qualifies, if a lower position is available/
Demotion entails reduction in duties,
responsibilities, status or rank, which may or
may not involve a reduction in salary.
1. Administrative
In cases where the demotion is due to
reorganization or rationalization, the employee
shall be allowed to continue to receive the
salary of the higher position,
The purpose of administrative proceedings is
mainly to protect the public service, based on
the time-honored principle that a public office is
a public trust [Ferrer, Jr. v. Sandiganbayan,
G.R. No. 161067 (2008)].
The main thrust of the Administrative Code is
to exact accountability from public officials in
the performance of official duties. For this
reason, the Administrative Code requires a
Page 207 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
clear showing of bad faith, malice, or gross
negligence on the part of the public officer in
the performance of official duties before
recovery of losses to the government may be
sought [Madera v. Commission on Audit, G.R.
No. 244128 (2020)].
Quantum of Evidence Required
10.
In administrative proceedings, only substantial
evidence is required [Acuzar v. Jorolan, G.R.
No. 177878 (2010)].
11.
Substantial evidence refers to such relevant
evidence as a reasonable mind might accept
as adequate to support a conclusion [Paredes
v. CA, G.R. No. 169534 (2007)].
12.
13.
14.
2. Criminal
The purpose of criminal prosecution (as
opposed to administrative proceedings) is the
punishment of crime [Ferrer v. Sandiganbayan,
supra].
15.
16.
17.
Quantum of Evidence Required
18.
In criminal cases, proof beyond reasonable
doubt is needed [Acuzar v. Jorolan, supra].
19.
Proof beyond reasonable doubt does not mean
such a degree of proof as, excluding possibility
of error, produces absolute certainty. Moral
certainty only is required, or that degree of
proof which produces conviction in an
unprejudiced mind [Paredes v. CA, supra].
20.
21.
22.
23.
B. Discipline
1. Grounds
24.
Grounds for Disciplinary Action under
the Civil Service Law (P.D. No. 807)
1.
2.
3.
4.
5.
6.
7.
8.
Dishonesty;
Oppression;
Neglect of duty;
Misconduct;
Disgraceful and immoral conduct;
Being notoriously undesirable;
Discourtesy in the course of official duties;
Inefficiency and incompetence in the
performance of official duties;
9. Receiving for personal use a fee, gift or
other valuable thing in the course of official
25.
26.
27.
28.
29.
duties or in connection therewith when
such fee, gift, or other valuable thing is
given by any person in the hope or
expectation of receiving a favor or better
treatment than that accorded other
persons, or committing acts punishable
under the anti-graft laws;
Conviction of a crime involving moral
turpitude;
Improper or unauthorized solicitation of
contribution from subordinate employees
and by teachers of school officials from
school children;
Violation of existing Civil Service Law and
rules or reasonable office regulations;
Falsification of official documents;
Frequent unauthorized absences or
tardiness in reporting for duty, loafing or
frequent unauthorized absences from duty
during regular office hours;
Habitual drunkenness;
Gambling prohibited by law;
Refusal to perform official duty or render
overtime service;
Disgraceful, immoral or dishonest conduct
prior to entering the service;
Physical or mental incapacity or disability
due to immoral or vicious habits;
Borrowing money by superior officers from
subordinates or lending by subordinates to
superior officers;
Lending money at usurious rates of
interest;
Willful failure to pay just debts or willful
failure to pay taxes due the government;
Contracting loans of money or other
property from persons with whom the office
of the employee concerned has business
relations;
Pursuit of private business, vocation or
profession without the permission required
by the Civil Service rules and regulations;
Insubordination;
Engaging, directly or indirectly, in partisan
political activities by one holding
nonpolitical office;
Conduct prejudicial to the best interest of
the service;
Lobbying for personal interest or gain in
legislative halls and offices without
authority;
Promoting the sale of tickets in behalf of
private enterprises that are not intended for
Page 208 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
charitable or public welfare purposes and
even in the latter cases if there is no prior
authority;
30. Nepotism.
Grounds for Disciplinary Action under
the Local Government Code
1. Disloyalty to the Republic of the
Philippines;
2. Culpable violation of the Constitution;
3. Dishonesty, oppression, misconduct in
office and neglect of duty;
4. Commission of any offense involving moral
turpitude or an offense punishable by at
least prision mayor;
5. Abuse of authority;
6. Unauthorized absence for fifteen (15)
consecutive working days except in the
case of members of the sangguniang
panlalawigan, sangguniang panglunsod,
sangguniang bayan, and sangguniang
barangay;
7. Application for, or acquisition of, foreign
citizenship or residence or the status of an
immigrant of another country;
8. Such other grounds as may be provided by
law an elective local official may be
removed from office on the grounds
enumerated above by order of the proper
court.
Grounds for Removal or Suspension
under the Constitution
1. Members of Congress
Each House may punish its members for
disorderly behavior;
a. With the concurrence of ⅔ of all its
members, the House may suspend or
expel a member;
b. A penalty of suspension shall not
exceed 60 days [Sec. 16(3), Art. VI,
1987 Const.].
2. Impeachable Officers
a. Culpable violation of the Constitution;
b. Treason;
c. Bribery;
d. Graft and Corruption;
e. Other high crimes;
f. Betrayal of public trust [Sec. 2, Art. IX,
1987 Const.].
3. Members of the Judiciary
a. They shall hold office during good
behavior until they reach the age of
seventy (70) years or become
incapacitated to discharge the duties of
their office [Sec. 11, Art. VIII, 1987
Constitution];
b. With reference to members of the
Supreme Court, it implies that they
have no committed any of the offenses
which are grounds for impeachment;
c. As regards judges of lower courts, the
determination by the Supreme Court is
conclusive since it alone has the power
to order their dismissal [Sec. 11, Art.
VIII, 1987 Const.].
4. Civil Service Officers or Employees
Can only be removed or suspended for cause
provided by law [Sec. 2(3), Art. IX-B, 1987
Const.].
Negligence
In the case of public officials, there is
negligence when there is a breach of duty or
failure to perform the obligation, and there is
gross negligence when a breach of duty is
flagrant and palpable [Presidential Anti-Graft
Commission and the Office of the President v.
Pleyto, G.R. No. 176058 (2011)].
Dishonesty
Dishonesty begins when an individual
intentionally makes a false statement in any
material fact or practicing or attempting to
practice any deception or fraud in order to
secure
his
examination,
registration,
appointment or promotion [Office of the
Ombudsman v. Racho, G.R. No. 185685
(2011)].
Dishonesty requires malicious intent to conceal
the truth or to make false statements;
otherwise, the government employee may only
be held liable for negligence, not for
dishonesty. Only when the accumulated wealth
becomes manifestly disproportionate to the
income of the public officer/employee and
income from other sources, and the public
officer/employee fails to properly account or
explain these sources of income and
acquisitions, does he or she become
susceptible to dishonesty [Gupilan-Aguilar v.
Page 209 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
Office of the Ombudsman, G.R. No. 197307
(2014)].
Misconduct in Office
Refers to “"any unlawful behavior by a public
officer in relation to the duties of his office,
willful in character. The term embraces acts
which the office holder had no right to perform,
acts performed improperly, and failure to act in
the face of an affirmative duty to act" [Gabon v.
Merka, A.M. No. P-11-3000 (2011)].
To constitute an administrative offense,
misconduct should relate to or be connected
with the performance of the official functions
and duties of a public officer. To determine
whether a public officer committed misconduct,
it is necessary to separate the character of the
man from the character of the officer
[Villanueva v. CA, G.R. No. 167726 (2006)].
Grave Misconduct
Consists in a government official’s deliberate
violation of a rule of law or standard of
behavior. It is regarded as grave when the
elements of corruption, clear intent to violate
the law, or flagrant disregard of established
rules are present [NPC v. CSC, G.R. No.
152093 (2012)].
In grave misconduct, as distinguished from
simple misconduct, the elements of corruption,
clear intent to violate the law, or flagrant
disregard of established rule must be manifest.
Corruption as an element of grave misconduct
consists in the act of an official or employee
who unlawfully or wrongfully uses his station or
character to procure some benefit for himself
or for another, contrary to the rights of others
[Gabon v. Merka, supra].
Gross vs. Simple Neglect of Duty
Simple neglect of duty is defined as the failure
of an employee to give proper attention to a
required task or to discharge a duty due to
carelessness or indifference.
On the other hand, gross neglect of duty is
characterized by want of even the slightest
care, or by conscious indifference to the
consequences, and in cases involving public
officials, by flagrant and palpable breach of
duty. It is the omission of that care that even
inattentive and thoughtless men never fail to
take on their own property [Land Bank of the
Philippines v. San Juan Jr., G.R. 186279
(2013)].
2. Jurisdiction
a. The Secretaries and heads of agencies
and instrumentalities, provinces, cities and
municipalities shall have jurisdiction to
investigate and decide matters involving
disciplinary action against officers and
employees under their jurisdiction [Sec. 47,
Administrative Code].
b. Under the same section, the decision is
final in case the penalty imposed is
suspension of not more than 30 days, or
fine in an amount not exceeding 30-days
salary.
NOTE, however, that decisions of
administrative agencies which are declared
final and unappealable by law are still
subject to judicial review if they fail the
test of arbitrariness, or upon proof of gross
abuse of discretion, fraud or error of law
[Maglalang v. PAGCOR, G.R. No. 190566
(2013)].
c. In other cases, the decision shall be initially
appealed to the department head and
finally to the Civil Service Commission and
pending appeal, it shall be executory
EXCEPT when the penalty is removal, in
which case it shall be executory only after
confirmation by the department head.
d. The Civil Service Commission has
appellate jurisdiction. Cases may be filed
directly with the CSC; it may decide on the
case or deputize a department or agency.
It cannot be overemphasized that the identity
of the complainant is immaterial to the
acquisition of jurisdiction over an administrative
case by the CSC. The law is quite clear that the
CSC may hear and decide administrative
disciplinary cases brought directly before it or it
may deputize any department or agency to
conduct an investigation [CSC v. CA, G.R.
Nos. 176162 (2012)].
Page 210 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
The CSC still retains jurisdiction over the
school and its employees and has concurrent
original jurisdiction, together with the board of
regents of a state university, over
administrative cases against state university
officials and employees [Id.].
3. Dismissal, Preventive Suspension,
Reinstatement and Back Salaries
Dismissal
Mandatory preventive suspension under the
Anti-Graft and Corrupt Practices Act
Under Section 13 of the Anti-Graft and Corrupt
Practices Act, the suspension of a public officer
is mandatory after a determination has been
made of the validity of the information in a presuspension hearing conducted for that purpose
[Segovia v. Sandiganbayan, G.R. No. 124067
(1998)].
Kinds of Preventive Suspension
Republic Act No. 6713 penalizes violations of
its Section 7 with imprisonment and/or a fine,
as well as disqualification to hold public office:
Section 11. Penalties. (b) Any violation hereof
proven in a proper administrative proceeding
shall be sufficient cause for removal or
dismissal of a public official or employee,
even if no criminal prosecution is instituted
against him.
The same explicitly states that dismissal from
the service may be warranted through an
administrative proceeding, even if the erring
officer is not subjected to criminal prosecution.
[Ombudsman vs. Regalado, G.R. Nos.
208481-82 (2018)]
Preventive Suspension
Merely a preventive measure, a preliminary
step in an administrative investigation. The
purpose of the suspension order is to prevent
the accused from using his position and the
powers and prerogatives of his office to
influence potential witnesses or tamper with
records which may be vital in the prosecution
of the case against him.
If after such investigation, the charge is
established and the person investigated is
found guilty of acts warranting his suspension
or removal, then, as a penalty, he is
suspended, removed or dismissed [Villaseñor
v. Sandiganbayan, G.R. No. 180700 (2008)].
Prior notice and hearing not required in the
issuance of a preventive suspension order
Settled is the rule that prior notice and hearing
are not required in the issuance of a preventive
suspension order [Carabeo v. CA, G.R. Nos.
178000 & 178003 (2009)].
1. Preventive
suspension
pending
investigation; and
2. Preventive suspension pending appeal if
the penalty imposed by the disciplining
authority is suspension or dismissal and,
after review, the respondent is exonerated.
Preventive
Suspension
Investigation
Pending
Not considered a penalty, but only a means of
enabling the disciplining authority to conduct
an unhampered investigation.
Cannot be indefinite. Indefinite suspension
violates due process and equal protection
clauses, as well as the right of public officers
and employees to security of tenure [Baculi v.
Office of the President, G.R. No. 188681
(2017)].
Preventive
Suspension
Pending
Investigation of the Subordinate
Officer or Employee Under the
Authority of Proper Disciplining
Authority
Applicable where the charge involves
dishonesty, oppression or grave misconduct,
or neglect in the performance of duty, or if there
are reasons to believe that the respondent is
guilty of charges which would warrant his
removal from the service [Sec. 51, Book V,
Administrative Code].
The period to decide is 90 days after the date
of suspension of the respondent who is not
a presidential appointee.
If there is no decision, the respondent shall be
automatically reinstated in the service.
Provided, that when the delay in the disposition
Page 211 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
of the case is due to the fault, negligence or
petition of the respondent, the period of delay
shall not be counted in computing the period of
suspension herein provided [Sec. 52, Book V,
Administrative Code].
Preventive
Suspension
Pending
Investigation of an Employee by the
Ombudsman
Not more than 6 months, without pay, except
when the delay in the disposition of the case by
the Office of the Ombudsman is due to the
fault, negligence or petition of the respondent,
in which case the period of such delay shall not
be counted in computing the period of
suspension herein provided [Sec. 24, R.A. No.
6770].
Preventive
Suspension
Pending
Investigation of a Local Elective
Official By:
(1) The President in the case of provincial
officials, and officials of highly urbanized
cities and independent component cities;
(2) The governor for officials of component
cities and municipalities;
(3) The mayor for barangay officials.
Preventive suspension may be imposed at any
time after the issues are joined, when the
evidence of guilt is strong, and given the gravity
of the offense, there is great probability that the
continuance in office of the respondent could
influence the witnesses or pose a threat to the
safety and integrity of the records and other
evidence.
General Rule: Any single preventive
suspension of local elective officials shall not
extend beyond sixty (60) days.
Exception: If there are several administrative
cases against an elective official, he cannot be
preventively suspended for more than 90 days
within a single year on the same ground or
grounds existing and known at the time of the
first suspension [Sec. 63, LGC].
Preventive
Appeal
Suspension
Pending
As opposed to preventive suspension pending
investigation, preventive suspension pending
appeal is punitive in nature although it is in
effect subsequently considered illegal if the
respondent
is
exonerated
and
the
administrative decision finding him guilty is
reversed [Gloria v. CA, G.R. No. 131012
(1999)].
Preventive
Suspension
Pending
Investigation
vs.
Preventive
Suspension Pending Appeal
In Gloria v. CA [supra], the Court distinguished
preventive suspension from suspension
pending appeal for the purpose of determining
whether an employee is entitled to back
salaries.
There is no right to compensation for
preventive suspension pending investigation,
even if the employee is eventually exonerated.
On the other hand, if the respondent is
eventually exonerated while being preventively
suspended pending appeal, he should be
reinstated with full pay for the period of the
suspension.
Right to Reinstatement and Back
Salaries
Any employee illegally dismissed from office is
entitled
to
reinstatement.
Any
other
employment he or she obtains while the case
challenging his or her dismissal is pending
does not bar his or her right to be reinstated.
Similarly, he or she is entitled to the payment
of his or her backwages from the time of his or
her dismissal until his or her actual
reinstatement [Campol v. Balao-as, G.R. No.
197634 (2016)].
Conditions
Backwages
to
Be
Entitled
to
1. The employee must be found innocent of
the charges against him;
2. The suspension must be unjustified [CSC
v. Cruz, G.R. No. 187858 (2011)].
Entitlement to Back Salaries
General Rule: Any employee illegally
dismissed from office is entitled to
reinstatement. Similarly, he or she is entitled to
the payment of backwages from the time of
Page 212 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
dismissal until actual reinstatement [Campol v.
Balao-as, supra].
Back wages should include other monetary
benefits attached to the employee's salary
following the principle that an illegally
dismissed government employee who is later
reinstated is entitled to all the rights and
privileges that accrue to him/her by virtue of the
office he/she held [NPC Drivers and Mechanics
Association v. National Power Corp., G.R. No.
156208 (2017)].
Exception: The award of full back wages in
favor of an illegally dismissed civil service
employee who was subsequently employed in
another government agency certainly violates
the constitutional prohibitions against double
office-holding and double compensation in the
civil service [NPC Drivers and Mechanics
Association v. National Power Corp., supra].
Specific Situations
a. When removal or suspension lawful
One who has been lawfully separated or
suspended from his office is not entitled to
compensation for the period during which he
was so suspended or separated, even if it be
subsequently determined that the cause for
which he was suspended was insufficient.
Denial of salary to an employee during the
period of his suspension if he should be later
found guilty is proper because he had given
ground for his suspension.
b. Where removal or suspension unlawful
Where an officer entitled to fixed annual salary
was unlawfully removed or suspended and was
prevented for a time by no fault of his own from
performing the duties of the office, it was held
that he might recover, and that the amount that
he had earned in other employment during his
unlawful removal should not be deducted from
his unpaid salary.
What is material is not the nature of the
appointment but the act of wrongful deprivation
of office. If the illegal dismissal is found to have
been made in bad faith by the superior officers,
then they will be held PERSONALLY
accountable for the back salaries of the illegally
dismissed employee.
c. Where suspended employee is later
found innocent
Backpay may be allowed for the period when
an employee is not allowed to work without his
fault as when he was preventively suspended
for alleged dishonesty and gross negligence
but later found innocent of the charges causing
his suspension.
To deny an innocent employee his back wages
during his suspension would be tantamount to
punishing him after his exoneration from his
charges which caused his dismissal from
service.
A party’s claim for back wages may be the
appropriate subject of an ordinary civil action,
NOT mandamus.
However, the mere reduction of the penalty on
appeal does not entitle a government
employee to back salaries if he was not
exonerated of the charges [Office of the
Ombudsman v. Espina, G.R. No. 213500
(2018)].
d. Where employee not completely
exonerated or reinstatement not the
result of exoneration
If the employee is not completely exonerated of
the charges (e.g., when the penalty of
dismissal is reduced to mere suspension or to
a fine), the employee would not be entitled to
the payment of back salaries.
If the exoneration of the employee is relative
(as distinguished from complete exoneration),
an inquiry into the factual premise of the
offense charged and of the offense committed
must be made. If the administrative offense
found to have been actually committed is of
lesser gravity than the offense charged, the
employee cannot be considered exonerated if
the factual premise for the imposition of the
lesser penalty remains the same. The
employee found guilty of a lesser offense may
only be entitled to back salaries when the
offense actually committed does not carry the
penalty of more than one-month suspension or
dismissal [Civil Service Commission v. Cruz,
G.R. No. 187858 (2011)].
Page 213 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
e. Where another appointed to position of
illegally dismissed or suspended
employee
When a regular employee was illegally
suspended or dismissed, legally speaking, his
position never became vacant and he is
considered as not having left his office.
f.
Duty of plaintiff seeking reinstatement
to prove his right to the office
He must establish that when dispossessed, he
was entitled to the office. In a quo warranto
proceeding, the person suing must show that
he has a clear right to the office allegedly held
unlawfully by another. Absent such right, the
lack of qualification or eligibility of the
supposed usurper is immaterial.
g. Right to reinstatement to former or at
least comparable position
When a government official or employee has
been illegally dismissed, and his reinstatement
has later been ordered, for all legal purposes
he is considered as not having left his office, so
that he is entitled to all the rights and privileges
to accrue to him by virtue of the office he held.
h. Duty to act with reasonable diligence in
asserting right to reinstatement
It is not proper that the title to public office
should be subjected to continued uncertainty,
and the people’s interest requires that such
right should be determined as speedily as
practicable. The laws aid the vigilant and not
those who slumber on their rights.
A petition for quo warranto and mandamus
affecting titles to public office must be filed
within 1 year from the date the petitioner is
ousted from position. The claim for back
salaries and damages is also subject to the
prescriptive period of 1 year.
i.
Where pardon extended to convicted
employee
A pardon, unless expressly grounded on the
person’s innocence or unless the right to a
public office is expressly restored by it, does
NOT ipso facto restore a convicted felon to
public office. it merely restores his eligibility for
appointment to that office, and to regain his
former post, he must re-apply and undergo the
usual procedure required for new appointment
[De Leon].
What Constitutes Removal
Removal from office may be express or
implied.
1. Appointment of another officer
Generally, where an officer may be removed by
a superior officer at the latter’s pleasure, the act
of removal is accomplished merely by the
appointment of another officer in his place, so
far as the officer himself is concerned, but in
order to render the removal effective in all
cases, the incumbent must be notified.
2. Transfer to another office
Transfer of an officer or employee to another
office without his consent (regardless of
whether it results in promotion or demotion,
advancement or reduction in salary) is
equivalent to his illegal removal or separation
from the first office.
A temporary transfer or assignment of
personnel is, however, permissible even
without the employee’s prior consent.
a. However, it cannot be done when the
transfer is a preliminary step toward his
removal, or is a scheme to lure him
away from his permanent position, or
designed to indirectly terminate his
service, or force his resignation.
b. An employee cannot be transferred
unless for causes provided for by law
and after due process.
Appointments may be allowed to positions
without specification of any particular office or
station.
3. Demotion
Demotion is considered equivalent to removal
if no cause is shown for it. It requires the
issuance of an appointment.
4. Reassignment
A reassignment may be deemed a constructive
dismissal if the employee is moved to a position
with a more servile or menial job as compared
to his previous position. It may occur if the
employee was reassigned to an office not in the
existing organizational structure, or if he or she
Page 214 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
is not given a definite set of duties and
responsibilities. It may be deemed constructive
dismissal if the motivation for the reassignment
was to harass or oppress the employee on the
pretext of promoting public interest. This may
be inferred from reassignments done twice
within a year, or during a change of
administration of elective and appointive
officials. However, demotion and constructive
dismissal are never presumed and must be
sufficiently proven [Yangson v. Department of
Education, supra].
5. Constructive removal or dismissal
Constructive dismissal occurs whether or not
there is diminution in rank, status, or salary
when the employee’s environment has
rendered it impossible for him or her to stay in
his or her work.
It may be due to the agency head's
unreasonable, humiliating, or demeaning
actuations, hardship because geographic
location, financial dislocation, or performance
of other duties and responsibilities inconsistent
with those attached to the position [Yangson v.
Department of Education, supra].
Power of Removal of the President
The power of removal vested with the
President is implied from:
1. The President’s power to appoint;
2. The power to appoint being executive in
nature [Sec. 1, Art. VII, 1987 Consti.];
3. Duty to execute the laws [Secs. 1 & 5, Art.
VII, 1987 Consti.];
4. Control of all departments, bureaus and
offices of government [Sec. 17, Art. VII,
1987 Const.].
A presidential appointee who belongs to the
career service of the Civil Service comes under
the direct disciplining authority of the President.
Extent of the President’s Power of
Removal
1. Non-career officers exercising purely
executive functions whose tenure not
fixed by law - Congress may not restrict
power, whether it is removal with or without
cause.
2. Constitutional officers removable by
impeachment and judges of lower
courts - Not subject to the President’s
power of removal [Sec. 2, Art. XI & Sec. 11,
Art. VIII, 1987 Const.].
3. Civil service officers - Only for cause
[Sec. 2(3), Art. IX-B, 1987 Const.].
4. Temporary, provisional or acting
appointments - Remove at pleasure, with
or without cause.
5. Offices created by law, “at pleasure of
the President” - Not a removal but
expiration of term. But where it is
authorized that removal be at pleasure,
removal may only be for cause.
4. Condonation Doctrine
Concept
Under the condonation doctrine, the rule is that
a public official cannot be removed for
administrative
misconduct
committed
during a prior term, since his re-election to
office operates as a condonation of the officer’s
previous misconduct to the extent of cutting off
the right to remove him therefor [Aguinaldo v.
Santos, G.R. No. 94115 (1992)].
Application
The condonation only applies to administrative
offenses.
● It finds no application in criminal cases
[Aguinaldo v. Santos, supra].
● It does not apply to appointive officials,
since there is no sovereign will of the
people involved in this case [CSC v. Sojor,
G.R. No. 168766 (2008)].
● It is applicable even if the reelection was to
another public office, or to an election
year not immediately subsequent, as
long as he was elected by the same body
politic or electorate [Ombudsman v.
Vergara, G.R. No. 216871 (2017)].
Doctrine of Condonation Abandoned
The condonation doctrine was abandoned by
the Court in Carpio-Morales v. CA [G.R. Nos.
217126-27 (2015)]. The Court held that the
doctrine was adopted from one class of US
rulings way back in 1959 and thus, out of touch
from - and now rendered obsolete by - the
current legal regime.
According to the Court, the concept of public
office is a public trust, and the corollary
Page 215 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
requirement of accountability to the people at
all times, as mandated under the Constitution,
is plainly inconsistent with the idea that an
elective local official’s administrative liability for
a misconduct committed during a prior term
can be wiped off by election to a second term
of office, or even another elective post.
Moreover, condonation presupposes that the
condoner (in this case, the electorate) has
actual knowledge of what is to be condoned.
No such presumption can be made, especially
since, as the Ombudsman correctly points out,
in reality, most corrupt acts by public officers
are shrouded in secrecy, and concealed from
the public.
Abandonment
of
Condonation
Doctrine is Prospective in Application
However, the Court, in the case of Herrera v.
Mago [G.R. No. 231120, (2020)] clarified that
the abandonment of the condonation doctrine
is prospective in application.
● Administrative cases against elective
officials instituted prior to Carpio-Morales v.
CA are still covered by the condonation
doctrine.
● The prospective application should be
reckoned from April 12, 2016, the date on
which the Court acted upon and decided
with
finality
the
motion
for
clarification/motion
for
partial
reconsideration in Carpio-Morales.
C.
Impeachment
Warranto
vs.
Quo
1. Impeachment
a. Concept
1987 Constitution, Article XI, Section 2. The
President, the Vice-President, the Members of the
Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be
removed from office on impeachment for, and
conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust. All other public
officers and employees may be removed from office
as provided by law, but not by impeachment
Impeachment is the power of Congress to
remove a public official for serious crimes or
misconduct as provided in the Constitution
[Corona v. Senate of the Philippines, G.R. No.
200242 (2012)].
b. Impeachable Officers
1.
2.
3.
4.
President;
Vice-President;
Members of the Supreme Court;
Members
of
the
Constitutional
Commissions;
5. Ombudsman .
c. Grounds for Impeachment
1.
2.
3.
4.
5.
6.
Culpable violation of the Constitution;
Treason;
Bribery;
Graft and corruption;
Other high crimes; or
Betrayal of Public Trust.
d. Effects of Impeachment
a. Removal from office of the official
concerned;
b. Disqualification to hold any office;
c. Officer is still liable to prosecution, trial,
and punishment if the impeachable
offense committed also constitutes a
felony or crime.
e. Extent of Judgment in Impeachment
Judgment in cases of impeachment shall not
extend further than removal from office and
disqualification to hold any office under the
Republic of the Philippines, but the party
convicted shall nevertheless be liable and
subject to prosecution, trial, and punishment,
according to law [Sec. 3, Art. XI, 1987 Const.].
f. Process of Impeachment
At the House of Representatives
1. A verified complaint is filed by:
a. Any member of the House of
Representatives; or
b. Any citizen upon a resolution of
endorsement by a member of the
House of Representatives; or
Page 216 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
2.
3.
4.
5.
6.
7.
POLITICAL LAW
c. A verified complaint or resolution of
impeachment filed by at least one-third
(⅓) of all the Members of the House.
The Speaker shall include said complaint in
the Order of Business within 10 session
days from receipt;
The complaint shall then be referred to the
Committee on Justice within 3 session
days thereafter;
After due referral, the Committee on
Justice shall determine whether the
complaint is sufficient in form:
a. Committee
finds
complaint
insufficient in form: It shall return the
same to the Secretary General within 3
session days with a written explanation
of the insufficiency;
i.
The Secretary General shall return
the complaint to the complainant(s)
together with the committee’s
written explanation within 3 session
days from receipt of the committee
resolution finding the complaint
insufficient in form;
b. Committee
finds
complaint
sufficient in form: It shall then
determine if the complaint is sufficient
in substance. If deemed insufficient in
substance, it shall dismiss the
complaint and submit its report to the
House.
