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TABLE OF CONTENTS
POLITICAL LAW – PART ONE
1987 PHILIPPINE CONSTITUTION ------------------------------------------------------------------------------------------------- 9
A.
1.
2.
DEFINITION, NATURE, AND CONCEPTS OF THE CONSTITUTION ----------------------------------------- 9
DECLARATION OF PRINCIPLES ------------------------------------------------------------------------------------- 9
STATE POLICIES -------------------------------------------------------------------------------------------------------- 10
B.
AMENDMENT AND REVISION ------------------------------------------------------------------------------------------ 12
C.
THE NATIONAL TERRITORY -------------------------------------------------------------------------------------------- 15
D.
SEPARATION OF POWERS, AND CHECKS AND BALANCES ------------------------------------------------ 18
E.
STATE IMMUNITY ---------------------------------------------------------------------------------------------------------- 18
F.
DELEGATION OF POWERS --------------------------------------------------------------------------------------------- 20
G.
FUNDAMENTAL POWERS OF THE STATE ------------------------------------------------------------------------- 22
LEGISLATIVE DEPARTMENT ------------------------------------------------------------------------------------------------------ 27
A.
1.
2.
3.
CONGRESS: SENATE AND HOUSE OF REPRESENTATIVES ----------------------------------------------- 27
COMPOSITIONS AND QUALIFICATIONS ------------------------------------------------------------------------ 27
PRIVILEGES AND INHIBITIONS ------------------------------------------------------------------------------------- 38
QUORUM AND VOTING MAJORITIES, AND DISCIPLINE OF MEMBERS ------------------------------ 40
B.
LAW-MAKING PROCESS ------------------------------------------------------------------------------------------------- 42
C.
APPROPRIATION ----------------------------------------------------------------------------------------------------------- 45
D.
LEGISLATIVE INQUIRIES AND OVERSIGHT FUNCTIONS ---------------------------------------------------- 45
E.
DECLARATION OF EXISTENCE OF STATE OF WAR ----------------------------------------------------------- 49
F.
POWER TO REVOKE/EXTEND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF
HABEAS CORPUS AND DECLARATION OF MARTIAL LAW ----------------------------------------------------------- 49
G.
POWER OF IMPEACHMENT -------------------------------------------------------------------------------------------- 49
H.
ELECTORAL TRIBUNALS ------------------------------------------------------------------------------------------------ 50
I.
COMMISSION ON APPOINTMENTS ------------------------------------------------------------------------------------- 52
EXECUTIVE DEPARTMENT --------------------------------------------------------------------------------------------------------- 55
A.
1.
2.
PRESIDENT AND VICE PRESIDENT---------------------------------------------------------------------------------- 55
TERM, QUALIFICATIONS, AND ELECTION ---------------------------------------------------------------------- 55
PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS ---------------------------------------------------- 56
B.
EXECUTIVE AND ADMINISTRATIVE POWERS ------------------------------------------------------------------- 57
C.
1.
2.
3.
4.
POWER OF APPOINTMENT --------------------------------------------------------------------------------------------- 58
REGULAR AND AD INTERIM ----------------------------------------------------------------------------------------- 59
WITH OR WITHOUT COA CONFIRMATION---------------------------------------------------------------------- 59
MIDNIGHT APPOINTMENTS ----------------------------------------------------------------------------------------- 60
REMOVAL FROM OFFICE--------------------------------------------------------------------------------------------- 61
D.
1.
POWER OF CONTROL AND SUPERVISION ----------------------------------------------------------------------- 61
EXECUTIVE DEPARTMENTS AND OFFICES; DOCTRINE OF QUALIFIED POLITICAL AGENCY
62
LOCAL GOVERNMENT UNITS --------------------------------------------------------------------------------------- 62
2.
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E.
MILITARY POWERS -------------------------------------------------------------------------------------------------------- 62
F.
PARDONING POWER AND EXECUTIVE CLEMENCY ----------------------------------------------------------- 66
G.
DIPLOMATIC POWER ----------------------------------------------------------------------------------------------------- 67
H.
POWER RELATIVE TO APPROPRIATION MEASURES --------------------------------------------------------- 69
I.
VETO POWER ------------------------------------------------------------------------------------------------------------------ 69
J.
RESIDUAL POWER------------------------------------------------------------------------------------------------------------ 70
K.
REMOVAL FROM OFFICE ----------------------------------------------------------------------------------------------- 70
L.
RULES OF SUCCESSION ------------------------------------------------------------------------------------------------ 71
JUDICIAL DEPARTMENT ------------------------------------------------------------------------------------------------------------ 74
A.
DEFINITION OF JUDICIAL POWER ----------------------------------------------------------------------------------- 74
B.
1.
2.
3.
JUDICIAL REVIEW ---------------------------------------------------------------------------------------------------------- 75
REQUISITES--------------------------------------------------------------------------------------------------------------- 75
EXCEPTIONS ------------------------------------------------------------------------------------------------------------- 78
OPERATIVE FACT DOCTRINE -------------------------------------------------------------------------------------- 79
C.
FISCAL AUTONOMY ------------------------------------------------------------------------------------------------------- 79
D.
1.
2.
APPOINTMENTS TO THE JUDICIARY-------------------------------------------------------------------------------- 81
QUALIFICATIONS -------------------------------------------------------------------------------------------------------- 81
JUDICIAL AND BAR COUNCIL --------------------------------------------------------------------------------------- 82
E.
SUPREME COURT OF THE PHILIPPINES -------------------------------------------------------------------------- 83
COMPOSITION ----------------------------------------------------------------------------------------------------------- 83
PROCEDURAL RULE-MAKING POWER -------------------------------------------------------------------------- 86
DISCIPLINARY POWERS ---------------------------------------------------------------------------------------------- 87
ADMINISTRATIVE SUPERVISION ---------------------------------------------------------------------------------- 88
JURISDICTION ------------------------------------------------------------------------------------------------------------ 88
1.
2.
3.
4.
5.
CONSTITUTIONAL COMMISSIONS ----------------------------------------------------------------------------------------------- 91
A.
POWERS, FUNCTIONS, AND JURISDICTION --------------------------------------------------------------------- 91
B.
COMPOSITION AND QUALIFICATIONS OF MEMBERS ------------------------------------------------------ 100
C.
PROHIBITED OFFICES AND INTERESTS ------------------------------------------------------------------------- 101
D.
1.
2.
REVIEW OF FINAL ORDERS, RESOLUTIONS AND DECISIONS ------------------------------------------ 101
RENDERED IN THE EXERCISE OF QUASI-JUDICIAL FUNCTIONS ----------------------------------- 101
RENDERED IN THE EXERCISE OF ADMINISTRATIVE FUNCTIONS ---------------------------------- 102
BILL OF RIGHTS ---------------------------------------------------------------------------------------------------------------------- 104
A.
1.
2.
DUE PROCESS OF LAW------------------------------------------------------------------------------------------------ 105
VOID-FOR-VAGUENESS -------------------------------------------------------------------------------------------- 107
JUDICIAL AND ADMINISTRATIVE DUE PROCESS --------------------------------------------------------- 108
1.
2.
EQUAL PROTECTION --------------------------------------------------------------------------------------------------- 112
REQUISITES FOR VALID CLASSIFICATION ------------------------------------------------------------------ 113
STANDARDS OF JUDICIAL REVIEW ---------------------------------------------------------------------------- 115
B.
C.
ARRESTS, SEARCHES AND SEIZURES -------------------------------------------------------------------------- 116
D.
PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE --------------------------------------------- 134
E.
FREEDOM OF SPEECH AND EXPRESSION --------------------------------------------------------------------- 137
PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT -------------------------------------------------- 137
CONTENT-BASED AND CONTENT NEUTRAL REGULATIONS ----------------------------------------- 139
FACIAL CHALLENGES AND OVERBREADTH DOCTRINE ------------------------------------------------ 140
1.
2.
3.
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4.
5.
TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION --------------------- 141
DOCTRINE OF PRIVILEGED COMMUNICATION ------------------------------------------------------------ 151
1.
2.
3.
FREEDOM OF RELIGION----------------------------------------------------------------------------------------------- 151
NON-ESTABLISHMENT CLAUSE AND FREE EXERCISE CLAUSES ---------------------------------- 152
TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION --------------------- 155
SEPARATION OF CHURCH AND STATE ----------------------------------------------------------------------- 156
F.
G.
LIBERTY OF ABODE AND FREEDOM OF MOVEMENT ------------------------------------------------------- 160
H.
RIGHT TO INFORMATION---------------------------------------------------------------------------------------------- 161
I.
RIGHT TO ASSOCIATION ------------------------------------------------------------------------------------------------- 165
J.
NON-IMPAIRMENT OF CONTRACTS ---------------------------------------------------------------------------------- 166
K.
ADEQUATE LEGAL ASSISTANCE AND FREE ACCESS TO COURTS ---------------------------------- 167
L.
1.
2.
RIGHTS UNDER CUSTODIAL INVESTIGATION ----------------------------------------------------------------- 168
REQUISITES OF A VALID WAIVER------------------------------------------------------------------------------- 171
EXCLUSIONARY DOCTRINE --------------------------------------------------------------------------------------- 172
M.
RIGHTS OF THE ACCUSED ------------------------------------------------------------------------------------------- 173
N.
RIGHT AGAINST INVOLUNTARY SERVITUDE ------------------------------------------------------------------ 184
O.
RIGHT AGAINST EXCESSIVE FINES, AND CRUEL AND INHUMAN PUNISHMENTS -------------- 184
P.
NON-IMPRISONMENT FOR DEBTS --------------------------------------------------------------------------------- 186
CITIZENSHIP --------------------------------------------------------------------------------------------------------------------------- 188
A.
WHO ARE FILIPINOS ---------------------------------------------------------------------------------------------------- 188
B.
ACQUISITION AND LOSS OF CITIZENSHIP ---------------------------------------------------------------------- 190
C.
RETENTION AND REACQUISITION OF CITIZENSHIP -------------------------------------------------------- 190
D.
NATURALIZATION -------------------------------------------------------------------------------------------------------- 191
LAW ON PUBLIC OFFICERS------------------------------------------------------------------------------------------------------ 196
A.
PUBLIC OFFICERS; DE FACTO AND DE JURE ----------------------------------------------------------------- 196
B.
1.
2.
C.
CIVIL SERVICE; SCOPE, APPOINTMENTS, PERSONNEL ACTIONS, AND REMOVAL ------------- 200
PREVENTIVE SUSPENSION AND DISMISSAL FROM SERVICE --------------------------------------- 202
ILLEGAL DISMISSAL, REINSTATEMENT AND BACK SALARIES --------------------------------------- 204
ACCOUNTABILITY OF PUBLIC OFFICERS; OMBUDSMAN ------------------------------------------------- 206
ADMINISTRATIVE LAW------------------------------------------------------------------------------------------------------------- 214
A.
GENERAL PRINCIPLES ------------------------------------------------------------------------------------------------- 214
B.
ADMINISTRATIVE AGENCIES, DEFINITION, TYPES, AND MANNER OF CREATION --------------- 215
C.
POWERS OF ADMINISTRATIVE AGENCIES --------------------------------------------------------------------- 217
D.
PRIMARY ADMINISTRATIVE JURISDICTION -------------------------------------------------------------------- 235
E.
EXHAUSTION OF ADMINISTRATIVE REMEDIES --------------------------------------------------------------- 237
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1987 PHILIPPINE CONSTITUTION
TOPIC OUTLINE UNDER THE SYLLABUS:
A. DEFINITION, NATURE, AND CONCEPTS
OF THE CONSTITUTION
1. Declaration of Principles
a. Democracy and Republicanism
b. Renunciation of War
c. Supremacy of Civilian Authority over
Military
2. State Policies
a. Independent Foreign Policy
b. Social Justice
c. Sanctity of Family and Vital Role of
Youth in Nation-Building
B. AMENDMENT AND REVISION
C. NATIONAL TERRITORY
D. SEPARATION OF POWERS, AND CHECKS
AND BALANCES
E. STATE IMMUNITY
F. DELEGATION OF POWERS
G. FUNDAMENTAL POWERS OF THE STATE
– POLICE POWER, EMINENT DOMAIN
AND TAXATION
1. Concept, Application, and Limitations
A. DEFINITION, NATURE, AND
CONCEPTS OF THE
CONSTITUTION
1. DECLARATION OF
PRINCIPLES
a. Democracy
Republicanism
and
The Philippines is a democratic and republican
State. Sovereignty resides in the people and all
government authority emanates from them. (PHIL.
CONST., art. II, § 1)
Democracy
The Philippines is called a democratic state in the
new Constitution as it is not only a representative or
republican state but also shares some aspects of
direct democracy such as “initiative and
referendum” (PHIL. CONST., art. VI, §32 and art. XVII,
§2). This is also a monument to the February
Revolution which re-won freedom through direct
action of the people.
Republicanism
A republican state is where all government authority
emanates from the people and is exercised by
representatives chosen by the people.
Constitutional Authoritarianism (Under the
Marcos regime / 1973 Constitution)
Assumption of extraordinary powers by the
President, including legislative and judicial and even
constituent powers.
Compatible with a republican state if the
Constitution upon which the Executive bases his
assumption of power is a legitimate expression of
the people’s will and if the Executive assumes
power through valid election.
b. Renunciation of War
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. (PHIL. CONST., art. VI, § 2)
The Philippines renounces aggressive war as an
instrument of national policy but allows for a
defensive war.
Doctrine of Transformation
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International law can become part of municipal law
only if it is transformed into domestic law through
appropriate constitutional machinery (such as an act
of Congress)
Doctrine of Incorporation
Generally accepted principles of international law,
by virtue of the incorporation clause in Article 2, Sec.
2, form part of the law of the land even without treaty
obligations. (Mijares v. Ranada, G.R. No. 139325,
Apr. 12, 2005)
Examples:
(1) The right of an alien to be released on bail while
awaiting deportation when his failure to leave
the country is due to the fact that no country will
accept him. (Mejoff v. Director of Prisons, G.R.
No. L-4254, Sept. 26, 1951)
(2) The right of a country to establish military
commissions to try war criminals. (Kuroda v.
Jalandoni, G.R. No. L-2662, Mar. 26, 1949)
(3) The Vienna Convention on Road Signs and
Signals. (Agustin v. Edu, G.R. No. L-49112,
Feb. 2, 1979)
(4) Duty to protect the premises of embassies and
legations. (Reyes v. Bagatsing, G.R. No. L65366, Nov. 9, 1983)
(5) Pacta
sunt
servanda
–
international
agreements must be performed in good faith.
(Tañada v. Angara, G.R. No. 118295, May 2,
1997)
c. Supremacy of Civilian
Authority over Military
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. (PHIL. CONST., art. VI, § 3)
State policies are the guidelines for the orientation
of the state. (Bernas, The 1987 Constitution of the
Republic of the Philippines: A Commentary, 37,
2009,
citing
IV
RECORD
OF
THE
CONSTITUTIONAL COMMISSION 768 and 580).
a. Independent
Policy
Foreign
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 (PH L CONST., art.
II, § 7).
The President is the sole organ of our foreign
relations and the constitutionally assigned chief
architect of our foreign policy. He/she is vested with
the exclusive power to conduct and manage the
country’s interface with other states and
governments. Hence, he/she cannot be compelled
by mandamus to defend the West Philippine Sea
against Chinese incursions, since this lies solely
within the discretion of the President (Esmero v.
Duterte, G.R. No. 256288, Jul. 29, 2021).
However, there are constitutional provisions that
restrict or limit the President's prerogative in
concluding international agreements, such as those
that involve the following (Saguisag v. Ochoa, G.R.
No. 212426, January 12, 2016):
(1) The policy of freedom from nuclear weapons
within Philippine territory.
(2) The fixing of tariff rates, import and export
quotas, tonnage and wharfage dues, and other
duties or imposts, which must be pursuant to
the authority granted by Congress.
The
principle
of
civilian
supremacy
is
institutionalized by the provision which makes the
President, a civilian and precisely as civilian,
commander-in-chief of the armed forces. But this
does not mean that civilian officials are superior to
military officials. Civilian officials are superior to
military officials only when a law makes them so.
(3) The grant of any tax exemption, which must be
pursuant to a law concurred in by a majority of
all the Members of Congress.
Armed Forces exist in order to secure the
sovereignty of State and to preserve the integrity of
the National Territory; they may be called upon to
protect the people when ordinary law and order
forces need assistance.
(5) The authorization of the presence of foreign
military bases, troops, or facilities in the country
must be in the form of a treaty duly concurred in
by the Senate.
2. STATE POLICIES
(4) The contracting or guaranteeing, on behalf of
the Philippines, of foreign loans that must be
previously concurred in by the Monetary Board.
(6) For agreements that do not fall under paragraph
5, the concurrence of the Senate is required,
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should the form of the government chosen be a
treaty
3.
b. Social Justice
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 life for all
(PHIL CONST., art. II, § 9). The State shall promote
social justice in all phases of national development.
(PHIL CONST., art. II, § 10)
Social Justice has been defined as the
humanization of laws and the equalization of social
and economic forces by the State so that justice in
its rational and objectively secular conception may
at least be approximated (Calalang v. Williams, G.R.
No. 47800, Dec. 2, 1940).
It is the embodiment of the principle that those who
have less in life should have more in law.
To achieve social justice, the Constitution provides
two principal tracks: first, there must be regulation
of the acquisition, ownership, use, and
disposition of property and its increment (PHIL
CONST., art. XIII, § 1[2]), and second, Congress
should create economic opportunities based on
freedom of initiative and self-reliance (PHIL
CONST., art. XIII, § 2).
These provisions have to be implemented by
Congress.
Nature of Policy
The policy of social justice is not intended to
countenance wrongdoing simply because it is
committed by the underprivileged. At best it may
mitigate the penalty, but it certainly will not condone
the offense. Compassion for the poor is an
imperative of every humane society but only when
the recipient is not a rascal claiming an undeserved
privilege. Social justice cannot be permitted to be
refuge of scoundrels any more than can equity be
an impediment to the punishment of the guilty.
(International School Manila v. International School
Alliance of Educators, G.R. No. 167286, Feb. 5,
2014)
Principal Activities
1. Creation of more economic opportunities
and more wealth
2. Closer regulation of the acquisition,
ownership, use and disposition of property
in order to achieve a more equitable
distribution of wealth and political power.
Creation of economic opportunities based
on freedom of initiative and self-reliance.
Economic, Social, and Cultural Rights
Economic, social, and cultural rights include the
rights to adequate food, adequate housing, to
education, to health, to social security, to take part
in cultural life, to water and sanitation, and to work.
(United Nations Human Rights, Office of the High
Commissioner)
Labor
Section 3 of Article XIII elaborates on the provision
in Article II by specifying who are protected by the
Constitution, what rights are guaranteed, and what
positive measures the state should take in order to
enhance the welfare of labor.
Agrarian Reform
The mandate for agrarian reform, as stated in the
first sentence of Section 4, Article XIII, is based on
“the right of farmers and regular farm workers, who
are landless, to own directly or collectively the lands
they till or, in the case of other farm workers, to
receive a just share of the fruits thereof.”
Extends not only to private agricultural lands, but
also to “other natural resources,” even including the
use and enjoyment of “communal marine and fishing
resources” and “offshore fishing grounds.”
Agricultural land held by the church in trust may be
subject to land reform. The land reform law does
not make a distinction between the various forms of
ownership, whether in trust or absolute title.
Urban or rural poor dwellers cannot be evicted,
except according to law.
Who can be evicted:
1. Persons occupying Dangerous areas
2. When government Infrastructure projects
with allocated funding are going to be
implemented
3. When there is Court order for eviction and
demolition
Urban Land Reform and Housing
The State shall, by law, and for the common good,
undertake, in cooperation with the public 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 resettlements areas. It shall also
promote adequate employment opportunities to
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such citizens. In the implementation of such
program the State shall respect the rights of small
property owners. (PHIL CONST., art. XIII, §9)
The principal object of this constitutional mandate is
“social housing program”. The objects of concern
are not just the underprivileged in general but the
“underprivileged and homeless.”
Urban or rural poor dwellers shall not be evicted, nor
their dwellings demolished, except in accordance
with law and in a just and humane manner. No
resettlement of urban or rural dwellers shall be
undertaken without adequate consultation with them
and the communities where they are to be relocated.
(PHIL CONST., art. XIII, §10)
Health
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.
(PHIL CONST., art. XIII, §11)
Women
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 (PHIL CONST., art. XIII, §14).
People’s Organization
Section 15 embodies one of those elements of direct
democracy – a recognition of the direct role which
people have played and will play in setting the
directions the nation will take. It defines people’s
organizations as – bona fide associations of citizens
with demonstrated capacity to promote the public
interest
and
with
identifiable
leadership,
membership, and structure. “People” here refers not
just to the electorate but to all the people.
c. Sanctity of Family and
Vital Role of Youth in
Nation-Building
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. 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 (PHIL
CONST., art. II, § 12).
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 (PHIL CONST., art. II, § 13).
Natural and Primary Right and Duty of Parents
The duty to prepare the child for nation-building
must be read to include the inculcation of moral
standards, religious beliefs, and elements of good
citizenship which is essential to the growth of young
people into mature, socially responsible citizens.
Hence, our Constitution recognizes the natural and
primary right and duty of parents in child rearing,
which connotes the parents' superior right over the
State in the upbringing of their children.
However, as parens patriae, the State assumes a
supporting role for parents who, in turn, are entitled
to policies which aid them in discharging their
parental obligations. Hence, when the well-being of
the child or public welfare is concerned, this natural
and primary right and duty may yield to a valid
exercise of the State’s police power (SPARK v.
Quezon City, G.R. No. 225442, Aug. 08, 2017).
Protection of the Life of the Unborn
It is not an assertion that the unborn is a legal
person. It is not an assertion that the life of the
unborn is placed exactly on the same level of the life
of the mother. Hence, when it is necessary to save
the life of the mother, the life of the unborn may be
sacrificed.
However, the Roe v. Wade doctrine allowing
abortion up to the 6th month of pregnancy cannot be
adopted in the Philippines because human lives are
sacred from the moment of conception. Destroying
those lives is never licit, no matter what the
purported good outcome would be. (Imbong v.
Ochoa, G.R. No. 204819, Apr. 8, 2014)
B. AMENDMENT AND REVISION
Amendment
• An alteration of one or a few specific separable
provisions of the Constitution. The changes
brought about by amendments will not affect the
other provisions of the Constitution (Bernas,
1987 Philippine Constitution: A Commentary,
1345, 2009).
• An addition or change within the lines of the
original constitution as will effect an
improvement, or better carry out the purpose for
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which it was framed; a change that adds,
reduces or deletes without altering the basic
principles involved; affects only the specific
provision being amended. (Lambino v.