The Committee, after hearing, and by a
majority vote of all its Members, shall
submit its report to the House within 60
session days from such referral, together
with the corresponding resolution;
The resolution shall be calendared for
consideration by the House within 10 days
from receipt;
A 1/3 vote is necessary to affirm a
favorable resolution or override a contrary
resolution of the committee;
a. But where ⅓ of the House members
themselves filed the complaint, no
need to comply with the preceding
steps. It shall constitute the Articles of
Impeachment.
2. Each Senator takes an oath or affirmation
before assuming their office as Senatorjudges;
3. After the transmission and the organization
of the Senate as an impeachment court, a
writ of summons shall be issued to the
impeached officer directing him to:
a. Appear before the Senate at a fixed
date and place; and
b. File an Answer to the Articles of
Impeachment within 10 days. The
prosecutors may file a Reply to the
answer within 5 days.
4. The Senate sitting as an impeachment
court shall be presided over by the Senate
President;
Exception: If the President is the
impeached official, it is the Chief Justice
who shall preside.
The presiding officer shall rule on all
questions of evidence, unless a SenatorJudge moves that the question be voted
upon by all the senator-judges.
5. Upon the close of the trial, the Senatorjudges shall vote on each of the articles of
impeachment separately;
6. In order to convict the impeached official,
at least ⅔ of all the members of the Senate
must concur in one article of impeachment.
g. One-Year Limit Rule
Under the Constitution, no impeachment
proceedings shall be initiated against the same
official more than once within a period of one
year [Sec. 3, par. 5, Art. XI, 1987 Const.].
When is an impeachment proceeding initiated?
It is initiated or begins when a verified
complaint is filed and referred to the Committee
on Justice for action. In other words, “to initiate”
refers to the filing of the impeachment
complaint coupled with Congress’ taking
initial action of said complaint [Francisco, Jr.
v. HOR, G.R. No. 160261 (2003)].
At the Senate
1. The Articles of Impeachment is transmitted
to the Senate and trial shall proceed
forthwith;
Page 217 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
2. Quo Warranto
a. Concept
Quo warranto is a direct proceeding to question
the title of a public officer, or to oust the holder
from its enjoyment, unless a special statutory
remedy has been substituted in its place.
b. Who May File?
3. Impeachment vs. Quo Warranto
1. The person who claims to be entitled to the
office [Section 5, Rule 66, Rules of Court];
● In order for a quo warranto petition to
be successful, the private person suing
must show a clear right to the
contested office [Topacio v. Ong,
G.R. No. 179895 (2008)].
2. The Republic of the Philippines,
represented by the Solicitor General or a
public prosecutor [Sec. 3, Rule 66, ROC].
c. Prescriptive Period
General rule: A quo warranto proceeding must
be commenced within 1 year after the cause of
such ouster, or after the right of the petitioner
to hold such office or position arose [Sec. 11,
Rule 66, Rules of Court].
Exception: When the government is the real
party in interest, and is proceeding mainly to
assert its rights, there can be no defense on the
ground of laches or prescription. Thus,
prescription does not lie against the State
[Republic v. Sereno, G.R. No. 237428 (2018)].
d. Effects When Petition is Granted
●
●
This follows from the nature of the writ of
quo warranto itself. It is never directed to an
officer as such, but always against the
person - to determine whether he is
constitutionally and legally authorized to
perform any act in, or exercise any function
of the office to which he lays claim
[Mendoza v. Allas, G.R. No. 131977
(1999)].
As against the respondent, the judgment
shall have the following effects:
1. The respondent shall be ousted and
excluded from the office;
2. The petitioner or relator, as the case
may be, shall recover his costs; and
3. Such further judgment determining the
respective rights in and to the public
office, position, or franchise of all the
parties to the action as justice requires.
As against the successor
1. A judgment in quo warranto does not
bind the respondent’s successor in
office, even though such successor
may trace his title to the same source.
In Re: Letter of Mrs. Corona, citing Republic v.
Sereno, the Court differentiated impeachment
and quo warranto in the following manner:
1. Impeachment is political; quo warranto is
judicial.
2. In impeachment, the Congress is the
prosecutor, the trier, and the judge,
whereas quo warranto petitioners are
instituted either by the Solicitor General in
behalf of the Republic of the Philippines or
by an individual claiming the public office in
issue, both of which petitions are
cognizable only by the Supreme Court.
3. Impeachment proceedings seek to confirm
and vindicate the breach of the trust
reposed by the Filipino people upon the
impeachable official, but quo warranto
determines the legal right, title, eligibility or
qualifications of the incumbent to the
contested public office.
4. The 1987 Constitution, as supplemented
by the internal rules of procedure of
Congress,
directs
the
course
of
impeachment proceedings. Quo warranto
cases, on the other hand, are dictated by
the Rules of Court.
5. The end result of an impeachment
proceeding is the removal of the public
officer, and his or her perpetual political
disqualification from holding public office.
On the other hand, when a quo warranto
petition is granted, ouster from office is
likewise metered, but the Court can
likewise impose upon the public officer
additional
penalties
such
as
reimbursement of costs pertaining to the
rightful holder of the public office and such
further
judgment
determining
the
respective rights in and to the public office,
position, or franchise of all the parties to the
action as justice requires.
Page 218 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
Impeachment
Impeachment, as a remedy, seeks to
remove impeachable officials for acts
or omissions committed during the
incumbency of a validly
appointed/elected official, even if it
Definition
relates to the qualification being a
continuing requirement and the act or
omission constitutes an impeachable
offense, or disciplinary, administrative
or criminal action, if otherwise.
Political process to vindicate the
violation of the public’s trust.
Nature
Cause of
Action
Effects
Impeachment presupposes a valid
appointment and exacts accountability
for an act done by an official during
his/her tenure.
POLITICAL LAW
Quo warranto
Quo warranto is a remedy to oust an
ineligible public official due to acts or
omissions committed prior to or at the time of
appointment or election relating to an
official’s qualifications to hold office, provided
that the requisites for the commencement
thereof are present.
Judicial determination of the eligibility or
validity of the election or appointment of a
public official based on predetermined rules.
Quo warranto tests the qualification of an
official based on a cause existing at the time
of the issuance of the appointment.
Usurpation or unlawful holding of the
public office.
Commission of an impeachable offense
which would render an officer unfit in
exercising the powers of his office.
Ouster from office due to the public
officer’s ineligibility to hold said office.
Removal from office of the official concerned;
Disqualification to hold any office;
Officer still liable to prosecution, trialand
punishment if the impeachable offense
committed also constitutes a felony or crime.
D. The Ombudsman and the
Office of the Special Prosecutor
[Sections 5 to 14, Article XI of the
1987 Constitution in relation to
RA No. 6770, otherwise known
as “The Ombudsman Act of
1989”]
Appointment
The Ombudsman and his Deputies shall be
appointed by the President from a list of at least
six nominees, prepared by the Judicial and Bar
Council, and from a list of three nominees for
every vacancy thereafter. Such appointments
shall require no confirmation. All vacancies
shall be filled within three months after they
occur [Sec. 9, Art. XI, 1987 Const.].
The Ombudsman and his Deputies, including
the Special Prosecutor, shall be appointed by
the President from a list of at least twenty-one
1987 Constitution, Article XI, Section 5. There is
(21) nominees prepared by the Judicial and
hereby created the independent Office of the
Bar Council, and from a list of three (3)
Ombudsman, composed of the Ombudsman to be
nominees for each vacancy thereafter, which
known as Tanodbayan, one overall Deputy and at
shall be filled within three (3) months after it
least one Deputy each for Luzon, Visayas and
Mindanao. A separate Deputy for the military
occurs, each of which list shall be published in
establishment may likewise be appointed.
a newspaper of general circulation [Sec. 4,
R.A. No. 6770].
Page 219 of 384
UP Law Bar Operations Commission 2023
The Ombudsman
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
Qualifications
The Ombudsman and his Deputies shall be:
1. Natural-born citizens of the Philippines;
2. At the time of their appointment, at least
forty years old;
3. Of recognized probity and independence;
4. Members of the Philippine Bar;
5. Must not have been candidates for any
elective office in the immediately preceding
election.
The Ombudsman must have for ten years or
more been a judge or engaged in the practice
of law in the Philippines [Sec. 8, Art. XI, 1987
Const.].
Disqualifications and Prohibitions
The Ombudsman cannot:
a. Hold any other office or employment during
his tenure;
b. Engage in the practice of any profession or
in the active management or control of any
business which may be affected by the
functions of his office;
c. Be financially interested, directly or
indirectly, in any contract with or in any
franchise or privilege granted by the
Government, any of its subdivisions,
agencies or instrumentalities, including
GOCCs or their subsidiaries.
Independence
To subject the Deputy Ombudsman to
discipline and removal by the President, whose
own alter-egos and officials in the Executive
Department are subject to the Ombudsman’s
disciplinary authority, would place at risk the
independence of the Office of the Ombudsman
itself. The Ombudsman cannot be expected to
place her complete trust in her subordinate
officials if they are not as independent as she
is [Gonzales III v. Office of the President of the
Philippines, G.R. No. 196231 (2014)].
Thus, Section 8(2) of R.A. No. 6770, insofar as
it allows the President to remove Deputy
Ombudsmen from office for any of the grounds
provided for the removal of the Ombudsman, is
unconstitutional.
The Office of the Special Prosecutor
1987 Constitution, Section 7, Article XI. The
existing Tanodbayan shall hereafter be known as
the Office of the Special Prosecutor. It shall continue
to function and exercise its powers as now or
hereafter may be provided by law, except those
conferred on the Office of the Ombudsman created
under this Constitution.
Qualifications, Rank, and Salary
The Special Prosecutor shall have the same
qualifications as that of a Deputy Ombudsman
[Sec. 4, R.A. No. 6770].
The Special Prosecutor also has the same rank
and salary as a Deputy Ombudsman [Sec. 11,
R.A. No. 6770].
Powers
The Office of the Special Prosecutor shall,
under the supervision and upon the authority of
the Ombudsman, have the following powers:
a. To conduct preliminary investigation and
prosecute criminal cases within the
jurisdiction of the Sandiganbayan;
b. To enter into plea bargaining agreements;
and
c. To perform such other duties assigned to it
by the Ombudsman. [Sec. 11(4), R.A. No.
6770].
Independence
In Gonzales v. Office of the President [supra],
the Court held that Section 8(2) of R.A. No.
6770, insofar as it allows the President to
remove the Special Prosecutor from office for
any of the grounds provided for the removal of
the Ombudsman, was upheld by the Supreme
Court. The Court did not consider the Office of
the Special Prosecutor to be constitutionally
within the Office of the Ombudsman and is,
hence, not entitled to the independence the
latter enjoys under the Constitution.
Page 220 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
1. Functions of the Office of the Ombudsman
1987 Constitution
Ombudsman Act of 1989 (R.A. No. 6770)
Article XI, Section 13. The Office of the
Ombudsman shall have the following powers,
functions, and duties:
Section 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the
following powers, functions and duties:
(1) Investigate on its own, or on complaint by
any person, any act or omission of any public
official, employee, office or agency, when such
act or omission appears to be illegal, unjust,
improper, or inefficient.
(1) Investigate and prosecute on its own or on
complaint by any person, any act or omission of
any public officer or employee, office or agency,
when such act or omission appears to be illegal,
unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of his
primary jurisdiction, it may take over, at any
stage, from any investigatory agency of
Government, the investigation of such cases;
(2) Direct, upon complaint or at its own
instance, any public official or employee of the
Government, or any subdivision, agency or
instrumentality thereof, as well as of any
government-owned or controlled corporation
with original charter, to perform and expedite
any act or duty required by law, or to stop,
prevent, and correct any abuse or impropriety in
the performance of duties.
(2) Direct, upon complaint or at its own
instance, any officer or employee of the
Government, or of any subdivision, agency or
instrumentality thereof, as well as any
government-owned or controlled corporations
with original charter, to perform and expedite
any act or duty required by law, or to stop,
prevent, and correct any abuse or impropriety in
the performance of duties;
(3) Direct the officer concerned to take
appropriate action against a public official or
employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith.
(3) Direct the officer concerned to take
appropriate action against a public officer or
employee at fault or who neglect to perform an
act or discharge a duty required by law, and
recommend his removal, suspension, demotion,
fine, censure, or prosecution, and ensure
compliance therewith; or enforce its disciplinary
authority as provided in Section 21 of this Act:
Provided, That the refusal by any officer without
just cause to comply with an order of the
Ombudsman to remove, suspend, demote, fine,
censure, or prosecute an officer or employee
who is at fault or who neglects to perform an act
or discharge a duty required by law shall be a
ground for disciplinary action against said
officer;
(4) Direct the officer concerned, in any
appropriate case, and subject to such
limitations as may be provided by law, to furnish
it with copies of documents relating to contracts
or transactions entered into by his office
involving the disbursement or use of public
funds or properties, and report any irregularity
(4) Direct the officer concerned, in any
appropriate case, and subject to such
limitations as it may provide in its rules of
procedure, to furnish it with copies of
documents relating to contracts or transactions
entered into by his office involving the
disbursement or use of public funds or
Page 221 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
1987 Constitution
Ombudsman Act of 1989 (R.A. No. 6770)
Article XI, Section 13. The Office of the
Ombudsman shall have the following powers,
functions, and duties:
Section 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the
following powers, functions and duties:
to the Commission on Audit for appropriate
action.
properties, and report any irregularity to the
Commission on Audit for appropriate action;
(5) Request any government agency for
assistance and information necessary in the
discharge of its responsibilities, and to examine,
if necessary, pertinent records and documents.
(5) Request any government agency for
assistance and information necessary in the
discharge of its responsibilities, and to examine,
if necessary, pertinent records and documents;
(6) Publicize matters covered by its
investigation when circumstances so warrant
and with due prudence.
(6) Publicize matters covered by its
investigation of the matters mentioned in
paragraphs (1), (2), (3) and (4) hereof, when
circumstances so warrant and with due
prudence: Provided, That the Ombudsman
under its rules and regulations may determine
what cases may not be made public: Provided,
further, That any publicity issued by the
Ombudsman shall be balanced, fair and true;
(7) Determine the causes of inefficiency, red
tape, mismanagement, fraud, and corruption in
the Government and make recommendations
for their elimination and the observance of high
standards of ethics and efficiency.
(7) Determine the causes of inefficiency, red
tape, mismanagement, fraud, and corruption in
the Government, and make recommendations
for their elimination and the observance of high
standards of ethics and efficiency;
(8) Promulgate its rules of procedure and
exercise such other powers or perform such
functions or duties as may be provided by law.
(8) Administer oaths, issue subpoena and
subpoena duces tecum, and take testimony in
any investigation or inquiry, including the power
to examine and have access to bank accounts
and records;
(9) Punish for contempt in accordance with the
Rules of Court and under the same procedure
and with the same penalties provided therein;
(10) Delegate to the Deputies, or its
investigators or representatives such authority
or duty as shall ensure the effective exercise or
performance of the powers, functions, and
duties herein or hereinafter provided;
(11) Investigate and initiate the proper action for
the recovery of ill-gotten and/or unexplained
wealth amassed after February 25, 1986 and
the prosecution of the parties involved therein.
Page 222 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
1987 Constitution
Ombudsman Act of 1989 (R.A. No. 6770)
Article XI, Section 13. The Office of the
Ombudsman shall have the following powers,
functions, and duties:
Section 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the
following powers, functions and duties:
(12) The Ombudsman shall give priority to
complaints filed against high-ranking
government officials and/or those occupying
supervisory positions, complaints involving
grave offenses as well as complaints involving
large sums of money and/or properties.
The law does not qualify the nature of the illegal
act or omission of the public official or
employee that the Ombudsman may
investigate. It does not require that the act or
omission be related to or be connected with or
arise from the performance of official duty.
Since the law does not distinguish, neither
should we [Santos v. Rasalan, G.R. No.
155749 (2007)].
The Office of the Ombudsman is empowered
to determine if there exists probable cause or
"whether there exists a reasonable ground to
believe that a crime has been committed, and
that the accused is probably guilty thereof and,
thereafter, to file the corresponding information
with
the
appropriate
courts."
This
determination is done by means of a
preliminary investigation [Morales, Jr. v.
Carpio-Morales, G.R. No. 208086 (2016)].
Notwithstanding the term "recommend," [under
Sec. 13 (3), Art. XI of the Const.], the said
provision, construed together with the pertinent
provisions in Republic Act No. 6770, is not only
advisory in nature but is actually mandatory
within the bounds of law [Office of the
Ombudsman v. Court of Appeals, G.R. No.
160675 (2006)].
2. Judicial Review in Administrative
Proceedings
The proper remedy to appeal decisions in
administrative proceedings before the Office of
the Ombudsman depends on whether the
decision of the Ombudsman is appealable or
unappealable.
Ombudsman’s Decision is Appealable
Generally, appeals from decisions of the Office
of the Ombudsman in administrative
disciplinary cases should be taken to the CA
under the provisions of Rule 43 of the Rules of
Civil Procedure [Tsunami Management Corp.
v. Ombudsman, G.R. No. 232712 (2021)].
In cases where the respondent is not
exonerated, and the penalty imposed is not
merely public censure or reprimand, or
suspension of not more than one (1) month’s
salary, the Ombudsman's decision is
appealable. The proper remedy is to file an
appeal under Rule 43 of the Rules of Court
before the Court of Appeals [Yatco v. Office
of the Ombudsman, G.R. No. 244775 (2020)].
Ombudsman’s
Unappealable
Decision
is
Pursuant to Section 27 of the Ombudsman Act,
any order, directive or decision of the
Ombudsman “imposing the penalty of public
censure or reprimand, or suspension of not
more than one (1) month’s salary shall be final
and unappealable.
Case law has also explained that Ombudsman
rulings which exonerate the respondent from
administrative liability are, by implication, also
considered final and unappealable.
In these cases, although such decisions are
considered final and unappealable, they are
still subject to judicial review on the ground of
grave abuse of discretion. Thus, the correct
procedure is to file a petition for certiorari
under Rule 65 of the Rules of Court before
Page 223 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
the CA [Yatco v. Office of the Ombudsman,
supra].
3.
Judicial
Proceedings
Review
in
Penal
With respect to criminal charges, the Court has
settled that the remedy of an aggrieved party
from a resolution of the Ombudsman finding
the presence or absence of probable cause is
to file a petition for certiorari under Rule 65
of the Rules of Court with the Supreme
Court (not the Court of Appeals) [Yatco v.
Office of the Ombudsman, supra].
E. The Sandiganbayan
1. Nature and Composition
It is a special court, of the same level as the
Court of Appeals, and possessing all the
inherent powers of a court of justice. It is
composed of a Presiding Justice and fourteen
Associate Justices who shall be appointed by
the President [Sec. 1, P.D. No. 1606 as
amended by R.A. No. 8249].
2. Jurisdiction
a. Exclusive Original Jurisdiction
The Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
1. Violations of RA No. 3019, as amended,
otherwise known as the Anti-Graft and
Corrupt Practices Act, RA No. 1379, and
Chapter II, Section 2, Title VII, Book II of
the Revised Penal Code, where one or
more of the accused are officials occupying
the following positions in the government,
whether in a permanent, acting or
interim capacity, at the time of the
commission of the offense:
a. Officials of the executive branch
occupying the positions of regional
director and higher, otherwise
classified as Grade 27 and higher, of
the Compensation and Classification
Act of 1989, specifically including:
i. Provincial
governors,
vicegovernors, members of the
sangguniang panlalawigan, and
provincial treasurers, assessors,
engineers, and other provincial
department heads:
ii. City
mayors,
vice-mayors,
members of the sangguniang
panlungsod,
city
treasurers,
assessors, engineers, and other
city department heads;
iii. Officials of the diplomatic service
occupying the position of consul
and higher;
iv. Philippine army and air force
colonels, naval captains, and all
officers of higher rank;
v. Officers of the Philippine National
Police while occupying the position
of provincial director and those
holding the rank of senior
superintendent and higher;
vi. City and provincial prosecutors and
their assistants, and officials and
prosecutors in the Office of the
Ombudsman
and
special
prosecutor;
vii. Presidents, directors or trustees, or
managers of government-owned or
controlled
corporations,
state
universities
or
educational
institutions or foundations.
b. Members of Congress and officials
thereof classified as Grade 27 and
higher under the Compensation and
Position Classification Act of 1989;
c. Members of the judiciary without
prejudice to the provisions of the
Constitution;
d. Chairmen and members of the
Constitutional Constitutions, without
prejudice to the provisions of the
Constitution; and
e. All other national and local officials
classified as Grade 27 and higher
under the Compensation and Position
Classification Act of 1989.
2. Other offenses or felonies whether simple
or complexed with other crimes committed
by the public officials and employees
mentioned in subsection a. of this Section
in relation to their office
3. Civil and criminal cases filed pursuant to
and in connection with Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986
[Sec. 4, P.D. No. 1606 as amended by R.A.
No. 10660].
Page 224 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
Requisites
In Lacson v. Executive Secretary [GR. No.
128096 (1999)], the Court held that to fall under
the exclusive original jurisdiction of the
Sandiganbayan, the following requisites must
concur:
1. The offense committed is a violation of:
a. R.A. No. 3019, as amended (the AntiGraft and Corrupt Practices Act);
b. R.A. No. 1379 (the law on ill-gotten
wealth);
c. Chapter II, Section 2, Title VII, Book II
of the RPC (the law on bribery);
d. Executive Order Nos. 1, 2, 14, and 14A, issued in 1986 (sequestration
cases); or
e. Other offenses or felonies whether
simple or complexed with other crimes.
2. The offender committing the offenses in
items (a), (b), (c) and (e) is a public official
or employee holding any of the positions
enumerated in paragraph a of Section 4;
and
3. The offense committed is in relation to the
office.
An offense is said to have been committed in
relation to the office if it (the offense) is
“intimately connected” with the office of the
offender and perpetrated while he was in the
performance of his official functions. This
intimate relation between the offense charged
and the discharge of official duties “must be
alleged in the information” [People v. Montejo,
G.R. No. L-14595 (1960)].
Section 16 (3), Article VI of the Constitution —
which deals with the power of each House of
Congress inter alia to 'punish its Members for
disorderly behavior, and 'suspend or expel a
Member' by a vote of two-thirds of all its
Members subject to the qualification that the
penalty of suspension, when imposed, should
not exceed sixty days — is unavailing, as it
appears to be quite distinct from the
suspension spoken of in Section 13 of RA
3019, which is not a penalty but a preliminary,
preventive measure, prescinding from the fact
that the latter is not being imposed on petitioner
for misbehavior as a Member of the House of
Representatives. Republic Act No. 3019 does
not exclude from its coverage the members of
Congress
and
that,
therefore,
the
Sandiganbayan did not err in thus decreeing
the assailed preventive suspension order
[Defensor-Santiago v. Sandiganbayan, G.R.
No. 128055 (2001)].
Petitioner mayor's position having been
classified as Grade 27 in accordance with R.A.
No. 6758, and having been charged with
violation of Section 3 (e) of R.A. 3019,
petitioner is subject to the jurisdiction of the
Sandiganbayan, as defined by Section 4 a. of
P.D. No. 1606, as amended by Section 2 of
R.A. No. 7975. By virtue of the same Section 4
a., as amended, his co-accused are also
subject to the Anti-Graft Court's jurisdiction
[Rodrigo, Jr. v. Sandiganbayan, G.R. No.
125498 (1999)].
The exclusive original jurisdiction over
violations of RA 9165 is not transferred to the
Sandiganbayan whenever the accused
occupies a position classified as Grade 27 or
higher, regardless of whether the violation is
alleged as committed in relation to office. RA
9165 is the special law excluding from the
Sandiganbayan's jurisdiction violations of RA
9165 committed by such public officers. In the
latter case, jurisdiction is vested upon the
RTCs designated by the Supreme Court as
drugs court, regardless of whether the violation
of RA 9165 was committed in relation to the
public officials' office [De Lima v. Guerrero,
G.R. No. 229781 (2017)].
b. Exclusive Appellate Jurisdiction
The Sandiganbayan shall exercise exclusive
appellate jurisdiction over final judgments,
resolutions or orders of regional trial courts
whether in the exercise of their own original
jurisdiction or of their appellate jurisdiction as
herein provided [Sec. 4, P.D. No. 1606 as
amended by R.A. No. 10660].
c. Jurisdiction Over Private Individuals
In case private individuals are charged as coprincipals, accomplices or accessories with the
public officers or employees, including those
employed in government-owned or controlled
corporations, they shall be tried jointly with said
public officers and employees in the proper
courts which shall exercise exclusive
jurisdiction over them [Sec. 4, P.D. No. 1606 as
amended by R.A. No. 10660].
Page 225 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
XIV. TERM LIMITS
The term means the time during which the
officer may claim to hold the office as of
right, and fixes the interval after which the
several incumbents shall succeed one
another. The tenure represents the term
during which the incumbent actually holds
the office. The tenure may be shorter than the
term for reasons within or beyond the power of
the incumbent [Fetalino v COMELEC, G.R. No.
191890 (2012)].
shall begin at noon on the thirtieth day of June next
following the day of the election and shall end at
noon of the same date six years thereafter. The
President shall not be eligible for any reelection.
No person who has succeeded as President and
has served as such for more than four years shall
be qualified for election to the same office at any
time.
No Vice-President shall serve for more than two
consecutive terms. Voluntary renunciation of the
office for any length of time shall not be considered
as an interruption in the continuity of the service for
the full term for which he was elected.xxx
A. Legislative Department
Judicial Department
1. Senators
2. Supreme Court Justices
Judges of Lower Courts
1987 Constitution, Article VI, Section 4. The term
of office of the Senators shall be six years and shall
commence, unless otherwise, provided by law, at
noon on the thirtieth day of June next following their
election.
No Senator shall serve for more than two
consecutive terms. Voluntary renunciation of the
office for any length of time shall not be considered
as an interruption in the continuity of his service for
the full term for which he was elected.
2. Members of
Representatives
the
House
of
and
1987 Constitution, Article VIII, Section 11. The
Members of the Supreme Court and judges of lower
courts shall hold office during good behavior
until they reached the age of seventy years or
become incapacitated to discharge the duties of
their office. The Supreme Court en banc shall have
the power to discipline judges of lower courts, or
order their dismissal by a vote of a majority of the
Members who actually took part in the deliberations
on the issues in the case and voted thereon.
C. Constitutional Commissions
1. Civil Service Commission
1987 Constitution, Article VI, Section 7. The
Members of the House of Representatives shall be
elected for a term of three years which shall begin,
unless otherwise provided by law, at noon on the
thirtieth day of June next following their election.
No member of the House of Representatives
shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any
length of time shall not be considered as an
interruption in the continuity of his service for the full
term for which he was elected.
1987 Constitution, Article IX-B, Section 1(2). The
Chairman and the Commissioners shall be
appointed by the President with the consent of the
Commission on Appointments for a term of seven
years without reappointment. Of those first
appointed, the Chairman shall hold office for seven
years, a Commissioner for five years, and another
Commissioner
for
three
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.
B. Executive Department
1. President and Vice-President
1987 Constitution, Article VII, Section 4. The
President and the Vice-President shall be elected by
direct vote of the people for a term of six years which
2. Commission on Elections
1987 Constitution, Article IX-C, Section 1(2). The
Chairman and the Commissioners shall be
appointed by the President with the consent of the
Commission on Appointments for a term of seven
Page 226 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
LAW ON PUBLIC OFFICERS
POLITICAL LAW
years without reappointment. Of those first
appointed, three Members shall hold office for seven
years, two Members for five years, and the last
Members for three 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.
position: Provided, however, That the term of office
shall be reckoned from the 1994 barangay elections.
Voluntary renunciation of office for any length of time
shall not be considered as an interruption in the
continuity of service for the full term for which the
elective official was elected.
3. Commission on Audit
1987 Constitution, Article IX-D, Section 1(1. The
Chairman and the Commissioners shall be
appointed by the President with the consent of the
Commission on Appointments for a term of seven
years without reappointment. Of those first
appointed, the Chairman shall hold office for seven
years, one Commissioner for five years, and the
other Commissioner for three years, without
reappointment. Appointment to any vacancy shall
be only for the unexpired portion of the term of the
predecessor. In no case shall any Member be
appointed or designated in a temporary or acting
capacity.
D. The Office of the Ombudsman
1987 Constitution, Article XI, Section 11, Article
XI. The Ombudsman and his Deputies shall serve
for a term of seven years without reappointment.
They shall not be qualified to run for any office in the
election immediately succeeding their cessation
from office.
E. Local Governments
1987 Constitution, Article X, Section 8. The term
of office of elective local officials, except barangay
officials, which shall be determined by law, shall be
three years and no such official shall serve for
more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall
not be considered as an interruption in the continuity
of his service for the full term for which he was
elected.
Barangay Officials and Sangguniang
Kabataan Officials
R.A. No. 9164, Section 2. The term of office of all
barangay and sangguniang kabataan officials after
the effectivity of this Act shall be three (3) years. No
barangay elective official shall serve for more
than three (3) consecutive terms in the same
Page 227 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL AND PUBLIC
INTERNATIONAL LAW
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
ADMINISTRATIVE
LAW
I. GENERAL PRINCIPLES
A. Definition of Administrative
Law
Administrative law belongs to the field of
public law, and is generally understood as “that
part of the law which governs the organization,
functions, and procedures of administrative
agencies of the government to which (quasi)
legislative powers are delegated and (quasi)
judicial powers are granted, and the extent and
manner of which such agencies are subject to
control by the courts” [De Leon].
B. Separation of Powers and
Administrative Functions
In Pangasinan Transportation Co., Inc. v. PSC,
G.R. No. 47065 (1940), the Supreme Court
held that the challenged law, passed by the
then National Assembly, did not constitute a
complete and total abdication by the
Legislature of its functions because all that was
delegated to the Public Service Commission
(PSC) was the administrative function,
involving the use of discretion to carry out the
will of the legislature.
According to the Court in Pangasinan,
“apparent in the development of the principle
of separation of powers…is that the maxim
of delegatus non potest delegari or delegata
potestas non potest delegari…has been made
to adapt itself to the complexities of modern
governments, giving rise to the adoption, within
certain limits, of the principle of ‘subordinate
legislation,’ not only in the United States and
England but in practically all modern
governments. Accordingly, with the growing
complexity of modern life, the multiplication of
the subjects of governmental regulation, and
the increased difficulty of administering the
laws, there is a constantly growing tendency
toward the delegation of greater powers by the
legislature, and toward the approval of the
practice by the court.”
Administrative functions are those which
involve the regulation and control over the
conduct and affairs of individuals for their own
welfare and the promulgation of rules and
regulations to better carry out the policy of the
legislature or such as are devolved upon the
administrative agency by the organic law of its
existence [In Re: Rodolfo v. Manzano, A.M.
No. 88-7-1861-RTC (1988)].
II. ADMINISTRATIVE AGENCIES
A. Definition of Administrative
Agency
Administrative Code of 1987
Section 2(1), Book VII. Definitions. – As used in this
Book: (1) “Agency” includes any department,
bureau, office, commission, authority or officer of the
National Government authorized by law or executive
order to make rules, issue licenses, grant rights of
privileges, and adjudicate cases; research
institutions with respect to licensing functions;
government corporations with respect to functions
regulating private right, privileges, occupation, or
business; and officials in the exercise of disciplinary
power as provided by law.
“Administrative agency” is the term used
generally to describe an agency exercising
some significant combination of executive,
legislative, and judicial powers. It is a
government body charged with administering
and implementing particular legislation [De
Leon].
B. Historical Considerations
The emergence of administrative agencies
can be attributed to:
1. Growing complexity of modern life;
2. Multiplication of the subjects of
governmental regulation; and
3. Increased difficulty of administering laws
[Pangasinan Transportation Co., Inc. v.
PSC, supra].
Except for Constitutional Commissions and
other bodies directly created by the
Constitution, administrative agencies are
generally are creations of the legislature. In
theory, Congress can create, divide, merge,
modify, or even abolish agencies. The reality,
however, is more on the side of creation rather
Page 229 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
than abolition, considering the multiplication of
regulatory agencies [Carlota].
III.
POWERS
OF
ADMINISTRATIVE AGENCIES
A.
Quasi-Legislative
Making Power)
(Rule-
The authority delegated by the law-making
body to the administrative agency to adopt
rules and regulations intended to carry out the
provisions of a law and implement a legislative
policy [Cruz].
The grant of rule-making is a relaxation of the
separation of powers principle and is an
exception to the non-delegation of legislative
powers. But such administrative regulations
must be consistent with the law and be for the
sole purpose of enforcing its provisions and not
to transcend the limits marked by the law. The
details and the manner of carrying out the law
are oftentimes left to the administrative agency
entrusted with its enforcement [People v.
Maceren, G.R. No. L- 32166 (1977)].
Administrative
regulations
enacted
by
administrative agencies to implement and
interpret the law which they are entrusted to
enforce have the force of law and are entitled
to respect. Such rules and regulations partake
of the nature of a statute and are just as binding
as if they have been written in the statute itself.
As such, they have the force and effect of law
and enjoy the presumption of constitutionality
and legality until they are set aside with finality
in an appropriate case by a competent court.
Congress, in the guise of assuming the role of
an overseer, may not pass upon their legality
by subjecting them to its stamp of approval
without disturbing the calculated balance of
powers established in the Constitution. Hence,
legislative
vetoes
are
unconstitutional
[Abakada Guro Party List v. Hon. Cesar
Purisima, G.R. No. 166715 (2008)].
Power of Subordinate Legislation
The power of subordinate legislation allows
administrative bodies to implement the broad
policies laid down in a statute by “filling in” the
details. The regulation should be germane to
the objects and purposes of the law and should
not be in contradiction to but in conformity with
the standards prescribed by the law [Sigre v.
CA, G.R. Nos. 109568 & 113454 (2002)].
This is effected by the promulgation of
administrative bodies of what are known as
supplementary
regulations,
such
as
implementing rules and regulations which have
the force and effect of law [Eastern Shipping
Lines, Inc. v. POEA, G.R. No. 76633 (1988)].
Administrative issuances may be distinguished
according to their nature and substance:
legislative and interpretative. A legislative rule
is in the matter of subordinate legislation,
designed to implement a primary legislation by
providing the details thereof. An interpretative
rule, on the other hand, is designed to provide
guidelines to the law which the administrative
agency is in charge of enforcing [BPI Leasing
Corporation v. Court of Appeals, G.R. No.
127624 (2003)].
Non-delegation Doctrine Potestas delegata
non delegare potest
As a general rule, the law prohibits the further
delegation of a power or function already
assigned and delegated by the Constitution to
a specific body such as the legislature. The
rationale.
One of the settled maxims in constitutional law
is that the power conferred upon the legislature
to make laws cannot be delegated by that
department to any body or authority. This
doctrine is based on the ethical principle that
such a delegated power constitutes not only a
right but a duty to be performed by the delegate
by the instrumentality of his judgment acting
immediately upon the matter of legislation and
not through the intervening mind of another
[United States v. Barrias, G.R. No. 4349
(1908)].
The general rule barring delegation of
legislative powers is subject to recognized
limitations or exceptions, one of which is
delegation to administrative bodies [Abakada
v. Ermita, G.R. No. 168056 (2005)].
Page 230 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
Permissible Delegation
In every case of permissible delegation, there
must be a showing that the delegation itself is
valid.
It is valid only if the law (a) is complete in itself,
setting forth therein the policy to be executed,
carried out, or implemented by the delegate;
and (b) fixes a standard — the limits of which
are sufficiently determinate and determinable
— to which the delegate must conform in the
performance of his functions [Defensor
Santiago v. COMELEC, G.R. No. 127325
(1997)].
a. Completeness Test
The law must be complete in all its terms and
conditions when it leaves the legislature such
that when it reaches the delegate the only thing
he will have to do is enforce it [Eastern
Shipping Lines, Inc. v. POEA, supra].
To determine whether there is an undue
delegation of legislative power, the inquiry
must be directed to the scope and definiteness
of the measure enacted. The legislature does
not abdicate its functions when it describes
what job must be done, who is to do it, and
what is the scope of his authority [Edu v. Ericta,
GR No. L-32096 (1970)].
b. Sufficient Standard Test
The law must fix a standard, the limits of which
are sufficiently determinate or determinable, to
which the delegate must conform. A sufficient
standard is one which:
1. Defines legislative policy, marks its limits,
maps out its boundaries and specifies the
public agency to apply it;
2. Indicates the circumstances under which
the legislative command is to be effected
[Abakada v. Ermita, supra].
A legislative standard need not be expressed.
It may simply be gathered or implied. Nor need
it be found in the law challenged because it
may be embodied in other statutes on the same
subject as that of the challenged legislation
[Chiongbian v. Orbos, G.R. No. 96754 (1995)].
In case of a delegation of rate-fixing power, the
only standard which the legislature is required
to prescribe for the guidance of the
administrative authority is that the rate be
reasonable and just. However, it has been held
that even in the absence of an express
requirement as to reasonableness, this
standard may be implied [PHILCOMSAT v.
Alcuaz, G.R. No. 84818 (1989)].
Filling in the Details
With the power of subordinate legislation,
administrative bodies may implement the
broad policies laid down in a statute by “filling
in” the details which the Congress may not
have the opportunity or competence to provide
[Eastern Shipping Lines, Inc. v. POEA, supra].
Test
to
Determine
Invalidity
of
Administrative Rules
1. If it exceeds the authority conferred to it;
2. If it conflicts with the governing statute;
3. If it extends or modifies the statute;
4. If it has no reasonable relationship to the
statutory purpose; and
5. If it is arbitrary or unreasonable or
unconstitutional.
Where a rule or regulation has a provision not
expressly stated or contained in the statute
being implemented, that provision does not
necessarily contradict the statute. A legislative
rule is in the nature of subordinate legislation,
designed to implement a primary legislation by
providing the details thereof. All that is required
is that the regulation should be germane to the
objects and purposes of the law; that the
regulation be not in contradiction to but in
conformity with the standards prescribed by the
law [Holy Spirit Homeowners Association, Inc.
v. Defensor, G.R. No. 163980 (2006)].
General Rule-making Power
a. Every administrative agency is to file with
the University of the Philippines Law
Center three (3) certified copies of every
rule adopted by it.
b. Each rule shall become effective fifteen
(15) days from the date of filing as above
provided unless a different date is fixed by
law, or specified in the rule in cases of
imminent danger to public health, safety
and welfare, the existence of which must
be
expressed
in
a
statement
accompanying the rule.
Page 231 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
c. Every rule establishing an offense or
defining an act which, pursuant to law, is
punishable as a crime or subject to a
penalty shall in all cases be published in
full text.
d. If not otherwise required by law, an agency
shall, as far as practicable, publish or
circulate notices of proposed rules and
afford interested parties the opportunity to
submit their views prior to the adoption of
any rule.
e. In the fixing of rates, no rule or final order
shall be valid unless the proposed rates
shall have been published in a newspaper
of general circulation at least two (2)
weeks before the first hearing thereon
[Secs. 3, 4, 6, & 9, Chapter 2, Book VII,
Administrative Code].
Legislative
Rules
As to
publicatio
n
1. Kinds of Administrative Rules and
Regulations
a. Supplementary Legislation
Pertains to rules and regulations that fix details
in the execution of a policy in the law; This is
also called a legislative rule or subordinate
legislation. e.g., IRRs of the Labor Code.
As to
Binding
Effect
Need
Publication.
Need not be
published.
So long as the
court finds
that the
legislative
rules are
within the
power of the
administrative
agency to
pass, as seen
in the primary
law, then the
rules bind the
court. The
court cannot
question the
wisdom or
correctness of
the policy
contained in
the rules.
At best
merely
advisory; the
court may
review the
correctness
of the
interpretation
of the law
given by the
administrativ
e body, and
substitute its
own view of
what is
correct.
Procedural
due process
means that
the body
observed the
proper
procedure in
passing rules.
Substantive
due process,
on the other
hand, deals
Due process
involves
whether the
parties were
afforded the
opportunity to
be notified
and heard
before the
issuance of
the ruling.
b. Interpretative Legislation
Pertains to rules and regulations construing or
interpreting the provisions of a statute to be
enforced and they are binding on all concerned
until they are changed, e.g., BIR Circulars.
Legislative rules v. Interpretative rules
As to
source
As to
function
Legislative
Rules
Interpretive
Rules
Promulgated
pursuant to its
quasilegislative/rule
-making
functions.
Promulgated
pursuant to
its quasijudicial
capacity.
Create a new
law, a new
policy, with
the force and
effect of law.
Merely clarify
the meaning
of a
preexisting
law by
inferring its
implications.
As to Due
Process
Interpretive
Rules
Page 232 of 384
UP Law Bar Operations Commission 2023
If it is not
within the
scope of the
administrativ
e agency, the
court may, in
addition to
invalidating
the same,
also
substitute its
decision or
interpretation
or give its
own set of
rules.
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
Legislative
Rules
POLITICAL LAW
Interpretive
Rules
with the
limitations
posed by
constitutional
and
fundamental
rights to
rulemaking.
c. Reasonable Relation to the purposes
If shown to bear no reasonable relation to the
purposes [using the means-purpose or rational
relation test] for which they are authorized to be
issued, then they must be held to be invalid
[Lupangco v. CA, G.R. No. 77372 (1988)].
d. Promulgated in Accordance with
Prescribed Procedure
B. Quasi-Judicial (Adjudicatory)
Power
2. Requisites for Validity
a. Within the scope or authority of law;
b. Authorized by law;
c. Reasonable relation to the purposes;
d. Promulgated
in
accordance
with
prescribed procedure.
a. Within the Scope or Authority of Law
The administrative body may not make rules
and regulations which are inconsistent with the
provisions of the Constitution or a statute,
particularly the statute it is administering, or
which created it, or which are in derogation of,
or defeat, the purpose of a statute [Dagan v.
Philippine Racing Commission, G.R. No.
175220 (2009)].
b. Authorized by Law
The rule is that what has been delegated
cannot be delegated. The grant of rule-making
power to administrative agencies is a
recognized exception to this rule. They have
been granted by Congress with the authority to
issue rules to regulate the implementation of a
law entrusted to them [Dagan v. Philippine
Racing Commission, supra].
The function of promulgating rules and
regulations may be legitimately exercised only
for the purpose of carrying the provisions of the
law into effect. The power of administrative
agencies is thus confined to implementing the
law or putting it into effect. Corollary to this is
that administrative regulations cannot extend
the law and amend a legislative enactment
[Land Bank of the Philippines v. Court of
Appeals, G.R. No. 118712 (1995)].
It is the power of an administrative agency to
hear and determine, or to ascertain facts and
decide by the application of rules to the
ascertained facts. By this power, administrative
authorities are enabled to interpret and apply
not only implementing rules and regulations
promulgated by them but also the laws
entrusted to their administration [De Leon].
Note: The use of the term quasi-judicial is to
designate the character of the proceedings or
powers exercised, in that such must be
accompanied with certain formalities and
safeguards characteristic of the judicial
process [De Leon].
This is the power of an administrative agency
to determine questions of fact to which the
legislative policy is to apply, in accordance with
the standards laid down by the law itself [Smart
v. NTC, G.R. No. 151908 (2003)].
An agency is said to be exercising judicial
function where it has the power to determine
what the law is and what the legal rights of the
parties are, and then undertakes to determine
these questions and adjudicate upon the rights
of the parties. Quasi-judicial function is a term
which applies to the action, discretion, etc. of
public administrative officers or bodies, who
are required to investigate facts or ascertain
the existence of facts, hold hearings, and draw
conclusions from them as a basis for their
official action and to exercise discretion of a
judicial nature [Civil Service Commission v.
Magoyag, G.R. No. 197792 (2015)].
Page 233 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
Source
Incidental to the power of regulation but is often
expressly conferred by the legislature through
specific provisions in the charter of the agency.
Distinguished from Judicial Proceedings
Administrative
Nature of
Inquisitorial
Proceedings
Judicial
Adversarial
Rules of
Procedure
Liberally
applied
but
subject to Ang
Tibay
requirements
Follow
technical
rules in the
Rules of
Court
Nature and
Extent of
Decision
Decision
generally
limited to
matters of
general
concern, but
also resolves
the issues
raised by the
parties in a
specific
dispute
Decision
includes
matters
brought as
issue by
the parties
Parties
The agency
itself may be a
party to the
proceedings
before it
Only the
private
parties
Warrants
of
Arrest;
Administrative
Searches
Under Art. III, Section 2 of the 1987
Constitution, it is only judges, and no other,
who may issue warrants of arrest and search.
The exception is in cases of deportation of
illegal and undesirable aliens, whom the
President or the Commissioner of Immigration
may order arrested, following a final order of
deportation, for the purpose of deportation
[Salazar v. Achacoso, G.R. No. 81510 (1990)].
In the case of Acosta vs. Ochoa [G.R. Nos.
211559, 211567, 212570 & 215634 (2019)],
the Supreme Court said “[t]here is no
constitutional right to bear arms. Neither is the
ownership or possession of a firearm a
property right. Persons intending to use a
firearm 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. The
right of the people against unreasonable
searches and seizures remains paramount,
and the government, in the guise of regulation,
cannot conduct inspections of applicants for
firearm licenses unless armed with a search
warrant.”
1. Administrative Due Process
While administrative agencies are free from the
rigidity of certain procedural requirements, they
cannot entirely ignore or disregard the
fundamental and essential requirements of due
process in trials and investigations of an
administrative character [Ang Tibay v. CIR,
G.R. No. L-46496 (1940)].
Administrative due process cannot be fully
equated with due process in its strict judicial
sense, as in the former a formal trial-type
hearing is not always necessary and technical
rules of procedure are not strictly applied [Vivo
v. PACGOR, G.R. No. 187854 (2013)].
Due process is satisfied when a person is
notified of the charge against him and given an
opportunity to explain or defend himself. The
essence of due process is simply to be heard,
or as applied to administrative proceedings, an
opportunity to explain one’s side, or an
opportunity to seek a reconsideration of the
action or ruling complained of [NAPOLCOM
National Appellate Board v. Bernabe, G.R. No.
129914 (2000)].
Effect of Decisions Rendered Without Due
Process
A decision rendered without due process is
void ab initio the apparent lack of such may be
raised at any time since due process is a
jurisdictional requisite that all tribunals,
including administrative ones are bound to
serve [Apo Cement Corporation v. Mingson
Mining Industries Corporation, G.R. No.
206728 (2014)].
“
Decisions rendered without due process may
likewise be attacked directly or collaterally by
Page 234 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
means of a separate action or proceeding
where it is invoked [Salva v. Valle, G.R. No.
193773 (2013)].
Cardinal Primary Rights
Ang Tibay v. CIR, supra, lays down the cardinal
primary rights:
1. Right to a hearing (includes the right of a
party to present his own case and submit
evidence in support thereof);
2. The tribunal must consider the evidence
presented;
3. Decision must be supported by evidence;
4. Evidence must be substantial;
5. Decision must be rendered on the
evidence presented at the hearing or at
least contained in the record and disclosed
to the parties affected;
6. The judge must act on its or his own
independent consideration of the law and
facts of the controversy (not simply accept
the views of a subordinate in arriving at a
decision);
7. Decision must be rendered in such a
manner as to let the parties know the
various issues involved and the reasons
for the decision rendered.
The 1st right mentioned above pertains to the
substantive rights of a party at the hearing
stage of the proceedings, while the 2nd to 6th
requirements are those rights applicable at the
deliberative stage. These thus set the guiding
considerations in deliberating on the case and
are the material and substantial components of
decision making. Lastly, the 7th requirement is
similar to the constitutional requirement that a
decision of a court must state distinctly the
facts and the law upon which it is based
[Magcamit v. Internal Affairs Service-Philippine
Drug Enforcement Agency, G.R. NO. 198140
(2016).
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 finding by said tribunal which is
supported by substantial evidence
submitted for consideration during the
hearing or contained in the records or
made known to the parties affected [Vivo
v. PAGCOR, supra].
Due process does not require that actual taking
of testimony be before the same officer who will
decide the case. As long as a party is not
deprived of his right to present his own case
and submit evidence in support thereof, and
the decision is supported by the evidence in the
record, there is no question that the
requirements of due process and fair trial are
fully met [American Tobacco Co. v. Director of
Patents, G.R. No. L-26803 (1975)].
The observance of fairness in the conduct of
any investigation is at the very heart of
procedural due process. The essence of due
process is to be heard, and, as applied to
administrative proceedings, this means a fair
and reasonable opportunity to explain one’s
side, or an opportunity to seek a
reconsideration of the action or ruling
complained off [Vivo v. PAGCOR, G.R. no.
187854 (2013)].
The actual exercise of the disciplining
authority’s prerogative requires a prior
independent consideration of the law and the
facts. Failure to comply with this requirement
results in an invalid decision. The disciplining
authority should not merely and solely rely on
an investigator's recommendation, but must
personally weigh and assess the evidence
gathered [DOH v. Camposano, G.R. No.
157684 (2005)].
a. Quantum of proof required – substantial
evidence
In administrative cases, only substantial
evidence is required [Paredes v. CA, G.R. No.
169534 (2007)].
Substantial evidence is defined as evidence
which is more than a mere scintilla, meaning
Page 235 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
the amount of relevant evidence which a
reasonable mind might accept as adequate to
justify a conclusion [Sec. 5, Rule 133, Rules of
Court; Reyes v. Nieva, A.C. No. 8560 (2016)].
An administrative proceeding is different from
a criminal case and may proceed
independently thereof. The quantum of proof in
the latter is different (proof beyond reasonable
doubt), such that the verdict in one need not
necessarily be the same as in the other. A
finding of guilt in the criminal case will not
necessarily result in a finding of liability in the
administrative case [Miralles v. Go, G.R. No.
139943 (2001)].
b. Right to Counsel
The right to counsel is not imperative in
administrative investigations because such
inquiries are conducted merely to determine
whether there are facts that merit disciplinary
measures against erring public officers and
employees, with the purpose of maintaining the
dignity of government service [Lumiqued v.
Exevea, G.R. No. 117565 (1997)].
c. Opportunity to be Heard
“To be heard” does not mean only verbal
arguments in court as one may be heard
through pleadings. Defects in procedural due
process may be cured when the party is given
the opportunity to appeal. Hence, when one is
given the opportunity to be heard either
through oral arguments or pleadings, then
there can be no denial of due process [Ebdane
v. Aporillo, G.R. No. 204172 (2015)].
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. Since respondent was not
impleaded in the HLURB case, he could not be
bound by the decision rendered therein.
Because he was not impleaded in said case,
he was not given the opportunity to present his
case therein [Aguilar v. O’Pallick, G.R. No.
182280 (2013)].
Any seeming defect in the observance of due
process is cured by the filing of a motion for
reconsideration. Denial of due process cannot
be successfully invoked by a party who has had
the opportunity to be heard on his motion for
reconsideration [A.Z. Arnaiz Realty Inc. v.
Office of the President, G.R. No. 170623
(2010)].
Is trial necessary?
No. Due process does not necessarily mean or
require a trial-type hearing, but simply an
opportunity or a right to be heard [Vinta
Maritime Co., Inc. v. NLRC, G.R. No. 113911
(1998)].
The presence of a party at a trial is not always
the essence of due process. All that the law
requires to satisfy adherence to this
constitutional precept is that the parties be
given notice of the trial, an opportunity to be
heard. Where the defendant failed to appear on
the date set for the trial, of which he was
previously notified, he is deemed to have
forfeited his right to be heard in his defense
[Asprec v. Itchon, G.R. No. L- 21685 (1966)].
Even a trial is not always necessary for
administrative due process to be satisfied
given that its essence is simply an opportunity
or a right to be heard [Vinta Maritime Co., Inc.
v. NLRC, supra].
The requirements [of notice and hearing] are
followed where parties are given fair
opportunity to explain their side. Such cases
may be resolved based solely on documentary
evidence submitted by parties as affidavits may
take the place of their direct testimony [Samalio
v. CA, G.R. No. 140079 (2005)].
Right to Cross-examine
Under Sec. 12 (3), Chapter 3, Book VII of the
Administrative Code, it is provided that in
contested cases, every party has the right to
cross-examine witnesses presented against
him and to submit rebuttal evidence.
The right of a party to confront and crossexamine an opposing witness is a fundamental
right which is part of due process. If without his
fault, this right is violated, he is entitled to have
the direct examination stricken off the record
for such is considered an incomplete testimony
which is considered incompetent [Bachrach
Motor Co., Inc. v. CIR, G.R. No. L-26136
(1978)].
Page 236 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
While the right to cross-examine is a vital
element of procedural due process, the right
does not necessarily require an actual cross
examination but merely an opportunity to
exercise this right if desired by the party entitled
to it [Gannapao v. CSC, G.R. No. 180141
(2011)].
Evidence on record must be fully disclosed to
the parties [American Inter-Fashion v. Office of
the President, G.R. No. 92422 (1991)], but
respondents in administrative cases are not
entitled to be informed of findings of
investigative committees but only of the
decision of the administrative body [Pefianco v.
Moral, G.R. No. 132248 (2000)].
On Decisions Rendered
Section 14, Article VIII of the 1987 Constitution
(i.e., “No decision shall be rendered by any
court without expressing therein clearly and
distinctly the facts and the law on which it is
based”) need not apply to decisions rendered
in administrative proceedings. Said section
applies only to decisions rendered in judicial
proceedings. The constitutional mandate does
not preclude the validity of “memorandum
decisions,” which adopt by reference the
findings of fact and conclusions of law
contained in the decisions of inferior tribunals
[Solid Homes, Inc. v. Laserna, G.R. No.
166051 (2008)].
There is no requirement in Ang Tibay v. CIR
that the decision must express clearly and
distinctly the facts and the law on which it is
based for as long as the administrative
decision is grounded on evidence and
expressed in a manner that sufficiently informs
the parties of the factual and legal bases of the
decision, the due process requirement is
satisfied [Solid Homes, Inc. v. Laserna, supra].
This is not understood as abandoning the
requirement in the Constitution and the
Administrative Code with respect to explaining
the factual and legal bases of judgment, only
that the decision is sufficient even if it is not
written in the same extended manner as in
judicial decisions.
The order, it is true, does not make its own
discussion of the evidence or its own findings
of fact, but such is not necessary if the court is
satisfied with the report of its examiner or
referee which already contains a full discussion
of the evidence and the findings of fact based
thereon. The situation differs if the court
disagrees with the report in which case it
should state the reasons for its disagreement.
If it is in full accord with the report, it is
purposeless to repeat what the examiner has
already found in it [Indias v. Philippine Iron
Mines, G.R. No. L-9987 (1957)].
Note: In Indias, the “court” being referred to
was the Court of Industrial Relations which was
an administrative agency.
However, in the Administrative Code, it is
provided that:
Decision - Every decision rendered by the
agency in a contested case shall be in writing
and shall state clearly and distinctly the facts
and the law on which it is based. The agency
shall decide each case within thirty (30) days
following its submission. The parties shall be
notified of the decision personally or by
registered mail addressed to their counsel of
record, if any, or to them [Sec. 14, Chap. 3,
Book VII, Administrative Code].
Further note that in Magcamit v. Internal Affairs
Service-Philippine Drug Enforcement Agency,
G.R. No. 198140 (2016), the Court
characterized the 7th requirement in Ang Tibay
as one “similar in substance to the
constitutional requirement that a decision of a
court must state distinctly the facts and the law
upon which it is based.”
Due Process is Violated When:
1. There is failure to sufficiently explain the
reason for the decision rendered; or
2. If not supported by substantial evidence;
or
3. Imputation of a violation and imposition of
a fine despite absence of due notice and
hearing [Globe Telecom v. NTC, G.R. No.
143964 (2004)].
a. Notice and Hearing
The essence of procedural due process is
embodied in the basic requirement of notice
and a real opportunity to be heard. In
administrative proceedings, procedural due
process simply means the opportunity to
explain one’s side or the opportunity to seek a
Page 237 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
reconsideration of the action or ruling
complained of [Vivo vs. PAGCOR, G.R. No.
187854 (2013)].
Notice is necessary as this gives parties the
opportunity to be heard and to present
evidence, and such is not a mere technicality
but is an indispensable ingredient of due
process [Uy, et al., v. COA, G.R. No. 130685
(2000)].