COMELEC, G.R. No. 174153, Oct. 25, 2006)
Examples:
• A change reducing the voting age from 18 years
to 15 years;
• A change reducing Filipino ownership of mass
media companies from 100% to 60%; a change
requiring a college degree as an additional
qualification for election to the Presidency
(Lambino v. COMELEC, G.R. No. 174153, Oct.
25, 2006).
Revision
• A re-examination of the entire Constitution or
of
provisions
which
have
over-all
implications for the entire Constitution to
determine how and to what extent it should
be altered. A revision implies substantive
change, affecting the Constitution as a
whole (Bernas, 1987 Philippine Constitution: A
Commentary, 1345, 2009).
• A change that alters a basic principle in the
constitution, like altering the principle of
separation of powers or the system of checksand-balances; alters the substantial entirety of
the constitution, as when the change affects
substantial provisions of the constitution.
Examples:
• Altering the principle of separation of powers or
the system of checks-and-balances;
• A switch from the presidential system to a
parliamentary system;
• A switch from a bicameral system to a
unicameral system (Lambino v. COMELEC,
G.R. No. 174153, Oct. 25, 2006).
Two-part test in determining whether a proposal
involves an amendment or revision:
(1) Quantitative test — The court examines only
the number of provisions affected and does not
consider the degree of the change. Whether the
proposed change is so extensive in its provision
as to change directly the “substance entirety” of
the Constitution by the deletion or alteration of
numerous provisions.
(2) Qualitative test — Inquires into the qualitative
effects of the proposed change in the
Constitution. The main inquiry is whether the
change will “accomplish such far-reaching
changes in the nature of our basic
governmental plan as to amount to a revision”
(Lambino v. COMELEC, G.R. No. 174153, Oct.
25, 2006).
Necessary Steps to Give Effect to Amendments
or Revisions
(1) Proposal of amendments or revisions by the
proper constituent assembly
(2) Submission of the proposed amendments or
revisions to the people
(3) Ratification
Ways of Proposing Amendments
1. Constituent Assembly (ConAss)
• Acting as a Constituent Assembly, the
Congress
by
itself
may
propose
amendments by 3/4 vote of all its
members.
NOTES:
• The power of Congress to propose
amendments is NOT part of its ordinary
legislative power. Congress possesses
constituent power only because it has been
specifically given that power by and under the
conditions of Article XVII (Bernas, The 1987
Philippine Constitution: A Comprehensive
Reviewer, 544, 2011, citing Gonzales v.
COMELEC, G.R. No. L-28196, Nov. 9, 1967).
• Each House may separately formulate
amendments by a vote of 3/4 of all its members,
and then pass it on to the other house for similar
process. Nothing is said about joint sessions
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 544, 2011).
• Even in a joint session, they must still vote
separately because Congress is bicameral.
2. Constitutional Convention (ConCon)
•
•
Congress may call a ConCon by a 2/3
vote of all its members, or
By a majority vote of all its members,
Congress may submit to the electorate
the question of calling a ConCon.
NOTES:
• The choice of either a ConAss or ConCon for
the purpose of initiating amendments or
revisions is left to the discretion of Congress. In
other words, it is a political question.
• The manner of calling a ConCon is subject to
judicial review, because the Constitution has
provided for voting requirements.
• If Congress, acting as a ConAss, calls for a
ConCon but does not provide the details for the
calling of such ConCon, Congress — exercising
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its ordinary legislative power — may supply
such details. But in so doing, Congress (as
legislature) should not transgress the resolution
of Congress acting as a constituent assembly
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 544-545, 2011).
Congress, as a ConAss and the ConCon, has
no power to appropriate money for their
expenses. Money may be spent from the
treasury only pursuant to an appropriation
made by law. However, the constitutional
convention is free to dispose the funds
appropriated by Congress for the Convention’s
operation (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 545,
2011).
3. People’s Initiative
For a valid People’s Initiative, there must be:
a) Petition to propose such amendments must be
signed by at least 12% of all registered voters.
b) Every legislative district must be represented by
at least 3% of the registered voters therein.
• While the substance of the proposals made
by each type of ConAss is not subject to
judicial review, the manner the proposals
were made is subject to judicial review.
• Since a ConAss owes their existence to the
Constitution, the courts may determine
whether the assembly has acted in
accordance with the Constitution, for
example:
o Whether a proposal was approved by
the required number of votes in
Congress (acting as a constituent
assembly).
o Whether the approved proposals were
properly submitted to the people for
ratification.
NOTES:
• The electorate can propose through initiative
ONLY amendments, since it would be
practically impossible to have an over-all review
of the Constitution through action by the entire
electoral population.
• No amendment through a People’s Initiative
shall be authorized within 5 years following the
ratification of the 1987 Constitution (February 2,
1987) nor more often than once every 5 years.
Congress shall provide for the implementation
of the exercise of this right. (Art. XVII, Sec.2)
• Revision of the Constitution cannot be effected
through initiative and referendum. Formulation
of provisions revising the Constitution requires
both cooperation and debate which can only be
done through a collegial body. (BERNAS)
Ways of Proposing Revisions
1.
2.
By Congress, upon a vote of 3/4 of its members
By a Constitutional Convention
Doctrine of Proper Submission
A plebiscite may be held on the same day as a
regular election (Gonzales v. COMELEC, G.R. No.
L-28196, Nov. 9, 1967). The entire Constitution
must be submitted for ratification at one plebiscite
only. The people must have a proper “frame of
reference”. (Tolentino v. COMELEC, G.R. No. L34150, Oct. 16, 1971). No “piecemeal submission,”
e.g. submission of age amendment ahead of other
proposed amendments. (Lambino v. COMELEC,
G.R. No.174153, Oct. 25, 2006)
N.B. The process of revision is the same in all
respects except that it cannot be proposed via a
People’s Initiative. (Id.)
Judicial Review of Amendments
The validity of the process of amendment is not a
political question because the Court must review if
constitutional processes were followed. (Id.)
Ratification of Proposal if made through ConAss
or ConCon
• Amendments and revisions are valid when
ratified by a majority of votes cast in a plebiscite.
• Plebiscite is held not earlier than 60 days nor
later than 90 days from the approval of such
amendments or revisions.
Ratification of Proposal if made through
People’s Initiative
• Valid when ratified by a majority of votes cast in
a plebiscite.
• Plebiscite is held not earlier than 60 days nor
later than 90 days after the certification by
COMELEC of the petition's sufficiency.
Requisites for Valid Ratification:
(1) Held in a Plebiscite conducted under the
election law.
(2) Supervised by the COMELEC.
(3) Where only franchised (Registered) voters take
part.
The Constitution does not require that amendments
and revisions be submitted to the people in a special
election. Thus, they may be submitted for ratification
simultaneously with a general election.
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which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial, and aerial
domains, including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine
areas. The waters around, between, and connecting
the islands of the archipelago, regardless of their
breadth and dimension, form part of the internal
waters of the Philippines (PHIL. CONST., art. I, § 1)
Purpose of Article I
(1) Initially it was to prevent the US from
dismembering the Philippines, an acceptance
by the US President of the Constitution would
oblige the US to keep the integrity of the
Philippine territory.
(2) Now, it is to determine the State’s jurisdiction
over which it can exercise its sovereignty. The
government can exercise its power over those
areas included in the national territory and
citizens must respect that. At the same time,
citizens could demand its rights from the
government under those areas.
NOTE: It is only a municipal or local law. The
constitution is not definitive to claims of other states.
But it has value, if in history, no one questions it, we
can rely on the fact that it has not been challenged
but it does not stop others from claiming it.
b. ARCHIPELAGIC DOCTRINE
Archipelagic Doctrine
A body of water studded with islands, or the islands
surrounded with water, is viewed as a unity of
islands and waters together forming one integrated
unit. (N.B. Embodied in Art. II, specifically by the
mention of the “Philippine archipelago” and the
specification on “internal waters.”)
Application to the Philippines
The waters around, between, and connecting the
islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal
waters of the Philippines. (PHIL. CONST., art. I, § 1)
Treaty limits of the Philippine archipelago
1. Treaty of Paris of 10 December 1898:
“Spain cedes to the United States the
archipelago known as the Philippines
Islands and comprehending the islands
lying within the following line” Article 3 of
the said treaty defines the metes and
bounds of the archipelago by longitude and
latitude, degrees and seconds. Technical
descriptions are made of the scope of the
2.
3.
archipelago as this may be found on the
surface of the earth.
Treaty of Washington of 7 November 1900
between the United States and Spain:
Ceding Cagayan, Sibuto and Sulu.
Treaty of 12 January 1930 between the
United States and Great Britain: Ceding the
Turtle and Mangsee Islands (BERNAS
(2003), cited in Justice Velasco’s
concurring opinion in Magallona v. Ermita
(2011))
Composition of National Territory
1. Philippine Archipelago, with all the islands
and waters embraced therein;
2. Internal Waters: waters around, between and
connecting the islands of the archipelago,
regardless of breadth and dimension; and
3. All other territories over which the Philippines
has sovereignty or jurisdiction.
It consists of:
1. Territorial sea, seabed, subsoil, insular shelves,
and other submarine areas; and
2. Terrestrial, fluvial, and aerial domains.
Concept of Innocent Passage
Passage through territorial waters which is neither
prejudicial to the interests of the coastal state nor
contrary to recognized principles of international
law. Example: Entry into territorial waters by a
cruise ship.
Future Acquisitions included in National
Territory
The clause includes any territory presently
belonging or those that might in the future belong to
the Philippines through any of the accepted
international modes of acquiring territory.
Territories belonging to Philippines by historic
right or title
The clause also includes what was referred to under
the 1973 Constitution as territories “belonging to the
Philippines by historic right or legal title,” that is,
territories which, depending on available evidence,
might belong to the Philippines (e.g., Sabah, the
Marianas, Freedomland) (Bernas, Constitutional
Rights and Social Demands, 8, 2010).
Under Article 3 of the UNCLOS, “every state has the
right to establish the breadth of its territorial sea up
to a limit not exceeding 12 nautical miles, measured
from the baselines.”
Contiguous Zone
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The law expressly grants the authority to sue the
State or any of its agencies
a. General Law
Authorizes any person who meets the conditions
stated in the law to sue the government in
accordance with the procedure in the law (e.g.
money claims arising from contract express or
implied, liability of local government units for torts)
b. Special Law
It may come in the form of a private bill authorizing
a named individual to bring a suit on a special claim.
2.
Implied consent
a. When the State Commences litigation, it
becomes vulnerable to a counterclaim; (US
v. Guinto, G.R. No. 76590, Feb. 26, 1990)
• Exception: When the State intervenes
not for the purpose of asking for any
affirmative relief, but only for the
purpose of resisting the claim precisely
because of immunity from suit (Lim v
Brownell, G.R. No. L-8587, Mar 24,
1960).
b.
State enters into a Business contract (thus
exercising proprietary functions); (Id.)
• Types of Capacity of the State in
entering into contracts:
i. Acta jure gestionis - by right of
economic or business relations;
commercial or proprietary acts.
The State may be sued (US v.
Guinto, GR. No. 76607, Feb. 26,
1990)
ii. Acta jure imperii - by right of
sovereign power and in the
exercise of sovereign functions;
there is no implied consent to be
sued (US v. Ruiz, G.R. No. 35645,
May 22, 1985)
• When State Executes and Enters into
Private Contracts
o General Rule: The State may be
sued if a private contract is entered
into by the proper office and within
the scope of his authority.
o Exception: When the private
contract is incidental to the
performance of a government
function (Mobil Philippines v.
Arrastre)
c.
When it would be Inequitable for the
State to invoke immunity;
d.
In instances when the State takes
private property for Public use or
purpose or eminent domain cases.
Suits against Public Officers
General Rule: The doctrine of state immunity also
applies to complaints filed against officials of the
State for acts performed by them in the discharge of
their duties within the scope of their authority.
Exception: The doctrine of immunity from suit will
not apply and may not be invoked where the public
official is being sued in his:
1. private and personal capacity as an
ordinary citizen
2. for acts without authority or in excess of the
powers vested in him. (Lansang v. CA, G.R.
No. 102667, Feb. 23, 2000)
Presidential Decree No. 1445
A general law prescribing circumstances or
conditions where the State consents to be sued
provided that the claim is first filed with the
Commission on Audit (PD No. 1445, sec. 49)
Officers may be relieved from accountability absent
evidence that they acted negligently in handling
public properties or funds, or the loss occurs while
they are in transit or if the loss is caused by fire,
theft, or other casualty or force majeure (PD No.
1445, sec. 73). Further, stringent conditions must
still be examined in determining if there is
negligence to hold an officer accountable for
negligence (Angeles v. Commission on Audit, G.R.
No. 228795, Dec. 1, 2020 | Lopez). Absent a clear
showing that there is bad faith, malice, or gross
negligence, the presumption of good faith and
regularity in the performance of official duty shall
likewise prevail (Ampatuan v. Commission on Audit,
G.R. No. 252007, Dec. 7, 2021 | Lopez)
UP's funds, being government funds, are not subject
to garnishment. All the funds going into the
possession of the UP, including any interest
accruing from the deposit of such funds in any
banking institution, constitute a "special trust fund,"
the disbursement of which should always be aligned
with the UP's mission and purpose. A "trust fund" is
a fund that officially comes in the possession of an
agency of the govesssrnment or of a public officer
as trustee, agent or administrator, or that is received
for the fulfillment of some obligation. The funds of
the UP are government funds that are public in
character hence cannot be subject to garnishment.
The adverse judgment rendered against the UP in a
suit to which it had impliedly consented was not
immediately enforceable by execution against the
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UP, because suability of the State did not
necessarily mean its liability. Suability depends on
the consent of the state to be sued, liability on the
applicable law and the established facts. The
circumstance that a state is suable does not
necessarily mean that it is liable; on the other hand,
it can never be held liable if it does not first consent
to be sued. Liability is not conceded by the mere fact
that the state has allowed itself to be sued. When
the state does waive its sovereign immunity, it is
only giving the plaintiff the chance to prove, if it can,
that the defendant is liable. (University of the
Philippines v. Dizon, G.R. No. 171182, [August 23,
2012], 693 PHIL 226-268)
Section 26 of Presidential Decree No. 1445 grants
COA the general jurisdiction to examine, audit, and
settle monetary claims against UP’s funds. It was of
no moment that a final and executory decision
already validated the claim against the UP. The
settlement of the monetary claim was still subject to
the primary jurisdiction of the COA despite the final
decision of the RTC having already validated the
claim. (University of the Philippines v. Dizon, G.R.
No. 171182, [August 23, 2012], 693 PHIL 226-268)
F. DELEGATION OF POWERS
General Rule: Legislative power is vested in
Congress which consists of the Senate and the
House of Representatives by the sovereign Filipino
people. Congress cannot delegate its legislative
power under the maxim delegata potestas non
potest delegari (delegated power may not be
delegated).
Exceptions:
1. Delegation to the People – To the extent
reserved to the people by the provision on
initiative and referendum.
2.
Delegation to Local Government Units –
Local legislative bodies are allowed by our
Constitution to legislate on purely public
matters. Since what was given to local
legislative bodies are not power to make rules
and regulations but legislative power, the rules
on valid delegation do not apply. However,
when what is given to local legislative body is
executive power, the rules applicable to the
empowerment of administrative agencies also
become applicable (Rubi v. Provincial Board,
G.R. No. L-14078, March 7, 1919).
a.
The BPO issued by the Punong Barangay
is not an undue delegation of legislative
power for it merely orders the perpetrator
to desist from (a) causing physical harm to
the woman or her child; and (2)
threatening to cause the woman or her
child physical harm. Such function of the
Punong Barangay is purely executive in
nature, in pursuance of his duty under the
LGC to “enforce all laws and ordinances,”
and to “maintain public order in the
barangay.” (Garcia v. Drilon, G.R. No.
179267, June 25, 2013)
3.
Delegation of Rule-Making Power to
Administrative Bodies – power to issue
supplementing rules and regulations provided
that the delegation must be complete and must
prescribe sufficient standards. It also includes
the determination of the presence of the
conditions for the law to take effect.
a.
Rationale:
i. Legislature may pass “contingent
legislation “which leaves to another
body the business of ascertaining facts
necessary to bring the law into action”
(ABAKADA v. Ermita, G.R. No.
168056, Sept. 1, 2005).
ii. Increasing complexity of the task of
government
iii. Lack of technical competence on the
part of Congress to provide for specific
details of implementation
iv. Administrative agencies may fill in
details
of
the
statute
for
implementation
• Subordinate legislation allows
administrative bodies to implement
broad policies laid down in a
statute by filling in details which
legislature may not have the
opportunity or competence to
provide. The Congress finds it
impracticable, if not impossible, to
anticipate situations that may be
met in carrying the law into effect.
(Sobrejuanite-Flores v. Pilando Jr,
G.R. No. 251816. November 23,
2021 | Lopez)
b. If there was a valid delegation,
administrative rules and regulations are
just binding as if they were written in the
law.
c. Administrative agencies may not issue
regulations that contravene the law
(Solicitor General v. Metro Manila
Authority, G.R. No. 102782, Dec. 11,
1991) nor may they add to the standards
set by law (Tatad v. Secretary of Energy,
G.R. No. 124360, Nov. 5, 1997).
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d.
Administrative rules and regulations may
be penal in nature provided that:
i. such a violation is made a crime by the
delegating law;
ii. penalty of such is provided in the
statutes;
iii. the regulation is published in full text.
e. Powers of Congress which are not to be
delegated are those that are strictly or
inherently legislative. Purely legislative
power is the authority to make a complete
law - complete as to the time it shall take
effect or to whom it shall be applicable and
to determine the expediency of the
enactment.
4.
5.
Tariff Powers
• Art. VI, § 28(2) authorizes Congress to
delegate to the President the power to fix
tariff rates, import and export quotas,
tonnage, wharfage dues, and other duties
and impost.
• Requisites:
1. Delegation must be by law;
2. Law must specify the limits;
3. Power of the President must be within
the framework of the national
development
program
of
the
Government.
Emergency Powers
• Art. VI, § 23(2) authorizes Congress to give
the President the power necessary and
proper to carry out a declared national
policy in times of war or other national
emergency pursuant to law.
• Conditions:
1. Delegation is by law;
2. There is a war or other national
emergency;
3. Delegation must be for a limited period
only;
4. Delegation must be subject to
restrictions mandated by Congress;
5. Emergency powers must be exercised
to carry out a national policy declared
by Congress. (David v. Arroyo)
• Terminates through a resolution of
withdrawal by Congress or upon the next
adjournment of Congress, whichever
comes first.
Test of Valid Delegation
1. Completeness Test — The law must state the
policy that must be carried out or implemented
and leave no room for the delegate to legislate;
nor allow discretion on their part to say what the
law is. A statute may be complete when the
subject, and the manner and the extent of its
operation are stated in it such that when it
reaches the delegate, there must be nothing left
for the delegate to do but to enforce the law.
2. Sufficiency of Standard — There must be
adequate guidelines or limitations in the law to
map out the boundaries of the delegate
authority and prevent the delegation from
running riot. The limits are sufficiently
determinate and determinable to which the
delegate must conform in the performance of
his actions.
Examples:
i.
Public interest (People v. Rosenthal, G.R. Nos.
L-46076 and L-46077, Jun. 12, 1939);
ii.
Fair and equitable employment practices
(Eastern Shipping Lines v. POEA, supra)
iii. Justice and equity;
iv. Public convenience and welfare;
v.
Simplicity, economy, and efficiency.
NOTE: Standards may be expressed or implied
from the law taken as a whole (Edu v. Ericta, G.R.
No. L-32096, Oct. 24, 1970). They can even be
gathered in another statute of the same subject
matter (Chongbian v. Orbos, G.R. No. 96754, June
6, 1995).
A law allowing a judge to inflict punishment of
imprisonment in its discretion without any
designated limits is invalid (People v. Dacuycoy,
G.R. No. L-45127, May 5, 1989).
Section 8 of PD 910 regarding the Malampaya funds
provides: “all fees, revenues and receipt…under the
Petroleum Act of 1949; as well as the government
share…shall form part of a special fund to be used
to finance energy resource development and
exploitation programs and projects of the
government and for such other purposes as may be
hereafter provided by the President.” This is not a
valid delegation of legislative power. The
provision constitutes an undue delegation of
legislative power insofar as it does not lay down a
sufficient standard to adequately determine the
limits of the President‘s authority (Belgica v. Ochoa,
G.R. No. 208566, Nov. 19, 2013).
Congress can only delegate, usually to
administrative agencies, rule-making power or law
execution. This involves either of two tasks for the
administrative agencies:
1. Subordinate Legislation: Filling in the details
of an otherwise complete statute; or
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Conn,. 1954). What has emerged is a concept
of public use which is as broad as public
welfare. The scope of the power of eminent
domain has become as broad as the expansive
and ever-expanding scope of police power itself
(Bernas, The 1987 Constitution of the Republic
of the Philippines, 2009).
restrictions as it may impose, tariff rates, import
and export quotas, tonnage and wharfage dues,
and other duties or imposts within the
framework of the national development
program of the Government. (PHIL. CONST., art.
VI, § 28, ¶ 2. )
2.
2.
3.
“Taking” requires:
a. Expropriator must Enter the private
property
b. Entrance must not be for a momentary
period, must be Permanent
c. Entry must be under warrant or color of
legal Authority
d. Property must be devoted to a Pubic use
e. Utilization of property must Deprive owner
of all beneficial enjoyment of the property
(Republic v. Vda. Castellvi, G.R. No. L20620, Aug. 15, 1974).
Just Compensation — This includes not only
the determination of the amount to be paid
(market value) to the owner of the land but also
the payment of the compensation and within a
reasonable period of time from its taking
(Municipality of Makati v. Court of Appeals, G.R.
No. 89898-99, Oct. 1, 1990). It also includes
interest in case of delay. (Republic v. Court of
Appeals, G.R. No. 146587, Jul 2, 2002).
TAXATION
The power of taxation is essentially a legislative
function. Taxation is an attribute of sovereignty. It is
the strongest of all powers of the government. There
is a presumption in favor of legislative
determination. Public policy decrees that since upon
the prompt collection of revenue depends on the
very existence of government itself, whatever
determination shall be arrived at by the legislature
should not be interfered with, unless there be a clear
violation of some constitutional inhibition (Sarasola
v. Trinidad, G.R. No. 14595, Oct. 11, 1919).
The legislature is free to select the subjects of
taxation and it may determine within reasonable
bounds what is necessary for its protection and
expedients for its promotion (Lutz v. Araneta, G.R.
No. L -7859, Dec. 22, 1955).
General Rule: The power to tax is purely legislative
and it cannot be delegated
Exceptions:
1. As to the President — Congress may, by law,
authorize the President to fix within specific
limits, and subject to such limitations and
As to Local Government — Under the present
Constitution, each local government unit is now
expressly given the power to create its own
sources of revenue and to levy taxes, subject to
such guidelines and limitations as the Congress
may provide, consistent with the basic policy of
local autonomy (PHIL. CONST., art. X, § 5.)
a.
3.
A municipal corporation has no inherent
right to impose taxes Its power to tax must
always yield to a legislative act which is
superior having been passed by the State
itself which has the inherent power to tax
(Basco v. PAGCOR, G.R. No. 91649, May
14, 1991).
As to Administrative Agencies — When the
delegation relates merely to administrative
implementation which may call for some degree
of discretionary powers under a set of sufficient
standards expressed by law (Maceda v.
Macaraig, G.R. No. 88291, May 31, 1993)
Constitutional Exemption Principles
Corollary to the power to tax is the power to exempt
from tax. Hence, the same general and specific
limitations on the power to tax also apply to the
power to create exemptions. The exemptions,
therefore, must be for public purpose, uniform,
equitable, and in conformity with the equal
protection clause.
Moreover, the Constitution itself may create
exemptions. When it does, the constitutional
exemption itself becomes a limit on the power to tax.
Art. VI, Sec. 28(3) is one such exemption:
“Charitable institutions, churches and personages
or convents appurtenant thereto, mosques, nonprofit cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively
used for religious, charitable, or educational
purposes shall be exempt from taxation.”
It must be pointed out, however, that the
exemption created by the constitutional
provision is only for “taxes assessed … as
property taxes, as contra-distinguished from
excise taxes. (Bernas, The 1987 Constitution of the
Republic of the Philippines: A Commentary, 807,
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2009, citing Lladoc v. Commissioner of Internal
Revenue, 14 SCRA 292, 295, 1965).
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A. CONGRESS: SENATE AND
HOUSE OF REPRESENTATIVES
LEGISLATIVE DEPARTMENT
TOPIC OUTLINE UNDER THE SYLLABUS:
A. CONGRESS: SENATE AND HOUSE OF
REPRESENTATIVES
1. Compositions And Qualifications
2. Privileges And Inhibitions
3. Quorum And Voting Majorities, And
Discipline Of Members
C. APPROPRIATION
AND
E. DECLARATION OF EXISTENCE OF STATE
OF WAR
F. POWER TO REVOKE/EXTEND THE
SUSPENSION OF THE PRIVILEGE OF THE
WRIT OF HABEAS CORPUS AND
DECLARATION OF MARTIAL LAW
G. POWER OF IMPEACHMENT
H. ELECTORAL TRIBUNALS
I.
COMMISSION ON APPOINTMENTS
SENATE
Composition
24 who are elected at large by the qualified voters
of the Philippines. (PHIL. CONST., art. VI, § 2.)
Term of Office
6 years commencing at noon on the 30th day of
June following their election (PHIL. CONST., art. VI, §
4.)
B. LAW-MAKING PROCESS
D. LEGISLATIVE
INQUIRIES
OVERSIGHT FUNCTIONS
1. COMPOSITIONS AND
QUALIFICATIONS
Term Limit
No Senator shall serve for more than 2 consecutive
terms. Voluntary renunciation of the office for any
length of time shall not be considered as an
interruption in the continuity of his service for the full
term for which he was elected (PHIL. CONST., art. VI,
§ 4.)
HOUSE OF REPRESENTATIVES
Composition
Not more than 250 members, unless otherwise fixed
by law, consisting of:
1. District Representatives: elected from
legislative districts apportioned among the
provinces, cities and the Metropolitan Manila
area
2. Party-list Representatives: shall constitute
20% of the total number of the members of the
House of Representatives including those
under the party-list.
Term of Office
3 years, commencing at noon on the 30th day of
June next following their election
Term Limit
No member of the HOR shall serve for more than 3
consecutive terms. Voluntary renunciation of the
office for any length of time shall not be considered
as an interruption in the continuity of his service for
the full term for which he was elected.
List of Qualifications for both Senators and
Members of the House
The qualifications of both Senators and Members of
the House are LIMITED to those provided by the
Constitution. Congress cannot, by law, add or
subtract from these qualifications (PHIL. CONST., art.
VI, § 3 & 6; Pimentel v. COMELEC, G.R. No.
161658, Nov. 3, 2008).
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other than a general reapportionment law.
(Mariano v. COMELEC, G.R. No. 118577, Mar.
7, 1995)
Gerrymandering
The formation of one legislative district out of
separate territories for the purpose of favoring a
candidate or a party. (Navarro v. Executive
Secretary, G.R. No. 180050, Feb. 10, 2010)
NOTE: This is the reason why the Constitution
requires that Legislative Districts be compact,
contiguous, and adjacent.
The Constitutional standards used to determine the
apportionment of legislative districts, i.e. that each
legislative district is to comprise, as far as
practicable, a contiguous, compact, and adjacent
territory, is meant to prevent ‘gerrymandering.’ (Id.)
Difference of Reapportionment in Sec. 5(10), Art.
VI and the Creation of LGU in Sec. 10, Art. X.
In the former, the purpose is to ensure better access
to one’s district representative in Congress. No
political or corporate unit is created. Thus, there is
no need for a plebiscite in the creation, dissolution,
or any other similar action on a legislative district.
In the latter, political and corporate units are created
or altered. These possess legal personality and are
considered “instrumentalities of the State in carrying
out the functions of government”. They exercise
special functions for the sole benefit of constituents.
Thus, the need for a plebiscite to expressly secure
the consent of the people affected by the creation,
division, merger, abolition or alteration of
boundaries of local government units through a
plebiscite (Bagabuyo v. COMELEC, G.R. No.
176970, Dec. 8, 2008).
b.
urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be
provided by law, except the religious sector (PHIL.
CONST., art. VI, § 5(2).).
Under Art. XVIII, Sec. 7, until a law is passed, the
President may fill by appointment from a list of
nominees by the respective sectors the seats
reserved for sectoral representation.
R.A. No. 7941, the Party-List System Act was
approved on March 3, 1995. This law put into place
the mechanics for a party-list system of
representation based on election and ended the
appointment of sectoral representatives by the
President as provided in the Transitory Provisions.
For the purposes of the May 1998 elections, the first
5 major political parties on the basis of party
representation in the House of Representatives at
the start of the Tenth Congress of the Philippines
shall not be entitled to participate in the party-list
system.
Mechanics (R.A. No. 7941, § 8.)
1. Registered party-lists, organizations, or
coalitions shall submit to the COMELEC a list of
not less than five (5) nominees in order of
priority.
a. A person may be nominated in one (1) list
only.
b. Only persons who have given their consent
in writing may be named in the list.
c. Candidates for any elective office in the
immediately preceding election shall be
disqualified from becoming a nominee.
d. No change of names or alteration of the
order of nominees shall be allowed after the
same shall have been submitted to the
COMELEC
Party-list system
Exceptions:
1. when the nominee dies
2. withdraws in writing his nomination
3. becomes incapacitated in which
case the name of the substitute
nominee shall be placed last in the
list.
○ Incumbent
sectoral
representatives in the House
of Representatives who are
nominated in the party-list
system
shall
not
be
considered resigned.
Party-List Representatives (Sec. 5 (2))
Constitute 20% of the total number of
representatives (the total includes the party-list
representatives). The maximum number of House of
Representative members is set at 250, which means
a maximum of 50 party-list members are allowed.
But this number can be increased through a
passage of a law (Banat v. COMELEC, G.R. Nos.
179271 & 179295, July 8, 2009).
However, for 3 consecutive terms after the
ratification of the 1987 Constitution (1987-1992,
1992-1995 and 1995-1998) from February 2, 1987
until 1998, one half of the seats allocated to partylist representatives shall be filled as provided by law,
by selection or election from the labor, peasant,
2.
The parties, organizations, and coalitions shall
be ranked from the highest to the lowest based
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on the number of votes garnered during
elections. (R.A. No. 7941, § 11.)
Formula:
a) If the number of District Seats is given.
Total House Seats = District Seats / 0.8
Party-List Seats = District Seats x 0.25
b) If the total number of House Seats is given.
Party-List Seats = Total House Seats x 0.2
District Seats = Total House Seats x 0.8
c) If the total number of Party-List Seats is given.
Total House Seats = Party-List Seats / 0.2
District Seats = Party-List Seats / .25
Parameters in Party-List Elections
(1) 20% of the total number of the membership of
the House of Representatives is the maximum
number of seats available to party-list
organizations, such that there is automatically
one party-list seat for every four existing
legislative districts.
(2) Garnering 2% of the total votes cast in the partylist
elections
guarantees
a
party-list
organization one seat. The guaranteed seats
shall be distributed in a first round of seat
allocation to parties receiving at least two
percent of the total party-list votes.
(3) The additional seats, i.e. the remaining seats
after allocation of the guaranteed seats, shall be
distributed to the party-list organizations
including those that received less than 2% of
the total votes. The additional seats shall be
distributed to the parties in a second round of
seat allocation according to the two-step
procedure laid down in the BANAT Decision of
21 April 2009. The continued operation of the
2% threshold as it applies to the allocation of the
additional seats is unconstitutional because this
threshold mathematically and physically
prevents the filling up of the available party-list
seats.
(4) The three-seat cap is constitutional. The threeseat cap is intended by the Legislature to
prevent any party from dominating the party-list
system. There is no violation of the Constitution
because the 1987 Constitution does not require
absolute proportionality for the party-list
system. The well-settled rule is that courts will
not question the wisdom of the Legislature as
long as it is not violative of the Constitution
(Banat v. COMELEC, G. R. No. 179271, July 8,
2009).
Seat Allocation for the Party-list
Representatives
(1) Determine the number of seats available to
party-list representatives through the following
formula:
a.
(Number of seats available to legislative
districts ÷ 0.80) x 0.20
(2) Rank all party-lists according to votes received.
(3) Determine the 2% qualifiers through the formula
below. These party-lists are guaranteed one
seat in the House (“guaranteed seats” or the
number of seats allocated to the 2% qualifiers).
a.
Number of votes received by the party-list ÷
the total number of votes cast for the partylist system (divisor)
b.
The divisor to be used in interpreting the
formula used in BANAT is the total votes
cast for the party-list system. This should
not include the invalid votes. However, so
as not to disenfranchise a substantial
portion of the electorate, total votes cast
for the party-list system should mean all
the votes validly cast for all the
candidates listed in the ballot, [even
those]
that
are
subsequently
disqualified, so long as they were
presented as a choice to the electorate.
The voter relies on the ballot when making
his or her choices. (ARARO v. COMELEC,
G.R. No. 192803, Dec. 10, 2013)
(4) Determine the “additional seats” through the
following formula:
a. Maximum number of seats (result
of #1) - guaranteed seats
(5) Divide the number of votes received by all
parties (2% qualifiers and non-qualifiers) by the
total number of votes cast, as in #3) and multiply
the result to the number available seats, as in
#4
(6) Distribute the additional seats (rounded down)
in accordance to the ranking.
(7) Take note of the three-seat cap. (BANAT v.
COMELEC, G.R. No. 179271, 2009)
The 2% Threshold and 3-Seat Limit
(1) The parties shall be ranked from the highest to
lowest based on the number of votes they
garnered.
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(2) To be entitled to one qualifying seat, a party
must obtain 2% of the total ballots cast for
qualified party-list candidates.
(3) Votes cast for a party which is not entitled to be
voted for should not be counted. The votes they
obtained shall be deducted from the canvass of
the total votes for the party-list.
(4) Rounding-off is not allowed.
(5) Parties other than the 1st party (the party that
obtained the highest number of votes based on
plurality) may be entitled to additional seats
based on the following formula provided below.
(Please see Round 1 and Round 2
computations)
Each party shall be entitled to not more than three
seats.
The two percent threshold in computing for the
additional seats is unconstitutional. The
continued application of the two percent threshold
in the application of additional seats in proportion to
their total number of votes until all the additional
seats will frustrate the attainment of the permissive
ceiling that twenty percent of the members of the
house of representatives shall consist of party-list
representatives. (BANAT v. COMELEC, G.R. No.
179271, Apr. 21, 2009)
In declaring the two percent threshold
unconstitutional, the SC did not limit the
allocation of additional seats to the twopercenters. Thus:
The percentage of votes garnered by each party-list
candidate is arrived at by dividing the number of
votes garnered by each party by 15,950,900, the
total number of votes cast for party-list candidates.
There are two steps in the second round of seat
allocation.
(1) First, the percentage is multiplied by the
remaining available seats, 38, which is the
difference between the 55 maximum seats
reserved under the Party-List System and the
17 guaranteed seats of the two-percenters. The
whole integer of the product of the percentage
and of the remaining available seats
corresponds to a party’s share in the remaining
available seats.
(2) Second, we assign one party-list seat to each of
the parties next in rank until all available seats
are completely distributed. We distributed all of
the remaining 38 seats in the second round of
seat allocation.
(3) Finally, we apply the three-seat cap to
determine the number of seats each qualified
party-list candidate is entitled. (BANAT v.
COMELEC, G.R. No. 179271, Apr. 21, 2009.)
In ANGKLA v. COMELEC, the SC affirmed the
BANAT formula, to wit: As finally settled in the
landmark case of BANAT, Section 11 (b) of RA
7941 is to be applied, thus:
Round 1:
(1) The participating parties, organizations or
coalitions shall be ranked from highest to
lowest based on the number of votes they
each garnered in the party-list election.
(2) Each of those receiving at least two percent
(2%) of the total votes cast for the party-list
system shall be entitled to and guaranteed
one seat each.
Rationale: The statute references a two percent
(2%) threshold. The one-seat guarantee based on
this arithmetical computation gives substance to
this threshold.
Round 2, Part 1:
1. The percentage of votes garnered by each of
the parties, organizations and coalitions is
multiplied by the remaining available seats
after Round 1. All party-list participants shall
participate in this round regardless of the
percentage of votes they garnered.
2. The party-list participants shall be entitled to
additional seats based on the product arrived
at in (a). The whole integer of the product
corresponds to a party's share in the
remaining available seats. Fractional seats
shall not be awarded.
Rationale: This formula gives flesh to the
proportionality rule in relation to the total number
of votes obtained by each of the participating
party, organization, or coalition.
c. A Party-list shall be awarded no more than two
(2) additional seats.
Rationale: The three-seat cap in the statute is to
be observed.
Round 2, Part 2:
1. The party-list party, organization or coalition
next in rank shall be allocated one additional
seat each until all available seats are
completely distributed.
Rationale: This algorithm endeavors to complete
the 20% composition for party-list representation in
the House of Representatives.
During the deliberation, Senior Associate Justice
Estela M. Perlas-Bernabe keenly noted that
the BANAT formula mirrors the textual progression
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of Section 11 (b) of RA 7941, as worded, thus:
Section 11. Number of Party-List Representatives.
— x x x xxx xxx xxx (b) The parties, organizations,
and coalitions receiving at least two-percent
(2%) of the total votes cast for the party-list
system shall be entitled to one seat each:
Provided, That those garnering more than twopercent (2%) of the votes shall be entitled
to additional
seats
in
proportion
to
their total number of votes: Provided, finally, That
each party, organization, or coalition shall be
entitled to not more than three (3) seats.
The first round of seat allocation is based on the
first sentence of Section 11 (b) while the second
round is based on the first proviso. To prescribe
a method of seat allocation contrary to the
unequivocal language of RA 7941 would be nothing
short of judicial legislation, if not usurpation of
legislative powers, as it would allow us to substitute
the wisdom of Congress with ours.(ANGKLA: Ang
Partido ng mga Pilipinong Marino, Inc. v.
Commission on Elections, G.R. No. 246816, Sept.
15, 2020).
Advantage Given to 2-Percenters Does Not
Violate the Equal Protection Clause. All votes,
whether cast in favor of two-percenters and nontwo-percenters, are counted once. The perceived
"double-counting of votes" does not offend the equal
protection clause — it is an advantage given to twopercenters based on substantial distinction that the
rule of law has long acknowledged and confirmed.
It does not violate the “One Person, One Vote”
principle. To not count the 2% vote in the second
round would place the 2-percenters at a glaring
disadvantage, which is not what the constitutional
framers and the legislature intended. It is the 2percenters who have an established right to an
advantage in the form of a guaranteed seat.
(ANGKLA: Ang Partido ng mga Pilipinong Marino,
Inc. v. Commission on Elections, G.R. No. 246816,
Sept. 15, 2020).
The Rule of Law Has Confirmed the Substantial
Distinction Between 2-Percenters and Non-2Percenters.
The distinction between two-percenters and nontwo-percenters has long been settled in Veterans
Federation Party v. COMELEC (Veterans) where
the Court affirmed the validity of the 2% voting
threshold. Veterans effectively segregates and
distinguishes between the two (2) classes, twopercenters and non-two-percenters. It explains the
rationale behind the voting threshold and differential
treatment, viz.: The two percent threshold is
consistent not only with the intent of the framers of
the Constitution and the law, but with the very
essence of "representation." Under a republican or
representative state, all government authority
emanates from the people, but is exercised by
representatives chosen by them. But to have
meaningful representation, the elected persons
must have the mandate of a sufficient number of
people. Otherwise, in a legislature that features the
party-list system, the result might be the proliferation
of small groups which are incapable of contributing
significant legislation, and which might even pose a
threat to the stability of Congress. Thus, even
legislative districts are apportioned according to "the
number of their respective inhabitants, and on the
basis of a uniform and progressive ratio" to ensure
meaningful local representation. (ANGKLA: Ang
Partido ng mga Pilipinong Marino, Inc. v.
Commission on Elections, G.R. No. 246816, Sept.
15, 2020).
The Supreme Court has a keen analysis of the
adverse effect of imposing a two-percent (2%)
deduction on the two-percenters: “Ignoring votes in
the reckoning of proportions runs afoul of a party-list
election as a race contested by the entire roster of
candidates and won in consideration of all the votes
cast by the electorate. Reckoning on the basis of
a "recomputed number of votes" artificially
redraws the electoral terrain. It results in the
distribution of remaining party-list seats based
on an altered field of contestants and
diminished number of votes. This undoes the
logical advantage earned by those that hurdled
the two-percent-threshold and enables the
election of groups even if their performance was
manifestly worst off than those who have
hurdled the basic threshold. To concede
petitioners' plea would be to negate the valid and
sensible distinction between those that hurdled the
threshold and those that did not. Ultimately, it
violates the party-list system's fundamental
objective of enabling "meaningful representation
[secured through] the mandate of a sufficient
number of people." (citations omitted) (ANGKLA:
Ang Partido ng mga Pilipinong Marino, Inc. v.
Commission on Elections, G.R. No. 246816, Sept.
15, 2020).
Absolute Proportionality Not Prescribed.
Section 11, Article VI of the Constitution, however,
does not prescribe absolute proportionality in
distributing seats to party-list parties, organizations
or coalitions. Neither does it mandate the grant of
one seat each according to their rank. On the
contrary, Congress is given a wide latitude of
discretion in setting the parameters for determining
the actual volume and allocation of party-list
representation
in
the
House
of
Representatives. BANAT elucidates: x x x The
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allocation of seats under the party-list system is
governed by the last phrase of Section 5(1), which
states that the party-list representatives shall be
"those who, as provided by law, shall be elected
through a party-list system," giving the Legislature
wide discretion in formulating the allocation of partylist seats. Clearly, there is no constitutional
requirement
for
absolute
proportional
representation in the allocation of party-list seats in
the House of Representatives. (Emphasis added)
In the exercise of this prerogative, Congress
modified the weight of votes cast under the party-list
system with reason. (ANGKLA: Ang Partido ng mga
Pilipinong Marino, Inc. v. Commission on Elections,
G.R. No. 246816, Sept. 15, 2020).
Party-list groups garnering less than 2% of the
party-list votes may qualify for a seat in the
allocation of additional seats depending on their
ranking in the second round. The continued
operation of the two-percent threshold was deemed
"an unwarranted obstacle to the full implementation
of Section 5(2), Article VI of the Constitution and
prevents the attainment of the “broadest possible
representation of party, sectoral or group interests
in the House of Representatives,” and has been
declared unconstitutional. The 20% share in
representation may never be filled up if the 2%
threshold is maintained. In the same vein, the
maximum representation will not be achieved if
those party-list groups obtaining less than one
percentage are disqualified from even one
additional seat in the second round. (Aksyon
Magsasaka-Partido Tinig ng Masa (AKMA-PTM)
vs. COMELEC, G.R. No. 207134, May 28, 2015.)
Delisting
The law provides for 2 separate reasons for the
delisting of any national, regional or sectoral party
organization or coalition. Section 6(8) of the Party List System Act provides that the COMELEC may
motu proprio or upon verified complaint of any
interested party, remove or cancel, after due notice
and hearing, the registration of any national,
regional or sectoral party organization or coalition.
The grounds are:
1. If it fails to participate in the last two (2)
preceding elections; or
2. Fails to obtain at least two per centum (2%) of
the votes cast under the party list system in the
two (2) preceding elections for the constituency
in which it was registered (Philippine Guardians
Brotherhood, Inc. (PGBI) v. COMELEC, G.R.
No. 190529, Apr. 29, 2010)
The law is clear – the COMELEC may motu proprio
or upon verified complaint of any interested party,
remove or cancel, after due notice and hearing, the
registration of any national, regional or sectoral
party, organization or coalition if it: (a) fails to
participate in the last two (2) preceding
elections; or (b) fails to obtain at least two per
centum (2%) of the votes cast under the party-list
system in the two (2) preceding elections for the
constituency in which it has registered. The word
"or" is a disjunctive term signifying disassociation
and independence of one thing from the other
things enumerated; it should, as a rule, be
construed in the sense in which it ordinarily implies,
as a disjunctive word. XXX Thus, the plain, clear
and unmistakable language of the law provides for
two (2) separate reasons for delisting. Section 6(8)
of RA 7941 provides for two separate grounds for
delisting; these grounds cannot be mixed or
combined to support delisting; and the
disqualification for failure to garner 2% party-list
votes in two preceding elections should now be
understood, in light of the Banat ruling, to mean
failure to qualify for a party-list seat in two preceding
elections for the constituency in which it has
registered. (Philippine Guardians v. COMELEC,
G.R. No. 190529, Apr. 29, 2010)
Qualifications of Party List Representatives
(R.A. No. 7941, § 9.)
(1) Natural born citizen of the Philippines;
(2) Registered voter;
(3) Resident of the Philippines for a period of not
less than 1 year immediately preceding the day
of the election;
(4) At least 25 years of age on the day of the
election (youth sector nominee must be at least
25 years old but not more than 30 years old on
day of election);
(5) Able to read and write;
(6) A bona fide member of the party or organization
he seeks to represent for at least 90 days before
the day of the election.
(7) A nominee who changes his sectoral affiliation
within the same party will only be eligible for
nomination under the new sectoral affiliation if
the change has been effected at least six
months before the elections (Amores v. HRET,
G.R. No. 189600, June 29, 2010).
Rules on Party-Lists
(1) Principle of Social Justice: The inspiration of
the system is social justice understood in both
the economic and political sense.