Aside from that prescribed by statute,
necessity of notice and hearing in
administrative proceeding would depend
the character of the proceeding and
circumstances involved [De Leon].
the
an
on
the
When Not Required
1. When an administrative agency merely
passed upon the sufficiency of the
evidence presented before an office under
it in which the petitioner was heard
[Arocha vs. Vivo, L-24844 (1967)];
2. When there is urgent need for immediate
action [Secretary of Justice v. Lantion,
G.R. No. 139465 (2000)];
3. Discretion is exercised by an officer vested
with it upon an undisputed fact [Suntay v.
People, G.R. No. L-9430 (1957)] and there
is no grave abuse;
4. When it involves rules to govern future
conduct of persons or enterprises, unless
law provides otherwise;
5. When
there
is
tentativeness
of
administrative action, i.e., the person
affected is not precluded from enjoying the
right to notice and hearing at a later time
without prejudice to them such as when an
ex parte order issued is contested and a
public hearing is held where the
opportunity to be heard may be exercised
[Pollution Adjudication Board v. CA, G.R.
No. 93891 (1991)]; or
6. When action is necessary to protect vital
public interests, through the exercise of
police power [Pollution Adjudication Board
v. CA, supra].
Meetings in the nature of consultation and
conferences may not be valid substitutes for
the proper observance of notice and hearing
[Equitable Banking Corp. v. NLRC, G.R. No.
102467 (1997)].
Where the establishment affected by an ex
parte cease and desist order contests the
correctness of the prima facie findings of the
[Pollution Adjudication Board], the Board must
hold a public hearing where such
establishment would have an opportunity to
controvert the basis of such ex parte order.
That such an opportunity is subsequently
available is really all that is required by the due
process clause of the Constitution [Pollution
Adjudication Board v. CA, supra].
Required Notice and Hearing under the
Administrative Code
1. Contested cases [Sec. 11, Chap. 3, Book
VII, Administrative Code].
2. Insofar as practicable, to certain licensing
procedures, involving grant, renewal,
denial or cancellation of a license; i.e.,
when the grant, renewal, denial or
cancellation of a license is required to be
preceded by notice and hearing [Sec.
17(1), Chap. 3, Book VII, Administrative
Code].
3. All licensing procedures, when a license is
withdrawn, suspended, revoked or
annulled [Sec. 17(2), Chap. 3, Book VII,
Administrative Code].
Exceptions
Notice and hearing not required in cases of:
1. Willful violation of pertinent laws, rules,
and regulations; or
2. When public security, health, or safety
require otherwise [Sec. 17(2), Chap. 3,
Book. VII, Administrative Code].
b. Application of Rules of Evidence in
Administrative Proceedings
In administrative proceedings, technical rules
of procedure and evidence are not strictly
applied; administrative due process cannot be
fully equated with due process in its strict
judicial sense [Vinta Maritime Co., Inc. v.
NLRC, supra].
Administrative rules of procedure are
construed liberally to promote their objective
and to assist parties in obtaining just, speedy
and inexpensive determination of their
respective claims and defenses. As a general
rule, a finding of guilt in administrative cases, if
supported by substantial evidence will be
Page 238 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
sustained by the Court [Civil Service
Commission v. Colanggo, G.R. No. 174935
(2008)].
2. Administrative Appeal and Review
In administrative appeal and review, there is a
hierarchy of authorities, meaning by express
provision of statute or otherwise:
a. A review may be had within the
administrative system itself of the action of
lower administrative authorities by their
superiors; or
b. A particular administrative body is
authorized to hear and decide appeals
from, and review the determinations of,
certain other administrative bodies or
officers [De Leon].
Note: To be entitled to appeal and review by an
appellate administrative body of the
determination of a subordinate or another
administrative body, a party must prove that it
has been affected or aggrieved by the decision
issued by the subordinate/other administrative
body [De Leon].
Unless otherwise provided by law or executive
order, an appeal from a final decision of an
agency may be taken to the Department Head
[Sec. 19, Chap. 4, Book VII, of the
Administrative Code].
To avail of the above:
● Who files: Party adversely affected by the
decision complained of.
● Where to file: With the agency which
adjudicated the case.
● What should be filed: A notice of appeal.
● When: Within 15 days from the receipt of
a copy of the decision complained of.
● Other procedural matters: Copies of
such notice must be served upon the
prevailing party AND the appellate
agency, and paying the required fees
[Sec. 20, Chap. 4, Book VII, of the
Administrative Code].
An agency’s administrative process must
always be exhausted before external remedies
can be applied, meaning that even if a
governmental entity committed a grave abuse
of discretion, litigants must first ask for
reconsideration or a review from the body itself
or the agency concerned. This is to ensure that
when the issue reaches the Court, the
administrative agency has already fully
exercised its jurisdiction and the Court may
thus focus on the questions of law presented
before it [Kilusang Mayo Uno v. Aquino III,
supra].
Effect of appeal
The appeal shall stay the decision appealed
from unless otherwise provided by law, or the
appellate agency directs execution pending
appeal, as it may deem just, considering the
nature and circumstances of the case [Sec. 21,
Chap. 3, Book VII, of the Administrative Code].
Different kinds of administrative appeal and
review [De Leon]:
1. That which inheres in the relation of
administrative superior to administrative
subordinate where determinations are
made at lower levels of the same
administrative system;
2. That embraced in statutes which provide
for a determination to be made by a
particular officer of body subject to appeal,
review, or redetermination by another
officer or body in the same agency or in
the same administrative system;
3. That in which the statute attempts to make
a court a part of the administrative scheme
by providing in terms or effect that the
court, on review of the action of an
administrative agency, shall exercise
powers of such extent that they differ from
ordinary judicial functions and involve a
trial de novo of matters of fact or discretion
and application of the independent
judgment of the court;
4. That in which the statute provides that an
order made by a division of a Commission
or Board has the same force and effect as
if made by the Commission subject to a
rehearing by the full Commission, for the
‘rehearing’ is practically an appeal to
another administrative tribunal;
5. That in which the statute provides for an
appeal to an officer on an intermediate
level with subsequent appeal to the head
of the department or agency; and
6. That embraced in statutes which provide
for appeal at the highest level, namely, the
President.
Page 239 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
The appellate administrative agency may
conduct additional hearings in the appealed
case, if deemed necessary [Reyes v. Zamora,
G.R. No. L-46732 (1979)].
In order that the review of the decision of a
subordinate officer might not turn out to be a
farce, the reviewing officer must perforce be
other than the officer whose decision is under
review; otherwise, there could be no different
view or there would be no real review of the
case [Zambales Chromite Mining v. CA, G.R.
No. L-49711 (1979)].
The law, in prescribing a process of appeal to
a higher level, contemplates that the reviewing
officer is a person different from the one who
issued the appealed decision. Otherwise, the
review becomes a farce; it is rendered
meaningless [Rivera v. CSC, G.R. No. 115147
(1995)].
Doctrine of Qualified Political Agency
Under the doctrine of qualified political agency
[Villena v. Secretary of Interior, G.R. No. L46570 (1939)], a decision of the department
head generally need not be appealed to the
Office of the President, since the department
head (e.g., Secretary) is the alter ego of the
President, and the former’s acts are
presumably the President’s. However, the
doctrine does not apply when:
1. The act is repudiated by the President; or
2. The act is required (by law) to be
performed specifically by the department
head.
3. Administrative Res Judicata
Res judicata lays the rule that an existing final
judgment or decree rendered on the merits,
without fraud or collusion, by a court of
competent jurisdiction, upon any matter within
its jurisdiction, is conclusive of the rights of the
parties or their privies, in all other actions or
suits in the same or any other judicial tribunal
of concurrent jurisdiction on the points and
matters in issue in the first suit [Civil
Aeronautics Administration v. Yu, G.R. No.
157557 (2006)].
Nothing is more settled in law than that once a
judgment attains finality it thereby becomes
immutable and unalterable [Civil Service
Commission v. Magoyag, G.R. No. 197792
(2015)].
Scope of application
The doctrine of res judicata does not apply
exclusively to courts but may be extended to
decisions of bodies upon whom judicial powers
have been conferred [Ipekdijan Merchandising
v. CTA, G.R. No. L-14791 (1963)].
It applies only to judicial or quasi-judicial
proceedings and not to the exercise of purely
administrative
in
nature.
When
the
administrative proceedings take on an
adversary character, the doctrine of res
judicata applies [Heirs of Maximo Derla v. Heirs
of Catalina Derla vda. De Hipolito, G.R. No.
157717 (2011)].
It may not be invoked in labor relations
proceedings
considering
that
such
proceedings are non-litigious and summary in
nature without regard to legal technicalities
obtaining in courts of law [Nasipit Lumber Co.
v. NLRC, G.R. No. L-54424 (1989)].
Requisites:
1. The former judgment must be final;
2. It must have been rendered by a court
having jurisdiction over the subject matter
and the parties;
3. It must be a judgment on the merits; and
4. There must be identity of parties, subject
matter and cause of action [Ipekdijan
Merchandising v. CTA, supra].
Res judicata is not defeated by a minor
difference of parties, as it does not require
absolute but only substantial identity of parties
[Manila Electric Co. v. Phil. Consumers
Foundation, G.R. No. 101783 (2002)].
Concepts
Res judicata has two (2) concepts:
1. Bar by prior judgment;
2. Conclusiveness of judgment.
Bar by prior judgment
Bar by prior judgment exists when, as between
the first case where the judgment was
rendered and the second case that is sought to
be barred, there is identity of parties, subject
matter, and causes of action.
Page 240 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
This is enunciated in Rule 39, Section 47(b) of
the Rules of Civil Procedure:
“(b) In other cases, the judgment or final order
is, with respect to the matter directly adjudged
or as to any other matter that could have been
raised in relation thereto, conclusive between
the parties and their successors in interest by
the title subsequent to the commencement of
the action or special proceeding, litigating for
the same thing and under the same title and in
the same capacity.”
Conclusiveness of Judgment
Conclusiveness of judgment applies when a
fact or question has been squarely put in issue,
judicially passed upon, and adjudged in a
former suit by a court of competent jurisdiction.
This only requires identity of parties and issues
to apply [Emerald Garment Manufacturing
Corp., G.R. No. 210693 (2017)].
Under the doctrine of conclusiveness of
judgment, facts and issues actually and directly
resolved in a former suit cannot again be raised
in any future case between the same parties,
even if the latter suit may involve a different
claim or cause of action. The identity of causes
of action is not required but merely identity of
issues [Civil Aeronautics Administration v. Yu,
supra].
This is enunciated in Rule 39, Section 47(c) of
the Rules of Civil Procedure:
“(c) In any other litigation between the same
parties or their successors in interest, that only
is deemed to have been adjudged in a former
judgment or final order which appears upon its
face to have been so adjudged, or which was
actually and necessarily included therein or
necessary thereto.”
Effect of Res judicata
The doctrine of res judicata provides that a final
judgment on the merits rendered by a court of
competent jurisdiction, is conclusive as to the
rights of the parties and their privies and
constitutes an absolute bar to subsequent
actions involving the same claim, demand, or
cause
of
action
[Civil
Aeronautics
Administration v. Yu, supra].
Decisions and orders of administrative
agencies rendered pursuant to their quasijudicial authority, have, upon their finality, the
force and binding effect of a final judgment
within the purview of the doctrine of res
judicata, which forbids the reopening of a
matter once judicially determined by competent
authority [Dulay v. Minister of Natural
Resources, G.R. No. L-48766 (1993)].
For res judicata to be applied in cases of
citizenship, the following must be present:
1. A person's citizenship must be raised as a
material issue in a controversy where said
person is a party;
2. The Solicitor General or his authorized
representative took active part in the
resolution thereof; and
3. The finding or citizenship is affirmed by SC
[Board of Commissioners v. De la Rosa,
G.R. Nos. 95122-23 (1991)].
Due to the difference between the quantum of
evidence, procedure, and sanctions imposed in
criminal and administrative proceedings, the
findings and conclusions in one should not
necessarily be binding on the other [Ocampo v.
Office of the Ombudsman, G.R. No. 114683
(2000)].
The basis of administrative liability differs from
criminal liability. The purpose of administrative
proceedings is mainly to protect the public
service, based on the time-honored principle
that a public office is a public trust. On the other
hand, the purpose of criminal prosecution is the
punishment of crime [Ferrer v. Sandiganbayan,
G.R. No. 161067 (2008)].
Forum Shopping
There is forum shopping whenever, as a result
of an adverse opinion in one forum, a party
seeks a favorable opinion (other than by
appeal or certiorari) in another. The principle
applies not only with respect to suits filed in the
courts but also in connection with litigation
commenced in the courts while an
administrative proceeding is pending, in order
to defeat administrative processes and in
anticipation of an unfavorable administrative
ruling and a favorable court ruling.
Page 241 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
The test for determining whether a party has
violated the rule against forum shopping is
where a final judgment in one case will amount
to res judicata in the action under consideration
[Fortich v. Corona, G.R. No. 131457 (1998),
citing First Philippine International Bank v. CA,
G.R. No. 115849 (1996)].
The rule against forum shopping applies only
to judicial cases or proceedings, not to
administrative
cases
[Office
of
the
Ombudsman v. Rodriguez, G.R. No. 172700
(2010)].
C. Fact-Finding, Investigative,
Licensing,
and
Rate-Fixing
Powers
1. Ascertainment of Fact
The preliminary ascertainment of facts as basis
for the enactment of legislation is not of itself a
legislative function but is simply ancillary to
legislation. Thus, the duty of correlating
information and making recommendations is
the kind of subsidiary activity which the
legislature may perform through its members,
or which it may delegate to others to perform
[Abakada v. Ermita, supra].
The mere fact that an officer is required by law
to inquire the existence of certain facts and to
apply the law thereto in order to determine what
his official conduct shall be and the fact that
these acts may affect private rights do not
constitute an exercise of judicial powers.
A statute may:
1. Give non-judicial officers the power to
declare the existence of facts which call
into operation the statute’s provisions; and
2. Grant
commissioners
and
other
subordinate officers the power to ascertain
and determine appropriate facts as a basis
for procedure in the enforcement of
particular laws.
Such functions are merely incidental to the
exercise of powers conferred by law upon
executive officials provided the party affected
is given the opportunity to be heard [Lovina v.
Montilla, G.R. No. L-17821 (1963)].
2. Investigative Powers
Administrative agencies’ power to conduct
investigations and hearings, and make findings
and recommendations thereon is inherent in
their functions as administrative agencies.
The investigative powers of an administrative
agency must be exercised within the limits
prescribed and bear a reasonable and
legitimate relationship to the general powers
granted, which includes the authority to obtain
information necessary to discharge its proper
functions [De Leon].
General Rule: Findings of fact by
administrative agencies and quasi-judicial
bodies, which have acquired expertise
because of their jurisdiction is confined to
specific matters, are generally accorded not
only great respect but even finality, absent a
showing of grave abuse of discretion [Marlow
Navigation Philippines Inc. vs. Heirs of Ricardo
S. Ganal, G.R. No. 220168 (2017)].
Exception: One of the exceptions to the above
rule is when the factual findings of the quasi
judicial agencies concerned are conflicting or
contrary with those of the CA.
“Investigate” means to examine, explore,
inquire, or delve or probe into, research on,
study. The purpose of investigation is to
discover, to find out, to learn, obtain
information. Nowhere included or intimated is
the notion of settling, deciding or resolving a
controversy involved in the facts inquired into
by application of the law to the facts
established by the inquiry [Cariño v. CHR, G.R.
No. 96681 (1991)].
3. Licensing Function
A license is in the nature of a special privilege,
of a permission or authority to do what is within
its terms. It is not any way vested, permanent,
or absolute. It is not a contract between the
sovereignty and the licensee, and is not a
property in any constitutional sense.
A license granted by the State is always
revocable. As a necessary consequence of its
main power to grant license or permit, the State
or its instrumentalities have the correlative
power to revoke or recall the same. This power
Page 242 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
can only be restrained by an explicit contract
upon good consideration to that effect
[Gonzalo Sy Trading v. Central Bank, G.R. No.
L-41480 (1976)].
Notice and hearing; when required
Notice and hearing are required if it is a
contested case. Otherwise, it can be dispensed
with (e.g., driver’s licenses).
Definition of License
“License” includes the whole or any part of any
agency permit, certificate, passport, clearance,
approval, registration, charter, membership,
statutory exemption or other form of
permission, or regulation of the exercise of a
right or privilege [Sec. 2, Chap. 1, Book VII,
Administrative Code].
“Contested case” means any proceeding,
including licensing, in which the legal rights,
duties or privileges asserted by specific parties
as required by the Constitution or by law are to
be determined after hearing [Sec. 2, Chap. 1,
Book VII, Administrative Code].
Definition of Licensing
“Licensing” includes agency process involving
the grant, renewal, denial, revocation,
suspension, annulment, withdrawal, limitation,
amendment, modification or conditioning of a
license [Sec. 2, Chap. 1, Book VII,
Administrative Code].
Procedure
1. When the grant, renewal, denial or
cancellation of a license is required to be
preceded by notice and hearing, the
provisions concerning contested cases
shall apply insofar as practicable.
2. Except in cases of willful violation of
pertinent laws, rules and regulations or
when public security, health, or safety
require otherwise, no license may be
withdrawn, suspended, revoked or
annulled without notice or hearing [Sec.
17, Chap. 3, Book VII, Administrative
Code].
Non-expiration
Where the licensee has made timely and
sufficient application for the renewal of a
license with reference to any activity of a
continuing nature, the existing license shall not
expire until the application shall have been
finally determined by the agency [Sec. 18,
Chap. 3, Book VII, Administrative Code].
The absence of an expiry date in a license does
not make it perpetual. Notwithstanding that
absence, the license cannot last beyond the life
of the basic authority under which it was issued
[Gonzalo Sy Trading v. Central Bank, supra].
When discretion is exercised by an officer
vested with it upon are undisputed fact, hearing
may be dispensed with by such officer; lack of
such hearing does not violate the due process
clause and the exercise of the discretion
vested in him cannot be deemed whimsical and
capricious because of the absence of such
hearing [Suntay v. People, G.R. No. L-9430
(1957)].
4. Fixing of Rates, Wages, and Prices
Generally, the power to fix rates is a quasilegislative function, i.e., it is meant to apply to
all. However, it becomes quasi-judicial when
the rate is applicable only to a particular party,
predicated
upon
a
finding
of
fact
[PHILCOMSAT v. Alcuaz, supra, citing Vigan
Electric Light Co. v. Public Service
Commission, G.R. No. L-19850 (1964)].
Where the determination of the issue
complained of partakes of the nature of a
quasi-judicial function, previous notice and
hearing is required [Vigan Electric Light Co. v.
Public Service Commission, supra].
However, an administrative agency may be
empowered by law to approve rates of public
utilities provisionally without a hearing when
demanded by urgent public need [Padua v.
Ranada, G.R. No. 141949 (2002)].
If the fixing of rates were a legislative function,
the giving of prior notice and hearing to the
affected parties is not a requirement, except
where the legislature itself requires it [De
Leon].
Note: The old doctrine is if the rate-fixing power
is quasi-legislative, it need not be accompanied
by prior notice and hearing. Under the
Page 243 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
Administrative Code, the distinction seems to
have been disregarded, since the provision did
not qualify the character of the rate-fixing, and
now requires prior notice (via publication)
before the hearing.
What is a just and reasonable rate is a question
of fact calling for the exercise of discretion,
good sense, and a fair, enlightened, and
independent judgment [Republic v. Meralco,
G.R. No. 141314 (2002)].
In a 2023 decision penned by Justice Jhosep
Lopez, the Supreme Court clarified that while
under the 1964 case of Vigan Electric Light Co.
v. PSC, no notice and hearing are required in
the administrative agencies’ exercise of quasilegislative functions, this rule does not apply
when there is a law that expressly requires
notice and hearing. In the case of fixing rates,
while this is considered a quasi-legislative
function, the Administrative Code of 1987
expressly requires that there be prior notice
and hearing in rate-fixing, with the notice to be
published at least two weeks before the
hearing. Hence, such requirements must be
complied with for any increase in LRT and MRT
fairs to be valid.
A rate should not be confiscatory as would
place an operator in a situation where he will
continue to operate at a loss. It is essential also
to consider the given situation, requirements
and opportunities of the utility [KMU Labor
Center v. Garcia, G.R. No. 115381 (1994);
Republic v. Meralco, supra)].
Note, however, that this decision is not
included within the June 30, 2022 cut-off date
for the September 2023 Bar Examinations.
Definition of Rate
“Rate” means any charge to the public for a
service open to all and upon the same terms,
including individual or joint rates, tolls,
classifications, or schedules thereof, as well as
commutation, mileage, kilometerage and other
special rates which shall be imposed by law or
regulation to be observed and followed by any
person [Sec. 2, Chap. 1, Book VII,
Administrative Code].
Publication requirement
In the fixing of rates, no rule or final order shall
be valid unless the proposed rates shall have
been published in a newspaper of general
circulation at least two (2) weeks before the first
hearing thereon [Sec. 9, Chap. 2, Book VII,
Administrative Code].
Factors considered in fixing of rates
In the fixing of rates, the only standard which
the legislature is required to prescribe for the
guidance of the administrative authority is that
the rate be reasonable and just. Even in the
absence of an express requirement as to
reasonableness, this standard may be implied.
A rate must be reasonable and fair and must
be affordable to the end user who will utilize the
services. The purpose of a hearing is to
determine what a just and reasonable rate is
[KMU Labor Center v. Garcia, supra].
In fixing the rate, it would not be fair to the
public to base it upon a peak cost, and it would
not be fair to the owner of the property to place
it upon a minimum cost [Ynchausti Steamship
Co. v. Public Utility Commissioner, G.R. No.
17665 (1922)].
Nowhere under law are the regulatory bodies,
the Public Service Commission and LTFRB
alike, authorized to delegate the power of
route-fixing and rate-making for the transport
sector to a common carrier, a transport
operator, or other public service [KMU Labor
Center v. Garcia, supra].
Republic v. Meralco, supra, laid down three (3)
major factors considered in the fixing of rates:
1. Rate of return
2. Rate base
3. The return itself
Rate of return
The rate of return is a judgment percentage
prescribed by administrative and judicial
pronouncements. The Court has consistently
adopted a 12% rate of return for public utilities.
Rate Base
The rate base is an evaluation of the property
devoted by the utility to the public service or the
value of invested capital or property which the
utility is entitled to a return.
Page 244 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
The Return Itself
The return itself is the computed revenue to be
earned by the public utility, achieved by
multiplying the rate of return with the rate base.
IV. JUDICIAL RECOURSE
AND REVIEW
judicial or legislative power, there is an
underlying power in the courts to scrutinize the
acts of such agencies on questions of law and
jurisdiction even though no right of review is
given by statute. Judicial review is proper in
case of lack of jurisdiction, grave abuse of
discretion, error of law, fraud or collusion [San
Miguel Corp. v. Secretary of Labor, G.R. No. L39195 (1975), citing Timbancaya v. Vicente,
G.R. No. L-19100 (1963)].
Judicial Review
Judicial review may embrace any form of
judicial scrutiny of a matter which arises when
such action is brought into question before a
court. It is ordinarily available only for final
administrative action. Its underlying purpose is
to assure – on petitioner of interested parties –
by the intervention of ordinary courts that
administrative power is exercised according to
law [De Leon].
Rationale
The purpose of judicial review is to keep the
administrative agency within its jurisdiction and
protect the substantial rights of the parties.
General Rule
It is that part of the checks and balances which
restricts the separation of powers and forestalls
arbitrary and unjust adjudications [St. Martin’s
Funeral Homes v. NLRC, G.R. No. 130866
(1998)].
1987 Constitution
ARTICLE IX-A, SECTION 7. Each Commission
shall decide by a majority vote of all its Members any
case or matter brought before it within sixty days
from the date of its submission for decision or
resolution. A case or matter is deemed submitted for
decision or resolution upon the filing of the last
pleading, brief, or memorandum required by the
rules of the Commission or by the Commission itself.
Unless otherwise provided by this Constitution or by
law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty days
from receipt of a copy thereof.
Judicial review may be granted or withheld as
Congress chooses, except when the
Constitution requires or allows it. Thus, a law
may provide that the decision of an
administrative agency shall be final and not
reviewable and it would still not offend due
process.
However, Sec. 1, par. 2, Art. VIII of the
Constitution provides that judicial review of
administrative decisions cannot be denied
when there is an allegation of grave abuse of
discretion [Nachura].
It is generally understood that as to
administrative agencies exercising quasi-
A primary purpose of judicial review is to
ensure that agencies do not go beyond their
statutory or constitutional powers in carrying
out their tasks [De Leon].
Note: Rule 43 of the Rules of Court provides
that the Court of Appeals shall have appellate
jurisdiction over awards, judgments, final
orders or resolutions of or authorized by any
quasi-judicial agency in the exercise of its
quasi-judicial functions.
Extent of Judicial Review
1. Questions of Law
a. Constitutionality of the law creating the
agency and granting it powers;
b. Validity of agency action if these transcend
limits established by law;
c. Correctness
of
interpretation
or
application of the law.
A decision of an administrative agency on a
question of law is in no sense conclusive upon
the courts, but is subject to review [Ortua v.
Encarnacion, G.R. No. 39919 (1934)].
2. Questions of Fact
Review shall be made on the basis of the
record taken as a whole. The findings of fact of
the agency when supported by substantial
Page 245 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
evidence shall be final except when specifically
provided otherwise by law [Sec. 25, Chap. 4,
Book VII, Administrative Code].
A decision rendered by the Director of Lands
and approved by the Secretary of Agriculture
and Commerce, upon a question of fact is
conclusive and not subject to be reviewed by
the courts, in the absence of a showing that
such decision was rendered in consequence of
fraud, imposition, or mistake, other than error
of judgment in estimating the value or effect of
evidence, regardless of whatever or not it is
consistent with the preponderance of the
evidence, so long as there is some evidence
upon which the finding in question could be
made [Ortua v. Encarnacion, supra].
General Rule: Findings of fact by the agency
are final when supported by substantial
evidence.
Exceptions
1. Specifically allowed otherwise by law;
2. Fraud, imposition, mistake, or other error
of judgment in evaluating the evidence
[Ortua v. Singson Encarnacion, supra];
3. Error in appreciation of pleadings and
interpretation
of
the
documentary
evidence presented by the parties [Tan
Tiong Teck v. SEC, G.R. No. L-46472
(1940)];
● In the past, this Court has held that
there is a question of fact when the
issue presented before this Court is
the correctness of the lower courts'
appreciation
of
the
evidence
presented by the parties. When the
findings by the appellate court are
contrary to those of the RTC, this
Court is called upon to reevaluate
such factual findings [Bacani v.
Madio, G.R. No. 218637, (2023)].
4. Decision of the agency was rendered by
an almost divided agency and that the
division was precisely on the facts as
borne out by the evidence [Gonzales v.
Victory Labor Union, G.R. No. L-23256
(1969)].
3. Questions of Discretion
General
Rule:
Administrative
and
discretionary functions may not be interfered
with by the courts.
Rationale: Courts have none of the technical
and economic or financial competence which
specialized administrative agencies have at
their disposal, and in particular must be wary of
intervening in matters which are at their core
technical and economic in nature [PLDT v.
National Telecommunications Commission,
G.R. No. 94374 (1995)].
Exceptions
1. When there is a grave abuse of discretion;
2. Where the power is exercised in an
arbitrary or despotic manner [Banco
Filipino Savings and Mortgage Bank v.
Monetary Board, G.R. No. 70054 (1991)];
3. If without reasonable support in the
evidence;
4. Rendered against law; or
● An administrative agency entrusted
with the enforcement of a regulatory
statute is vested with discretion. Such
discretion,
however
is
not
unbounded. Where, as in this case,
the Labor Code itself sets limits, they
must be observed. [Federation of
Free Workers v. Noriel, G.R. Nos. L47182-83, (1978)]
5. Issued without jurisdiction [Laguna
Tayabas Bus Company v. Public Service
Commission, G.R. No. 10903 (1957)].
A.
Doctrine
of
Primary
Administrative Jurisdiction (or
Prior Resort)
The doctrine of primary jurisdiction applies only
where the administrative agency exercises its
quasi-judicial or adjudicatory function. Thus, in
cases involving specialized disputes, the
practice has been to refer the same to an
administrative agency of special competence
pursuant to the doctrine of primary jurisdiction.