(2) Participation not Limited to Sectoral
Groups: Participation in the system is not
limited to the sectors enumerated by the
Constitution or law. The framers of the 1987
Constitution did not intend to leave out non-
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sectoral parties in the party-list system and
exclusively limit it to sectoral groups.
(3) Groups must comply with the Constitution
and other applicable laws: The enumeration
of marginalized and under-represented sectors
is not exclusive. The crucial element is not
whether a sector is specifically enumerated, but
whether a particular organization complies with
the requirements of the Constitution and RA
7941. Moral disapproval, without more, is not a
sufficient governmental interest to justify
exclusion of homosexuals from participation in
the party-list system (Ang Ladlad v. COMELEC,
G.R. No. 190582, April 8, 2010).
(4) Three different groups may participate in the
party-list
system:
national
parties
or
organizations, regional parties or organizations,
and sectoral parties or organizations.
(5) Rule
on
National
and
Regional
Parties/Organizations: The national and
regional
organizations
need
not
be
economically marginalized and do not need to
organize along sectoral lines, but they must be
politically or ideologically disadvantaged or
marginalized.
(6) Rule on Sectoral Parties: Sectoral parties or
organizations may either be 'marginalized and
underrepresented' or lacking in 'well-defined
political constituencies'. It is enough that their
principal advocacy pertains to the special
interest and concerns of their sector.
a. Marginalized
and
Underrepresented sectors:
i.
Handicapped
ii.
Indigenous
Cultural
Communities
iii.
Fisher Folk
iv.
Labor
v.
Overseas Workers
vi.
Peasant
vii.
Urban Poor
viii.
Veterans
b. Sectors that lack 'well defined
political constituencies’:
ix.
Professionals
x.
Women
xi.
Elderly
xii.
Youth
Rule on Political Party Participation: Political
parties can participate in party-list elections
provided they register under the party-list
system and do not field candidates in legislative
district elections.
a.
b.
A political party, whether major or not, that
fields candidates in legislative district
elections can participate in party-list
elections only through its sectoral wing
that can separately register under the
party-list system.
The sectoral wing is by itself an
independent sectoral party and is linked to
a political party through a coalition (Atong
Paglaum v. COMELEC, G.R. No. 203766,
April 2, 2013).
(7) Rules on Members of Sectoral Parties or
Organizations
1. A majority of the members of both types of
sectoral parties or organizations must
belong to the sector they represent, i.e.
majority must:
a. Be marginalized and underrepresented
or
b. Lack
well-defined
political
constituencies
(8) Rules on Nominees of Party-Lists
1. The nominees of sectoral parties or
organizations
that
represent
the
"marginalized and underrepresented" or
that represent those who lack "well-defined
political constituencies," must either:
a. Belong to their respective sectors
or
i. To “belong” in the
marginalized
and
underrepresented sector
does not mean one must
"wallow
in
poverty,
destitution or infirmity."
ii. It is sufficient that one, or
his or her sector, is below
the middle class
b. Have a track record of advocacy
for their respective sectors
2. The nominees of national and regional
parties or organizations must be bonafide members of such parties or
organizations.
3. National, regional, and sectoral parties or
organizations shall not be disqualified if
some of their nominees are disqualified,
provided that they have at least one
nominee who remains qualified (Atong
Paglaum v. COMELEC, G.R. No. 203766,
April 2, 2013).
a. The proviso does not authorize a
party-list from not complying with
the submission of at least five
nominees upon its manifestation to
participate
in
the
party-list
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elections.
(COCOFED
v.
COMELEC, G.R. No. 207026,
Aug. 6, 2013).
NOTE: In Albano v. COMELEC (2023), on the "a
person who has lost his bid for elective office in the
immediately preceding election" under Section 8
of Republic Act No. 7941, the Supreme Court
recognized the power of Congress to establish
the mechanics of the party-list system including
the qualifications of the of the party-list
representatives and the conduct of their
nominations, but nonetheless declared the said
portion of Section 8 as unconstitutional for
being in violation of the Equal Protection Clause
applying the Rational Basis Test (i.e. there is
legitimate governmental interest, but the
classification would not rational further such
interest). The Court ruled as follows:
Nothing appears to be constitutionally
repugnant with R.A. No. 7941, insofar as it
embodies
the
objective
of
the Constitution to
accord
Congress imprimatur to sculpt legislation
establishing the mechanics of the party-list
system, and with it, the qualifications of
party-list representatives and the conduct
for their nominations. In line with this and to
ensure genuine representation, R.A. No.
7941 even requires, as a qualification for partylist nominees, that [they] be bona fide members
of the party or organization which [they] seek to
represent for at least 90 days preceding the day
of the election. To be sure, this Court has since
acknowledged R.A.
No.
7941 as
the
"controlling law" in all matters pertaining to the
elections of party-list representatives. After all,
the opportunity to run for public office is a
privilege that may be subject to limitations as
imposed by law. XXX
It bears repeating then that while plenary power
is vested in Congress, it may not wield such
power arbitrarily. As meticulously explained by
this Court, the phrase in the assailed provisions
fail to surmount the rational basis. The
qualifiers "lost" and "immediately preceding
election" do not have any rational basis that
would bolster the objective of the party-list
law. There is no showing that allowing those
who lost as compared to those who won, or
even those who did not participate in the
immediately preceding election, will have a
deleterious effect on the party-list system.
Moreover, using as a reference the
immediately preceding election, and
separating it from the other previous
elections does not in any way present a
convincing basis that would promote the
objective of the party-list system for a
genuine representation. It would thus follow
that the right to substantive due process was
not afforded in the instant case. The prohibition
is, in effect, an arbitrary and whimsical intrusion
of the right of losing candidates in the
immediately preceding elections, by needlessly
restraining them from participating in the
present elections. XXX
As propounded by Associate Justice Mario
V. Lopez during the deliberations of this
case, no clear connection appears to exist
between the weakness of the candidate in
the previous elections and the probability
that their participation would frustrate the
policy enshrined in R.A. No. 7941. (Albano v.
Commission on Elections, G.R. No. 257610 &
UDK No. 17230, [January 24, 2023])
Disqualifications of Parties or Organizations
(R.A. No. 7941, § 6.)
religious sector;
(1) advocates of violence or unlawful means of
seeking its goal;
(2) foreign party or organization;
(3) receiving support from any foreign government,
foreign political party, foundation, organization,
whether directly or through any of its officers or
(4) members or indirectly through third parties for
partisan election purposes;
(5) fails to comply with laws, rules or regulations
relating to elections;
(6) declares untruthful statements in its petition;
(7) ceased to exist for at least 1 year; or fails to
participate in the last 2 preceding elections or,
fails to obtain at least 2% of the votes cast under
the party-list system in the 2 preceding elections
for the constituency in which it has registered.
NOTE: The word “or” is a disjunctive term signifying
disassociation and independence of one thing from
the other things enumerated; it should, as a rule, be
construed in the sense in which it ordinarily implies,
as a disjunctive word. Thus, the plain, clear and
unmistakable language of the law provides for two
(2) separate reasons for delisting. (Philippine
Guardians Brotherhood Inc. v. COMELEC, G.R. No.
190529, Apr. 29, 2010)
Who determines whether a party represents a
marginalized sector?
COMELEC has jurisdiction to determine whether an
organization applying for the party list system
represents a marginalized sector. It cannot be
challenged by certiorari because the decision is
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members, suspend or expel a Member. A penalty of
suspension, when imposed, shall not exceed 60
days. (PHIL. CONST., art. VI, § 16(3).)
The disciplinary action taken by Congress
against a member is not subject to judicial review
because each House is the sole judge of what
disorderly conduct is (Osmeña v. Pendatun, G.R.
No. L-17144, Oct. 28, 1960).
The parliamentary immunity of members of
Congress is not absolute. While parliamentary
immunity guarantees the legislator complete
freedom of expression without fear of being made
responsible before the courts or any other forum
outside of Congressional Hall, it does NOT protect
him (her) from responsibility before the legislative
body itself whenever words and conduct are
considered disorderly or unbecoming a member
thereof.
For unparliamentary conduct, members of
Congress can be:
(1) censured,
(2) committed to prison,
(3) suspended, and
(4) even expelled by the votes of their colleagues
(Osmeña v. Pendatun, G.R. No. L-17144, Oct.
28, 1960).
Is preventive suspension considered an
interruption of a term?
Preventive suspension is not considered
“interruption” of a term under Sec. 8, Art. X and Sec.
43 (b) of R.A. No. 7160. A preventive suspension
cannot simply be considered an interruption
because the suspended official continues to stay in
office although barred from exercising the functions
and prerogatives of the office within the suspension
period. The best indicator of the suspended official’s
continuity in office is the absence of a permanent
replacement and the lack of the authority to appoint
one since no vacancy exists (Aldovino v.
COMELEC, G.R. No. 184836, Dec. 23, 2009).
Authority of Sandiganbayan to Suspend
A Congressman can be preventively suspended by
the Sandiganbayan for violation of Anti-Graft Law
notwithstanding the exclusive power of Congress to
discipline its members.
The suspension contemplated in Article VI, Section
16(3) of the Constitution is a punishment that is
imposed by the Senate or House of Representatives
upon an erring member. It is distinct from the
suspension under Section 13 of the Anti-Graft and
Corrupt Practices Act, which is not a penalty but a
preventive measure. Since Section 13 of the Act
does not state that the public officer must be
suspended only in the office where he is alleged to
have committed the acts which he has been
charged, it applies to any office which he may be
holding (Santiago v. Sandiganbayan, G.R. No.
128055, April 18, 2001).
B. LAW-MAKING PROCESS
1. FUNCTION OF THE
BICAMERAL CONFERENCE
COMMITTEE
BICAMERAL CONFERENCE COMMITTEE – an
extra-constitutional creation which is intended to
resolve conflicts between House and Senate
versions of bills. (Bernas, 1987 Philippine
Constitution: A Commentary, 790, 2009).
Scope
Of
The
Bicameral
Conference
Committee’s Powers
1. Adopt the Bill entirely; or
2. Amend; or
3. Revise; or
4. Reconcile the House Bill and the Senate Bills;
5. Propose entirely new provisions not found in
either the House Bill or the Senate Bill.
(Amendments in the nature of a substitute)
2. LIMITATIONS ON
LEGISLATIVE POWER
a. Limitation
on
Revenue,
Appropriation, and Tariff
Limitation: So long as the amendment is germane
to the subject of the bill before the Committee.
In a bicameral system, bills are independently
processed by both Houses of Congress. It is not
unusual that the final version approved by one
House differs from what has been approved by the
other. The “conference committee,” consisting of
members nominated from both Houses, is an extraconstitutional creation of Congress whose function
is to propose to Congress ways of reconciling
conflicting provisions found in the Senate version
and in the House version of a bill.
It is within the power of a conference committee to
include in its report an entirely new provision that is
not found either in the House bill or in the Senate
bill. If the committee can propose an amendment
consisting of one or two provisions, there is no
reason why it cannot propose several provisions,
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collectively considered as an "amendment in the
nature of a substitute," so long as such amendment
is germane to the subject of the bills before the
committee. After all, its report was not final but
needed the approval of both houses of Congress to
become valid as an act of the legislative department
(Tolentino v. Secretary of Finance, G.R. No.
115455, Aug. 25, 1994).
Bills that must originate in the House (PHIL.
CONST., art. VI, § 24.)
1. Bills authorizing the increase of Public debt
● One which creates public indebtedness
such as bills for the issuance of bonds and
other forms of obligations
2. Private bills
● One affecting purely private interest, such
as one granting a franchise.
3. Tariff bills
● One that specifies the rates or duties to be
imposed on imported articles
4. Bills of Local application
● A bill of local application, such as one
asking for the conversion of a municipality
into a city, is deemed to have originated
from the House provided that the bill of the
House was filed prior to the filing of the bill
in the Senate; even if in the end, the Senate
approved its own version (Tolentino v.
Secretary of Finance, G.R. No. 115455,
Oct. 30, 1995).
NOTE: While these bills must originate from the
House, the Senate may introduce amendments and
pass a completely different bill from the original one
from the house. What is required only is that the bill
originate in the House.
Revenue Bills
One specifically designed to raise money or revenue
through imposition or levy.
1. For example, registration fees used for the
construction and maintenance of highways. (PAL
vs. Edu, G.R. No. L-41383, Aug. 15, 1988).
2. The Videogram Regulatory Board Law imposing
a tax on video rentals does not make the law a
revenue bill because the purpose is primarily
regulation, and not to raise revenue. (Tio v.
Videogram Regulatory Board, G.R. No. L-75697,
June 18, 1987)
General Limitations (PHIL. CONST., art. VI, § 26.)
Every bill shall embrace only one (1) subject, as
expressed in the title thereof, which does not have
to be a complete catalogue of everything stated in
the bill.
An Act creating the Videogram Regulatory Board
including 30% tax on gross receipts on video
transactions was held to be valid. Taxation is
sufficiently related to regulation of the video industry
(Tio v. Videogram Regulatory Board, G.R. No. L75697, June 18, 1987).
It is sufficient that the title expressing the general
subject of the bill and all the provisions of the statute
are germane to such general subject (Sumulong v.
COMELEC, G.R. No. L-48609, Oct. 10, 1941).
Bills passed by either House must pass 3 readings
on separate days, and printed copies thereof in its
final form distributed to its members 3 days before
its passage.
FIRST READING - Only the title is read; the bill is
passed to the proper committee
SECOND READING - Entire text is read and
debates are held; amendments introduced.
THIRD READING - Only the title is read, no
amendments are allowed. Vote shall be taken
immediately thereafter, and the yeas and nays
entered in the journal.
Exceptions:
● When the President certifies to the necessity of
the bill’s immediate enactment to meet a public
calamity or emergency, the three readings can
be held on the same day. (PHIL. CONST., art. VI,
§ 26(2).)
● When the offices of the President and VicePresident are both vacant, the bill calling for a
special election to elect a President and VicePresident is deemed certified. (PHIL. CONST.,
art. VII, § 10.)
b. Presidential
Veto
Congressional Override
and
Presidential Veto
Every bill passed by Congress shall be presented to
the President before it becomes law. To approve, he
shall sign it. Otherwise, he shall veto the bill. (PHIL.
CONST., art. VI, § 27(1).)
Overriding a Veto
The President shall transmit to House where the bill
originated. If, after such reconsideration, 2/3 of all
the members of such House shall agree to pass the
bill, it shall be sent, together with the objections, to
the other House by which it shall likewise be
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Adjournment
Neither House during the sessions of the Congress,
shall without the consent of the other, adjourn for
more than 3 days, nor to any other place than that
in which the two Houses shall be sitting. (PHIL.
CONST., art. VI, § 16.)
Types of Adjournment
(1) Day to day
(2) Yearly
(3) Sine die — with no appointed date for
resumption
‘Place’
Refers not to the building but to the political unit
where the Houses may be sitting.
C. APPROPRIATION
Rules on Appropriation
All appropriation bills shall originate exclusively in
the House of Representatives, but the Senate may
propose or concur with amendments. (PHIL. CONST.,
art. VI, § 24)
If, by the end of any fiscal year, the Congress shall
have failed to pass the general appropriations bill for
the ensuing fiscal year, the general appropriations
law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the
general appropriations bill is passed by the
Congress. (PHIL. CONST., art. VI, § 25 (7))
Limits on Power to Appropriate
The Congress may not increase the appropriations
recommended by the President for the operation of
the Government as specified in the budget. The
form, content, and manner of preparation of the
budget shall be prescribed by law (PHIL. CONST., art.
VI, § 25 (1)).
Prohibition on “Riders” in Appropriation Bills
No provision or enactment shall be embraced in the
general appropriations bill unless it relates
specifically to some particular appropriation therein.
Any such provision or enactment shall be limited in
its operation to the appropriation to which it relates.
(PHIL. CONST., art. VI, § 25 (2)).
A provision which refers to the fundamental
government policy matters of the calling to active
duty and the reversion to inactive status of reserve
officers in the AFP is a non-appropriation item
inserted in an appropriation measure and is a
violation of the constitutional inhibition against
“riders” to the General Appropriations Act (GAA)
(Garcia v Mata, G.R. No. L-33713, July 30, 1975).
Following liberal construction, a provision will not be
considered a “rider” if: 1) it is not inconsistent with or
foreign to the general subject, 2) considered in
furtherance of such subject by providing for the
method and means of carrying out the general
subject (Fariñas v Executive Secretary, G.R. No.
147387, 2003).
Transfer of Funds / Re-alignment
General Rule: No law shall be passed authorizing
any transfer of appropriations;
Exception (Exclusive List): The following may, by
law, be authorized to augment any item in the
general appropriations law for their respective
offices from savings in other items of their respective
appropriations:
(1) The President
(2) Senate President
(3) Speaker of the House of Representatives,
(4) the Chief Justice of the Supreme Court
(5) the heads of Constitutional Commissions (PHIL.
CONST., art. VI, § 25 (5))
Individual members of Congress may only
determine the necessity of the realignment of
savings in the allotments for their operating
expenses because they are in the best position to
know whether there are savings available in some
items and whether there are deficiencies in other
items of their operating expenses that need
augmentation. However, it is the Senate President
and the Speaker of the House of Representatives
who shall approve the realignment. (Philippine
Constitution Association v. Enriquez, G.R. No.
113105, August 19, 1994.)
Discretionary Funds
Discretionary funds appropriated for particular
officials shall be disbursed only for public purposes
to be supported by appropriate vouchers and
subject to such guidelines as may be prescribed by
law. (Araullo v. Aquino, G.R. No. 209287, July 1,
2014)
Special Purpose Fund
A special appropriations bill shall specify the
purpose for which it is intended and shall be
supported by funds actually available as certified by
the National Treasurer, or to be raised by a
corresponding revenue proposal therein. (Belgica v.
Ochoa, Jr. G.R. No. 208566, Nov. 19, 2013)
D. LEGISLATIVE INQUIRIES AND
OVERSIGHT FUNCTIONS
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LEGISLATIVE INQUIRIES
(PHIL. CONST., art. VI, § 21.)
Scope
The power of legislative investigation includes:
(1) Power to issue summons and notices;
(2) Power to punish or declare a person in
contempt;
(3) The power to determine the rules of its
proceedings.
Limitations:
(1) The inquiry must be in Aid of legislation.
(2) The inquiry must be conducted in accordance
with the ‘Duly published rules of procedure’ of
the House conducting the inquiry; and
(3) The rights of persons appearing in or affected
by such inquiries shall be Respected. (e.g., right
to due process, right against self- incrimination)
(Bernas, 1987 Philippine Constitution: A
Commentary, 761, 2009).
Nature and Purpose
The power of inquiry — with process to enforce it —
is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot
legislate wisely or effectively in the absence of
information respecting the conditions which the
legislation is intended to effect or change; and
where the legislative body does not itself possess
the requisite information — which is not infrequently
true — recourse must be had to others who do
possess it. (Arnault v. Nazareno, G.R. No. L-3820,
July 18, 1950)
Legislative inquiries must be conducted “in aid of
legislation” which does not necessarily mean that
there is pending legislation regarding the subject of
the inquiry. Hence, the materiality of a question is
determined not by its connection to any pending
legislation, but by its connection to the general
scope of the inquiry. (Bengzon v. Senate Blue
Ribbon Committee, G.R. No. 89914, Nov. 20, 1991)
If the investigation is no longer “in aid of legislation”
but, “in aid of prosecution” where the stated purpose
of the investigation is, to determine the existence of
violations of the law, it is beyond the scope of
congressional powers.
Compulsory Process
The power of legislative investigation includes the
power to compel the attendance of witnesses.
Corollary to the power to compel the attendance of
witnesses is the power to ensure that said witnesses
would be available to testify in the legislative
investigation. (Standard Chartered v. Senate, G.R.
No. 167173, Dec. 27, 2007).
Duly Published Rules of Procedure
It is incumbent upon the Senate to publish the rules
for its legislative inquiries in each Congress or
otherwise make the published rules clearly state that
the same shall be effective in subsequent
Congresses or until they are amended or repealed
to sufficiently put the public on notice. If it was the
intention of the Senate for its present rules on
legislative inquiries to be effective even in the next
Congress, it could have easily adopted the same
language it had used in its main rules regarding
effectivity. Publication in the internet does not satisfy
the requirement of publication as provided in the
Constitution
(Garcillano
v.
House
of
Representatives, G.R. No. 170338, Dec. 23, 2008).
Right against Self-Incrimination
A subpoenaed witness cannot refuse to attend a
legislative inquiry by invoking his or her right against
self-incrimination. Such right may be invoked only
when the incriminating question is being asked,
since they have no way of knowing in advance the
nature or effect of the questions to be asked of them.
(Sabio v. Gordon, G.R. No. 174340, Oct. 17, 2006).
Non-Applicability of the Sub Judice Rule to
Inquiries in Aid of Legislation
The mere filing of a criminal or an administrative
complaint before a court or a quasi-judicial body
should not automatically bar the conduct of
legislative investigation. Otherwise, it would be
extremely easy to subvert any intended inquiry by
Congress through the convenient ploy of instituting
a criminal or an administrative complaint. Surely, the
exercise of sovereign legislative authority, of which
the power of legislative inquiry is an essential
component, cannot be made subordinate to a
criminal or an administrative investigation.
(Standard Chartered v. Senate, G.R. No. 167173,
Dec. 27, 2007).
A legislative investigation in aid of legislation
and court proceedings have different purposes.
On one hand, courts conduct hearings or like
adjudicative procedures to settle, through the
application of a law, actual controversies arising
between
adverse
litigants
and
involving
demandable rights. On the other hand, inquiries in
aid of legislation are, inter alia, undertaken as tools
to enable the legislative body to gather information
and, thus, legislate wisely and effectively; and to
determine whether there is a need to improve
existing laws or enact new or remedial legislation,
albeit the inquiry need not result in any potential
legislation. On-going judicial proceedings do not
preclude congressional hearings in aid of legislation.
(Romero v. Estrada, G.R. No. 174105, April 2, 2009)
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The President has constitutional authority to prevent
any member of the Armed Forces from testifying
before a legislative inquiry by virtue of her power as
commander-in- chief, and that as a consequence a
military officer who defies such injunction is liable
under military justice. The only way to circumvent
this is by judicial order because the President may
be commanded by judicial order to compel the
attendance of the military officer. Final judicial
orders have the force of the law of the land which
the President has the duty to faithfully execute
(Gudani v. Senga, G.R. No. 170165, Aug. 15, 2006).
When Congress merely seeks to be informed on
how department heads are implementing the
statutes which it has issued, its right to such
information is not as imperative as that of the
President to whom, as Chief Executive, such
department heads must give a report of their
performance as a matter of duty. In such instances,
Section 22 of Article VI, in keeping with the
separation of powers, states that Congress may
only request their appearance. Nonetheless, when
the inquiry in which Congress requires their
appearance is “in aid of legislation” under Section
21, Article VI, the appearance is mandatory (Senate
v. Ermita, G.R. No. 169777, April 20, 2006).
E. DECLARATION OF EXISTENCE
OF STATE OF WAR
The Congress, by a vote of two-thirds of both
Houses in joint session assembled, voting
separately, shall have the sole power to declare the
existence of a state of war. (PHIL. CONST., art. VI, §
23(1))
Existence of a state of war – not declaring war
The power “to declare war” is not lodged with
Congress but with the executive power which holds
the sword of the nation. Congress can only state
facts – the existence of “a state of war.”
Even if Congress doesn’t declare or make a law
regarding the existence of a state of war, the
President can exercise commander in chief powers
under Art. VII, Sec 18 of the 1987 Constitution.
F. POWER TO REVOKE/EXTEND
THE SUSPENSION OF THE
PRIVILEGE OF THE WRIT OF
HABEAS CORPUS AND
DECLARATION OF MARTIAL LAW
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.
(PHIL. CONST., art. VII, § 18(1))
Legislative Review
a. Within 48 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.
b. The Congress, if not in session, shall, within 24
hours following such proclamation or
suspension, convene in accordance with its
rules without need of a call.
c. 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.
d. 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.
G. POWER OF IMPEACHMENT
Exclusive Power to Initiate
The House of Representatives shall have the
exclusive power to initiate all cases of impeachment
(PHIL. CONST., art. IX, § 3(1).)
(1) The impeachment proceedings begin with a
complaint
filed
with
the
House
of
Representatives either by a member of the
House or by any citizen supported by a
resolution of endorsement by any member. The
complaint is referred to a Committee which
prepares a report (which can be favorable or
unfavorable). In either case, the House by a
vote of 1/3 of all its members decides whether
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complaint should be given due course. (PHIL.
CONST., art. IX, § 3(2 & 3).)
(2) Referral to the Committee and decision by the
House is unnecessary if the complaint is filed by
at least 1/3 of all the members of the house
(PHIL. CONST., art. IX, § 3(4).)
always be one member of the Tribunal who is a
Justice. If all three Justice-members inhibit
themselves in a case, the Supreme Court will
designate another Justice to chair the Electoral
Tribunal. (Reyes v. HRET, G.R. No. 221103, Oct.
16, 2018)
Exclusive Power to Try and Decide
The Senate shall have the sole power to try and
decide all cases of impeachment. No person shall
be convicted without the concurrence of 2/3 of all the
Members of the Senate (PHIL. CONST., art. IX, §
3(6).)
Nature of Tribunals
The tribunal was created to function as a
nonpartisan court although two-thirds of its
members are politicians. It is a non-political body in
a sea of politicians. As judges, the members of the
tribunal must be non-partisan. They must discharge
their functions with complete detachment,
impartiality,
and
independence
—
even
independence from the political party to which they
belong. Hence, "disloyalty to party" and "breach of
party discipline," are not valid grounds for the
expulsion of a member of the tribunal. (Bondoc v.
Pineda, G.R. No. 97710, Sept. 26, 1991)
The penalty imposable shall be limited to:
● removal from office and
● disqualification to hold any office under the
Republic of the Philippine (PHIL. CONST., art. IX,
§ 3(7).)
Officers Subject to Impeachment (PHIL. CONST.,
art. IX, § 2.)
● President
● Vice President
● Members of the Supreme Court
● Members of the Constitutional Commissions
● Ombudsman
Grounds for Impeachment (PHIL. CONST., art. IX, §
2.)
● Bribery
● Graft and Corruption
● Culpable Violation of the Constitution
● Treason
● Betrayal of Public Trust
● Other high crimes
H. ELECTORAL TRIBUNALS
1. COMPOSITION
The Senate and the House of Representatives shall
each have an Electoral Tribunal (SET and HRET).
(PHIL. CONST., art. VI, § 17.)
Composition – Nine (9) members
1. Three (3) Supreme Court Justices to be
designated by the Chief Justice.
o The senior Justice in the Electoral Tribunal
shall be its Chairman.
2. Six (6) Members of the Senate or House, as the
case may be. They shall be chosen on the basis
of proportional representation.
The presence of the three Justices, as against six
members of [each House], was intended as an
additional guarantee to ensure impartiality in the
judgment of cases before it. As such, there should
An Electoral Tribunal is a quasi-judicial body.
Therefore, the degree of proof required is only
substantial evidence or that amount of relevant
evidence which a reasonable mind might accept as
adequate to justify a conclusion. (David v. SET, G.R.
No. 221538, Sept. 20, 2016)
Security of Tenure
Membership in the HRET may not be terminated
except for a just cause, such as the expiration of the
member's congressional term of office, his death,
permanent disability, resignation from the political
party he represents in the tribunal, formal affiliation
with another political party, or removal for other valid
cause. A member may not be expelled by the HOR
for ‘party disloyalty’ short of proof that he has
formally affiliated with another political group.
(Bondoc v. Pineda, G.R. No. 97710, Sept. 26, 1991)
2. POWERS AND
JURISDICTION
Jurisdiction
Each Electoral Tribunal shall be the sole judge of
all contests relating to the (ERQ) Election,
Returns and Qualifications of their respective
members. This includes determining the validity or
invalidity of a proclamation declaring a particular
candidate as the winner.
“Qualifications” are not limited to the qualifications
prescribed by the Constitution for a Member of
Congress under Art. VI, Sec. 6. (Guerrero v.
COMELEC, G.R. No. 137004, July 26, 2000)
The COMELEC’s jurisdiction over election contests
relating to election, returns, and qualifications ends,
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and the HRET's own jurisdiction begins once a
winning candidate is:
1. Proclaimed
2. Taken his oath, and
3. Assumed office as a Member of the House of
Representatives. (Aggabao v. COMELEC, G.R.
No. 163756, Jan. 26, 2005)
●
In the absence of an election contest, the
Electoral Tribunal is without jurisdiction.
However, each House can expel its own
members or even defer their oath taking
until their qualifications are determined.
This may be exercised even without an
election contest.
Thus, in an electoral contest where the validity of
the proclamation of a winning candidate who has
taken his oath of office and assumed his post as
Congressman is raised, that issue is best addressed
to the HRET. (Guerrero v. COMELEC, G.R. No.
137004, July 26, 2000)
The power of the HRET to determine the citizenship
of a winning candidate does not include looking at
the grant of citizenship to the candidate’s
ascendant. That would be a prohibited collateral
attack (Vilando v. HRET, G.R. Nos. 192147 &
192149, Aug. 23, 2011).
Once COMELEC loses its jurisdiction, the proper
remedy is to file a petition for quo warranto before
the HRET and not a petition for certiorari before the
Supreme Court. (Señeres v. COMELEC, G.R. No.
178678, Apr. 16, 2009)
An Electoral Tribunal may annul election results if in
its determination, fraud, terrorism or other electoral
irregularities existed to warrant the annulment.
Because in doing so, it is merely exercising its
constitutional duty to ascertain who among the
candidates received the majority of the valid votes
cast. (Abayon v. HRET, G.R. No. 222236, May 3,
2016)
NOTE: The Constitution provides that a person
assumes office “at noon on the 30th day of June”.
The Oath of Office the petitioner presented is not
valid. As far as the court is concerned, she took her
oath on 5th of June which is not the one prescribe
by the Constitution. Therefore, the COMELEC still
has jurisdiction. Before there is a valid taking of
the oath, it must be made:
(1) Before the Speaker of the House of
Representatives, and
(2) In open session. (Reyes v. COMELEC, G.R.
No. 207264, June 25, 2013)
Does the HRET have jurisdiction over preproclaimed controversies?
No, the COMELEC has exclusive jurisdiction over
pre-proclaimed controversies. (Omnibus Election
Code, § 242)
Is jurisdiction lost upon withdrawal or protest?
No. Jurisdiction once acquired, is not lost upon the
instance of the parties, but continues until the case
is terminated. Mere filing of a motion to withdraw
protest, without any action on the part of the tribunal,
does not divest it of jurisdiction. An election protest
is impressed with public interest in the sense that
the public is interested in knowing what happened in
the elections. Thus, private interest must yield to the
common good. (Robles v HRET, G.R. No. 86647,
Feb. 5, 1990)
Election Contest – where a defeated candidate
receiving the second highest number of votes
challenges the qualifications of a winning candidate
and claims for himself the seat of a proclaimed
winner.
Since the Electoral Tribunals are independent
constitutional bodies:
Neither Congress nor the Courts may interfere with
procedural matters relating to the functions of the
Electoral
Tribunals.
(Angara
v.
Electoral
Commission, G.R. No. L-45081, July 15, 1936)
● Its members may not be arbitrarily removed
from their positions in the tribunal by the parties
that they represent. Neither may they be
removed for not voting according to party lines,
since they are acting independently of
Congress. (Bondoc v. Pineda, G.R. No. 97710,
Sept. 26, 1991)
The mere fact that the members of either the Senate
or the House sitting on the Electoral Tribunal are
themselves the ones sought to be disqualified (due
to the filing of an election contest against them) does
not warrant the disqualification of all the members of
the Electoral Tribunal. (Abbas v. SET, G.R. No.
83767, Oct. 27, 1988)
● Judicial review of decisions of the Electoral
Tribunals may be had with the Supreme Court
only on the ground of grave abuse of discretion,
the decision or resolution having been rendered
without or in excess of jurisdiction. (Pimentel v.
HRET, G.R. No. 141489, Nov. 29, 2002)
EXAMPLE: A final vote tally made by an Electoral
Tribunal without supporting evidence has been
struck down by the Court. (Lerias v. COMELEC,
G.R. No. 97105, Oct. 15, 1991)
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When the names of the parents of a foundling
cannot be discovered despite a diligent search, but
sufficient evidence is presented to sustain a
reasonable inference that satisfies the quantum of
proof required to conclude that at least one or both
of his or her parents is Filipino, then this should be
sufficient to establish that he or she is a natural-born
citizen. When these inferences are made by the
SET in the exercise of its sole and exclusive
prerogative to decide the qualifications of the
members of the Senate, then there is no grave
abuse of discretion. (David v. SET, G.R. No.
221538, Sept. 20, 2016)
The cardinal objective in ballot appreciation is to
discover and give effect to, rather than frustrate, the
intention of the voter. Extreme caution is observed
before any ballot is invalidated and doubts are
resolved in favor of the ballot’s validity. This Court
finds no grave abuse of discretion by the HRET in
its findings after its careful review of the objected
ballots and guided by existing principles, rules and
rulings on its appreciation. (Locsin v. HRET, G.R.
No. 204123, March 19,2013)
Rule Making Power
The power of the HRET, as the sole judge of all
contests relating to the election, returns and
qualifications of the Members of the House of
Representatives, to promulgate rules and
regulations relative to matters within its jurisdiction,
including the period of filing election protests before
it, is beyond dispute. It’s rule-making power
necessarily flows from the general power granted it
by the Constitution. (Lazatin v HRET, G.R. No.
84297, 1998)
I.
COMMISSION ON
APPOINTMENTS
1. COMPOSITION
Composition
1. Senate President as ex-officio chairman
2. 12 Senators
3. 12 Members of the House
The Commission on Appointments (CA) acts as a
legislative check on the appointing authority of the
President. For the effectivity of the appointment of
certain key officials enumerated in the Constitution,
the consent of the CA is needed. (Bernas)
Manner of Composition
Elected on the basis of proportional representation
from the political parties and party-list organizations
within 30 days after the Senate and the House of
Representatives shall have organized with the
election of the Senate President and the Speaker of
the House (PHIL. CONST., art. VI, § 19.)
The Constitution does not require that the “political
parties” be registered before the COMELEC. (Daza
v. Singson, G.R. No. 86344, Dec. 21, 1989)
The minimum required number of elected senators
belonging to the same political party in order for the
party to qualify for a seat in the CA is at least two (2)
elected senators for every seat in the CA. (Guingona
v. Gonzales, G.R. No. 106971, March 1, 1993).
The Constitution does not require that the full
complement of 12 senators be elected to the
membership in the CA before it can discharge its
functions and that it is not mandatory to elect 12
senators to the CA (Guingona vs. Gonzales, G.R.
No. 106791, March 1, 1993).
The two Houses have primary jurisdiction on who
should sit in the CA. This includes determination of
party affiliation and number of party members for
purpose of determining proportional representation
(Drilon v. De Venecia, G.R. No. 180055, July 31,
2009).
Voting
(1) The Commission shall rule by a majority vote of
all the Members. (PHIL. CONST., art. VI, § 18.)
(2) The chairman shall only vote in case of a tie.
(Id.)
(3) The Commission shall act on all appointments
submitted to it within 30 session days. (Id.)
(4) The Commission shall meet only while
Congress is in session, at the call of its
Chairman or a majority of all its members. (PHIL.
CONST., art. VI, § 19.)
2. POWERS AND
JURISDICTION
Jurisdiction (PHIL. CONST., art. VII, § 16.)
The Commission on Appointments shall confirm the
appointments by the President with respect to the
following positions:
(1) Heads of the Executive Departments
o Exception: Appointment of Vice President
as a member of the Cabinet needs no
confirmation (PHIL. CONST., art. VII, § 15.)
(2) Ambassadors,
(3) Other public Ministers or consuls
(4) Officers of the AFP from the rank of Colonel or
Naval Captain and above; and
(5) Other officers whose appointments are vested
in him by the Constitution (e.g. COMELEC
members)
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Examples: Chairmen and commissioners
of the CSC, COMELEC, and COA; regular
members of the Judicial Bar Council (JBC)
of Commission on
NOTE: The consent
Appointments is required only in the 1st sentence
enumeration of Art. VII, Section 16. (Sarmiento v.
Mison, G.R. No L-79974, Dec. 17, 1987)
Limitations
● Congress cannot by law prescribe that the
appointment of a person to an office created by
such law shall be subject to confirmation by the
CA.
● Appointments extended by the President to the
enumerated positions while Congress is not in
session shall only be effective until disapproval
by the CA, or until the next adjournment of
Congress.
● Since the Commission on Appointments is an
independent constitutional body, its rules of
procedure are outside the scope of
congressional powers as well as that of the
judiciary.
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Election
Regular: 2nd Monday of May, every 6 years
Special (Requisites):
● Death, Permanent disability, removal from
office or resignation of both President and VicePresident
● Vacancies occur more than 18 months before
the next regular presidential election; and
● A law passed by Congress calling for a special
election to elect a President and Vice President
to be held not earlier than 45 days nor later than
60 days from the time of such call (PHIL. CONST.,
art VII, § 10)
Congress as Canvassing Board
The proclamation of presidential and vicepresidential winners is a function of Congress and
not of the COMELEC (Macalintal v. COMELEC,
G.R. No. 157013, Jun. 10, 2003)
SC as the Presidential Electoral Tribunal (PET)
The SC, 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.
(Macalintal v. PET, G.R. No. 191618, Nov. 23, 2010)
Oath of Office
Before they enter on the execution of their office, the
President, Vice President or the Acting President
shall take the oath or affirmation (PHIL. CONST., art.
VII, § 5).
2. PRIVILEGES, INHIBITIONS,
AND DISQUALIFICATIONS
Executive Privilege
Executive Privilege is the power of the President to
withhold certain types of information from the court,
the Congress, and the public. (Neri v. Senate, G.R.
No. 180643, Mar. 25, 2008)
For the presidential communications privilege to
apply, the following must concur:
(1) Communications relate to a “quintessential and
nondelegable power” of the President. (e.g. the
power to enter into an executive agreement with
other countries without the concurrence of the
Legislature has traditionally been recognized in
Philippine jurisprudence)
(2) Communications are “received” by a close
advisor of the President. Under the “operational
proximity” test, Secretary Neri of NEDA can be
considered a close advisor, being a member of
President Arroyo’s cabinet.
(3) There is no adequate showing of a compelling
need that would justify the limitation of the
privilege and of the unavailability of the
information elsewhere by an appropriate
investigating authority.
Scope of Executive Privilege
Executive privilege covers all confidential or
classified information between the President and the
public officers covered by this executive order;
including:
● Conversations and correspondence between
the President and the public official covered by
this executive order (Chavez v Public Estates
Authority, G.R. No. 133250, Jul. 9, 2002);
● Military, diplomatic and other national security
matters which in the interest of national security
should not be divulged;
● Information
between
inter-government
agencies prior to the conclusion of treaties and
executive agreements. (Chavez v. PCGG, G.R.
No. 130716, Dec. 9, 1998);
● Discussion in close-door Cabinet meetings
(Chavez v. PCGG, G.R. No. 130716, Dec. 9,
1998); and
● Matters affecting national security and public
order. (Chavez v. Public Estates Authority, G.R.
No. 133250, Jul. 9, 2002)
Presidential Immunity
Immunity from suit is personal to the President and
may be invoked by him alone. The President may
waive it impliedly, as when he himself files suit.
(Soliven v. Makasiar, G.R. No. 82585, Nov. 14,
1988)
The presidential immunity from suit remains
preserved under our system of government, albeit
not expressly reserved in the present constitution.
(Rubrico, et al. v. Gloria Macapagal-Arroyo, et al.,
G.R. No. 183871, Feb. 18, 2010)
Unlawful acts of public officials are not acts of State
and the officer who acts illegally is not acting as such
but stands in the same footing as any other
trespasser. Once out of office, even before the end
of the six-year term, immunity for non-official acts is
lost. (Estrada v. Desierto, G.R. No. 146710-15, Mar.
2, 2001)
A department secretary, even if an alter ego of the
President, cannot invoke presidential immunity in a
case filed against him because the questioned acts
are not the acts of the President. (Gloria v. CA, G.R.
No. 119903, Aug. 15, 2000)
Duration of Presidential Immunity
After his tenure, the Chief Executive cannot invoke
immunity from suit for civil damages arising out of
acts done by him while he was President which were
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Executive Powers, In General
The Constitution provides that "[t]he executive
power shall be vested in the President of the
Philippines.” However, it does not define what is
meant by executive power although in the same
article it touches on the exercise of certain powers
by the President, i.e., the power of control over all
executive departments, bureaus and offices, the
power to execute the laws, the appointing power,
the powers under the commander-in-chief clause,
the power to grant reprieves, commutations and
pardons, the power to grant amnesty with the
concurrence of Congress, the power to contract or
guarantee foreign loans, the power to enter into
treaties or international agreements, the power to
submit the budget to Congress, and the power to
address Congress.
The President’s Executive powers are not limited to
those set forth in the Constitution. The President has
residual powers as the Chief Executive of the
country, which powers include others not set forth in
the Constitution (Marcos v. Manglapus, G.R. No.
88211, Sept. 15, 1989).
Power of Administrative Reorganization
The President has the continuing authority to
reorganize the national government, which includes
the power to group, consolidate bureaus and
agencies, to abolish offices, to transfer functions, to
create and classify functions, services and activities
and to standardize salaries and materials, if effected
in good faith and for the purpose of economy or to
make the bureaucracy more efficient. (MEWAP v.
Executive Secretary, G.R. No. 160093, Jul. 31,
2007)
C. POWER OF APPOINTMENT
In General
Executive in nature; while Congress (and the
Constitution in certain cases) may prescribe the
qualifications for particular offices, the determination
of who among those who are qualified will be
appointed is the President’s prerogative.
In case of vacancy in an office occupied by an alter
ego of the President, such as the office of a
department secretary, the President must
necessarily appoint an alter ego of her choice as
acting secretary before the permanent appointee of
her choice could assume office. Congress, through
a law, cannot impose on the President the obligation
to appoint automatically the undersecretary as her
temporary alter ego. An alter ego, whether
temporary or permanent, holds a position of great
trust and confidence. Congress, in the guise of
prescribing qualifications to an office, cannot impose
on the President who her alter ego should be
(Pimentel v. Ermita, G.R. No. 164978, Oct. 13,
2005).
Kinds of Presidential Appointments under Art
VII, Sec.15 of the Constitution
(1) Appointments made by an acting president
(2) Midnight appointment — appointment made by
a President after the election of his successor
and up to the end of his term. This is prohibited
by the Constitution.
(3) Appointments
for
Partisan
Political
Consideration. Those made 2 months before
the next Presidential election. This is prohibited
by the Constitution.
(4) Regular presidential appointments, with or
without confirmation by the Commission on
Appointments, and ‘recess’ or ‘ad-interim’
appointments.
The Constitutional Limitations on the
President’s appointing power
The President may not appoint his/her spouse and
relatives by consanguinity or affinity within the 4th
civil degree as members of the:
(a) Constitutional Commissions
(b) Ombudsman
(c) Department Secretaries
(d) Undersecretaries
(e) Chairmen and heads of Bureaus and Offices
(f) GOCCs (PHIL. CONST., art. VII, § 13)
Appointments extended by an acting President shall
remain effective unless revoked by the elected
President within 90 days from assumption of office
(PHIL. CONST., art. VII, § 14)
Two months immediately before the next
Presidential elections and up to the end of his/her
term, a President or Acting President shall not make
appointments except temporary appointments to
executive positions when continued vacancies
therein will prejudice public service or endanger
public safety (PHIL. CONST., art. VII, § 15).
The appointment of the heads of the executive
departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the
rank of colonel or naval captain, and other officers
whose appointments are vested in him in this
Constitution require the consent of the Commission
on Appointments (PHIL. CONST., art. VII, § 16).
Requisites for Valid Appointment
(1) Authority to appoint and evidence of its
exercise;
(2) Transmittal of the appointment and proof of it
(3) Vacant position at the time of appointment;
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(4) Other officers whose appointment is vested in
him by the Constitution, such as:
a. Chairmen and members of the COMELEC,
COA, and CSC.
b. Regular members of the JBC.
c. The Ombudsman and his deputies.
d. Sectoral representatives in Congress, as
provided in Transitory Provisions (Sec. 16).
Procedure When CA Confirmation Needed:
(1) Nomination by President
(2) Confirmation by CA
(3) Appointment by President
(4) Acceptance by appointee.
a. At any time before all four steps have been
complied with, the President can withdraw
the nomination or appointment.
Regular Appointments Without Need Of CA
Confirmation
All other officers whose appointments are not
otherwise provided for by law and those whom he
may be authorized by law to appoint do not require
CA confirmation. This includes the Chairman and
members of the Commission on Human Rights
(CHR), whose appointments are provided for by law,
and NOT by the Constitution. (PHIL. CONST., Art. VII,
Sec. 16)
Congress may, by law, vest in the President alone
or in the courts, or in the heads of departments,
agencies boards or commissions the appointment of
other officers lower in rank than those mentioned
above (PHIL. CONST., Art. VII, Sec 16)
However, Congress cannot, by law, require CA
confirmation of the appointment of other officers for
offices created subsequent to the 1987 Constitution
e.g. NLRC Commissioners, Bangko Sentral
Governor (Calderon v. Carale, G.R. No. 91636, April
23, 1992).