The courts 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
Page 246 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
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, and a uniformity of ruling is
essential to comply with the premises of the
regulatory statute administered [Smart
Communications v. NTC, supra].
It can only occur where there is a concurrence
of jurisdiction between the court and the
administrative agency.
It is a question of the court yielding to the
agency because of the latter’s expertise, and
does not amount to ouster of the court [Texas
& Pacific Railway v. Abilene, 204 U.S. 426
(1907)].
It may occur that the Court has jurisdiction to
take cognizance of a particular case, which
means that the matter involved is also judicial
in character. However, if the determination of
the case requires the expertise, specialized
skills and knowledge of the proper
administrative bodies because technical
matters or intricate questions of facts are
involved, then relief must first be obtained in an
administrative proceeding before a remedy will
be supplied by the courts even though the
matter is within the proper jurisdiction of a court
[Industrial Enterprises, Inc. v. CA, G.R. No.
88550 (1990)].
Administrative agencies are given a wide
latitude in the evaluation of evidence and in the
exercise of their adjudicative functions, latitude
which includes the authority to take judicial
notice of facts within their special competence
[Quiambao v. CA, G.R. No. 128305 (2005)].
The doctrine of primary jurisdiction applies
where a claim is originally cognizable in the
courts, and comes into play whenever
enforcement of the claim requires the
resolution of issues which, under a regulatory
scheme, have been placed within the special
competence of an administrative body; in such
case, the judicial process is suspended
pending referral of such issues to the
administrative body for its view [Industrial
Enterprises, Inc. v. CA, supra].
The doctrine of primary jurisdiction does not
warrant a court to arrogate unto itself authority
to resolve a controversy the jurisdiction over
which is initially lodged with an administrative
body of special competence [Vidad v. RTC,
G.R. No. 98084 (1993)].
Rationale
Two (2) reasons have been given for the rule:
1. To take full advantage of administrative
expertness; and
2. To attain uniformity of application of
regulatory laws which can be secured only
if determination of the issue is left to the
administrative body [De Leon].
In this era of clogged docket courts, the need
for specialized administrative boards with the
special knowledge and capability to hear and
determine promptly disputes on technical
matters has become well-nigh indispensable.
Between the power lodged in an administrative
body and a court, the unmistakable trend has
been to refer it to the former [GMA v. ABS CBN,
G.R. No. 160703 (2005)].
The objective of the doctrine of primary
jurisdiction is to guide a court in determining
whether it should refrain from exercising its
jurisdiction until after an administrative agency
has determined some question or some aspect
of some question arising in the proceeding
before the court [Smart v. NTC, supra].
Requisites
1. An administrative body and a regular court
have concurrent and original jurisdiction;
2. Question to be resolved requires expertise
of administrative agency;
3. Legislative intent on the matter is to have
uniformity in rulings;
4. Administrative agency is performing a
quasi-judicial or adjudicatory function (not
rulemaking or quasi-legislative function)
[Smart v. NTC, supra].
Effect
The judicial process is suspended pending
referral of such issues to the administrative
body for its view [Smart v. NTC, supra].
Failing to exhaust administrative remedies
affects the party's cause of action as these
Page 247 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
remedies refer to a precedent condition which
must be complied with prior to filing a case in
court [Republic v. Gallo, G.R. No. 207074,
(2018)].
All the proceedings of the court in violation of
the doctrine and all orders and decisions
rendered thereby are null and void [Province of
Aklan v. Jody King Construction and
Development Corp., G.R. Nos. 197592
& 202623 (2013)].
Does not per se have the effect of restraining
or preventing the courts from the exercise of
their lawfully conferred jurisdiction. A contrary
rule would unduly expand the doctrine of
primary jurisdiction [Conrad and Co., Inc. v.
CA, G.R. No. 115115 (1995)].
While no prejudicial question strictly arises
where one is a civil case and the other is an
administrative proceeding, in the interest of
good order, it behooves the court to suspend
its action on the cases before it pending the
final outcome of the administrative proceedings
[Vidad v. RTC, supra].
performance of its quasi-legislative
function [Smart v. NTC, supra].
c. When the issue involved is clearly a
factual question that does not require
specialized skills and knowledge for
resolution to justify the exercise of primary
jurisdiction.
B. Doctrine of Exhaustion of
Administrative Remedies
General Rule
Recourse through court action cannot prosper
until after all such administrative remedies
have first been exhausted. If remedy is
available within the administrative machinery,
this should be resorted to before resort can be
made to courts [Teotico v. Baer, G.R. No.
147464 (2006)].
Under the doctrine of exhaustion of
administrative remedies, a party must first avail
of all administrative processes available before
seeking the courts' intervention. The
administrative officer concerned must be given
every opportunity to decide on the matter within
his or her jurisdiction [Republic v. Gallo, supra].
Note: The court may raise the issue of primary
jurisdiction sua sponte and its invocation
cannot be waived by the failure of the parties to
argue it as the doctrine exists for the proper
distribution of power between judicial and
administrative bodies and not for the
convenience of the parties [Euro-Med
Laboratories Phil., Inc. v. Province of
Batangas, G.R. No. 148106 (2006)].
Where the law has delineated the procedure by
which administrative appeal or remedy could
be effected, the same should be followed
before recourse to judicial action can be
initiated [Pascual v. Provincial Board, G.R. No.
L-11959 (1959)].
When applicable
The doctrine applies only where the
administrative agency exercises its quasijudicial or adjudicatory function [Smart v. NTC,
supra].
Requisites
1. The administrative agency is performing a
quasi-judicial function;
2. Judicial review is available; and
3. The court acts in its appellate jurisdiction.
When not applicable
a. When the issue is not within the
competence of the administrative body to
act on (e.g., pure questions of law, over
which the expertise is with the courts);
Rationale
One of the reasons for exhaustion of
administrative remedies is the well-entrenched
doctrine on separation of powers, which
enjoins upon the Judiciary a policy of noninterference with matters falling primarily (albeit
not exclusively) within the competence of other
departments. Courts, for reasons of law, comity
and convenience, should not entertain suits
unless the available administrative remedies
b. Regular courts have jurisdiction in cases
where what is assailed is the validity or
constitutionality of a rule or regulation
issued by the administrative agency in the
Page 248 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
have first been resorted to and the proper
authorities have been given an appropriate
opportunity to act and correct their alleged
errors, if any, committed in the administrative
forum [Antolin v. Domondon, G.R. No. 165036
(2010)].
apply when the issue deals with a
question of law [Philippine Ports
Authority v. Pambansang Tinig at
Lakas ng Pantalan (PANTALAN),
G.R. Nos. 192836 & 194889 (2022)].
3. No other plain, speedy, and adequate
remedy.
1. Legal Reason
The law prescribes a procedure.
2. Practical Reason
To ensure that disputes involving technical and
specialized matters are first resolved by the
body which has the expertise and competence
to resolve them, and, in most cases, to give the
agency a chance to correct its own errors and
prevent unnecessary and premature resort to
the courts. It also entails lesser expenses and
provides for a speedier disposition of
controversies.
3. Reasons of Comity
Expedience, courtesy, convenience.
The doctrine of exhaustion of administrative
remedies requires that, for reasons of law,
comity and convenience, where the enabling
statute indicates a procedure for administrative
review and provides a system of administrative
appeal or reconsideration, the courts will not
entertain a case unless the available
administrative remedies have been resorted to
and the appropriate authorities have been
given an opportunity to act and correct the
errors committed in the administrative forum
[Obiasca v. Basallote, G.R. No. 176707,
(2010)].
4. Separation of Powers
Enjoins upon the Judiciary a policy of noninterference with matters falling primarily (albeit
not exclusively) within the competence of other
departments.
Exceptions
The exceptions may be condensed into three:
1. Grave abuse of discretion;
2. Pure question of law; or
● We held that the issue on the proper
interpretation of Section 12 of RA
6758 involves a question of law. The
doctrine
of
exhaustion
of
administrative remedies does not
This list has been expanded by case law to
include:
1. Purely legal questions [Castro v.
Secretary, G.R. No. 132174 (2001)]
2. There is grave doubt as to the availability
of the administrative remedy [Pascual v.
Provincial Board, supra].
3. Steps to be taken are merely matters of
form [Pascual v. Provincial Board, supra].
4. The administrative remedy not exclusive
but merely cumulative or concurrent to a
judicial remedy [Pascual v. Provincial
Board, supra].
5. There are circumstances indicating
urgency of judicial intervention [DAR v.
Apex Investment, G.R. No. 149422
(2003)].
6. The rule does not provide plain, speedy,
adequate
remedy
[Information
Technology Foundation v. COMELEC,
G.R. No. 159139 (2004)].
7. Resort to exhaustion will only be
oppressive and patently unreasonable
[Cipriano v. Marcelino, G.R. No. L-27793
(1972)].
8. Where the administrative remedy is only
permissive or voluntary and not a
prerequisite to the institution of judicial
proceedings [Corpus v. Cuaderno, Sr.,
G.R. No. L-17860 (1962)].
9. Application of the doctrine will only cause
great and irreparable damage which
cannot be prevented except by taking the
appropriate court action [De Lara, Jr. v.
Cloribel, G.R. No. L-21653 (1965)].
10. When it involves the rule-making or
quasi-legislative
functions
of
an
administrative agency [Smart v. NTC,
supra].
11. When the administrative agency is in
estoppel [Republic v. Sandiganbayan,
supra].
12. Doctrine of qualified political agency
(respondent is a department secretary
whose acts as an alter ego of the
Page 249 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
POLITICAL LAW
President bears the implied and assumed
approval of the latter) [Demaisip v. CA,
G.R. No. L-13000 (1959); Pagara v. CA,
G.R. No. 96882 (1996)].
The subject of controversy is private land
in land case proceedings [Soto v. Jareno,
G.R. No. L-38962 (1986)].
Violation of due process [Pagara v. CA,
supra].
Where there is unreasonable delay or
official inaction that will irretrievably
prejudice the complainant [Republic v.
Sandiganbayan, supra].
Administrative action is patently illegal
amounting to lack or excess of jurisdiction
[DAR v. Apex Investment, supra].
Resort to administrative remedy will
amount to a nullification of a claim [Paat
v. CA, G.R. No. 111107 (1997); Alzate v.
Aldana, G.R. No. L- 14407 (1960)].
There is no administrative review
provided for by law [Estrada v. CA, G.R.
No. 137862 (2004)].
The issue of non-exhaustion of
administrative remedies has been
rendered moot [included in the
enumeration in Estrada v. CA, supra].
When the claim involved is small
When strong public interest is involved.
In quo warranto proceedings [included in
the enumeration in Lopez v. City of
Manila, G.R. No. 127139 (1999)].
The law expressly provides for a different
review
procedure
[Samahang
Magbubukid v. CA, G.R. No. 103953
(1999)].
When there is no express legal provision
requiring such administrative step as a
condition precedent to taking action in
court [CSC v. DBM, G.R. No. 158791
(2005)].
if a remedy within the administrative machinery
can still be resorted to by giving the
administrative
officer
concerned
every
opportunity to decide on a matter that comes
within his jurisdiction then such remedy should
be exhausted first before the court's judicial
power can be sought. The premature
invocation of court's intervention is fatal to
one's cause of action. Accordingly, absent any
finding of waiver or estoppel the case is
susceptible of dismissal for lack of cause of
action [Montanez v. Provincial Agrarian Reform
Adjudicator et. al., G.R. No. 183142 (2009)].
Failure to observe the doctrine of exhaustion of
administrative remedies does not affect the
Court’s jurisdiction. The only effect of noncompliance with this rule is that it will deprive
the complainant of a cause of action, which is
a ground for a motion to dismiss. If not invoked
at the proper time, this ground is deemed
waived and the court can then take cognizance
of the case and try it [Soto v. Jareno, G.R. No.
L-38962 (1986)].
Must be raised at the earliest time
possible
Exhaustion must be raised at the earliest time
possible, even before filing the answer to the
complaint or pleading asserting a claim, by a
motion to dismiss [Calub v. Court of Appeals,
G.R. No. 115634 (2000)].
If not invoked at the proper time, this ground is
deemed waived and the court can take
cognizance of the case and try it [Republic v.
Sandiganbayan, G.R. Nos. 112708-09 (1996)].
Effect of failure to exhaust administrative
remedies
A direct action in court without prior exhaustion
of administrative remedies, when required, is
premature, warranting its dismissal on a motion
to dismiss grounded on lack of cause of action.
When appeals to the Office of the
President are required
A decision or order issued by a department or
agency need not be appealed to the Office of
the President (OP) when there is a special law
that provides for a different mode of appeal. If
the law does not provide for a specific relief,
appeals may be taken to the Office of the
President [Moran v. Office of the President,
G.R. No. 192957 (2014)].
Before a party is allowed to seek the
intervention of the court, it is a pre-condition
that he should have availed of all the means of
administrative processes afforded him. Hence,
When OP is not exercising quasi-judicial
functions
When the OP itself represents a party, i.e., the
Republic, to a contract, it merely exercises a
Page 250 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
contractual right by cancelling/revoking said
agreement — a purely administrative action
which should not be considered quasi-judicial
in nature. Thus, absent the OP's proper
exercise of a quasi-judicial function, the CA has
no appellate jurisdiction over the case [Narra
Nickel Mining and Development Corp. v.
Redmont Consolidated Mines Corp., G.R. No.
202877 (2015)].
Doctrine of
Exhaustion of
Administrative
Remedies
Appellate
Concurrent
original
jurisdiction
with admin
body
Exhaustion
of
administrativ
e remedy is
a condition
precedent.
The court
yields to the
jurisdiction of
the
administrative
agency
because of its
specialized
knowledge or
expertise.
Dismiss.
Suspend
judicial action.
Jurisdictio
n of Court
Ground for
Nonexercise of
Jurisdictio
n
Court
Action
Waivability
Doctrine of
Primary
Administrativ
e
Jurisdiction
Waivable.
Where administrative agencies have original
jurisdiction in the premises, the court's
interference with administrative action is
necessarily limited. A review thereof cannot be
done through an ordinary civil action if
constitutional or legislative authority therefor is
wanting. The remedies that can be availed of
where the statute is silent are the special civil
actions for certiorari, prohibition and/or
mandamus specified in the Rules of Court.
[Macailing v. Andrada, G.R. No. L-21607
(1970)].
Effect
We dismissed Jose's petition primarily
because it was "clearly premature, speculative,
and purely anticipatory, based merely on
newspaper reports which do not show any
direct or threatened injury," it appearing that
the reorganization of the Bureau of Customs
had not been, then, set in motion [Dario v.
Mison, G.R. No. 81954, 8196, 85335, 86241
(1989) citing Jose v. Arroyo, G.R. L-78435,
(1987)].
Purely Administrative Matters
General Rule: It is a well-recognized rule that
purely administrative and discretionary
functions may not be interfered by the courts.
[De Leon].
Cannot be
waived.
Note: Both do not apply where the issue
involves purely a question of law there being no
question of fact and no question requiring
expert judgment [De Leon].
C. Doctrine of Finality
Administrative Action
longer premature that we ascertain in proper
cases whether the administrative findings are
not in violation of law, whether they are free
from fraud or imposition and whether they find
substantial support from the evidence.
[Matienzo v. Abellera, G.R. No. L-45839
(1988)]
of
General Rule
The court does not interfere, as a rule, with
administrative action prior to its completion or
finality. It is only after judicial review is no
In general, courts have no supervising power
over the proceedings and actions of the
administrative departments of the government.
This is generally true with respect to acts
involving the exercise of judgment or
discretion, and findings of act. Findings of fact
by an administrative board, agency or official,
following a hearing, are binding upon the courts
and will not be disturbed [Lianga Bay Logging,
Co., Inc. v. Enage, G.R. No. L-30637, (1987)].
Page 251 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ADMINISTRATIVE LAW
POLITICAL LAW
Exception: Where the board, agency or official
has gone beyond his statutory authority,
exercised unconstitutional powers or clearly
acted arbitrarily and without regard to his duty
or with grave abuse of discretion [Lianga Bay
Logging, Co., Inc. v. Enage, supra].
Exception to Doctrine of Finality [De Leon]:
1. An interlocutory order affecting the merits
of a controversy;
2. To grant relief to preserve the status quo
pending
further
action
by
the
administrative agency;
3. When it is essential to the protection of the
rights asserted from the injury threatened;
4. Where an administrative officer assumes
to act in violation of the Constitution and
other laws;
5. Where such order is not reviewable in any
other way and the complainant will suffer
great and obvious damage if the order is
carried out;
6. To an order made in excess of power,
contrary to specific prohibition in the
statute governing agency and thus
operating as a deprivation of a right
assured by the statute;
7. When statutory provisions provide for an
exception.
Page 252 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL AND PUBLIC
INTERNATIONAL LAW
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
ELECTION LAW
I. SUFFRAGE
A. Concept
1. Definition
Suffrage is the right to vote in the election of
officers chosen by the people and in the
determination of questions submitted to the
people.
i. Initiative on the Constitution which refers
to a petition proposing amendments to the
Constitution
Amendments to the Constitution may likewise
be directly proposed by the people through
initiative upon a petition of 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 to the
Constitution shall be authorized within five
years following its ratification nor oftener than
once every five years thereafter.
The Congress shall provide for the
implementation of the exercise of this right
[Sec. 2, Art. XVII, 1987 Constitution].
2. Scope
a. Election
The means by which the people choose their
officials for a definite and fixed period and to
whom they entrust for the time being the
exercise of the powers of government.
Elections may either be:
a. Regular: One provided by law for the
election of officers either nationwide or in
certain subdivisions thereof, after the
expiration of the full term of the former
officers.
b. Special: One held to fill a vacancy before
the expiration of the term for which the
incumbent was elected.
Note: The SK election is not a regular election
(whether national or local) because it is
participated in by the youth with ages ranging
from 15 to 21, many of whom are not qualified
to vote in a regular election [Paras v.
COMELEC, G.R. No. 123169 (1996)].
b. Plebiscite
The electoral process by which an initiative on
the Constitution is approved or rejected by the
people [Sec. 3(e), R.A. 6735].
c. Initiative
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 [Sec. 3(a), R.A. 6735].
The constitutional provision on people’s
initiative to amend the Constitution can only be
implemented by law to be passed by Congress.
No such law has been passed. R.A. No. 6735
is incomplete, inadequate, or wanting in
essential terms and conditions insofar as
initiative on amendments to the Constitution is
concerned [Defensor-Santiago v. COMELEC,
G.R. No. 127325 (1997)].
Sec. 2, Art. XVII of the Constitution is limited to
proposals to amend—not to revise—the
Constitution [Lambino v. COMELEC, G.R. No.
174153 (2006)].
ii. Initiative on statutes which refers to a
petition proposing to enact a national
legislation
iii. Initiative on local legislation which refers
to a petition proposing to enact a regional,
provincial, city, municipal, or barangay law,
resolution, or ordinance.
d. Referendum
The power of the electorate to approve or reject
a legislation through an election called for the
purpose. It may be of two classes.
i. Referendum on statutes which refers to a
petition to approve or reject an act or law,
or part thereof, passed by Congress
Page 254 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
ii. Referendum on local law which refers to
a petition to approve or reject a law,
resolution or ordinance enacted by regional
assemblies and local legislative bodies
[Sec. 3(c), R.A. No. 6735]
e. Recall
The termination of the official relationship of a
local elective official for loss of confidence prior
to the expiration of his term through the will of
the electorate [Sec. 69, LGC].
1,
Art.
V,
2. Qualifications in General
a. Filipino citizen
naturalization
B. Qualification and
Disqualification of Voters
1. Under Sec.
Constitution
if failure to comply with the biometrics
validation requirement will result in the
deactivation of the voter’s registration (under
R.A. No. 10367 or the Biometrics Law of 2013),
it is not unconstitutional. The requirement is a
“mere aspect of the registration procedure, of
which the State has the right to reasonably
regulate” [Kabataan Partylist v. COMELEC,
supra].
1987
Suffrage may be exercised by all citizens of the
Philippines, not otherwise disqualified 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 [Sec. 1, Art. V, 1987 Constitution].
The Congress is prohibited under the
Constitution
from
imposing
additional
substantive requirements for voting like
education, sex, and taxpaying ability, but
Congress may add procedural requirements by
promulgation of the necessary laws.
Congress may impose limitations on the
statutory right of suffrage. The provision under
Sec. 1, Art. V, 1987 Constitution (that no
literacy, property, or other substantive
requirement shall be imposed on the exercise
of suffrage) is merely “geared towards the
elimination of irrelevant standards that are
purely
based
on
socio-economic
considerations that have no bearing on the
right of a citizen to intelligently cast his vote and
to further the public good” [Kabataan Partylist
v. COMELEC, G.R. No. 221318 (2015)].
Biometrics validation requirement is not an
unconstitutional substantive requirement. Even
by
birth
or
b. At least 18 years of age at the time of
the election
Any person, who, on the day of registration
may not have reached the required age or
period of residence but, who, on the day of the
election shall possess such qualifications, may
register as a voter [Sec. 9, R.A. No. 8189].
c. Resident of the Philippines for at
least one (1) year
There is nothing wrong in an individual
changing residence so he could run for an
elective post, for as long as he is able to prove
that he has effected a change of residence for
the period required by law [Aquino v.
COMELEC, G.R. No. 120265 (1995)].
A candidate does not automatically regain his
residence after the retention or reacquisition of
Philippine citizenship under R.A. No. 9225. He
must still establish the fact of residence
[Caballero v. COMELEC, G.R. No. 209835
(2015)].
d. Resident of the place wherein they
propose to vote for at least six (6)
months immediately preceding the
election
Any person who temporarily resides in another
city, municipality, or country solely by any of the
following reasons shall not be deemed to have
lost his original residence:
i. Occupation, profession, employment in
private or public service;
ii. Educational activities;
Page 255 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
iii. Work in the military or naval reservations
within the Philippines;
iv. Service in the Armed Forces of the
Philippines or the National Police Forces;
v. Confinement or detention in government
institutions in accordance with law [Sec. 9,
R.A. No. 8189].
It is not necessary that a person should have a
house in order to establish his residence or
domicile in a municipality. It is enough that he
should live there, provided that his stay is
accompanied by his intention to reside therein
permanently
[Romualdez-Marcos
v.
COMELEC, G.R. No. 119976 (1995)].
In election cases, the Court treats domicile and
residence as synonymous terms. Both import
not only an intention to reside in a fixed place
but also personal presence in that place,
coupled with conduct indicative of such
intention [Pundaodaya v. COMELEC, G.R. No.
179313 (2009)].
e. Not otherwise disqualified by law
3. Disqualifications in General
The following shall be disqualified from
registering [Sec. 11, R.A. No. 8189]:
i. Any person who has been sentenced by
final judgment to suffer imprisonment of not
less than one (1) year, such disability not
having been removed by plenary pardon or
amnesty.
Note: The right to vote shall be automatically
reacquired upon expiration of five (5) years after
service of sentence.
ii. Any person who has been adjudged by final
judgment by a competent court or tribunal of
having committed any crime:
a. Involving disloyalty to the duly
constituted
government
such
as
rebellion, sedition, violation of the
firearms laws; or
b. Against national security Exception:
Unless restored to his full civil and
political rights in accordance with law.
Note: The right to vote shall be automatically
reacquired upon expiration of five (5) years
after service of sentence.
iii. Insane or incompetent persons declared as
such by competent authority.
Exception: Unless subsequently declared by
proper authority that such person is no longer
insane or incompetent.
C. Registration and Deactivation
1. Registration of Voters
The act of accomplishing and filing of a sworn
application for registration by a qualified voter
before the election officer of the city or
municipality wherein he resides and including
the same in the book of registered voters upon
approval by the Election Registration Board
[Sec. 3(a), R.A. No. 8189].
It is essential to the exercise of the right of
suffrage, not the possession thereof. It is part
of the right to vote and an indispensable
element in the election process.
Condition Precedent
Registration does not confer the right to vote
but it is a condition precedent to the exercise of
the right [Yra v. Abano, G.R. No. L-30187
(1928)].
Registered voter
In order that a qualified elector may vote in any
election, plebiscite, or referendum, he must be
registered in the Permanent List of Voters for
the city or municipality in which he resides
[Sec. 115, B.P. Blg. 881].
Rationale for registration requirements,
qualifications, and disqualifications
The right to vote is a right created by law.
Suffrage is a privilege granted by the State to
such persons or classes as are most likely to
exercise it for the public good [People v. Corral,
G.R. No. L-42300 (1936)].
Proceeding from the significance of registration
as a necessary requisite to the right to vote, the
State undoubtedly, in the exercise of its
inherent police power, may then enact laws to
safeguard and regulate the act of voter’s
Page 256 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
registration for the ultimate purpose of
conducting honest, orderly and peaceful
election [Akbayan-Youth v. COMELEC, G.R.
No. 147066 (2001)].
Qualification must be distinguished from
registration
Registration regulates the exercise of the right
of suffrage and is not a qualification for such
right. Registration is only one step towards
voting, and it is not one of the elements that
makes a citizen a qualified voter. Thus,
although one is deemed to be a “qualified
elector,” he must nonetheless still comply with
the registration procedure in order to vote
[Kabataan Party List v. COMELEC, G.R. No.
221318 (2015)].
a. Election Registration Board (ERB)
The body constituted to act on all applications
for registration [Sec. 3(g), R.A. No. 8189].
There shall be in each city and municipality as
many ERBs as there are election officers
therein [Sec. 15, R.A. No. 8189].
Composition of the ERB [Sec. 15, R.A. No.
8189]
1. Election Officer, who serves as the
Chairman. If disqualified, COMELEC shall
designate an acting Election Officer;
2. Public school official most senior in rank;
and
3. Local civil registrar, or in his absence, the
city or municipal treasurer. If neither are
available, any other appointive civil
service official from the same locality as
designated by the COMELEC [Sec. 15,
R.A. No. 8189].
In case of disqualification of the Election
Officer, the Commission shall designate an
acting Election Officer who shall serve as
Chairman of the Election Registration Board. In
case of disqualification or non-availability of the
Local Registrar or the Municipal Treasurer, the
Commission shall designate any other
appointive civil service official from the same
locality as substitute.
degree of consanguinity or affinity. If in
succeeding elections, any of the newly elected
city or municipal officials is related to a member
of the board within the fourth civil degree of
consanguinity or affinity, such member is
automatically disqualified to preserve the
integrity of the Election Registration Board
[Sec. 15, R.A. No. 8189].
Board of Election Inspectors
The body which conducts the election in the
polling place of the precinct usually composed
of three (3) public school teachers appointed
by the Commission [Sec. 3(o), R.A. No. 8189].
b. System of Continuing Registration of
Voters
The personal filing of application of registration
of voters shall be conducted daily in the office
of the Election Officer during regular office
hours [Sec. 8, R.A. No. 8189].
Exception (when registration is prohibited):
Within 120 days before a regular election and
90 days before a special election. COMELEC
Resolution 8585, which set the deadline for
voter registration to Oct. 31, 2009 (election was
May 10, 2010, or more than 120 days), was
declared null and void because Sec. 8 of R.A.
8189 has determined that the period of 120
days before a regular election and 90 days
before a special election is enough time for the
COMELEC to make all the necessary
preparations with respect to the coming
elections. COMELEC is granted the power to
fix other periods and dates for preelection
activities only if the same cannot be reasonably
held within the period provided by law. There is
no ground to hold that the mandate of
continuing voter registration cannot be
reasonably held within the period provided by
Sec. 8 of R.A. 8189 [Palatino v. COMELEC,
G.R. No. 189868 (2009)].
c. Validation
The process of taking the biometrics of
registered voters whose biometrics have not
yet been captured [Sec. 2(d), R.A. No. 10367,
An Act Providing for Mandatory Biometrics
Voter Registration].
No member of the Board shall be related to
each other or to any incumbent city or
municipal elective official within the fourth civil
Page 257 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
d. Manner of Registration for Illiterate or
Disabled Voters [Sec. 14, R.A. No. 8189]
Illiterate Persons
With the assistance of the Election Officer or
any member of an accredited citizen’s arms.
Physically Disabled Persons
Application for registration may be prepared
by:
1. Any relative within the 4th civil degree of
consanguinity or affinity;
2. The Election Officer; or
3. Any member of an accredited citizen’s arm
Note: Definition of disabled voter under the
Automated Election System (AES): A person
with impaired capacity to use the AES [Sec.