General Rule: Two (2) months immediately before
the next Presidential elections and up to the end of
his term, the President or Acting President shall not
make appointments. This is to prevent the practice
of making “midnight appointments.” (PHIL. CONST.,
art. VII, § 15).
Exceptions
1. Temporary appointments to executive positions
if continued vacancies will prejudice public
service or endanger public safety.
2.
Prohibition does not extend to appointments in
the Supreme Court. Had the framers intended
to extend the prohibition to the appointment of
Members of the Supreme Court, they could
have explicitly done so. The prohibition is
confined to appointments in the Executive
Department. Existence of the JBC also prevents
possible abuses in appointment (De Castro v.
JBC, G.R. No. 191002, Apr. 20, 2010;
overturned In re: Appointment of Valenzuela,
A.M. 98-5-01-SC, Nov. 9, 1998).
3.
There is no law that prohibits local elective
officials from making appointments during the
last days of his or her tenure. Prohibition only
applies to appointments by the President (De la
Rama v. CA, G.R. No. 131136, Feb. 28, 2001).
4.
If the President is not satisfied with the list
submitted by the JBC, he may ask for another
list. But once the appointment is issued by the
President and accepted by the nominee, it
needs no further confirmation.
5.
President may appoint SC Justice within 60
days prior to election. Article VII deals entirely
with the executive department while Article VIII
deals with the judiciary. Had the framers
intended to extend the 60-day prohibition
contained in Section 15, Article VII to the
appointment of Members of the Supreme Court,
they could have explicitly done so. That such
specification was not done only reveals that the
prohibition against the President or Acting
President making appointments within two
months before the next presidential elections
and up to the end of the President’s or Acting
President’s term does not refer to the Members
of the Supreme Court. The usage in Section 4
(1), Article VIII of the word shall – an imperative,
operating to impose a duty that may be
enforced – should not be disregarded.
6.
The framers did not need to extend the
prohibition against midnight appointments to
Procedure When No CA Confirmation Needed:
(1) Appointment
(2) Acceptance
Once appointee accepts, President can no longer
withdraw the appointment.
Appointments With Prior Recommendation or
Nomination By The JBC
● Members of the SC and judges of the lower
courts; these appointments do not need CA
confirmation (PHIL. CONST., art. VIII, § 9).
● Ombudsman and his Deputies (PHIL. CONST.,
art. VIII, § 9).
3. MIDNIGHT APPOINTMENTS
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appointments in the Judiciary, because the
establishment of the JBC and subjecting the
nomination and screening of candidates for
judicial positions to the unhurried and deliberate
prior process of the JBC ensured that there
would no longer be midnight appointments to
the Judiciary. JBC intervention eliminates the
danger that appointments to the Judiciary can
be made for the purpose of buying votes in a
coming presidential election, or of satisfying
partisan considerations. The creation of the
JBC was precisely intended to de-politicize the
Judiciary by doing away with the intervention of
the Commission on Appointments (De Castro v.
JBC, G.R. No. 191002, Apr. 20 2010).
Prohibition against Midnight Appointments
applicable to Presidential Appointments only
The prohibition on midnight appointments under
Article VII, Sec 15 only applies to presidential
appointments. It does not apply to appointments
made by local chief executives. Nevertheless, the
Civil Service Commission has the power to
promulgate rules and regulations to professionalize
the civil service. It may issue rules and regulations
prohibiting local chief executives from making
appointments during the last days of their tenure.
Appointments of local chief executives must
conform to these civil service rules and regulations
in order to be valid. (Provincial Government of
Aurora v. Marco, G.R. No. 202331, Apr. 22, 2015)
4. REMOVAL FROM OFFICE
General Rule: The express power of appointment
of the President has the corollary implied power of
removal. Hence, the President may remove
appointees.
Exception:
Appointments
requiring
certain
methods for removal (e.g., Impeachment,
appointment of judges of inferior courts (PHIL.
CONST., art. VIII, § 11; Gonzales III vs. Office of the
President of the Philippines, G.R. No. 196231, Sept.
4, 2012).
The succeeding President may not revoke
appointments to the Judiciary made by an Acting
President. Sec. 14, Art. VII refers only to
appointments in the Executive Department. It has no
application to appointments in the Judiciary because
temporary or acting appointments can only
undermine the judiciary due to their being revocable
at will…Prior to their mandatory retirement or
resignation, judges of the first or second level courts
and the Justices of the third level courts may only be
removed for cause, but the members of the
Supreme Court may be removed only by
impeachment (De Castro v. JBC, G.R. No. 191002,
Apr. 20, 2010).
Disciplinary Powers
The power of the President to discipline officers
flows from the power to appoint the officer, and NOT
from the power of control.
While the President may remove from office those
who are not entitled to security of tenure, or those
officers with no set terms, such as Department
Heads, the officers, and employees entitled to
security of tenure cannot be summarily removed
from office.
D. POWER OF CONTROL AND
SUPERVISION
Power of Control
The power of an officer to alter, modify, or set aside
what a subordinate officer has done in the
performance of his duties, and to substitute the
judgment of the officer for that of his subordinate.
The President’s power of control is a self-executing
provision. The incumbent President is free to
amend, rescind and modify any political agreements
entered into by the previous Presidents (Ocampo v.
Enriquez, G.R. No. 225973, Nov. 8, 2016).
The appeal from the decision of a Department
Secretary to the President can be restricted due to
the President’s power of control. It may be limited by
executive order of the President, a law providing for
judicial review, and a rule of procedure promulgated
by the Supreme Court. (Angeles v. Gaite, G.R. No.
165276, Nov. 25, 2009).
Power of Supervision
The power of a superior officer to ensure that the
laws are faithfully executed by subordinates.
The power of supervision does not include the
power of control; but the power of control
necessarily includes the power of supervision.
The President’s power over GOCCs comes not from
the Constitution but from statute. Hence, it may
similarly be taken away by statute.
For Administrative Proceedings, decisions of
Department Secretaries need not be appealed to
the President in order to comply with the
requirement of exhaustion of administrative
remedies.
The execution of laws is an OBLIGATION of the
President. He cannot suspend the operation of laws.
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power only when the
President acts in a
manner constituting
grave
abuse
of
discretion
POLITICAL LAW & PUBLIC INTERNATIONAL LAW
suspension and the
Court may review the
sufficiency of the factual
basis thereof
Graduation of the Extraordinary Powers
The 1987 Constitution gives the President a
sequence of graduated power[s]. From the most to
the least benign, these are: the calling out power,
the power to suspend the privilege of the writ of
habeas corpus, and the power to declare martial
law. It must be stressed, however, that the
graduation refers only to hierarchy based on scope
and effect. It does not in any manner refer to a
sequence, arrangement, or order which the
Commander-in-Chief must follow. This so-called
"graduation of powers" does not dictate or restrict
the manner by which the President decides which
power to choose.
The power to choose, initially, which among these
extraordinary powers to wield in a given set of
conditions is a judgment call on the part of the
President.
It is thus beyond doubt that the power of judicial
review does not extend to calibrating the President's
decision pertaining to which extraordinary power to
avail given a set of facts or conditions. To do so
would be tantamount to an incursion into the
exclusive domain of the Executive and an
infringement on the prerogative that solely, at least
initially, lies with the President. (Lagman v.
Medialdea, G.R. No. 231658, Jul. 4, 2017)
Calling Out Powers
As Commander-in-Chief of the Armed Forces,
whenever necessary, the President may call out the
Armed Forces to PREVENT or SUPPRESS:
(a) Lawless violence
(b) Invasion
(c) Rebellion
Among the three extraordinary powers, the calling
out power is the most benign and involves ordinary
police action. The power to call is fully discretionary
to the President; the only limitations being that he
acts within permissible constitutional boundaries or
in a manner not constituting grave abuse of
discretion. In fact, the actual use to which the
President puts the armed forces is not subject to
judicial review. (Lagman v. Medialdea, G.R. No.
231658, Jul. 4, 2017)
The President's calling out power is in a different
category from the power to suspend the privilege of
the writ of habeas corpus and the power to declare
martial law. In other words, the President may
exercise the power to call out the Armed Forces
independently of the power to suspend the
privilege of the writ of habeas corpus and to declare
martial law, although, of course, it may also be a
prelude to a possible future exercise of the latter
powers. (Id.)
The factual necessity of calling out the armed forces
is something that is for the President to decide. (IBP
v. Zamora, G.R. No. 141284, Aug. 15, 2000)
Judicial inquiry can go no further than to satisfy the
Court not that the President’s decision is correct but
that the President did not act arbitrarily. Thus, the
standard laid down is not correctness, but
arbitrariness.
PP 1017 is constitutional insofar as it constitutes a
call by PGMA on the AFP to suppress lawless
violence, which pertains to a spectrum of conduct
that is manifestly subject to state regulation, and not
free speech.
PP 1017 is unconstitutional insofar as it grants
PGMA the authority to promulgate “decrees.”
Legislative power is within the province of the
Legislature. She can only order the military, under
PP 1017, to enforce laws pertinent to its duty to
suppress lawless violence (David v. Gloria
Macapagal-Arroyo, G.R. No. 171396, May 3, 2006).
Gen. Order No. 5 is constitutional since it provides a
standard by which the AFP and the PNP should
implement PP 1017, that is, suppressing lawless
violence. However, considering that “acts of
terrorism” have not yet been defined and made
punishable by the Legislature, such portion of G.O.
No. 5 is declared unconstitutional. (David v.
Macapagal-Arroyo, G.R. No. 171396, May 3, 2006)
Declaration of a State of Emergency
The declaration of a state of emergency is merely a
description of a situation that authorizes (the
President) to call out the Armed Forces to help the
police maintain law and order. It gives no new power
to her, or to the military, or to the police. Certainly, it
does not authorize warrantless arrests or control of
media (David v. Ermita, G.R. No. 171409, May 3,
2006).
Emergency Powers v. Calling Out Powers
The presidential proclamation of a state of
emergency is NOT sufficient to allow the President
to take over any public utility. Since it is an aspect of
emergency powers in accordance with § 23 (2), Art.
VI of the Constitution, there must be a law
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delegating such power to the President (David v.
Macagapal Arroyo, G.R. No. 171396, May 3, 2006).
Declaration of Martial Law and Suspension
of the Privilege of the Writ of Habeas
Corpus; Extension
Besides his calling out powers, the President may
also:
(a) Suspend the privilege of the writ of habeas
corpus
(b) Proclaim a state of martial law
A state of martial law is peculiar because the
President, at such a time, exercises police power,
which is normally a function of the Legislature. In
particular, the President exercises police power,
with the military’s assistance, to ensure public safety
and in place of government agencies which for the
time being are unable to cope with the condition in
a locality, which remains under the control of the
State. (Lagman v. Medialdea, G.R. No. 231658, Jul.
4, 2017)
Grounds For The Suspension Of The Privilege
Of The Writ Of Habeas Corpus And Declaration
Of Martial Law
(1) Actual rebellion or invasion (not imminent)
(2) Public safety requires it
Checks and Balances to Limit the Exercise of
the Martial Law and Suspension
Powers/Safeguards against Abuse (Lagman v.
Pimentel III, G.R. No. 235935, Feb. 6, 2018)
(1) The President may declare martial law or
suspend of the privilege of the writ of the
privilege of habeas corpus only when there is
an invasion or rebellion, and public safety
requires such declaration or suspension.
(2) The President's proclamation or suspension
shall be for a period not exceeding 60 days.
(3) Within 48 hours from the proclamation or
suspension, the President must submit a Report
in person or in writing to Congress.
(4) The Congress, voting jointly and by a vote of at
least a majority of all its Members, can revoke
the proclamation or suspension.
(5) The President cannot set aside the Congress'
revocation of his proclamation or suspension.
(6) The President cannot, by himself, extend his
proclamation or suspension. He should ask the
Congress' approval.
(7) Upon such initiative or request from the
President, the Congress, voting jointly and by a
vote of at least a majority of all its Members, can
extend the proclamation or suspension for such
period as it may determine.
(8) The extension of the proclamation or
suspension shall only be approved when the
invasion or rebellion persists, and public safety
requires it.
(9) The Supreme Court may review the sufficiency
of the factual basis of the proclamation or
suspension, or the extension thereof, in an
appropriate proceeding filed by any citizen.
(10) The Supreme Court must promulgate its
decision within 30 days from the filing of the
appropriate proceeding
(11) Martial law does not suspend the operation of
the Constitution. Accordingly, the Bill of Rights
remains effective under a state of martial law.
Its implementers must adhere to the principle
that civilian authority is supreme over the
military and the armed forces is the protector of
the people. They must also abide by the State's
policy to value the dignity of every human
person and guarantee full respect for human
rights.
(12) Martial law does not supplant the functioning of
the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on
military courts and agencies over civilians
where civil courts are able to function.
(13) The suspension of the privilege of the writ
applies only to persons judicially charged for
rebellion or offenses inherent in or directly
connected with invasion.
(14) Finally, during the suspension of the privilege of
the writ, any person thus arrested or detained
should be judicially charged within three days,
otherwise he should be released.
Territorial Coverage
The Constitution grants to the President the
discretion to determine the territorial coverage of
martial law and the suspension of the privilege of the
writ of habeas corpus. He may put the entire
Philippines or only a part thereof under martial law.
(Lagman v. Medialdea, G.R. No. 231658, Jul. 4,
2017)
Limiting the proclamation and/or suspension to the
place where there is actual rebellion would not only
defeat the purpose of declaring martial law, it will
make the exercise thereof ineffective and useless.
(e.g. martial law over Mindanao as a whole and not
merely Marawi where actual rebellion transpired)
● It is difficult, if not impossible, to fix the territorial
scope of martial law in direct proportion to the
"range" of actual rebellion and public safety
simply because rebellion and public safety have
no fixed physical dimensions.
● Moreover, the President's duty to maintain
peace and public safety is not limited only to the
place where there is actual rebellion; it extends
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to other areas where the present hostilities are
in danger of spilling over. (Id.)
Congressional Check on the Exercise of Martial
Law and Suspension Powers
(1) The power to review the President's
proclamation of martial law or suspension of the
privilege of the writ of habeas corpus, and to
revoke such proclamation or suspension.
(2) The power to approve any extension of the
proclamation or suspension, upon the
President's initiative, for such period as it may
determine, if the invasion or rebellion persists
and public safety requires it. (Lagman v.
Pimentel III, G.R. No. 235935, Feb. 6, 2018)
Duty to Report to Congress
Section 18, Article VII, requires the President to
report his actions to Congress, in person or in
writing, within 48 hours of such proclamation or
suspension. In turn, the Congress is required to
convene without need of a call within 24 hours
following
the
Presidents
proclamation
or
suspension. Clearly, the Constitution calls for quick
action on the part of the Congress. Whatever form
that action takes, therefore, should give the Court
sufficient time to fulfill its own mandate to review the
factual basis of the proclamation or suspension
within 30 days of its issuance. (Fortun v. Arroyo,
G.R. No. 190293, Mar. 20, 2012)
As to what facts must be stated in the proclamation
and the written Report is up to the President. As
Commander-in-Chief, he has sole discretion to
determine what to include and what not to include in
the proclamation and the written Report taking into
account the urgency of the situation as well as
national security. (Lagman v. Medialdea, G.R. No.
231658, Jul. 4, 2017)
Supreme Court Review
(a) In an appropriate proceeding filed by any
citizen.
(b) The SC may review the sufficiency of the factual
basis of the proclamation or suspension, or the
extension thereof.
(c) Its decision must be promulgated within 30 days
from filing.
Parameters of the Court for Determining the
Sufficiency of the Factual Basis for the
Declaration of Martial Law and/or the
Suspension of the Privilege of the Writ of
Habeas Corpus (Sufficiency of the Factual Basis
Test)
(1) Actual rebellion or invasion
(2) Public safety requires it
(3) There is probable cause for the President to
believe that there is actual rebellion or invasion.
(Lagman v. Medialdea, G.R. No. 231658, Jul. 4,
2017)
The scope of the Supreme Court’s power to review
the declaration of Martial Law or suspension of the
writ of habeas corpus is limited to a determination of
the sufficiency (not accuracy) of the factual
basis of such declaration or suspension. (Id.)
The nature of the Supreme Court’s jurisdiction to
determine the sufficiency of the factual basis for the
declaration of martial law and the suspension of the
privilege of the writ of habeas corpus by the
President is sui generis and granted by Sec. 18,
Art. VII of the Constitution. It does not stem from
Sec. 1 or 5 of Art. VIII. (Id.)
Extension of Martial Law
When approved by the Congress, the extension of
the proclamation or suspension, as described during
the deliberations on the 1987 Constitution, becomes
a "joint executive and legislative act" or a
"collective judgment" between the President and the
Congress. (Lagman v. Medialdea, G.R. No. 243522,
Feb. 19, 2019)
The Court need not make an independent
determination of the factual basis for the
proclamation or extension of martial law and the
suspension of the privilege of the writ of habeas
corpus. The Court is not a fact-finding body required
to make a determination of the correctness of the
factual basis for the declaration or extension of
martial law and suspension of the writ of habeas
corpus. It would be impossible for the Court to go on
the ground to conduct an independent investigation
or factual inquiry, since it is not equipped with
resources comparable to that of the Commander-inChief to ably and properly assess the ground
conditions. (Id.)
In determining the sufficiency of the factual basis for
the extension of martial law, the Court needs only to
assess and evaluate the written reports of the
government agencies tasked in enforcing and
implementing martial law in Mindanao. (Id.)
The test of sufficiency is not accuracy nor
preciseness, but reasonableness of the factual
basis adopted by the Executive in ascertaining the
existence of rebellion and the necessity to quell it.
(Id.)
Manner of Approval by Congress of Extension is
a Political Question
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Requires concurrence
of majority of all
members of Congress
A public act; subject to
judicial notice
Extinguishes
offense
the
May be granted before
or after conviction
No
need
for
Congressional
Concurrence
Private
act
of
President; it must be
proved
Only penalties are
extinguished; May or
may
not
restore
political
rights;
Absolute
pardon
restores; Conditional,
does not.
Civil indemnity is not
extinguished
Only granted after
conviction by final
judgment
EXECUTIVE CLEMENCY IN ADMINISTRATIVE
CASES:
The power to grant clemency includes cases
involving administrative penalties. Where a
conditional pardon is granted, the determination of
whether it has been violated rests with the
President.
The President can extend it to administrative cases
but only in the Executive Branch, not in the Judicial
or Legislative Branches of government (Llamas v.
Orbos, G.R. No. 99031, Oct. 15, 1991).
TAX AMNESTY: General pardon to impose
penalties on persons guilty of evasion or violation of
revenue or tax law (Republic v. IAC, G.R. No.
69344, Apr. 26, 1991).
LIMITATIONS
CANNOT BE GRANTED:
(1) Before conviction, in cases of impeachment
The President can pardon criminal offenses after an
impeachment proceeding such as what happened in
2007 when President Arroyo pardoned former
President Estrada after having been convicted by
the Sandiganbayan of plunder.
The exercise of the pardoning power is discretionary
in the President and may not be interfered with by
Congress or the Court, except only when it exceeds
the limits provided for by the Constitution (RisosVidal v. COMELEC, G.R. No. 206666, Jan. 21,
2015).
(2) For violations of election laws, rules, and
regulations
without
the
favorable
recommendation of the COMELEC in cases of
civil or legislative contempt
(3) Granted only after conviction by final judgment.
(People. v. Salle, G.R. No. 103567, Dec. 4,
1995)
AS TO EFFECT:
(1) Does not absolve civil liabilities for an offense
(2) Does not restore public offices already forfeited,
although eligibility for the same may be restored
(Monsanto v. Factoran, G.R. No. 78239, Feb. 9,
1989).
G. DIPLOMATIC POWER
Power to enter into foreign relations includes:
(a) The power to appoint ambassadors, other
public ministers, and consuls
(b) The power to receive ambassadors and other
public ministers accredited to the Philippines
(c) The power to contract and guarantee foreign
loans on behalf of the Republic
(d) The power to deport aliens – this power is
vested in the President by virtue of his office,
subject only to restrictions as may be provided
by legislation as regards grounds for
deportation. In the absence of any legislative
restriction to authority, the President may
exercise this power
(e) The power to negotiate treaties and other
international agreements. However, such treaty
or international agreement shall be transmitted
to the Senate, with the following options:
a. Approve it by 2/3 majority vote
b. Disapproves it outright
c. Approve it conditionally, with suggested
amendments. If re-negotiated and the
Senate’s suggestions are incorporated, the
treaty goes into effect without need of
further Senate approval.
NOTE: While a treaty is re-negotiated, there is yet
no treaty
Power to Contract of Guarantee Foreign Loans
(PHIL. CONST., art. VII, § 20)
The President may contract or guarantee foreign
loans on behalf of the Republic of the Philippines
with the prior concurrence of the Monetary Board;
and subject to such limitations as may be provided
by law
The Monetary Board shall, within 30 days from the
end of every quarter of the calendar year, submit to
Congress a complete report on loans to be
contracted or guaranteed by the government of
GOCCs the would have the effect of increasing
foreign debts.
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Congressional pork barrel violates the
President’s power to item-veto
The President cannot exercise his item-veto power
because the purpose of the lump-sum discretionary
budget is still uncertain. Furthermore, it cannot be
considered an item because an item is defined in the
field of appropriations as the particulars, details,
distinct and severable parts of the appropriation or
of the bill. (Belgica v. Hon. Ochoa, G.R. No. 208566,
Nov. 19, 2013)
J. RESIDUAL POWER
Residual Powers
The President shall exercise such other powers and
functions vested in the President which are provided
for under the laws and which are not specifically
enumerated above, or which are not delegated by
the
President
in
accordance
with
law.
(Administrative Code of 1987 [ADMIN. CODE],
Executive Order No. 292, Title III, Chapter 7, Sec
20)
The textual justification for this under the
Constitution is Article VII, Section 17 – to ensure that
the laws are faithfully executed – called the Faithful
Execution Clause.
The power involved is the President's residual
power to protect the general welfare of the
people. It is founded on the duty of the
President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the
power of the President but also his duty to do
anything not forbidden by the Constitution or the
laws that the needs of the nation demand. It is a
power borne by the President's duty to preserve and
defend the Constitution. It also may be viewed as a
power implicit in the President's duty to take care
that the laws are faithfully executed (Marcos v
Manglapus, G. R. No. 88211, Sept. 15, 1989).
Faithful Execution Clause
Under the Faithful Execution Clause, the President
has the power to take "necessary and proper steps"
to carry into execution the law (Schwartz, On
Constitutional Law, p. 147 [1977]). These steps are
the ones to be embodied in the guidelines (i.e. on
the use of public funds authorized by
Congress). (Philippine Constitution Association v.