2(11), R.A. No. 9369].
Book of Voters
The compilation of all registration records in a
precinct [Sec. 3(c), R.A. No. 8189].
List of Voters
An enumeration of names of registered voters
in a precinct duly certified by the Election
Registration Board for use in the election [Sec.
3(c), R.A. No. 8189].
The ERB shall prepare and post a certified list
of voters 90 days before a regular election and
60 days before a special election [Sec. 30, R.A.
No. 8189].
Copies of the certified list along with a certified
list of deactivated voters categorized by
precinct per barangay, within the same period
shall be posted in the office of the Election
Officer and in the bulletin board of each
city/municipal hall. Upon payment of the fees
as fixed by the Commission, the candidates
and heads shall also be furnished copies
thereof [Sec. 30, R.A. No. 8189].
e. When the List of Voters will be Altered
1. Deactivation/Reactivation [Secs. 27- 28,
R.A. No. 8189]
2. Exclusion/Inclusion [Secs. 34-35, R.A. No.
8189]
3. Cancellation of Registration [Sec. 29, R.A.
No. 8189]
4. Annulment of Book of Voters [Sec. 39,
R.A. No. 8189]
5. New voters [Sec. 10, R.A. No. 8189]
6. Transfer of Residence [Sec. 12-13, R.A.
No. 8189]
1. Deactivation
Process of deactivating the registration of
certain persons, removing their registration
records from the corresponding precinct book
of voters and placing the same in the inactive
file, properly marked “deactivated” and dated in
indelible ink [Sec. 27, R.A. 8189].
2. Reactivation [Sec. 28, R.A. 8189]
Any voter whose registration has been
deactivated may file with the Election Officer a
sworn application for reactivation of his
registration in the form of an affidavit stating
that the grounds for the deactivation no longer
exist.
The application for reactivation may be filed
any time but not later than one hundred twenty
(120) days before a regular election and ninety
(90) days before a special election.
The Election Officer shall submit said
application to the Election Registration Board
for appropriate action. In case the application
is approved, the Election Officer shall retrieve
the registration record from the inactive file and
include the same in the corresponding precinct
book of voters.
Local heads or representatives of political
parties shall be properly notified on approved
applications.
Ground for
Deactivation
Specific Mode of
Reactivation
Sec. 27, R.A. No. 8189
Any person who has
been sentenced by
final judgment to
suffer imprisonment
for not less than one
(1) year.
Except: If such
Page 258 of 384
UP Law Bar Operations Commission 2023
Right to vote is
automatically
reacquired upon
expiration of five (5)
years after service of
sentence as certified
by the clerks of
courts of the
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
Ground for
Deactivation
Specific Mode of
Reactivation
disability is removed
by plenary pardon or
amnesty.
Municipal, Municipal
Circuit, Metropolitan,
Regional Trial
Courts, and the
Sandiganbayan.
Any person who has
been adjudged by
final judgment by a
competent court or
tribunal of having
caused/committed:
General mode of
reactivation.
(i) any crime
involving disloyalty
to the duly
constituted
government such as
rebellion, sedition,
violation of the antisubversion and
firearms laws; or
(ii) any crime against
national security.
Except: If full civil
and political rights is
restored in
accordance with law.
Any person declared
by competent
authority to be
insane or
incompetent.
Exception: If such
disqualification has
been subsequently
removed by a
declaration of a
proper authority that
such person is no
longer insane or
incompetent.
Any person who did
not vote in the two
(2) successive
Ground for
Deactivation
Specific Mode of
Reactivation
preceding regular
elections as shown
by their voting
records.
Note: For this
purpose, regular
elections do not
include the
Sangguniang
Kabataan (SK)
elections
Any person whose
registration has
been ordered
excluded by the
Court.
Any person who has
lost his Filipino
citizenship.
3. Cancellation of Registration
The Board shall cancel the registration records
of those who have died as certified by the Local
Civil Registrar [Sec. 29, R.A. No. 8189].
The Local Civil Registrar shall:
i. Submit each month a certified list of persons
who died during the previous month to the
Election Officer of the place where the
deceased are registered or in the absence
of information thereof, to the Election Officer
of the city or municipality of the deceased’s
residence as appearing in his death
certificate;
ii. Furnish a copy of this list to the national
central file and the proper provincial file.
The Election Officer shall:
i. Post in the bulletin board of his office a list
of those persons who died whose
registrations were cancelled;
ii. Furnish copies thereof to the local heads of
the political parties, the national central file,
and the provincial file
Page 259 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
4. Annulment of Book of Voters
The COMELEC shall, upon verified petition of
any voter or election officer or duly registered
political party, and after notice and hearing,
annul any book of voters that is:
a. Not prepared in accordance with R.A.
8189 or the Voters’ Registration Act of
1996;
b. Prepared through fraud, bribery, forgery,
impersonation, intimidation, force, or any
similar irregularity; or
c. Contains data that are statistically
improbable.
change of address involves a change in
precinct, the Board shall transfer his
registration record to the precinct book of
voters of his new precinct and notify the voter
of his new precinct [Sec. 13, R.A. No. 8189].
No order, ruling or decision annulling a book of
voters shall be executed within 90 days before
an election [Sec. 39, R.A. No. 8189].
Form:
i. In writing, stating the grounds therefor;
ii. Under oath;
iii. Attached to the application, together with
the proof of notice of hearing to the
challenger and the applicant.
5. New Voters
A qualified voter shall be registered in the
permanent list of voters in a precinct of the city
or municipality wherein he resides to be able to
vote in any election [Sec. 10, R.A. No. 8189].
6. Transfer of Residence
The precinct assignment of a voter in the
permanent list of voters shall not be
changed/altered/transferred
to
another
precinct without the express written consent of
the voter. Provided, however, that the voter
shall not unreasonably withhold such consent.
Any violation thereof shall constitute an
election offense [Sec. 4, R.A. No. 8189].
In case of change of residence to another city
or municipality, the registered voter may apply
with the Election Officer of his new residence
for the transfer of his registration records. The
application for transfer of registration shall be
subject to the requirements of notice and
hearing and the approval of the Election
Registration Board. Upon approval, the
Election Officer of the former residence of the
voter shall transmit by registered mail the
voter’s registration record to the Election
Officer of the voter’s new residence [Sec. 12,
R.A. No. 8189].
In case of change of address in the same
municipality or city, the voter shall immediately
notify the Election Officer in writing. If the
Challenges to Right to Register
Oppositions to contest a registrant’s
application for inclusion in the voter’s list [Sec.
13, R.A. No. 8189].
By: Any voter, candidate, or representative of
a registered political party.
When filed: Not later than the second Monday
of the month in which the application is
scheduled to be heard or processed by the
Election Registration Board. Should the
second Monday of the month fall on a
nonworking holiday, oppositions may be filed
on the next following working day.
The hearing on the challenge shall be heard on
the third Monday of the month and the decision
shall be rendered before the end of the month.
Election Period
Shall commence 90 days before the day of the
election and shall end 30 days thereafter [Sec.
9, Art. IX-C, 1987 Constitution].
Exception: Special cases, when otherwise
fixed by the COMELEC.
Precinct
The basic unit of territory established by the
Commission for the purpose of voting [Sec.
3(j), R.A. No. 8189].
Polling Place
The place where the Board of Election
Inspectors conducts its proceeding and where
the voters cast their votes [Sec. 3(l), R.A. No.
8189].
Voting Center
Page 260 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
The building or place where the polling place is
located [Sec. 3(m), R.A. No. 8189].
had been held had been held [Domino v.
COMELEC, supra].
D. Inclusion
Proceedings
2. Petition for Inclusion and Exclusion
of Voters in the List [Secs. 34-35, R.A.
No. 8189]
and
Exclusion
1. Jurisdiction in Inclusion
Exclusion Case [Sec. 33, R.A.
8189]
and
No.
The Municipal and Metropolitan Trial Courts
shall have original and exclusive jurisdiction
over all cases of inclusion and exclusion of
voters in their respective cities or
municipalities.
Decisions of the Municipal or Metropolitan Trial
Courts may be appealed by the aggrieved
party to the Regional Trial Court within five (5)
days from receipt of notice thereof. Otherwise,
said decision shall become final and executory.
The RTC shall decide the appeal within ten (10)
days from the time it is received, and the
decision shall immediately become final and
executory. No motion for reconsideration shall
be entertained.
The nature of the MTC’s jurisdiction is limited.
The jurisdiction of the MTC “over exclusion
cases is limited only to determining the right of
the voter to (a) remain in the list of voters or (b)
to declare that the challenged voter is not
qualified to vote in the precinct in which he is
registered, specifying the ground of the voters’
disqualification.” Hence, the trial court has no
power to order the change or transfer of
registration from one place of residence to
another for it is the function of the ERB as
provided under Section 12 of R.A. No. 8189
[Domino v. COMELEC, G.R. No. 134015
(1999)].
Generally, no res judicata: A decision in an
exclusion or inclusion proceeding, even if final
and unappealable, does not acquire the nature
of res judicata [Domino v. COMELEC, supra].
Exception: The decision is res judicata as to
the right to remain in the list of voters or for
being excluded therefrom for the particular
election in relation to which the proceedings
Petition for
Inclusion of Voters
in the List [Sec. 34,
R.A. No. 8189]
Petition for
Exclusion of
Voters in the List
[Sec. 35, R.A. No.
8189]
When to file
Any time except one
hundred five (105)
days prior to a
regular election or
seventy-five (75)
days prior to a
special election.
Any time except one
hundred (100) days
prior to a regular
election or sixty-five
(65) days before a
special election.
Who may file
Any person whose
application for
registration has
been disapproved by
the Board or whose
name has been
stricken out from the
list.
Any registered
voters,
representative of a
political party or the
Election Officer.
Form
A petition to include
his name in the
permanent list of
voters in his
precinct, supported
by a certificate of
disapproval of his
application and proof
of service of notice
of his petition upon
the Board.
Page 261 of 384
UP Law Bar Operations Commission 2023
A sworn petition for
the exclusion of a
voter from the
permanent list of
voters giving the
name, address and
the precinct of the
challenged voter,
accompanied by
proof of notice to the
Board and to the
challenged voter.
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
Petition for
Inclusion of Voters
in the List [Sec. 34,
R.A. No. 8189]
Petition for
Exclusion of
Voters in the List
[Sec. 35, R.A. No.
8189]
Petition for
Inclusion of Voters
in the List [Sec. 9.3,
R.A. 9189 as
inserted by R.A.
10590]
Petition for
Exclusion of
Voters in the List
[Sec. 9.1, R.A. 9189
as inserted by R.A.
10590]
proper MTC in the
City of Manila or
where the overseas
voter resides in the
Philippines, at the
petitioner’s option.
the City of Manila or
where the overseas
voter resides in the
Philippines, at the
petitioner’s option.
Period to Decide
Within fifteen (15)
days after its filing.
Within ten (10) days
from its filing.
Procedure if Petition is Approved
The Board shall
place the application
for registration
previously
disapproved in the
corresponding book
of voters and
indicate in the
application for
registration the date
of the order of
inclusion and the
court which issued
the same.
The Board shall,
upon receipt of the
final decision,
remove the voter’s
registration record
from the
corresponding book
of voters, enter the
order of exclusion
therein, and
thereafter place the
record in the inactive
file.
3. Special Rules on Overseas
Absentee Voters [Sec. 9.3, R.A. No.
9189 as inserted by R.A. 10590; Sec.
9.1, R.A. 9189 as inserted by R.A.
10590]
Petition for
Inclusion of Voters
in the List [Sec. 9.3,
R.A. 9189 as
inserted by R.A.
10590]
Petition for
Exclusion of
Voters in the List
[Sec. 9.1, R.A. 9189
as inserted by R.A.
10590]
When to file
Within ten (10) days
from receipt of
notice denying the
Motion for
Reconsideration
(MR), with the
Not later than one
hundred eighty (180)
days before the start
of the overseas
voting period with
the proper MTC in
Note: If the
application has been
disapproved, the
applicant or his
authorized
representative may
file a MR before the
Resident Election
Registration Board
(RERB) within a
period of five (5)
days from receipt of
the notice of
disapproval. The MR
shall be decided
within five (5) days
after its filing but not
later than one
hundred twenty
(120) days before
the start of the
overseas voting
period. The
resolution of the
Resident Election
Registration Board
(RERB) shall be
immediately
executory, unless
reversed or set
aside by the Court.
Who may file
Applicant.
Page 262 of 384
UP Law Bar Operations Commission 2023
Any interested
person.
FOR UP CANDIDATES ONLY
ELECTION LAW
Petition for
Inclusion of Voters
in the List [Sec. 9.3,
R.A. 9189 as
inserted by R.A.
10590]
POLITICAL LAW
Petition for
Exclusion of
Voters in the List
[Sec. 9.1, R.A. 9189
as inserted by R.A.
10590]
Period to decide
Within 15 days after
its filing, but not later
than 120 days
before the start of
the overseas voting
period.
Within 15 days after
its filing, but not later
than 120 days
before the start of
the overseas voting
period.
Should the Court fail
to render a decision
within the prescribed
period, the RERB
ruling shall be
considered affirmed.
Should the Court fail
to render a decision
within the prescribed
period, the ruling of
the RERB shall be
considered affirmed.
E. Local and Overseas Absentee
Voting [Sec. 3(a), R.A. No. 9189,
The Overseas Absentee Voting
Act, as amended by R.A. No.
10590, The Overseas Voting Act
of 2013]
1. General Rule
A person must be physically present in the
polling place whereof he is a registered voter to
be able to vote.
2. Exceptions
a. Members of the Board of Election
Inspectors [Sec. 169, Omnibus Election
Code];
b. Government officials and employees,
including members of AFP and PNP, who,
by reason of public functions and duties,
are not in his/her place of registration on
election day, may vote in the
city/municipality where he/she is assigned
on election day. Provided, that he/she is a
duly registered voter [Sec. 1, E.O. No. 157
or the Absentee Voting by Officers and
Employees of Government];
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.
Provided, that they shall be allowed to vote
only for the positions of President, Vice
President, Senators, and Party-List
Representative [Sec. 2, R.A. No. 10380 or
An Act Providing for Local Absentee
Voting for Media];
d. All citizens of the Philippines abroad, who
are not otherwise disqualified by law, at
least eighteen (18) years of age on the day
of elections, may vote for President, VicePresident, Senators and Party-List
Representatives, as well as in all national
referenda and plebiscites [Sec. 3, R.A. No.
10590].
Overseas Voting
Process by which qualified citizens of the
Philippines abroad exercise their right to vote
[Sec. 3(a), R.A. No. 9189, The Overseas
Absentee Voting Act, as amended by R.A. No.
10590, The Overseas Voting Act of 2013].
Overseas Voter
Citizen of the Philippines who is qualified to
register and vote under this Act, not otherwise
disqualified by law, who is abroad on the day of
elections [Sec. 3(f), R.A. No. 9189, as
amended by Sec. 2, R.A. No. 10590].
An overseas voter is presumed to be abroad
until she/he applies for transfer of her/his
registration records or requests that her/his
name be cancelled from the NROV [Sec. 12,
R.A. No. 9189, as amended by Sec. 11, R.A.
No. 10590].
Covered Elections
Elections for President, Vice-President,
Senators and Party-list representatives, as well
as in all national referenda and plebiscites
[Sec. 4, R.A. No. 9189, as amended by R.A.
No. 10590].
Personal Overseas Registration and/or
Certification
Registration and/or certification as an overseas
voter shall be done in person at any post
Page 263 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
abroad or at designated registration centers
outside the post or in the Philippines approved
by the Commission [Sec. 6, R.A. No. 9189, as
amended by R.A. No. 10590].
National Registry of Overseas Voters
(NROV)
The consolidated list prepared, approved and
maintained by the COMELEC, of overseas
voters whose applications for registration as
absentee voters, including those registered
voters under R.A. No. 8189 who have applied
to be certified as absentee voters, have been
approved by the Election Registered Board,
indicating the post where the overseas voter is
registered [Sec. 3(e), R.A. No. 9189, as
amended by R.A. No. 10590].
Resident Election Registration Board
(RERB)
The in-house Election Registration Board in
every post and in the Office for Overseas
Voting, which processes, approves or
disapproves all applications for registration
and/or certification as overseas voters,
including the deactivation, reactivation and
cancellation of registration records [Sec. 3(m),
R.A. No. 9189, as amended by R.A. No.
10590].
3. Qualifications
a. Filipino citizen;
b. Abroad on the day of the election;
c. At least 18 years of age on the day of the
election;
d. Not otherwise disqualified by law [Secs.
3(f)-4, R.A. No. 9189, as amended by R.A.
No. 10590].
Exception: If such disability has been
removed by plenary pardon or amnesty
Provided that: the right to vote shall be
automatically reacquired upon the
expiration of five (5) years after service of
sentence.
d. Citizen previously declared insane or
incompetent by competent authority in the
Philippines or abroad, as verified by the
Philippine embassies, consulates or
Foreign
Service
establishments
concerned.
Exception: if such competent authority
subsequently certifies that such person is
no longer insane or incompetent.
Note: R.A. No. 10590 removed the
disqualification under RA No. 9189 of an
immigrant or a permanent resident who is
recognized as such in the host country unless
he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission
declaring that:
1. He/she shall resume actual physical
permanent residence in the Philippines
not later than three (3) years from approval
of his/her registration; and
2. He/she has not applied for citizenship in
another country.
F. Detainee Voting
Detainee voting (either through the special
polling place inside jails or escorted voting)
may be availed of by any registered detainee
whose registration record is not transferred /
deactivated / cancelled / deleted [Sec. 1, Rule
1, COMELEC Resolution No. 9371 (2012)].
4. Disqualifications
a. Lost
their
Filipino
citizenship
accordance with Philippine laws;
in
b. Expressly renounced their Philippine
citizenship and who have pledged
allegiance to a foreign country [Sec. 5,
R.A. No. 9189, as amended by R.A. No.
10590];
c. Committed and are convicted in a final
judgment by a Philippine court or tribunal
of an offense punishable by imprisonment
of not less than one (1) year;
Detainee
Any person:
a. Confined in jail, formally charged for any
crime/s and awaiting/undergoing trial;
b. Serving a sentence of imprisonment for
less than one (1) year; or
c. Whose conviction of a crime involving
disloyalty to the duly constituted
government such as rebellion, sedition,
violation of the firearms laws or any crime
against national security or for any other
crime is on appeal [Sec. 2, Rule 1,
COMELEC Resolution No. 9371 (2012)].
Page 264 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
Detainees who shall be eighteen years of age
on the day of election and/or are committed
inside the detention centers for at least six (6)
months immediately preceding the election day
may be registered as a voter.
Detainees who are already registered voters
may apply for transfer of registration records as
warranted by the circumstances [Sec. 3, Rule
2, COMELEC Resolution No. 9371 (2012)].
Special Polling Place Inside Jail
The polling places established in jails where
detainee voters cast their votes [Sec. 2, Rule 1,
COMELEC Resolution No. 9371 (2012)].
G. Escorted Voting
Voting Mechanism:
1. For detainee voters who are residents /
registered voters of municipalities/cities
other than the town/city of incarceration;
and/or
2. For detainee voters in jail facilities where
no special polling places are established
[Sec. 2, Rule 1, COMELEC Resolution No.
9371 (2012)].
Requirements for Escorted Voting
1. Detainee voters obtained court orders
allowing them to vote in the polling place
where they are registered.
2. It is logistically feasible on the part of the
jail/prison administration to escort the
detainee voter to the polling place where
he is registered.
3. Reasonable
measures
shall
be
undertaken
by
the
jail/prison
administration to secure the safety of
detainee voters, prevent their escape and
ensure public safety [Sec. 1, Rule 7,
COMELEC Resolution No. 9371 (2012)].
II. CANDIDACY
A.
Qualifications
and
Disqualifications of Candidates
Candidate
Any person who files his certificate of
candidacy within the prescribed period shall
only be considered as a candidate at the start
of the campaign period for which he filed his
certificate of candidacy [Sec. 13, R.A. No.
9369].
This includes any registered national, regional,
or sectoral party, organization or coalition
thereof that has filed a manifestation to
participate under the party-list system which
has not withdrawn, or which has not been
disqualified before the start of the campaign
period [COMELEC Res. 8758 (2010)].
1. Qualifications
Qualifications prescribed by law are continuing
requirements and must be possessed for the
duration of the officer’s active tenure [Frivaldo
v. COMELEC, supra; Labo v. COMELEC,
supra].
Constitutional Officers
a. For President and Vice-President [Secs.
2-3 Art. VII, 1987 Constitution]
1. Natural-born citizen;
2. Registered voter;
3. Able to read and write;
4. At least 40 years old on day of election;
5. Resident of the Philippines for at least
ten (10) years immediately preceding
election day.
b. For Senator [Sec. 3, Art. VI, 1987
Constitution]
1. Natural-born citizen;
2. 35 years old on election day;
3. Able to read and write;
4. Registered voter;
5. Resident of the Philippines for at least
two (2) years immediately preceding
election day.
c. For Members of the House of
Representatives [Sec. 6, Art. VI, 1987
Constitution]
1. Natural-born citizen;
2. 25 years old on election day;
3. Able to read and write;
4. Registered voter in district in which he
shall be elected;
5. Resident thereof for not less than one
year immediately preceding election
day.
d. Local Elective [Sec. 39, LGC]
1. Citizen of the Philippines;
Page 265 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
2. Registered voter in the Barangay,
municipality, city or province, or district
where he intends to be elected;
3. Resident therein for at least one year
immediately preceding election day;
4. Able to read and write Filipino or any
other local language or dialect;
5. Age requirement: [See table below].
On Citizenship
The law does not specify any particular date or
time when the candidate must possess
citizenship unlike that for residence and age. It
must be possessed upon proclamation or on
the day that the term begins [Frivaldo v.
COMELEC, supra].
President
VP
Senate
On Residency
There is no hard and fast rule to determine a
candidate’s compliance with residency
requirement since the question of residence is
a question of intention. Still, jurisprudence has
laid down the following guidelines: (a) every
person has a domicile or residence
somewhere; (b) where once established, that
domicile remains until he acquires a new one;
and (c) a person can have but one domicile at
a time [Jalosjos v. COMELEC, G.R. No.
191970 (2012)].
House
Local
Citizenship
Natural-born Citizen
Citizen
Registration
Registered voter
Registered where he/she intends to be
elected
Age
40 y.o.
Residence
35 y.o.
10 years
Gov/VG
/Sang.
Panlala
wigan/
Mayor
(HUC)/
VM
(HUC)/
Sang.
Panlung
sod
(HUC)
Mayor /
VM
(ICC,
CC,
Mun.)
Sang.
Panlung
sod
(ICC,
CC,
Mun)/
Sang.
Bayan/
P.Brgy./
Sang.
Brgy.
SK
23 y.o.
21 y.o.
18 y.o.
18-24
y.o.
2 years
Qualifications
1 year
Able to read and write
Term
No. of Terms
25 y.o.
6 years
None
2
3 years
2
2. Disqualifications
Under the Omnibus Election Code (B.P. Blg.
881)
3
Sec. 12. Disqualifications to be a candidate
and to hold any office
Any person who has been:
a. Declared by competent authority insane or
incompetent; or
b. Sentenced by final judgment:
Page 266 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
1. For subversion, insurrection, rebellion;
2. For any offense for which he has been
sentenced to a penalty of more than
eighteen months; or
3. For a crime involving moral turpitude.
Note: As to disqualifications under Sec. 12:
a. These will not apply if the person has been
given plenary pardon or amnesty.
b. These are deemed removed upon
declaration by competent authority that
the insanity/incompetence has been
removed, or after the expiration of a period
of 5 years from service of sentence.
Sec. 68. Disqualifications from continuing
as a candidate, or if he has been elected,
from holding the office
Any candidate who, in an action or protest in
which he is a party is declared by final decision
of a competent court guilty of, or found by the
Commission of:
a. Having given money or other material
consideration to influence, induce or
corrupt voters or public officials performing
electoral functions;
b. Committed acts of terrorism to enhance
his candidacy;
c. Spent in his election campaign an amount
in excess of that allowed;
d. Solicited, received or made prohibited
contributions;
e. Violated provisions of the Omnibus
Election Code, specifically:
1. Engaged in election campaign or
partisan political activity outside the
campaign period and not pursuant to a
political party nomination [Sec. 80];
2. Removed, destroyed, defaced lawful
election propaganda [Sec. 83];
3. Engaged in prohibited forms of election
propaganda [Sec. 85];
4. Violated election rules and regulations
on election propaganda through mass
media [Sec. 86];
5. Threatened,
intimidated,
caused,
inflicted or produced any violence,
injury, punishment, damage, loss or
disadvantage upon any person or of
the immediate members of his family,
his honor or property, or used fraud to
compel, induce or prevent the
registration of any voter, or the
participation in any campaign, or the
casting of any vote, or any promise of
such registration, campaign, vote, or
omission therefrom [Sec. 261(e)];
6. Unlawful electioneering [Sec. 261(k)];
7. Violated the prohibition against
release, disbursement or expenditure
of public funds 45 days before a regular
election or 30 days before a special
election [Sec. 261(v)];
8. Solicited
votes
or
undertook
propaganda on election day for or
against any candidate or any political
party within the polling place or within a
30m radius [Sec. 261(k)];
f. Is a permanent resident of or an immigrant
to a foreign country [unless he has waived
such status in accordance with the
residency requirement for the concerned
position].
Under the Local Government Code [Sec. 40,
R.A. No. 7160]
a. Sentenced by final judgment for an
offense:
1. Involving moral turpitude; or
2. Punishable by at least 1-year
imprisonment.
b. Removed from office as a result of an
administrative case
This disqualification does not retroactively
apply to those who were removed from
office as a result of an administrative case
before the effectivity of the LGC [Grego v.
COMELEC, G.R. No. 125955 (1997)].
c. Convicted by final judgment for
violating the oath of allegiance to the
Republic of the Philippines
d. Dual citizenship
Dual citizenship as a disqualification under
Section 40(d) of the Local Government
Code has been interpreted to refer to
citizens with dual allegiance. For
candidates with mere dual citizenship, the
filing of certificate of candidacy is
considered as an election of Filipino
citizenship and renunciation of foreign
citizenship [Mercado v. Manzano, supra].
Page 267 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
For a natural born Filipino, who reacquired
or retained his Philippine citizenship under
R.A. No. 9225, to run for public office, he
must:
1. Meet the qualifications for holding
such public office as required by the
Constitution and existing laws; and
2. Make a personal and sworn
renunciation of any and all foreign
citizenships before any public officer
authorized to administer oath
[Japzon v. COMELEC, G.R. No.
180088 (2009)]
Based on jurisprudence, the mere filing of
certificate of candidacy is a sufficient form
of renunciation for dual citizens but not for
those who reacquired/retained Filipino
citizenship under R.A. No. 9225.
While the act of using a foreign passport is
not one of the acts constituting
renunciation and loss of Philippine
citizenship, it is nevertheless an act which
repudiates the very oath of renunciation
required for a former Filipino citizen who is
also a citizen of another country to be
qualified to run for a local elective position
[Maquiling v. COMELEC, G.R. 195649
(2013)].
e. Fugitive from justice in criminal and
nonpolitical cases here and abroad
“Fugitive from justice” includes:
1. Those who flee after conviction to avoid
punishment; and
2. Those who, after being charged, flee to
avoid prosecution. This presupposes
knowledge by the fleeing subject of
either an already instituted indictment
or of a promulgated judgment of
conviction [Rodriquez v. COMELEC,
G.R. No. 120099 (1996)].
f. Permanent residents in a foreign
country or those who have acquired the
right to reside abroad and continue to
avail of the same right after the
effectivity of this Code
POLITICAL LAW
In addition to the disqualifications mentioned in
Secs. 12 and 68 of the Omnibus Election Code
and Sec. 40 of R.A. No. 7160, otherwise known
as the Local Government Code, whenever the
evidence of guilt is strong, the following
persons are disqualified to run in a special
election called to fill the vacancy in an elective
office, to wit:
i. Any elective official who has resigned from
his office by accepting an appointive office
or for whatever reason which he previously
occupied but has caused to become vacant
due to his resignation; and
ii. Any person who, directly or indirectly,
coerces, bribes, threatens, harasses,
intimidates, or actually causes, inflicts or
produces any violence, injury, punishment,
torture, damage, loss or disadvantage to
any person or persons aspiring to become a
candidate or that of the immediate member
of his family, his honor or property that is
meant to eliminate all other potential
candidate [Sec. 4, R.A. No. 8295].
B. Filing of
Candidacy
Certificates
of
No person shall be eligible for any elective
public office unless he files a sworn certificate
of candidacy within the period fixed herein
[Sec. 73, B.P. Blg. 881].
Certificate of Candidacy
A certificate of candidacy is in the nature of a
formal manifestation to the whole world of the
candidate’s political creed or lack of political
creed. It is a statement of a person seeking to
run for a public office certifying that he
announces his candidacy for the office
mentioned and that he is eligible for the office,
the name of the political party to which he
belongs, if he belongs to any, and his post
office address for all election purposes being
as well stated [Engle v. COMELEC, G.R. No.
215995 (2016)].
By who: The certificate of candidacy shall be
filed by the candidate (a) personally or (b) by
his duly authorized representative.
When: Any day from the commencement of
the election period but not later than the day
before the beginning of the campaign period. In
Disqualification in Special Election
cases of postponement or failure of election, no
Page 268 of 384
UP Law Bar Operations Commission 2023
g. Insane or feeble-minded
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
additional certificate of candidacy shall be
accepted except in cases of substitution of
candidates.
1. Effect of Filing
a. Appointive Officials
Officials holding appointive offices including
active members of the AFP and officers of
GOCCs shall be considered ipso facto
resigned upon the filing of his certificate of
candidacy [Sec. 66, B.P. Blg. 881].
b. Elective Officials
Any person holding an elective office or
position shall not be considered resigned upon
the filing of his certificate of candidacy for the
same or any other elective office or position
[Sec. 4, COMELEC Resolution No. 8678,
Guidelines on the Filing of Certificates of
Candidacy and Nomination of Official
Candidates of Registered Political Parties in
Connection with the May 10, 2010 National and
Local Elections].
The SC upheld the validity of the COMELEC
Resolution in Sec. 67, B.P. Blg. 881. The Court
deemed the rule that elective officials
automatically resigned from office upon filing of
their certificate of candidacy, repealed by Sec.
14 R.A 9006, Fair Election Act. On the
allegation that the rule was violative of equal
protection, the Court found substantial
distinctions among appointive and elective
officials [Quinto v. COMELEC, G.R. No.
189698 (2010)].
Effect of Filing of Two (2) Certificates of
Candidacy (COC)
No person shall be eligible for more than one
office to be filled in the same election.
If he files a certificate of candidacy for more
than one office, he shall not be eligible for
either.
Exception: Before the expiration of the period
for the filing of certificates of candidacy, the
person who has filed more than one certificate
of candidacy, may:
i.
Declare under oath the office for which
he desires to be eligible before the
ii.
deadline for filing of certificates of
candidacy; and
Cancel the certificate of candidacy for
the other office/s [Sec. 73, B.P. Blg.
881].
Ministerial Duty of COMELEC
General Rule: The COMELEC shall have the
ministerial duty to receive and acknowledge
receipt of the certificates of candidacy provided
said certificates are: under oath and contain all
the required data and in the form prescribed by
the Commission [Sec. 76, B.P. Blg. 881].
COMELEC has no discretion to give or not to
give due course to a certificate of candidacy
filed in due form [Abcede v. Imperial, G.R. No.
L-13001 (1958)].
Exception: COMELEC may go beyond the
face of the certificate of candidacy:
i.
Nuisance candidates;
ii.
Petition to deny due course to or cancel
a certificate of candidacy [See
Romualdez-Marcos v. COMELEC,
supra].
The Court also held that even without a petition
to deny course to or cancel a certificate of
candidacy, the COMELEC is under a legal duty
to cancel the COC of anyone suffering from the
accessory penalty of perpetual special
disqualification to run for public office by virtue
of a final judgment of conviction. The final
judgment of conviction is notice to the
COMELEC of the disqualification of the convict
from running for public office [Jalosjos v.
COMELEC, G.R. No. 193237 (2012)].
Lone Candidate in a Special Election
Upon the expiration of the deadline for the filing
of the certificates of candidacy in a special
election called to fill a vacancy in an elective
position other than for President and Vice
President, when there is only one (1) qualified
candidate for such position, the lone candidate
shall be proclaimed elected to the position by
proper proclaiming body of the Commission on
Elections without holding the special election
upon certification by the Commission on
Elections that he is the only candidate for the
office and is thereby deemed elected [Sec. 2,
R.A. No. 8295].
Page 269 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
In the absence of any lawful ground to deny
due course or cancel the certificate of
candidacy in order to prevent such
proclamation, as provided for under Secs. 69
and 78 of Batas Pambansa Blg. 881 also
known as the Omnibus Election Code of the
Philippines, the candidate referred to in the
preceding paragraph shall assume office not
earlier than the scheduled election day… [Sec.
3, R.A. No. 8295]
2. Substitution and Withdrawal of
Candidates
Withdrawal of Certificate of Candidacy
A person who has filed a certificate of
candidacy may, prior to the election, withdraw
the same by submitting to the office concerned
a written declaration under oath [Sec. 73, B.P.
Blg. 881].
Any person who withdraws shall not be eligible
whether as a substitute candidate or not, for
any other position.
Effects of Filing or Withdrawal of a
Certificate of Candidacy
a. Filing or withdrawal shall not affect
whatever civil, criminal or administrative
liabilities which a candidate may have
incurred [Sec. 73, B.P. Blg. 881].
b. If the candidate who withdraws is the
official candidate of a registered or
accredited political party, “the same
political party may file a certificate of
candidacy to replace the candidate.” The
substitute must file his COC not later than
mid-day of election day [Sec. 77, B.P. Blg.
881].
c. The withdrawal of a certificate of
candidacy does not necessarily render the
certificate void ab initio. Once filed, the
permanent legal effects produced thereby
remain even if the certificate itself be
subsequently withdrawn [Limbona v.
COMELEC, G.R. No. 181097 (2008)].
Substitution
Grounds: If after the last day for filing of the
certificates of candidacy, an official candidate
of a registered political party:
a. Dies;
b. Withdraws; or
c. Is disqualified for any cause
He may be substituted by a candidate
belonging to and nominated by the same
political party.
When:
a. The substitute candidate nominated by the
political party concerned may file his
certificate of candidacy for the office
affected in accordance with the preceding
sections not later than midday of the day
of the election.
b. If the death, withdrawal or disqualification
should occur between the day before the
election and mid-day of election day said
certificate may be filed with any board of
election inspectors in the political
subdivision where he is a candidate, or, in
the case of candidates to be voted for by
the entire electorate of the country, with
the Commission [Sec. 77, B.P. Blg. 881].
Note: For there to be a valid substitution of a
candidate, the latter must have filed a valid
certificate of candidacy.
A person who is disqualified under Sec. 68
OEC is only prohibited from continuing as a
candidate, but his COC remains valid. He may
therefore be substituted.
On the other hand, a person whose COC is
cancelled or denied due course under Sec. 78
for false material representation is considered
to have a COC that is void ab initio. Thus, he
cannot be validly substituted [Talaga v.
COMELEC, G.R. No. 196804 (2012)].
No substitute shall be allowed for any
independent candidate [Recabo, Jr. v.
COMELEC, G.R. No. 134293 (1999);
COMELEC Resolution No. 10430].
3. Nuisance Candidates
The Commission may motu proprio or upon a
verified petition of an interested party, refuse to
give due course to or cancel a certificate of
candidacy if it is shown that said certificate has
been filed to put the election process in
mockery or disrepute or to cause confusion
among the voters by the similarity of the names
of the registered candidates or by other
circumstances or acts which clearly
demonstrate that the candidate has no bona
fide intention to run for the office for which the
Page 270 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
certificate of candidacy has been filed and thus
prevent a faithful determination of the true will
of the electorate [Sec. 69, B.P Blg. 881].
Grounds
The Certificate of Candidacy has been filed:
1. To put the election process in mockery, or
disrepute;
2. To cause confusion among the voters by
the similarity of the names of the
registered candidates; or
3. Clearly demonstrate that the candidate
has no bona fide intention to run for the
office for which the certificate of candidacy
has been filed and thus prevent a faithful
determination of the true will of the
electorate [Sec. 69, B.P. Blg. 881].
Procedure [R.A. No. 6646 or The Electoral
Reforms Law of 1987]
and receive evidence. The proceeding
shall be summary in nature.
a. In lieu of oral testimonies, the parties
may be required to submit position
papers together with affidavits or
counter-affidavits
and
other
documentary evidence.
b. The hearing officer shall immediately
submit to the Commission his findings,
reports, and recommendations within
five (5) days from the completion of
such submission of evidence.
c. The Commission shall render its
decision within five (5) days from
receipt thereof.
5. The decision, order, or ruling of the
Commission shall, after five (5) days from
receipt of a copy thereof by the parties, be
final and executory unless stayed by the
Supreme Court.
6. The Commission shall within twenty-four
hours, through the fastest available
means, disseminate its decision or the
decision of the Supreme Court to the city
or municipal election registrars, boards of
election inspectors and the general public
in the political subdivision concerned.
Sec. 5. Procedure in Cases of Nuisance
Candidates
1. A verified petition to declare a duly
registered candidate as a nuisance
candidate under Section 69 of Batas
Pambansa Blg. 881:
a. Filed personally or through duly
authorized representative with the
Commission
by
any
registered
candidate for the same office;
b. Within five (5) days from the last day for
the filing of certificates of candidacy;
c. Filing by mail shall not be allowed.
Who May Initiate:
1. COMELEC motu proprio;
2. Any interested party;
3. Any registered candidate for the same
office.
2. Within three (3) days from the filing of the
petition, the Commission shall issue
summons to the respondent candidate
together with a copy of the petition and its
enclosures, if any.
The denial or cancellation of COCs of nuisance
candidates may be “motu proprio or upon a
verified petition of an interested party, subject
to an opportunity to be heard” [Timbol v.
COMELEC, G.R. No. 206004 (2015)].
3. The respondent shall be given three (3)
days from receipt of the summons within
which to file his verified answer to the
petition, serving copy thereof upon the
petitioner.
Rules on Counting Votes Cast for Nuisance
Candidates
1. If the person declared as a nuisance
candidate and whose certificate of
candidacy has been cancelled or denied
due course does not have the same name
and/or surname as a bona fide candidate
for the same office - the votes cast for such
nuisance candidate shall be deemed stray
pursuant to Section 9 of Rule 23.
Grounds for a motion to dismiss may be
raised as affirmative defenses.
4. The Commission may designate any of its
officials who are lawyers to hear the case
Page 271 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
2. If the person declared as a nuisance
candidate and whose certificate of
candidacy has been cancelled or denied
due course has the same name and/or
surname as a bona fide candidate for the
same office - the votes cast shall not be
considered stray but shall be counted and
tallied for the bona fide candidate.
3. However, if there are two or more bona
fide candidates with the same name
and/or surname as the nuisance
candidate - the votes cast for the nuisance
candidate shall be considered as stray
votes [COMELEC Resolution No. 9599,
amending Sec. 5 of Rule 24 of the
COMELEC Rules of Procedure, as
amended by COMELEC Resolution No.
9523].
A petition to cancel or deny a COC under
Section 69 of the OEC should be
distinguished from a petition to disqualify
under Section 68. Hence, the legal effect
of such cancellation of a COC of a
nuisance candidate cannot be equated
with a candidate disqualified on grounds
provided in the OEC and Local
Government Code.
4. In a multi-slot office, all votes cast in favor
of the nuisance candidate whose name is
confusingly similar to a bona fide
candidate shall not be automatically
credited in the latter's favor. If the ballot
contains one (1) vote for the nuisance
candidate and no vote for the bona fide
candidate, that vote will be counted in the
latter's favor. However, if the nuisance
candidate and the bona fide candidate
each gets a vote, only one (1) vote will be
counted in the latter's favor [Zapanta v.
COMELEC, G.R. No. 233016 (2019)].
5. Candidate may not be disqualified as a
nuisance candidate for the sole reason
that he failed to show proof of his financial
capacity to wage a nationwide campaign
[Marquez v. COMELEC, G.R. No. 244274
(2019)].
4. Effect of Disqualification
Disqualification under Sec. 68 differs from
grounds for Petition to Deny or Cancel under
Sec. 78.
Disqualification (under Sec. 68, among others)
does not void a certificate of candidacy (COC),
i.e., the candidate is merely prohibited from
continuing as a candidate. In contrast,
Cancellation (under Sec. 78) results in the
COC being void ab initio, i.e., the person was
never a valid candidate.
Rules if the Candidate is Disqualified
1. If the disqualification becomes final before
election day:
a. Any candidate who has been declared
by final judgment to be disqualified:
i. shall not be voted for; and
ii. the votes cast for him shall not be
counted.
b. Hence, generally, if Candidate X has
already been disqualified before
election day but still garnered the
highest number of votes, those votes
are considered as stray votes. The
candidate with the next highest number
of votes will be proclaimed [See Codilla
v. De Venecia, G.R. No. 150605
(2002)].
2. If the disqualification is not yet final on
election day:
a. If a candidate is not declared by final
judgment before any election to be
disqualified and he is voted for and
receives the winning number of votes in
such election:
i. the Court or COMELEC shall
continue with the trial and hearing of
the action, inquiry, or protest; and
ii. upon motion of the complainant or
any intervenor, may during the
pendency thereof, order the
suspension of the proclamation of
such candidate whenever the
evidence of his guilt is strong [Sec.
6, R.A. No. 6646].
3. If the disqualification is adjudged and
becomes final after election day:
Page 272 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
a. The second-placer in the vote count is
actually the first-placer among the
qualified candidates, if disqualified due
to Sec. 75 or 78 (COC void ab initio).
Maquiling v. COMELEC, G.R. No. 195649
(2013) abandoned the rule in Labo, Jr. v.
COMELEC, supra, that when the voters are
well aware within the realm of notoriety of a
candidate’s disqualification and still cast their
votes in favor said candidate, then the eligible
candidate obtaining the next higher number of
votes may be deemed elected.
The electorate’s awareness of the candidate’s
disqualification is not a prerequisite for the
disqualification to attach to the candidate. The
very existence of a disqualifying circumstance
makes the candidate ineligible. Knowledge by
the electorate of a candidate’s disqualification
is not necessary before a qualified candidate
who placed second to a disqualified one can be
proclaimed as the winner.
That the disqualified candidate has already
been proclaimed and has assumed office is of
no moment. The subsequent disqualification
based on a substantive ground that existed
prior to the filing of the certificate of candidacy
voids not only the COC but also the
proclamation.
Note: The purpose of a disqualification
proceeding is to prevent the candidate (a) from
running or, if elected, (b) from serving, or (c) to
prosecute him for violation of the election laws
[Ejercito v. COMELEC, G.R. No. 212398
(2014)].
Rule if the COC is Cancelled
A cancelled certificate of candidacy cannot
give rise to a valid candidacy, and much less to
valid votes. Whether the COC is cancelled
before or after the elections is immaterial
because the cancellation on such ground
means he was never a candidate from the very
beginning, his certificate of candidacy being
void ab initio [Aratea v. COMELEC, G.R. No.
195229 (2012); Jalosjos, Jr. v. COMELEC,
supra].
Decisions of the Court holding that the secondplacer cannot be proclaimed winner if the first-
placer is disqualified or declared ineligible
should be limited to situations where the
certificate of candidacy of the first-placer was
valid at the time of filing but subsequently had
to be cancelled because of a violation of law
that took place, or a legal impediment that took
effect, after the filing of the certificate of
candidacy.
If the certificate of candidacy is void ab initio,
then legally the person who filed such a void
certificate of candidacy was never a candidate
in the elections at any time. All votes for such a
noncandidate are stray votes and should not
be counted. Thus, such noncandidate can
never be a first-placer in the elections
[Jalosjos, Jr. v. COMELEC, supra].
5. Duties of the Commission on
Elections (COMELEC)
Ministerial Duty of COMELEC to receive
Certificates of Candidacy:
General Rule: The COMELEC shall have the
ministerial duty to receive and acknowledge
receipt of the certificates of candidacy.
Provided, that said certificates are under oath
and contain all the required data and in the
form prescribed by the Commission [OEC,
Sec. 7; Cerafica v. COMELEC, G.R. No.
205136 (2014)].
Exception: COMELEC may go beyond the
face of the COC in the following:
a. Nuisance candidates [OEC, Sec. 69];
b. Petition to deny due course or to cancel a
COC [OEC, Sec. 78]; or
c. Filing of a disqualification case on any of
the grounds enumerated in Sec. 68, OEC.
Powers and functions of the COMELEC
under Sec. 2, Art. IX-C of the 1987
Constitution
1. Enforce and administer all laws and
regulations relative to the conduct of an
election, plebiscite, initiative, referendum,
and recall.
2. Exercise exclusive original jurisdiction
over all contests relating to the elections,
returns, and qualifications of all elective
regional, provincial, and city officials, and
appellate jurisdiction over all contests
Page 273 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
3.
4.
5.
6.
POLITICAL LAW
involving elective municipal officials
decided by trial courts of general
jurisdiction, or involving elective barangay
officials decided by trial courts of limited
jurisdiction. Decisions, final orders, or
rulings of the Commission on election
contests involving elective municipal and
barangay offices shall be final, executory,
and not appealable. Decide, except those
involving the right to vote, all questions
affecting
elections,
including
determination of the number and location
of polling places, appointment of election
officials and inspectors, and registration of
voters.
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.
Register, after sufficient publication,
political
parties,
organizations,
or
coalitions which, in addition to other
requirements, must present their platform
or program of government; and accredit
citizens’ arms of the Commission on
Elections. Religious denominations and
sects shall not be registered. Those which
seek to achieve their goals through
violence or unlawful means, or refuse to
uphold and adhere to this Constitution, or
which are supported by any foreign
government shall likewise be refused
registration.
Financial contributions from foreign
governments and their agencies to
political parties, organizations, coalitions,
or candidates related to elections,
constitute interference in national affairs,
and, when accepted, shall be an additional
ground for the cancellation of their
registration with the Commission, in
addition to other penalties that may be
prescribed by law.
File, upon a verified complaint, or on its
own initiative, petitions in court for
inclusion or exclusion of voters;
investigate and, where appropriate,
prosecute cases of violations of election
laws, including acts or omissions
constituting election frauds, offenses, and
malpractices.
7. 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.
8. Recommend to the President the removal
of any officer or employee it has
deputized, or the imposition of any other
disciplinary action, for violation or
disregard of, or disobedience to, its
directive, order, or decision.
9. Submit to the President and the Congress,
a comprehensive report on the conduct of
each election, plebiscite, initiative,
referendum, or recall.
III. CAMPAIGN
A. Concept
1. Definition
The term “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 office [Sec.
79, B.P. Blg. 881].
It includes:
a. Forming organizations, associations,
clubs, committees or other groups of
persons for the purpose of soliciting votes
and/or undertaking any campaign for or
against a candidate;
b. Holding political caucuses, conferences,
meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting
votes and/or undertaking any campaign or
propaganda for or against a candidate;
c. Making speeches, announcements or
commentaries, or holding interviews for or
against the election of any candidate for
public office;
d. Publishing or distributing campaign
literature or materials designed to support
or oppose the election of any candidate; or
e. Directly or indirectly soliciting votes,
pledges or support for or against a
candidate.
Page 274 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
Campaign does not include:
a. Acts performed for the purpose of
enhancing the chances of aspirants for
nomination for candidacy to a public office
by a political party, aggroupment, or
coalition of parties [e.g., primaries,
conventions];
b. Public expressions of opinions or
discussions of probable issues in a
forthcoming election or on attributes or
criticisms
of
probable
candidates
proposed to be nominated in a
forthcoming political party convention
[Sec. 79, B.P. Blg. 881].
2. Regulations
Regulation of Speech in the Context of
Electoral Campaigns [The Diocese of
Bacolod v. COMELEC, G.R. No. 205728
(2015)]
a. If made by candidates or the members of
their political parties or their political
parties it may be regulated as to time,
place, and manner.
b. If made by persons who are not
candidates or who do not speak as
members of a political party which are,
taken as a whole, principally advocacies of
a social issue that the public must consider
during elections, such regulation is
unconstitutional.
Regulation of election paraphernalia will still be
constitutionally valid if it reaches into speech of
persons who are not candidates or who do not
speak as members of a political party if they are
not candidates, only if what is regulated is
declarative speech that, taken as a whole, has
for its principal object the endorsement of a
candidate only. The regulation:
i. Should be provided by law;
ii. Reasonable;
iii. Narrowly tailored to meet the objective of
enhancing the opportunity of all
candidates to be heard and considering
the primacy of the guarantee of free
expression; and
iv. Demonstrably the least restrictive means
to achieve that object
3. Prohibitions
a. Members of the board of election
inspections [Sec. 173, B.P. Blg. 881];
b. Civil service officers or employees [Sec. 2
(4), Art. IX-B, 1987 Constitution];
c. Members of the military [Sec. 5 (3), Art.
XVI, 1987 Constitution];
d. Foreigners, whether juridical or natural
persons [Sec. 81, B.P. Blg. 881].
4. Period
Campaign Periods [Sec. 5, R.A. No. 7166]
a. President, Vice President, Senators
(i.e.,
offices
with
national
constituencies): 90 days before the day
of the election.
b. Members
of
the
House
of
Representatives,
Elective
Local
Government Officials: 45 days before
the day of election.
c. Barangay Election: 15 days before the
day of election.
In the preparation of the election calendar, the
Commission may exclude the day before the
day of the election itself, Maundy Thursday and
Good Friday.
Note: Election period is not the same with
campaign period. The former includes the 30
days after election while the latter can only
include the 90 days prior to election day [De
Leon].
5. Equal Access to Media, Time, and
Space
a. Print advertisements [Sec. 6.1, R.A.
No. 9006]
i. Shall not exceed 1/4 page, in broad
sheet and 1/2 page in tabloids thrice a
week per newspaper, magazine or
other publications.
b. TV advertisements [Sec. 6.2, R.A.
No. 9006]
i. Shall not exceed 120 mins for bona fide
candidates and registered political
parties running for nationally elective
office, whether by purchase or
donation;
ii. Shall not exceed 60 mins for bona fide
candidates and registered political
parties running for locally elective
Page 275 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
office, whether
donation.
POLITICAL LAW
by
purchase
or
c. Radio advertisements [Sec. 6.2,
R.A. No. 9006]
i. Shall not exceed 180 mins for bona fide
candidates and registered political
parties running for nationally elective
office, whether by purchase or
donation;
ii. Shall not exceed 90 mins for bona fide
candidates and registered political
parties running for locally elective
office, whether by purchase or
donation.
6. Right to Reply
All registered parties and bona fide candidates
shall have the right to reply to charges
published against them. The reply shall be
given publicity by the newspaper, television
and/or radio station which first printed or aired
the charges with the same prominence or in the
same page or section or in the same time slot
as the first statement [Sec. 10, R.A. No. 9006].
Note: The airtime rules are applied on a per
station basis. COMELEC Resolution No. 9615,
which adopts the “aggregate-based” airtime
limits (i.e., applying the limits to all TV and radio
stations taken as a whole) unreasonably
restricts the guaranteed freedom of speech
and of the press [GMA Network, Inc. v.
COMELEC, G.R. No. 205357 (2014)].
7. Required Submissions to the
COMELEC [Sec. 6.2 and 6.3, R.A. No.
9006]
1. Broadcast stations or entities - Copies
of their broadcast logs and certificates of
performance for the review and
verification of the frequency, date, time
and duration of advertisement broadcast
for any candidate or political party.
2. All mass media entities - Copy of all
contracts for advertising, promoting or
opposing any political party or the
candidacy of any person for public office
within 5 days after its signing.
No franchise or permit to operate a radio
or TV station shall be granted or issued,
suspended or cancelled during the
election period [Sec. 6.4, R.A. No. 9006].
Any mass media columnist, commentator,
announcer, reporter, on-air correspondent
or personality who is a candidate for any
elective public office or is a campaign
volunteer for or employed or retained in
any capacity by any candidate or political
party shall:
a. Be deemed resigned, if so required by
their employer; or
b. Take a leave of absence from his/her
work as such during the campaign
period [Sec. 6.6, R.A. No. 9006].
No movie, cinematograph or documentary
shall be publicly exhibited in a theater,
television station or any public forum during
the campaign period which:
a. Portrays the life or biography of a
candidate [Sec. 6.7, R.A. No. 9006];
b. Is portrayed by an actor or media
personality who is himself a candidate
[Sec. 6.8, R.A. No. 9006].
Election Surveys
The measurement of opinions and perceptions
of the voters as regards a candidate’s
popularity, qualifications, platforms or a matter
of public discussion in relation to the election,
including voters’ preference for candidates or
publicly discussed issues during the campaign
period.
Note: Sec. 5.4 of R.A. No. 9006 providing that
surveys affecting national candidates shall not
be published 15 days before an election and
surveys affecting local candidates shall not be
published 7 days before an election is
unconstitutional because:
a. It imposes a prior restraint on the freedom
of expression;
b. It is a direct and total suppression of a
category of expression even though such
suppression is only for a limited period;
c. The governmental interest sought to be
promoted can be achieved by means other
than the suppression of the freedom of
expression [Social Weather Stations, Inc.
v. COMELEC, G.R. No. 147571 (2001)].
Page 276 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
Exit Polls
Exit polls may only be taken subject to the
following requirements:
a. Pollsters shall not conduct their surveys
within 50m from the polling place, whether
said survey is taken in a home, dwelling
place and other places;
b. Pollsters shall wear distinctive clothing;
c. Pollsters shall inform the voters that they
may refuse to answer; and
d. The result of the exit polls may be
announced after the closing of the polls on
election day and must clearly identify the
total number of respondents, and the
places where they were taken. Said
announcement shall state that the same is
unofficial and does not represent a trend
[Sec. 5.5, R.A. No. 9006].
The holding of exit polls and the dissemination
of their results through mass media constitute
an essential part of the freedoms of speech and
of the press. Hence, the COMELEC cannot
ban them totally in the guise of promoting
clean, honest, orderly and credible elections
[ABS-CBN Broadcasting Corp. v. COMELEC,
G.R. No. 133486 (2000)].
8. Application for Rallies, Meetings
and Other Political Activity
All applications for permits must immediately
be posted in a conspicuous place in the city or
municipal building, and the receipt thereof
acknowledged in writing.
Applications must be acted upon in writing by
local authorities concerned within 3 days after
their filing. If not acted upon within said period,
they are deemed approved.
The only justifiable ground for denial of the
application is when a prior written application
by any candidate or political party for the same
purpose has been approved.
Denial of any application for said permit is
appealable to the provincial election supervisor
or to the COMELEC whose decision shall be
made within 48 hours and which shall be final
and executory [Sec. 87, B.P. Blg. 881].
B. Premature Campaigning
General Rule: Any election campaign or
partisan political activity for or against any
candidate outside of the campaign period is
prohibited and shall be considered as an
election offense [Sec. 80, B.P. Blg. 881].
Exception: Political parties may hold political
conventions to nominate their official
candidates within 30 days before the start of
the period for filing a certificate of candidacy
[Sec. 15, R.A. No. 9369].
In Penera v. COMELEC, G.R. No. 181613
(2009), at the time the supposed premature
campaigning took place, Penera was not
officially a “candidate” although she already led
her certificate of candidacy. Under Section 15
of R.A. No. 9369, a person who files his
certificate of candidacy is considered a
candidate only at the start of the campaign
period, and unlawful acts applicable to such
candidate take effect only at the start of such
campaign period. Thus, a candidate is liable for
an election offense only for acts done during
the campaign period, not before. Before the
start of the campaign period, such election
offenses cannot be committed and any
partisan political activity is lawful.
C. Contributions
Gift, donation, subscription, loan, advance or
deposit of money or anything of value, or a
contract, promise or agreement to contribute
(1) whether or not legally enforceable, (2)
made for influencing the results of the
elections.
Definition [Sec. 94, B.P. Blg. 881]
i. Excludes services rendered without
compensation by individuals volunteering
their time in behalf of a candidate or political
party;
ii. Includes the use of facilities voluntarily
donated by other persons, the money value
of which can be assessed based on the
rates prevailing in the area.