Enriquez, G.R. Nos. 113105, 113174, 113766 &
113888, Aug. 19, 1994)
That the President cannot, in the absence of any
statutory justification, refuse to execute the laws
when called for is a principle fully recognized by
jurisprudence. In In re: Neagle, the US Supreme
Court held that the faithful execution clause is "not
limited to the enforcement of acts of Congress
according to their express terms." According to
Father Bernas, Neagle "saw as law that had to be
faithfully executed not just formal acts of the
legislature but any duty or obligation inferable from
the Constitution or from statutes." Under his broad
powers to execute the laws, the President can
undoubtedly create ad hoc bodies for purposes
of investigating reported crimes. (Biraogo v.
Philippine Truth Commission of 2010, G.R. Nos.
192935 & 193036, Dec. 7, 2010)
This
Court
has
interpreted
the faithful execution clause as
an
obligation
imposed on the President, and not a separate grant
of power. Section 17, Article VII of the [1987
Philippine] Constitution, expresses this duty in no
uncertain terms and includes it in the provision
regarding the President's power of control over the
executive department. xxx In light of this
constitutional duty, it is the President's prerogative
to do whatever is legal and necessary for Philippine
defense interests. It is no coincidence that the
constitutional
provision
on
the faithful execution clause was followed by that on
the President's commander-in-chief powers, which
are specifically granted during extraordinary events
of lawless violence, invasion, or rebellion. And this
duty of defending the country is unceasing,
even in times when there is no state of lawless
violence, invasion, or rebellion. At such times,
the President has full powers to ensure the
faithful execution of the laws. (Saguisag v.
Ochoa, Jr., G.R. Nos. 212426 & 212444, Jan. 12,
2016)
Until and unless a law is declared unconstitutional,
the President has a duty to execute it regardless of
his doubts as to its validity.
K. REMOVAL FROM OFFICE
The President and Vice-President may only be
removed by impeachment (PHIL. CONST., art. XI, §.
2)
Impeachment
The power of Congress to remove a public official
for serious crimes or misconduct as provided in the
Constitution. It is a mechanism designed to check
abuse of power. (Chief Justice Renato C. Corona v.
Senate of the Philippines sitting as an Impeachment
Court, G.R. No. 200242, Jul. 17, 2012)
Who may be impeached:
1. President
2. Vice President
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same restrictions of
powers
and
disqualifications as the
Acting President
Vacancy in the Office of the Vice-President
(PHIL. CONST., art. VII, § 9)
Procedure To Fill Up Vacancy
President will nominate new VP from among the
members of either House of Congress.
Nominee shall assume office upon confirmation by
majority vote of ALL members of both Houses,
voting separately. (In effect, nominee forfeits his
seat in Congress.)
Election of President and Vice-President after
vacancy (PHIL. CONST., art. VII, § 10)
Procedure
Congress shall convene 3 days after the vacancy in
the offices of both the President and the VP, without
need of a call. The convening of Congress cannot
be suspended.
Within 7 days after convening, Congress shall enact
a law calling for a special election to elect a
President and a VP. The special election cannot be
postponed.
The VP will immediately assume the powers
and duties of the office as Acting President.
Scenarios After Disability is Relayed in the
Congress:
If the President transmits a written declaration that
he is not disabled, he reassumes his position.
If within 5 days after the President re-assumes his
position, the majority of the Cabinet transmits their
written declaration to the contrary, Congress shall
decide the issue. In this event, Congress shall
convene within 48 hours if it is not in session, without
heed of a call
Within 10 days after Congress is required to
assemble, or 12 days if Congress is not in session,
a 2/3 majority of both Houses, voting separately, is
needed to find the President temporarily disabled, in
which case, the VP will be Acting President.
Presidential Illness (Sec. 12)
General Rules:
If the President is seriously ill, the public must be
informed thereof.
During such illness, the following shall not be denied
access to the President:
(1) National Security Adviser
(2) Secretary of Foreign Affairs
(3) Chief of Staff of the AFP
The requirement of three readings on separate days
under Sec. 26(2), Art VI shall not apply to a bill
calling for a special election. The law shall be
deemed enacted upon its approval on third reading.
The special election shall be held within 45-60 days
from the time of the enactment of the law.
Limitation: No special election shall be called if the
vacancy occurs within 18 months before the date of
the next presidential election.
Temporary Disability of the President to
discharge his duties (PHIL. CONST. art. VII, Sec.
11) may be raised in either of two ways:
(1) By the President himself, when he sends a
written declaration to the Senate President and
the Speaker of the House. In this case, the VicePresident will be Acting President until the
President transmits a written declaration to the
contrary.
(2) When a majority of all Cabinet members
transmit to the Senate President and the
Speaker of the House their written declaration.
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POLITICAL LAW & PUBLIC INTERNATIONAL LAW
A. DEFINITION OF JUDICIAL POWER
JUDICIAL DEPARTMENT
TOPIC OUTLINE UNDER THE SYLLABUS:
A. DEFINITION OF JUDICIAL POWER
B. JUDICIAL REVIEW
1. Requisites
a. Actual Case or Controversy
b. Proper Party
c. Raised At the Earliest Possible
Opportunity
d. Necessary To the Determination of
The Case Itself
2. Exceptions
a. Political Questions
b. Moot Questions
c. Advisory Opinions
3. Operative Fact Doctrine
C. FISCAL AUTONOMY
D. APPOINTMENTS TO THE JUDICIARY
1. Qualifications
2. Judicial And Bar Council
E. SUPREME COURT OF THE PHILIPPINES
1. Composition
2. Procedural Rule-Making Power
3. Disciplinary Powers
4. Administrative Supervision
5. Jurisdiction
Judicial Power
The authority to settle justiciable controversies or
disputes involving rights that are enforceable and
demandable before the courts of justice or the
redress of wrongs for violations of such rights and to
determine whether or not there has been grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the government. (Lopez v. Roxas,
G.R. No. L-25716, July 28, 1966).
Where Vested
Vested in the Supreme Court and such lower courts
as may be established by law. (PHIL. CONST., art.
VIII, § 1.)
Hence, they may neither attempt to assume or be
compelled to perform non-judicial functions. They
may not be charged with administrative functions,
except when reasonably incidental to the fulfillment
of their duties (Meralco v. Pasay Transportation Co.,
G.R. No. L-37878, Nov. 25, 1932).
Judicial Power includes the duty of the courts:
(PHIL. CONST., art. VIII, § 1.)
•
•
To settle actual controversies involving rights
which are legally demandable and enforceable;
To determine whether or not there has been a
grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch
or instrumentality of the government.
Necessity of Applicable Law
Before a tribunal, board, or officer may exercise
judicial or quasi-judicial acts, it is necessary that
there be a law that give rise to some specific rights
of persons or property under which adverse claims
to such rights are made, and the controversy
ensuing therefrom is brought, in turn, before the
tribunal, board or officer clothed with power and
authority to determine what that law is and
thereupon adjudicate the respective rights of the
contending parties. (Santiago Jr. v. Bautista, G.R.
No. L-25024, March 30, 1970).
Thus, an award of honors to a student by a board of
teachers may not be reversed by a court where the
awards are governed by no applicable law. (Id)
The court has no authority to entertain an action for
judicial declaration of citizenship because there was
no law authorizing such proceeding (Channie Tan v.
Republic, G.R. No. L-14159, April 18, 1960).
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Courts cannot reverse the award of a board of
judges in an oratorical contest (Felipe v. Leuterio,
G.R. No. L-4606, May 30, 1952).
Jurisdiction
The power to hear and decide a case.
• Who Defines: Congress shall have the power
to define, prescribe and apportion the
jurisdiction of the various courts, but may not
deprive the Supreme Court of its jurisdiction
over cases enumerated in Sec. 5, Art. VIII (PHIL.
CONST., art. VIII, § 2.),
• No law shall be passed increasing the appellate
jurisdiction of the Supreme Court as provided in
the Constitution without its advice and
concurrence (PHIL. CONST., art. VI, § 30.)
Scope of Jurisdiction
The power to control the execution of its decision is
an essential aspect of jurisdiction. It cannot be the
subject of substantial subtraction, for our
Constitution vests the entirety of judicial power in
one Supreme Court and in such lower courts as may
be established by law. (Echegaray v. SOJ, G.R. No.
132601, Jan. 19, 1999)
Limitations of Judicial Power
(1) Political Questions: A question, the resolution
of which has been vested by the Constitution
exclusively In the people, in the exercise of their
sovereign capacity, or In which full discretionary
authority has been delegated to a co-equal
branch of the Government (Tanada v. Cuenco,
G.R. No. L-10520, Feb. 28, 1957).
(2) Separation of Powers: The Supreme Court
and its members should not and cannot be
required to exercise any power or to perform
any trust or to assume any duty not pertaining
to or connected with the administering of judicial
functions. (Manila Electric Co. v Pasay
Transportation, G.R. No. 37878, Nov. 25, 1932)
(3) Not the function of the judiciary to give
advisory opinion: The function of the courts is
to determine controversies between litigants.
They do not give advisory opinions. (Director of
Prisons v Ang Cho Kio, G.R. No. 30001, June
23, 1970)
Expanded Jurisdiction and Authority of the
Supreme Court
Art. VIII, Sec.1, par. 2, of the Constitution expanded
the power, authority and jurisdiction of the courts of
justice, particularly the Supreme Court, to determine
whether any branch of the government has
committed grave abuse of discretion amounting to
lack or excess of jurisdiction.
Under this expanded jurisdiction conferred to the
Supreme Court, the political question doctrine is no
longer the insurmountable obstacle to the exercise
of judicial power or the impenetrable shield that
protects executive and legislative actions from
judicial inquiry or review (Oposa v. Factoran, Jr.
G.R. No. 101083, July 30, 1993)
B. JUDICIAL REVIEW
Judicial Review
• The power of the Supreme Court to declare a
law, treaty, ordinance, etc. unconstitutional
(PHIL. CONST., art. VIII, § 4(2).)
• Lower courts may also exercise the power of
judicial review, subject to the appellate
jurisdiction of the SC. (PHIL. CONST., art. VIII, §
5(2).)
• Only Supreme Court decisions set precedents.
As thus, only SC decisions are binding on all.
Functions of Judicial Review
(1) Checking — invalidating a law or executive act
that is found to be contrary to the Constitution
(2) Legitimating — upholding the validity of the
law that results from a mere dismissal of a case
challenging the validity of the law
(3) Symbolic — to educate the bench and bar as
to the controlling principles and concepts on
matters of grave public importance for the
guidance of and restraint upon the future
(Salonga v. Cruz Paño, G.R. No. 59524, Feb.
18, 1985).
Doctrine of Judicial Supremacy
When the judiciary allocates constitutional
boundaries, it neither asserts superiority nor nullifies
an act of the Legislature. It only asserts the solemn
and sacred obligation assigned to it by the
Constitution to determine conflicting claims of
authority under the Constitution and to establish for
the parties in an actual controversy the rights which
that instrument secures and guarantees to them.
1. REQUISITES
Requisites of Judicial Review:
(1) The question of constitutionality must be raised
in the first instance, or at the earliest
opportunity.
(2) The question involved must be ripe for
adjudication, e.g. the challenged government
act must have had an adverse effect on the
person challenging it.
(3) An actual case calling for the exercise of judicial
power.
(4) Resolution of the issue of constitutionality is
unavoidable or is the very lis mota of the case.
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(5) The person challenging the governmental act
must have ‘standing’ (Locus Standi).
Exception: The Court can waive the procedural rule
on standing in cases that raise issues of
transcendental importance.
•
Ripe for Adjudication
•
Guidelines in determining whether or not a
matter is of transcendental importance:
(1) The character of the funds or other assets
involved in the case;
(2) The presence of a clear case of disregard of a
constitutional or statutory prohibition by the
public respondent agency or instrumentality of
the government; and
(3) The lack of any other party with a more direct
and specific interest in the questions being
raised (Chamber of Real Estate and Builders’
Association, Inc. v. Energy Regulatory
Commission, et al., G.R. No. 174697, July 8,
2010).
•
a. Actual Case or Controversy
Justiciable Controversy
A definite and concrete dispute touching on the legal
relations of parties having adverse legal interests,
which may be resolved by a court of law through the
application of a law (Cutaran v. DENR, G.R. No
134958, Jan. 31, 2001).
Requirements for Justiciability
1. That there be an actual controversy between or
among the parties to the dispute;
2. That the interests of the parties be adverse;
3. That the matter in controversy be capable of
being adjudicated by judicial power; and
4. That the determination of the controversy will
result in practical relief to the complainant.
Actual Case/Controversy
•
•
•
An actual case or controversy involves a conflict
of legal rights, an assertion of opposite legal
claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract
difference or dispute. (PHILCONSA v Philippine
Government, G.R. No. 218406, Nov. 29, 2016)
There must be a contrast of legal rights that can
be interpreted and enforced on the basis of
existing law and jurisprudence. (Id.)
It is the parties' duty to demonstrate actual
cases or controversies worthy of judicial
resolution. Pleadings must show a violation of
an existing legal right or a controversy that is
ripe for judicial determination. (Falcis v. Civil
Registrar General, G.R. No. 217910, Sept. 3,
2019)
Facts are the basis of an actual case or
controversy. There must be sufficient facts to
enable the Court to intelligently adjudicate the
issues. (Id.)
A constitutional question is ripe for
adjudication when the governmental act
being challenged has had a direct adverse
effect on the individual challenging it. It is
also necessary that there be a law that
gives rise to some specific rights of persons
or property, under which adverse claims
are made. (Santiago Jr. v. Bautista, G.R.
No. 25024, March 30, 1970)
For a case to be considered ripe for
adjudication, it is a prerequisite that:
o an
act
had
then
been
accomplished or performed by
either branch of government
before a court may interfere, and
o the petitioner must allege the
existence of an immediate or
threatened injury to himself as a
result of the challenged action.
(PHILCONSA
v.
Philippine
Government, G.R. No. 218406,
Nov. 29, 2016)
b. Proper Party
Locus Standi/Legal Standing
•
•
•
•
Definition: a personal and substantial interest
in the case such that the party has sustained
or will sustain direct injury as a result of the
governmental act that is being challenged.
(Francisco v. HOR, G.R. No. 160261, Nov. 10,
2003)
The term "interest" is material interest, an
interest in issue and to be affected by the
decree, as distinguished from mere interest in
the question involved, or a mere incidental
interest. (Joya v. PCGG, G.R. No. 96541, Aug.
24, 1993)
o Moreover, the interest of the party plaintiff
must be personal and not one based on a
desire to vindicate the constitutional right of
some third and related party. (Id.)
Test: whether a party alleges such personal
stake in the outcome of the controversy as to
assure that concrete adverseness which
sharpens the presentation of issues upon which
the court depends for illumination of difficult
constitutional questions. (Id.)
Elements
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d. Necessary
To
The
Determination Of The Case
Itself
The Issue of Constitutionality Must be the very
Lis Mota Presented
As a rule, the courts will not resolve the
constitutionality of a law, if the controversy can
be settled on other grounds. The policy of the
courts is to avoid ruling on constitutional
questions and to presume that the acts of the
political departments are valid, absent a clear
and unmistakable showing to the contrary.
(Spouses Mirasol v. Court of Appeals, G.R. No.
128448, Feb. 1, 2001)
2. EXCEPTIONS
a. Political Questions
Political Question
A question, the resolution of which has been vested
by the Constitution exclusively:
(1) In the people, in the exercise of their sovereign
capacity, or
(2) In which full discretionary authority has been
delegated to a co-equal branch of the
Government (Tanada v. Cuenco, G.R. No. L10520, Feb. 28, 1957).
The judiciary is NOT precluded from reviewing
“political questions”. Under the second clause of
Sec. 1, Art. VIII (the power to determine whether or
not there has been a grave abuse of discretion) the
Courts may now determine whether there has been
grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of government.
A political question arises in constitutional issues
relating to the powers or competence of different
agencies and departments of the executive or those
of the legislature. The political question doctrine is
used as a defense when the petition asks this court
to nullify certain acts that are exclusively within the
domain of their respective competencies, as
provided by the Constitution or the law. In such a
situation, presumptively, this court should act with
deference. It will decline to void an act unless the
exercise of that power was so capricious and
arbitrary so as to amount to grave abuse of
discretion.
•
The existence of constitutionally imposed
limits justifies subjecting the official actions of
the body to the scrutiny and review of the Court.
•
Furthermore, the concept of a political question
never precludes judicial review when the act of
a constitutional organ infringes upon a
fundamental individual or collective right.
(The Diocese of Bacolod v. Commission on
Elections, G.R. No. 205728, Jan. 21, 2015)
While courts can determine questions of legality with
respect to governmental action, they cannot review
government policies and the wisdom behind
such policies. These questions are vested by the
Constitution in the Executive and Legislative
Departments.
Examples of political questions in jurisprudence
Interpretation of the meaning of “disorderly
behavior” and the legislature’s power to suspend a
member (there is no procedure for the imposition of
the penalty of suspension nor did the 1935
Constitution define what “disorderly behavior is).
The matter is left to the discretion of the legislature
(Osmeña, Jr. v. Pendatun, G.R. No. L-17144, Oct.
28, 1960).
Whether the court could intervene in a case where
the House of Representatives was said to have
disregarded its own rule. The court was held to have
been without authority to intervene (Arroyo v. De
Venecia, G.R. No. 127255, Aug. 14, 1997).
Recognition of diplomatic immunity (ICMC v. Hon.
Calleja, G.R. No. 85750, Sept. 28, 1990).
The determination of what constitutes “betrayal of
public trust”, or “other high crimes” is a political
question. A determination of what constitutes an
impeachable offense is a purely political question,
which the Constitution has left to the sound
discretion of the legislature (Gutierrez v. The House
of Representatives Committee on Justice, et al.,
G.R. No. 193459, Feb. 15, 2011).
Examples of cases in jurisprudence where the
Court held that there was no political question
involved.
Apportionment of representative districts (because
there
are
constitutional
rules
governing
apportionment) (Bagabuyo v. COMELEC, G.R. No.
176970, Dec. 8, 2008).
Suspension of the privilege of the writ of habeas
corpus because the Constitution sets limits to
executive discretion on the matter (Montenegro v.
Castañeda, G.R. No. L-4221, Aug. 30, 1952).
Manner of forming the Commission on
Appointments. (Daza v. Singson, G.R. No. 86344,
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her ability to decide
cases with autonomy
within the constraints of
the law
government
and
protects judges as a
class
A judge has this kind of
independence when he
can do his job without
having to hear — or at
least without having to
take it seriously if he
does hear — criticisms
of his personal morality
and fitness for judicial
office
Refers to the collective
independence of the
judiciary as a body
A truly independent judiciary is possible only when
both concepts of independence are preserved —
wherein public confidence in the competence and
integrity of the judiciary is maintained, and the public
accepts the legitimacy of judicial authority. (Re:
COA Opinion on Computation of Appraised Value of
Properties Purchased by SC Justices, A.M. No. 117-10-SC, July 31, 2012; In the Matter of the
Allegations Contained in the Columns of Mr. Amado
P. Macasaet, A.M. No. 07-09-13-SC, Aug. 8, 2008)
Judiciary in General
(1) Creation and abolition of courts
a. Congress’ power to create courts implies
the power to abolish and even re-organize
courts. But this power cannot be exercised
in a manner that would undermine the
security of tenure of the judiciary. If the
abolition or re-organization is done in good
faith and not for political or personal
reasons, it is valid. (De La Llana v. Alba,
G.R. No. L-57883, March 12, 1982)
b. Congress may enact laws prohibiting
courts from issuing restraining orders
against administrative acts in controversies
involving facts or the exercise of discretion.
However, on issues involving questions of
law, courts cannot be prohibited from
exercising their power to restrain such acts.
(Malaga v. Penachos, Jr., G.R. No. 86695,
Sept. 3, 1992)
(2) Members of the judiciary enjoy security of
tenure. (PHIL. CONST., art. VIII, § 2.)
(3) Members of the judiciary may not be
designated to any agency performing quasijudicial or administrative functions. (PHIL.
CONST., art. VIII, § 12.)
a.
The Presidential Electoral Tribunal (PET)
does not exercise quasi-judicial functions.
When the Supreme Court, as the PET,
resolves a presidential or vice-presidential
election contest, it performs what is
essentially a judicial power (Macalintal v.
PET, G.R. No. 191618, Nov. 23, 2010).
(4) The salaries of Justices and judges shall be
fixed by law and cannot be decreased during
their continuance in office. (PHIL. CONST., art.
VIII, § 10.)
a. However, their salaries are properly subject
to a general income tax law applicable to all
income earners and that the payment of
such income tax does not fall within the
constitutional protection against decrease
of their salaries during their continuance in
office. (Nitafan v. CIR, G.R. No. 78780, July
23, 1987).
(5) The right to criticize the courts and judicial
officers must be balanced against the equally
primordial concern that the independence of the
Judiciary be protected from due influence or
interference. (In re Letter of UP Law Faculty,
A.M. No. 10-10-4-C, March 8, 2011)
(6) The Judiciary shall enjoy fiscal autonomy.
Appropriations for the Judiciary may not be
reduced by the legislature below the amount
appropriated for the previous year and, after
approval, shall be automatically and regularly
released. (PHIL. CONST., art. VIII, § 3.)
a. The grant of fiscal autonomy to the
Judiciary is more extensive than the mere
automatic and regular release of its
approved annual appropriations. Real fiscal
autonomy covers the grant to the Judiciary
of the authority to use and dispose of its
funds and properties at will, free from any
outside control or interference. (Re: COA
Opinion on Computation of Appraised
Value of Properties Purchased by SC
Justices, A.M. No. 11-7-10-SC, July 31,
2012)
b. Fiscal autonomy contemplates a guarantee
on full flexibility to allocate and utilize their
resources with the wisdom and dispatch
that the Judiciary’s needs require. It
recognizes the power and authority to levy,
assess and collect fees, fix rates of
compensation not exceeding the highest
rates authorized by law for compensation
and pay plans of the government and
allocate and disburse such sums as may be
provided by law or prescribed by them in
the course of the discharge of their
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impeachment). In such case, the most Senior
Justice of this Court who is not an applicant for the
position of Chief Justice should participate in the
deliberations for the selection of nominees for the
said vacant post and preside over the proceedings.
(Dulay v. JBC, G.R. No. 202143, July 3, 2012)
The Supreme Court shall provide in its annual
budget the appropriations for the Council. (PHIL.
CONST., art. VIII, § 8(4)).
Powers
Functions of The JBC
(PHIL. CONST., art. VIII, § 8(5).)
Primary Function: Recommend appointees to the
Judiciary.
Secondary Function: It may also exercise such
other functions as the SC may assign to it.
Incidental Functions
The functions of searching, screening, and
selecting are necessary and incidental to the JBC's
principal function of choosing and recommending
nominees for vacancies in the judiciary for
appointment by the President. In carrying out its
main function, the JBC has the authority to set the
standards/criteria in choosing its nominees for
every vacancy in the judiciary, subject only to the
minimum qualifications required by the Constitution
and law for every position. (Villanueva v. JBC, G.R.