1. Prohibited Contributions
No contribution for purposes of partisan
political activity shall be made directly or
Page 277 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
indirectly by any of the following [Sec. 95 and
96, B.P. Blg. 881]:
From public or private financial institutions
provided, however, that nothing herein shall
prevent the making of any loan:
a. By financial institutions which are legally in
the business of lending money;
i. The loan is made in accordance with
laws and regulations; and
ii. The loan is made in the ordinary course
of business.
b. Natural and juridical persons operating a
public utility or in possession of or
exploiting any natural resources of the
nation;
c. Natural and juridical persons who hold
contracts or subcontracts to supply the
government or any of its divisions,
subdivisions or instrumentalities, with
goods or services or to perform
construction or other works;
d. Grantees of exemptions, incentives, or
similar concessions by the government or
any of its divisions, subdivisions or
instrumentalities, including GOCCs;
e. Grantees, within 1 year prior to the date of
the election, of loans or other
accommodations in excess of P100,000
by the government or any of its divisions,
subdivisions or instrumentalities including
GOCCs;
f. Educational institutions which have
received grants of public funds amounting
to no less than P100,000;
g. Officials or employees in the Civil Service,
or members of the Armed Forces of the
Philippines;
h. Foreigners and foreign corporations,
including foreign governments
N.B. The underlying commonality is conflict of
interest in sensitive government operations, or
areas where government grants licenses and
special permits.
2. Prohibited Fund-Raising Activities
[Sec. 97, B.P. Blg. 881]
a. The following are prohibited if held for
raising campaign funds or for the support
of any candidate from the start of the
election period up to and including election
day:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
Dances;
Lotteries;
Cockfights;
Games;
Boxing bouts;
Bingo;
Beauty contests;
Entertainments, or cinematographic,
theatrical or other performances.
b. For any person or organization, civic or
religious, directly or indirectly, to solicit
and/or accept from:
i. Any candidate; or
ii. From his campaign manager, agent or
representative; or
iii. Any person acting in their behalf, any
gift, food, transportation, contribution or
donation in cash or in kind from the
start of the election period up to and
including election day.
Exception: Normal and customary religious
stipends, tithes, or collections on Sundays
and/or other designated collection days
3. Prohibited Donations [Sec. 104. B.P.
Blg. 881]
Whether made directly or indirectly:
a. Donations, contribution or gift in cash or in
kind;
b. Undertaking or contribution to the
construction or repair of roads, bridges,
school buses, puericulture centers,
medical clinics and hospitals, churches or
chapels, cement pavements, or any
structure for public use or for the use of
any religious or civic organization.
Made by a candidate, spouse, relative within
2nd civil degree of consanguinity or affinity,
campaign manager, agent or representative;
treasurers, agents or representatives of
political party.
During campaign period, day before and day of
the election.
Exceptions:
a. Normal and customary religious dues or
contributions;
Page 278 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
b. Periodic
payments
for
legitimate
scholarships established and school
contributions habitually made before the
prohibited period.
D.
Lawful
and
Prohibited
Election Propaganda
1. Lawful Election Propaganda
POLITICAL LAW
or the Fair Election Act of 2001 [Sec. 3,
R.A. No. 9006].
2. Prohibited Acts
a. For any foreigner: [Sec. 81, B.P. Blg.
881]
i. Aid any candidate or political party,
directly or indirectly;
ii. Take part or influence in any manner in
any election;
iii. Contribute or make any expenditure in
connection with any election campaign
or partisan political activity.
a. Pamphlets, leaflets, cards, decals,
stickers, or other written or printed
materials not larger than 8.5x14 inches;
b. Handwritten or printed letters urging
b. For any person during the
voters to vote for or against any political
campaign period: [Sec. 83, B.P. Blg.
party or candidate;
881]
c. Cloth, paper or cardboard posters, framed
i. Remove, destroy, obliterate or in any
or posted, not larger than 2x3 feet;
manner deface or tamper with lawful
d. Streamers not larger than 3x8 feet are
election propaganda;
allowed at a public meeting or rally or in
ii. Prevent the distribution of lawful
announcing the holding of such. May be
election propaganda.
displayed 5 days before the meeting or
c.
For
any candidate, political party,
rally and shall be removed within 24 hours
organization or any person: [Sec.
after such;
e. Paid advertisements in print or broadcast
89, B.P. Blg. 881]
media:
i. Give or accept, directly or indirectly,
i. Bear and be identified by the
free of charge, transportation, food or
reasonably legible or audible words
drinks or things of value during the five
“political advertisement paid for”
hours before and after a public
followed by the true and correct name
meeting, on the day preceding the
and address of the candidate or party
election, and on the day of the election;
for whose benefit the election
ii. Give or contribute, directly or indirectly,
propaganda was printed or aired [Sec.
money or things of value for such
4(1), R.A. No. 9006].
purpose.
ii. If the broadcast is given free of charge
by the radio or TV station, identified by
Note: Sec. 85 “Prohibited Election
the words “airtime for this broadcast
Propaganda” of B.P. Blg. 881 was
was provided free of charge by”
repealed by Sec. 14 of R.A. No. 9006.
followed by the true and correct name
and address of the broadcast entity
E. Limitations on Expenses
[Sec. 4(2), R.A. No. 9006].
iii. Print,
broadcast
or
outdoor
1. Lawful Expenditures
advertisements
donated
to
the
a. For travelling expenses of the candidates
candidate or political party shall not be
and campaign personnel in the course of
printed, published, broadcast or
the campaign and for personal expenses
exhibited
without
the
written
incident thereto;
acceptance by said candidate or
b. For compensation of campaigners, clerks,
political party. Written acceptance must
stenographers, messengers, and other
be attached to the advertising contract
persons actually employed in the
and submitted to the COMELEC within
campaign;
5 days after its signing [Sec. 4.3, R.A.
c. For telegraph and telephone tolls,
No. 9006, cf. Sec. 6.3, R.A. No. 9006].
postage, freight and express delivery
f. All other forms of election propaganda not
charges;
prohibited by the Omnibus Election Code
Page 279 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
d. For stationery, printing and distribution of
printed matters relative to candidacy;
e. For employment of watchers at the polls;
f. For rent, maintenance and furnishing of
campaign headquarters, office or place of
meetings;
g. For political meetings and rallies and the
use of sound systems, lights and
decorations during said meetings and
rallies;
h. For newspaper, radio, television and other
public advertisements;
i. For employment of counsel
j. For copying and classifying list of voters,
investigating and challenging the right to
vote of persons registered in the lists;
k. For printing sample ballots in such color,
size and maximum number as may be
authorized by the Commission [Sec. 102,
BP Blg 881].
Note: The cost of (i), (j), (k) shall not be taken
into account in the computation of the
candidate’s allowable limit of election
expenses [Sec. 102, B.P. Blg. 881].
The amount contributed by a donor shall be
included in the computation of the candidate’s
allowable limit of election expenses [Ejercito v.
COMELEC, G.R. No. 212398 (2014)].
2. For Candidates [Sec. 13, R.A. No.
7166]
F. Statement of Contributions
and Expenses (SOCE) [Sec. 14,
R.A. No. 7166]
The SOCE shall:
a. Contain the full, true and itemized
statement of all contributions and
expenditures in connection with the
election;
b. Be filed by every candidate and treasurer
of the political party;
c. Be filed with the COMELEC in duplicate
within 30 days after the day of the election.
Section 14 of R.A. No. 7166 states that “every
candidate” has the obligation to file his
statement of contributions and expenditures.
… The term “every candidate” must be deemed
to refer not only to a candidate who pursued his
campaign, but also to one who withdrew his
candidacy [Pilar v. COMELEC, G.R. No.
115245 (1995)].
Effect of Failure to File Statement [Sec. 14,
R.A. No. 7166]
1. The person elected to any public office
cannot enter upon the duties of his office.
Note: The same prohibition applies if the
political party which nominated the
winning candidate fails to file the
statements.
a. President and VP: P10 for every voter
currently registered.
2. Imposition of administrative fines (except
candidates for elective barangay office).
b. Other candidates: P3 for every voter
currently registered in the constituency
where he filed his certificate of candidacy.
i. 1st offense P1,000 to 30,000 in the
discretion of the Commission.
Exception: A candidate without any political
party and without support from any political
party may be allowed to spend P5 for every
such voter.
3. For Political Parties
P5 for every voter currently registered in the
constituency or constituencies where it has
official candidates.
To be paid within 30 days from receipt
of notice of failure to file; Otherwise, it
shall be enforceable by a writ of
execution issued by the Commission
against the properties of the offender.
ii. 2nd or subsequent offense P2,000 to
60,000 in the discretion of the
Commission.
Perpetual disqualification to hold public
office.
Page 280 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
It shall be the duty of every city or municipal
election registrar to advise in writing, by
personal delivery or registered mail, within five
(5) days from the date of election all candidates
residing in his jurisdiction to comply with their
obligation to file their statements of
contributions and expenditures.
IV. REMEDIES AND
JURISDICTION
A. Petition to Deny Due Course
or Cancel a Certificate of
Candidacy
1.
For
any
False
Material
Representation [Sec. 78, OEC]
A verified petition to deny due course or to
cancel a certificate of candidacy.
Grounds: Any material representation
contained in the COC as required under
Section 74 hereof is false.
candidacy if it is shown that said certificate has
been filed:
a. To put the election process in mockery or
disrepute;
b. To cause confusion among the voters by
the similarity of the names of the
registered candidates or by other
circumstances or acts which clearly
demonstrate that the candidate has no
bona fide intention to run for the office for
which the certificate of candidacy has
been filed and thus prevent a faithful
determination of the true will of the
electorate.
B. Petition for Disqualification
An action or protest filed against any candidate
where he/she may be declared by final
decision of a competent court guilty of, or found
by the Commission of being disqualified based
on the grounds below. In effect, he/she shall be
disqualified from continuing as a candidate, or
if he/she has been elected, from holding the
office.
1. Grounds under Par. 1, Sec. 68, OEC
The material misrepresentation contemplated
by Section 78 of the Code refers to
qualifications for elective office.
Aside from the requirement of materiality, a
false representation under Section 78 must
consist of a “deliberate attempt to mislead,
misinform, or hide a fact which would otherwise
render a candidate ineligible.” In other words, it
must be made with an intention to deceive the
electorate as to one’s qualifications for public
office [Villafuerte v. COMELEC, G.R. No.
206698 (2014)].
When to file: Any time not later than 25 days
from the time of the filing of the certificate of
candidacy.
How decided: After due notice and hearing,
not later than fifteen days before the election.
2. For Nuisance Candidates [Sec. 69,
OEC]
A verified petition of an interested party or a
motu proprio decision of the Commission to
deny due course or cancel a certificate of
a. Given
money
or
other
material
consideration to influence, induce or
corrupt the voters or public officials
performing electoral functions;
b. Committed acts of terrorism to enhance
his candidacy;
c. Spent in his election campaign an amount
in excess of that allowed by this Code;
d. Solicited, received or made any
contribution prohibited under Sections 89,
95, 96, 97 and 104; or
e. Violated any of Sections 80, 83, 85, 86,
and 261, paragraphs d, e, k, v, and cc,
subparagraph 6.
2. Grounds under Par. 2, Sec. 68, OEC
Any person who is a permanent resident of or
an immigrant to a foreign country, unless said
person has waived his status as permanent
resident or immigrant of a foreign country in
accordance with the residence requirement
provided for in the election laws.
3. Grounds under Sec. 12, OEC
a. Any person who has been declared by
competent
authority
insane
or
incompetent;
Page 281 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
b. Any person who has been sentenced by
final judgment for:
i. Subversion;
ii. Insurrection;
iii. Rebellion;
iv. Any offense for which he has been
sentenced to a penalty of more than 18
months; or
v. A crime involving moral turpitude.
Exception: If the person has been given
plenary pardon or granted amnesty.
Note: The disqualifications to be a candidate
under this section shall be deemed removed:
1. Upon the declaration by competent
authority
that
said
insanity
or
incompetence had been removed; or
2. After the expiration of a period of 5 years
from his service of sentence, unless within
the same period he again becomes
disqualified.
4. Grounds under Sec. 40, LGC for
Local Elective Positions
a. Sentenced by final 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 office as a result of an
administrative case;
c. Convicted by final judgment for violating
the oath of allegiance to the Republic;
d. With dual citizenship;
e. Fugitives from justice in criminal or
nonpolitical cases here or abroad;
f. Permanent residents in a foreign country
or those who have acquired the right to
reside abroad and continue to avail of the
same right after the effectivity of the LGC;
and
g. Insane or feeble-minded.
A prior court judgment is not required before
the remedy under Sec. 68 of the OEC can
prosper. This is highlighted by the provision
itself, which contemplates two scenarios: first,
there is a final decision by a competent court
that the candidate is guilty of an election
offense and second, it is the Commission itself
that found that the candidate committed any of
the enumerated prohibited acts. Noteworthy is
that in the second scenario, it is not required
that there be a prior final judgment; it is
sufficient that the Commission itself made the
determination. The conjunction “or” separating
“competent court” and “the Commission” could
only mean that the legislative intent was for
both bodies to be clothed with authority to
ascertain whether or not there is evidence that
the respondent candidate ought to be
disqualified [Francisco v. COMELEC, G.R. No.
230249 (2018)].
Note: In Francisco v. COMELEC, supra, the
court rectified its ruling in Poe-Llamanzares v.
COMELEC [G.R. Nos. 221697 & 221698-700
(2016)] where it held that to disqualify a
candidate there must be a declaration by a final
judgment of a competent court and that the
COMELEC has no jurisdiction to determine the
qualification of a candidate.
Petition for
Disqualification
[Sec. 68]
Petition to Deny
Due Course or
Cancel COC [Sec.
69 and 78]
Grounds
i. Sec. 12, OEC
i. False material
representation in the
COC;
ii. Sec. 68, OEC
iii. Sec. 40, LGC
ii. Nuisance
candidate.
Effect
Person is prohibited
to continue as a
candidate or if
he/she has been
elected, he is
prohibited from
holding the office.
Page 282 of 384
UP Law Bar Operations Commission 2023
Person is not treated
as a candidate at all,
as if he/she never
filed a COC.
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
Petition for
Disqualification
[Sec. 68]
Petition to Deny
Due Course or
Cancel COC [Sec.
69 and 78]
Substitution
Allowed (Rule of
succession shall be
observed).
Not allowed
(Candidate with the
second highest
number of votes
shall assume office).
Period for Filing
Any time before
proclamation of the
winning candidate.
i. For false material
representation in the
COC: within 25 days
from filing of COC;
ii. For nuisance
candidates: within 5
days from the last
day of filing COCs.
C. Failure of Election, Call for
Special Election
1. Failure of Election
Declaration of failure of election
It is neither an election case nor a preproclamation controversy [Borja v. COMELEC,
G.R. No. 133495 (1998)].
The COMELEC does not exercise its quasijudicial functions when it declares a failure of
elections pursuant to R.A. No. 7166. Rather,
the COMELEC performs its administrative
function when it exercises such power [Abayon
v. HRET, G.R. No. 222236 & 223032 (2016)].
The grounds for failure of election clearly
involve questions of fact. It is for this reason
that they can only be determined by the
COMELEC en banc after due notice and
hearing to the parties [Loong v. COMELEC,
G.R. No. 133676 (1999)].
Jurisdiction
The postponement, declaration of failure of
election and the calling of special elections
shall be decided by the Commission sitting en
banc by a majority vote of its members. The
causes for the declaration of a failure of
election may occur before or after the casting
of votes or on the day of the election [Sec. 4,
R.A. No. 7166].
Conditions
The following must concur:
a. No voting has taken place in the precincts
concerned on the date fixed by law, or
even if there was voting, the election
nonetheless resulted in a failure to elect;
and
b. The votes not cast would affect the results
of the election.
Procedure
1. Petitioner files verified petition with the
Law Department of the COMELEC.
2. Unless a shorter period is deemed
necessary by circumstances, within 24
hours, the Clerk of Court concerned
serves notices to all interested parties,
indicating therein the date of hearing,
through the fastest means available.
3. Unless a shorter period is deemed
necessary by the circumstances, within 2
days from receipt of the notice of hearing,
any interested party may file an opposition
with the Law Department of the
COMELEC.
4. The COMELEC proceeds to hear the
petition. The COMELEC may delegate the
hearing of the case and the reception of
evidence to any of its officials who are
members of the Philippine Bar.
5. The COMELEC then decides whether to
grant or deny the petition. This lies within
the exclusive prerogative of the
COMELEC.
Postponement of Election [Sec. 5, OEC]
The Commission, motu proprio or upon a
verified petition by any interested party, after
due notice and hearing, whereby all interested
parties are afforded equal opportunity to be
heard postpones the election upon a finding
that:
1. The following grounds are present:
Page 283 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
a. Violence;
b. Terrorism;
c. Loss or destruction of election
paraphernalia or records;
d. Force majeure.
Any serious cause analogous to the foregoing.
2. As a result of the above grounds, the holding
of a free, orderly and honest election should
become impossible in any political subdivision.
Instances when there is Failure of Election
[Sec. 6, OEC]
There is failure of elections when:
1. The following grounds are present:
a. Force majeure;
b. Violence;
c. Terrorism;
d. Fraud;
e. Other analogous causes.
2. The grounds resulted in any of the following:
a. Election has not been held on the date
fixed;
b. Election had been suspended before the
hour fixed by law for the closing of the
voting; or
c. Election had been suspended after the
voting and during the preparation and
the transmission of the election returns
or in the custody or canvass thereof.
3. In any of such cases, the failure or
suspension would affect the result of the
election.
Instances when Special Elections may be
Called [Sec. 7, OEC]
Any interested party may file a verified petition
to call for special elections. In case of
postponement, the Commission may take
action motu proprio. In both cases, there shall
be due notice and hearing. After which, the
Commission shall call for the holding or
continuation of the election not held,
suspended or which resulted in a failure to
elect.
Special Elections may also be called in the
Following Cases [Sec. 7, OEC]
1. In case a vacancy arises in the Batasang
Pambansa 18 months or more before a regular
election:
i. The Commission shall call a special
election to be held within 60 days after the
vacancy occurs to elect the Member to
serve the unexpired term.
2. In case of the dissolution of the Batasang
Pambansa:
i. The President shall call an election which
shall not be held earlier than 45 nor later
than 60 days from the date of such
dissolution.
The date of the special election shall be
reasonably close to the date of the election not
held, suspended or which resulted in a failure
to elect. The date shall not be later than 30
days after the cessation of the cause of such
postponement or suspension of the election or
failure to elect.
2. Annulment of Election Results
Requisites [Abayon v. HRET, supra]
1. The illegality of the ballots must affect
more than 50% of the votes cast on the
specific precinct or precincts sought to be
annulled, or in case of the entire
municipality, more than 50% of its total
precinct and the votes cast therein; and
2. It is impossible to distinguish with
reasonable certainty between the lawful
and unlawful ballots.
Note: It must be concretely and directly
established (1) that the protestee was the one
who had induced or actually perpetuated the
commission of the acts complained of and
demonstrated (2) that those incidents were part
of a scheme to frustrate the free expression of
the will of the electorate [Abayon v. HRET,
supra].
Failure of Election vs. Annulment of
Election Results [Abayon v. HRET, supra]
Failure of Election
Annulment of
Election Results
Who exercises
Exercise of
COMELEC’s
Page 284 of 384
UP Law Bar Operations Commission 2023
Incident of the
judicial function of
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
Failure of Election
administrative
function.
Annulment of
Election Results
electoral tribunals.
Scope
Relates to the entire
election in the
concerned precinct
or political unit.
Only extends to
election results
connected with the
election contest
before the electoral
tribunal.
Objective
To hold or continue
the elections, which
were not held or
were suspended, or
if there was one,
resulted in a failure
to elect.
To determine who
among the
candidates garnered
a majority of the
legal votes cast.
D. Pre-Proclamation
Controversy
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, or any matter raised under the
following sections in relation to the preparation,
transmission, receipt, custody and appreciation
of the election returns [Sec. 241, B.P. Blg. 881]:
1. Sec. 233 (delayed, lost, or destroyed
election returns);
2. Sec. 234 (material defects in the election
results);
3. Sec. 235 (tampered with or falsified
election returns); and
4. Sec. 236 (discrepancies in election
returns).
Issues that May be Raised in a PreProclamation Controversy
The following shall be proper issues that may
be raised in a pre-proclamation controversy:
1. Illegal composition or proceedings of the
board of canvassers;
2. The canvassed election returns are
incomplete, contain material defects,
appear to be tampered with or falsified, 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;
3. The election returns were prepared under
duress, threats, coercion, or intimidation,
or they are obviously manufactured or not
authentic; and
4. 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 [Sec. 243, B.P.
Blg. 881].
In Rule 3, Sec. 1 of COMELEC Resolution No.
8804 (2010) there are only two issues covered
in a pre-proclamation controversy:
1. Illegal composition of the BOC; and
2. Illegal proceedings of the BOC.
Jurisdiction [Sec. 2, Rule 3, COMELEC
Resolution No. 8804]
COMELEC has exclusive jurisdiction in preproclamation controversies arising from
national, regional or local elections.
A pre-proclamation controversy may be raised
by any candidate or by any registered political
party, organization, or coalition of political
parties before the BOC, or directly with the
Commission.
Issues
affecting
the
composition
or
proceedings of the Boards may be initiated by
filing a verified petition before the Board or
directly with the Commission.
If the petition is filed directly with the Board, its
decision may be appealed to the Commission
within three (3) days from issuance thereof.
However, if commenced directly with the
Commission, the verified petition shall be filed
immediately when the board begins to act
illegally, or at the time of the appointment of the
member of the board whose capacity to sit as
such is objected to.
Page 285 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
POLITICAL LAW
Nature of Proceedings
Heard summarily by the COMELEC after due
notice and hearing. This is because canvass
and proclamation should be delayed as little as
possible.
When Not Allowed [Sec. 15, R.A. No. 7166 as
revised by R.A. No. 9369]
For the positions of President, Vice-President,
Senator, and Member of the House of
Representatives.
Exceptions
However, this does not preclude the authority
of the appropriate canvassing body motu
propio or upon written complaint of an
interested person to correct manifest errors in
the certificate of canvass or election returns
before it [Sec. 15, R.A. No. 7166 as revised by
R.A. No. 9369].
Questions affecting the composition or
proceedings of the board of canvassers may
be initiated in the board or directly with the
Commission in accordance with Section 19
hereof [Sec. 15, R.A. No. 7166 as revised by
R.A. No. 9369].
The
procedure
on
pre-proclamation
controversies shall be adopted when it appears
that any certificate of canvass or supporting
statement of votes by city/municipality or by
precinct bears erasures or alterations which
may cast doubt as to the veracity of the number
of votes stated herein and may affect the result
of the election [Sec. 30, R.A. No. 7166 as
revised by R.A. No. 9369].
1. Upon request of the presidential, vice
presidential or senatorial candidate
concerned or his party;
2. Congress or the Commission en banc, as
the case may be, shall, for the sole
purpose of verifying the actual number of
votes cast for President and VicePresident or senator, count the votes as
they appear in the copies of the election
returns submitted to it.
It is clear from Section 15 of R.A. No. 7166 that
“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 certificate
of canvass or election returns.” To be manifest,
the errors must appear on the face of the
certificates of canvass or election returns
sought to be corrected and/or objections
thereto must have been made before the board
of canvassers and specifically noted in the
minutes of their respective proceedings
[Chavez v. COMELEC, G.R. No. 105323
(1992), but note that the correction of manifest
errors is no longer part of the grounds for preproclamation controversy as per COMELEC
Reso 8804 (2010)].
A pre-proclamation case under Sec. 30 is
allowed only as an exception to the prohibition
under Section 15 of R.A. No. 7166, as
amended by R.A. No. 9369. xxx And, in this
case, the exception applies only to Congress
or the COMELEC en banc acting as the NBC,
and not to local boards of canvassers who must
still be deemed covered by the prohibition on
pre-proclamation controversies [Pimentel III v.
COMELEC, G.R. No. 178413 (2008)].
Issues that Cannot be Raised
1. Appreciation of ballots, as this is
performed by the BEI at the precinct level
and is not part of the proceedings of the
BOC [Sanchez v. COMELEC, G.R. No.
78461 (1987)];
2. Technical examination of the signatures
and thumb marks of voters [Matalam v.
COMELEC, G.R. No. 123230 (1997)];
3. Prayer for re-opening of ballot boxes
[Alfonso v. COMELEC, G.R. No. 107847
(1994)];
4. Padding of the Registry List of Voters of a
municipality, massive fraud and terrorism
[Ututalum v. COMELEC, G.R. No. 8484344 (1990), citing Espaldon v. COMELEC,
G.R. No. L-78987 (1987)];
5. Challenges directed against the Board of
Election
Inspectors
[Ututalum
v.
COMELEC, supra];
6. Fraud, terrorism and other illegal electoral
practices. These are properly within the
office of election contests over which
electoral tribunals have sole, exclusive
jurisdiction [Loong v. COMELEC, G.R. No.
133676 (1996)].
Page 286 of 384
UP Law Bar Operations Commission 2023
FOR UP CANDIDATES ONLY
ELECTION LAW
1. Illegal Composition of the Board of
Canvassers
There is illegal composition of the BOC when,
among other similar circumstances, any of the
members do not possess legal qualifications
and appointments. The information technology
capable person required to assist the BOC by
R.A. No. 9369 shall be included as among
those whose lack of qualifications may be
questioned [Sec. 1, Rule 4, COMELEC
Resolution No. 8804].
2. Illegal Proceedings of the Board of
Canvassers
There are illegal proceedings of the BOC when
the canvassing is a sham or mere ceremony,
the results of which are pre-determined and
manipulated as when any of the following
circumstances are present:
a. Precipitate canvassing;
b. Terrorism;
c. Lack of sufficient notice to the members of
the BOCs;
d. Improper venue [Sec. 2, Rule 4,
COMELEC Resolution No. 8804].
3. When and Where to File PreProclamation Controversy
Ground: Composition or Proceedings of the
Board of Canvassers.
Where to File: In the BOC or directly with the
Commission, with a verified petition, clearly
stating the specific ground/s for the illegality of
the composition and/or proceedings of the
board [Sec. 3, Rule 4, COMELEC Resolution
No. 8804].
POLITICAL LAW
Procedure for Contested Composition or
Proceedings of the Board [Rule 4, Sec. 5,
COMELEC Resolution No. 8804]
a. In case the petition is filed before the
BOC:
1. Upon receipt of the verified petition, the
BOC shall immediately announce the fact
of the filing of said petition and the
ground/s raised therein.
2. The BOC shall immediately deliberate on
the petition, and within a period of twentyfour (24) hours, make a prompt resolution
thereon, which resolution shall be reduced
into writing.
3. Should the BOC decide in favor of the
petition, it shall immediately inform the
Commission of its resolution. Thereafter,
the Commission shall make the
appropriate action thereon.
4. In no case shall the receipt by the BOC of
the electronically transmitted precinct,
municipal, city, or provincial results, be
suspended by the filing of said petition.
5. The petitioner may appeal an adverse
resolution by the BOC to the COMELEC,
by notifying the BOC of his or her intent to
appeal, through a verbal, and a written and
verified Notice of Appeal. The notice on
the BOC shall not suspend the formal
proclamation of the official results of the
election, until the final resolution of the
appeal.
6. Within forty-eight (48) hours from such
notice to the BOC, the petitioner shall
submit before the Board a Memorandum
on Appeal stating the reasons why the
resolution being questioned is erroneous
and should be reversed.
7. Upon receipt by the BOC of the petitioner’s
memorandum on appeal, the Board shall
forward the entire records of the petition at
the expense of the petitioner.
8. Upon receipt of the records herein referred
to, the petition shall be docketed by the
Clerk of Commission and submitted to the
COMELEC en banc for consideration and
decision.
9. Within five (5) days therefrom the
COMELEC en banc shall render its
decision on the appeal.
When to File: The petition questioning the
illegality,
or
the
composition
and/or
proceedings of the BOC shall be filed
immediately when the BOC begins to act as
such, or at the time of the appointment of the
member whose capacity to sit as such is
objected to, if it comes after the canvassing of
the Board, or immediately when the
proceedings become illegal [Sec. 4, Rule 4,
COMELEC Resolution No. 8804].
No law provides for a reglementary period
within which to file a petition for the annulment
of an election if there is as yet no proclamation
[