No. 211833, April 7, 2015)
Rules on Appointments/Clustering of Nominees
(1) The President shall appoint Members of the
Supreme Court and judges of lower courts from
a list of at least three (3) nominees for each
vacancy, as prepared by the JBC.
(2) No CA confirmation is needed for appointments
to the Judiciary.
(3) Vacancies in SC should be filled within 90 days
from the occurrence of the vacancy.
(4) Vacancies in lower courts should be filled within
90 days from submission to the President of the
JBC list.
(5) Midnight Appointments – Explicit prohibition
against midnight appointments is already
unnecessary due to the intervention of and
screening made by Judicial Bar Council (JBC)
(De Castro v. JBC, G.R. No. 191002, April 20,
2010)
The Supreme Court has supervision over the JBC,
and this authority covers the overseeing of the
JBC’s compliance with its own rules. (Jardeleza v.
Sereno, G.R. No. 213181, Aug. 19, 2014)
The primary limitation to the JBC's exercise of
discretion is that the nominee must possess the
minimum qualifications required by the Constitution
and the laws relative to the position. While the
resolution of who to nominate as between two
candidates of equal qualification cannot be dictated
by this Court upon the JBC, such surrender of
choice presupposes that whosoever is nominated is
not otherwise disqualified. The question of whether
or not the nominee possesses the requisite
qualifications is determined based on facts and
therefore does not depend on, nor call for, the
exercise of discretion on the part of the nominating
body. Thus, the nomination by the JBC is not
accurately an exercise of policy or wisdom as to
place the JBC's actions in the same category as
political questions that the Court is barred from
resolving. (Republic v. Sereno, G.R. No. 237428,
June 19, 2018)
Mandamus will not lie to compel the JBC to select
and recommend nominees for vacant judicial
positions, which is a discretionary function. There is
no legal right to be included in the list of nominees
for judicial vacancies. Possession of the
constitutional and statutory qualifications for
appointment to the judiciary may not be used to
legally demand that one's name be included in the
list of candidates for a judicial vacancy. (Villanueva
v. JBC, G.R. No. 211833, April 7, 2015)
The clustering of nominees for the six vacancies in
the Sandiganbayan by the JBC impaired the
President's power to appoint members of the
Judiciary and to determine the seniority of the newly
appointed Sandiganbayan Associate Justices. The
clustering by the JBC of nominees for simultaneous
or closely successive vacancies in collegiate courts
can actually be a device to favor or prejudice a
particular nominee. A favored nominee can be
included in a cluster with no other strong contender
to ensure his/her appointment; or conversely, a
nominee can be placed in a cluster with many strong
contenders to minimize his/her chances of
appointment. (Aguinaldo v. Aquino, G.R. No.
224302, Nov. 29, 2016)
E. SUPREME COURT OF THE
PHILIPPINES
1. COMPOSITION
A Constitutional Court
The Supreme Court is the only constitutional court,
all the lower courts being of statutory creation.
Members (PHIL. CONST., art. VIII, § 4(1).)
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•
•
POLITICAL LAW & PUBLIC INTERNATIONAL LAW
Chief Justice, and
14 Associate Justices
The President cannot appoint a temporary member
of the Supreme Court. There can be no doubt that
the Chief Justice and Associate Justices required by
the Constitution to compose the Supreme Court are
regular members of the Court. A temporary member
would be a misnomer, implying a position not
contemplated by the Constitution. Thus, a law which
authorizes the President to designate any judge of
the lower court or cadastral judge to act as member
of the Supreme Court is void (Vargas vs. Rillaroza,
G.R. No. L-1612, Feb. 26, 1948).
•
•
The members of the judiciary perform judicial
functions. This function is exclusive. They cannot
perform non- judicial functions. For this reason, the
Constitution provides that the members of the
Supreme Court and of other courts shall not be
delegated to any agency performing quasi-judicial or
administrative functions. (PHIL. CONST., art. VIII, §
12.)
Primus Inter Pares
Literally, first among equals; the maxim indicates
that a person is the most senior of a group of people
sharing the same rank or office. The phrase has
been used to describe the status, condition or role
of the Chief Justice in many supreme courts around
the world.
Hearing Of Cases In The Supreme Court (PHIL.
CONST., art. VIII, § 4(1).)
•
•
Divisions of 3, 5, or 7 members
En Banc
Any vacancy should be filled within 90 days from the
occurrence thereof.
Decisions in General
No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts
and the law on which it is based. (PHIL. CONST., art.
VIII, § 14.)
•
•
It is a requirement of due process that the
parties to a litigation be informed of how it
was decided, with an explanation of the
factual and legal reasons that led to the
conclusions of the court. (NICOS Industrial
Corp. v. Court of Appeals, G.R. No. 88709,
Feb. 11, 1992)
The purpose [of this Constitutional
requirement is] to inform the person
reading the decision, and especially the
parties, of how it was reached by the court
•
after consideration of the pertinent facts
and examination of the applicable laws.
(Francisco v. Permskul, G.R. No. 81006,
May 12, 1989)
The [provision] do not apply to interlocutory
orders, such as one granting a motion for
postponement or quashing a subpoena,
because it refers only to decisions on the
merits and not to orders of the trial court
resolving incidental matters. (NICOS
Industrial Corp. v. Court of Appeals, G.R.
No. 88709, Feb. 11, 1992)
So long as the decision contains the
necessary facts to warrant its conclusions,
it is no error for [the court] to withhold any
specific finding of facts with respect to the
evidence for the defense. The mere failure
to specify (in the decision) the contentions
of the appellant and the reasons for
refusing to believe them is not sufficient to
hold the same contrary to the requirements
of the provisions of law and the
Constitution. (Air France v. Carrascoso,
G.R. No. L-21438, Sept. 28, 1986)
The significance of factual findings lies in
the value of the decision as a precedent.
How will the ruling be applied in the future,
if there is no point of factual comparison?
(Velarde v. Social Justice Society, G.R. No.
159357, April 28, 2004)
No petition for review or motion for reconsideration
of a decision of the court shall be refused due course
or denied without stating the legal basis therefor.
(PHIL. CONST., art. VIII, § 14).)
Decisions by The Supreme Court (PHIL. CONST.,
art. VIII, § 13.)
•
•
The conclusions of the Court in any case
submitted to it for decision en banc or in
division shall be reached in consultation
before the case is assigned to a Member
for the writing of the opinion of the Court.
A certification to this effect must be signed
by the Chief Justice and attached to the
record of the case and served upon the
parties.
o Absence of a certification does not
mean that there was no
consultation prior to assignment of
the case to a member. The
presumption of regularity prevails
but the erring officer will be liable
administratively (Consing v. CA,
G.R. No. 78272, Aug. 29, 1989).
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The Sandiganbayan falls under the 3-month rule
because it is a trial-court, not a collegiate court (Re:
Problems of Delays in Cases Before the
Sandiganbayan, A.M. No. 00- 8-05-SC, Jan. 31,
2002).
A judge who fails to resolve cases within the period
prescribed may be held liable for gross inefficiency,
unless he explains his predicament and asked for
extensions of time from the Supreme Court. (OCA
v. Quiñanola, A.M. No. MTJ-99-1216, Oct. 20, 1999)
EN BANC AND DIVISION CASES
En Banc (PHIL. CONST., art. VIII, § 4(2).)
•
•
•
All cases involving constitutionality of a:
o Law
o International or executive agreement
o Treaty
All cases involving the constitutionality,
application or operation of:
o Presidential decrees
o Orders
o Proclamations
o Ordinances
o Other Regulations
o Instructions
Cases required to be heard en banc under
the Rules of Court:
o Appeals from Sandiganbayan and from the
Constitutional Commissions.
o Cases heard by a division where required
majority of 3 was not obtained.
o Cases where SC modifies or reverses a
doctrine or principle of law laid down by the
SC en banc or by a division.
o Administrative cases to discipline or
dismiss judges of lower courts.
o Election contests for President and VicePresident.
Cases required to be heard en banc shall be
decided with the concurrence of a majority of the
Members who:
•
•
actually took part in the deliberations on the
issues in the case and
voted thereon
No doctrine or principle of law laid down by the court
in a decision rendered en banc or in division may be
modified or reversed except by the court sitting en
banc.
Division (PHIL. CONST., art. VIII, § 4(3).)
•
•
Cases or matters heard by a division shall be
decided or resolved with:
o the concurrence of a majority of the
Members who actually took part in the
deliberations on the issues in the case and
voted thereon and,
o in no case without the concurrence of at
least three of such Members.
When the required number is not obtained, the
case shall be decided en banc.
There is a distinction between cases, on the one
hand, and matters, on the other hand, such that
cases are "decided" while matters, which include
motions, are "resolved", applying the rule of
reddendo singula singulis. (Fortich v. Corona, G.R.
No. 131457, Aug. 19, 1999)
•
•
•
•
Only cases are referred to the Court en banc for
decision whenever the required number of
votes is not obtained.
Conversely, the rule does not apply where the
required three votes is not obtained in the
resolution of a motion for reconsideration.
Hence, “when the required number is not
obtained, the case shall be decided en banc”
only speaks of “case” and not “matter.”
Article VIII, Section 4(3) pertains to the
disposition of cases by a division. If there is a tie
in the voting, there is no decision. The only way
to dispose of the case then is to refer it to the
Court en banc. On the other hand, if a case has
already been decided by the division and the
losing party files a motion for reconsideration,
the failure of the division to resolve the motion
because of a tie in the voting does not leave the
case undecided. There is still the decision which
must stand in view of the failure of the members
of the division to muster the necessary vote for
its reconsideration. Quite plainly, if the voting
results in a tie, the motion for reconsideration is
lost.
The Supreme Court sitting en banc is not an
appellate court vis-à-vis its Divisions, and it
exercises no appellate jurisdiction over the latter.
Each division of the Court is considered not a body
inferior to the Court en banc and sits veritably as the
Court en banc itself. It bears to stress further that a
resolution of the Division denying a party’s motion
for referral to the Court en banc of any Division case,
shall be final and not appealable to the Court en
banc. (Apo Fruits v. CA, G.R. No. 164195, 2008)
2. PROCEDURAL RULEMAKING POWER
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PROCEDURAL RULE-MAKING (PHIL. CONST., art.
VIII, § 5(5).)
The Supreme Court has the power to promulgate
rules concerning the:
•
•
•
•
•
Protection and enforcement of constitutional
rights
Pleading, practice and procedure in all courts
Admission to the practice of law
The Integrated Bar
Legal assistance to the underprivileged
Limitations on Judicial Rule-Making:
(1) It should provide a simplified and inexpensive
procedure for the speedy disposition of cases.
(2) It should be uniform for all courts of the same
grade.
(3) It should not diminish, increase, or modify
substantive rights.
It is possible for a substantive matter to be
nonetheless embodied in a rule of procedure. Yet
the absorption of the substantive point into a
procedural rule does not prevent the substantive
right from being superseded or amended by statute,
for the creation of property rights is a matter for the
legislature to enact on, and not for the courts to
decide upon. (Republic v. Gingoyon, G.R. No.
166429, Feb. 1, 2006).
In determining whether a rule prescribed by the
Supreme Court, for the practice and procedure of
the lower courts, abridges, enlarges, or modifies any
substantive right, the test is whether the rule
really regulates procedure, that is, the judicial
process for enforcing rights and duties recognized
by substantive law and for justly administering
remedy and redress for a disregard or infraction of
them. If the rule takes away a vested right, it is not
procedural. If the rule creates a right such as the
right to appeal, it may be classified as a substantive
matter; but if it operates as a means of implementing
an existing right then the rule deals merely with
procedure. (Estipona v. Lobrigo, G.R. No. 226679,
Aug. 15, 2017)
The rules on plea bargaining neither create a right
nor take away a vested right. Instead, it operates as
a means to implement an existing right by regulating
the judicial process for enforcing rights and duties
recognized by substantive law and for justly
administering remedy and redress for a disregard or
infraction of them. Sec. 23 of the Comprehensive
Dangerous Drugs Act, which states that “[a]ny
person charged under any provision of this Act
regardless of the imposable penalty shall not be
allowed to avail of the provision on plea-bargaining,”
is unconstitutional as it encroaches on the
constitutional rule-making power of the Court. (Id.)
A legislative grant of exemption from the payment of
legal fees under RA 8291 was held to be
unconstitutional since the payment of legal fees is
an integral part of the rules promulgated by the court
pursuant to its rule-making power under the
Constitution. The other branches cannot trespass
upon this prerogative by enacting laws or issue
orders that effectively repeal, alter or modify any of
the procedural rules (Re: Petition for Recognition of
the GSIS from Payment of Legal Fees, A.M. No. 082-01-0, Feb. 11, 2010).
Rule-making power also includes the inherent
power to suspend its own rules in particular cases in
the interest of justice. (Philippine Blooming Mills
Employment v. Philippine Blooming Mills Co., G.R.
No. L-31195, June 5, 1973)
The constitutional grant to promulgate rules carries
with it the power, inter alia, to determine whether to
give the said rules prospective or retroactive effect.
(People v. Lacson, G.R. No. 149453, April 1, 2003)
3. DISCIPLINARY POWERS
POWER TO DISCIPLINE (PHIL. CONST., art. VIII, §
11.)
The Supreme Court en banc shall have the power
to discipline judges of lower courts or order their
dismissal by a vote of a majority of the Members
who actually took part in the deliberations on the
issues in the case and voted thereon.
Decisions of the SC on disciplinary cases en banc
is needed only when the penalty imposed is
dismissal of a judge, disbarment of a lawyer,
suspension of either for more than 1 year or a fine
exceeding 10,000 pesos. Otherwise, the case may
be decided by a division. (People v. Gacott, G.R.
No. 116049, July 13, 1995)
The rule prohibiting the institution of disbarment
proceedings against an impeachable officer applies
only during his or her tenure and does not create
immunity from liability for possibly criminal acts or
for alleged violations of the Code of Judicial Conduct
or other supposed violations. Provided that the
requirements of due process are met, the Court may
penalize retired members of the Judiciary for
misconduct committed during their incumbency. (In
Re Undated Letter of Mr. Louis C. Biraogo, A.M. No.
09-2-19-SC, Feb. 24, 2009)
POWER TO APPOINT
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The Supreme Court has the power to appoint all
officials and employees of the Judiciary in
accordance with the Civil Service Law
•
4. ADMINISTRATIVE
SUPERVISION
The Supreme Court has administrative supervision
over all inferior courts and personnel.
Administrative
supervision
merely
involves
overseeing the operations of agencies to ensure
that they are managed effectively, efficiently and
economically, but without interference with day-today activities. Thus, to effectively exercise its power
of administrative supervision over all courts as
prescribed by the Constitution, P.D. No. 828, as
amended, created the Office of the Court
Administrator. Nowhere in the functions of the
several offices in the Office of the Court
Administrator is it provided that the Supreme Court
can assume jurisdiction over a case already pending
with another court. (Agcaoili v. Fariñas, G.R. No.
232395, July 3, 2018)
Administrative jurisdiction over a court employee
belongs to the Supreme Court, regardless of
whether the offense was committed before or after
employment in the judiciary. (Ampong v CSC, G.R.
No. 167916, Aug. 26, 2008)
It is only the Supreme Court that can oversee the
judges’ and court personnel’s compliance with all
laws and take the proper administrative action
against them if they commit any violation thereof. No
other branch of government may intrude into this
power, without running afoul of the doctrine of
separation of powers. (Maceda v. Vasquez, G.R.
No. 102781, April 22, 1993)
Thus:
•
•
The Ombudsman cannot justify its investigation
of a judge on the powers granted to it by the
Constitution. It cannot compel the Court, as one
of the three branches of government, to submit
its records, or to allow its personnel to testify on
this matter. (Id.)
The Ombudsman cannot determine for itself
and by itself whether a criminal complaint
against a judge, or court employee, involves an
administrative matter. The Ombudsman is duty
bound to have all cases against judges and
court personnel filed before it, referred to the
Supreme Court for determination as to whether
and administrative aspect is involved therein.
(Caoibes, Jr. v. Ombudsman, G.R. No. 132177,
July 19, 2001)
The CSC must likewise bring its complaint
against a judicial employee before the OCA.
However, such employee may be estopped
from questioning the jurisdiction of the CSC
under specific circumstances. (Ampong v CSC,
G.R. No. 167916, Aug. 26, 2008)
Administrative supervision also includes:
•
•
Power to temporarily assign lower court judges
to other stations in the public interest; such
assignment shall not exceed six (6) months
without the consent of the judge concerned
(PHIL. CONST., art. VIII, § 5(3).)
Order a change of venue or place of trial to
avoid a miscarriage of justice (PHIL. CONST., art.
VIII, § 5(4).)
The administrative function of the Court to transfer
cases is a matter of venue, rather than jurisdiction.
The Court may transfer the trial of cases from one
court to another of equal rank in a neighboring site,
whenever the imperative of securing a fair and
impartial trial, or of preventing a miscarriage of
justice, so demands. (Agcaoili v. Fariñas, G.R. No.
232395, July 3, 2018)
5. JURISDICTION
The Supreme Court has original jurisdiction over:
(1) Cases affecting:
a. Foreign ambassadors
b. Other foreign public ministers
c. Consuls stationed in the Philippines
(2) Petitions for:
a. Certiorari
b. Prohibition
c. Mandamus
d. Quo Warranto
e. Habeas Corpus
The Supreme Court has appellate jurisdiction (i.e.
review, revise, reverse, modify, or affirm on appeal
or certiorari) over final judgments and orders of
lower courts in:
(1) All cases involving constitutionality or validity of
any law, international agreement or treaty
(2) All cases involving the constitutionality or
validity of any presidential decree, order,
proclamation,
ordinance,
regulation
or
instruction
(3) All cases involving the legality of any: tax,
impost, toll, assessment or any penalty imposed
in relation thereto
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(4) All cases in which the jurisdiction of any lower
court is in issue
(5) Criminal cases where the penalty imposed is
reclusion perpetua or higher
(6) All cases where only errors or questions of law
are involved
Judicial Privilege
Judicial privilege insulates the Judiciary from an
improper intrusion into the functions of the judicial
branch and shields justices, judges, and court
officials and employees from public scrutiny or the
pressure of public opinion that would impair a
judge’s ability to render impartial decisions. (In Re:
Production of Court Records and Documents and
the Attendance of Court Officials and Employees as
Witnesses under the Subpoenas of February 10,
2012 and the Various Letters of Impeachment
Prosecution Panel dated January 19 and 25, 2012,
Notice of Resolution, Feb. 14, 2012).
Deliberative Process Privilege (Id.)
This privilege guards against the disclosure of
information/communication involving as it does the
deliberative process of reaching a decision. This
enables the Members of the Court to freely discuss
the issues without fear of criticism for holding
unpopular positions or fear of humiliation for one's
comments.
To qualify for protection under the deliberative
process privilege, the agency must show that the
document is both predecisional and deliberative.
•
•
Predecisional – if it precedes, in temporal
sequence, the decision to which it relates i.e. if
they were made in the attempt to reach a final
conclusion.
Deliberative – if it reflects the give-and-take of
the consultative process. The key question in
determining whether the material is deliberative
in nature is whether disclosure of the
information
would
discourage
candid
discussion within the agency.
•
•
•
•
•
•
Court deliberations or the deliberations of the
Members of the court sessions on cases and
matters pending before the Court;
Court records which are “pre-decisional” and
“deliberative” in nature;
Confidential Information secured by justices,
judges, court officials and employees in the
course of their official functions mentioned in
the 2 preceding enumerations, are privileged
even after their term of office;
Records of cases that are still pending for
decision are privileged materials that cannot be
disclosed, except only for pleadings, orders and
resolutions that have been made available by
court to the general public.
The principle of comity or inter-departmental
courtesy demands that the highest officials of
each department be exempt from the
compulsory
processes
of
the
other
departments;
These privileges belong to the Supreme Court
as an institution, not to any justice or judge in
his or her individual capacity. Since the Court is
higher than the individual justices or judges, no
sitting or retired justice or judge, not even the
Chief Justice, may claim exception without the
consent of the Court.
The Internal Rules of the Supreme Court
prohibits the disclosure of:
1.
2.
3.
4.
Result of the raffle of cases;
Actions taken by the Court on each
case included in the agenda of the
Court’s session;
Deliberations of the Members in court
sessions on cases and matters
pending before it;
The privilege against disclosure of
these
kinds
of
information/communication is known
as deliberative process privilege
Summary
of
privileged
documents
or
communications not subject to disclosure: (Id.)
•
Court actions such as the result of the raffle of
cases and the actions taken by the Court on
each case included in the agenda of the Court’s
session on acts done material to pending cases,
except where a party litigant requests
information on the result of the raffle of the case,
pursuant to Rule 7, Section 3 of the Rules of
Court of the Supreme Court (IRSC);
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CONSTITUTIONAL COMMISSIONS
TOPIC OUTLINE UNDER THE SYLLABUS:
A. POWERS,
JURISDICTION
FUNCTIONS,
AND
B. COMPOSITION AND QUALIFICATIONS OF
MEMBERS
C. PROHIBITED OFFICES AND INTERESTS
D. REVIEW
OF
FINAL
ORDERS,
RESOLUTIONS AND DECISIONS
1. Rendered in the Exercise of QuasiJudicial Functions
2. Rendered
in
the
Exercise
of
Administrative Functions
A. POWERS, FUNCTIONS, AND
JURISDICTION
CIVIL SERVICE COMMISSION
The Civil Service Commission, as the central
personnel agency of the Government, shall
establish a career service and adopt measures to
promote
morale,
efficiency,
integrity,
responsiveness, progressiveness, and courtesy in
the civil service. It shall strengthen the merit and
rewards system, integrate all human resources
development programs for all levels and ranks, and
institutionalize a management climate conducive to
public accountability. It shall submit to the President
and the Congress an annual report on its personnel
programs. (PHIL. CONST. art. IX-B, § 3)
Functions of the Civil Service Commission
(1) In the exercise of its powers to implement
R.A. 6850 (granting civil service eligibility to
employees under provisional or temporary
status who have rendered seven years of
efficient service), the CSC enjoys a wide
latitude of discretion, and may not be
compelled by mandamus (Torregoza v.
Civil Service Commission, G.R. No.
101526, July 3, 1992).
(2) Under the Administrative Code of 1987, the
Civil Service Commission has the power to
hear and decide administrative cases
instituted before it directly or on appeal,
including contested appointments.
(3) The Commission has original jurisdiction to
hear and decide a complaint for cheating in
the Civil Service examinations committed
by government employees. (Cruz v. CSC,
G.R. No. 144464, Nov. 27, 2001)
(4) It is the intent of the Civil Service Law, in
requiring the establishment of a grievance
procedure, that decisions of lower-level
officials (in cases involving personnel
actions) be appealed to the agency head,
then to the Civil Service Commission.
(Olanda v.Bugayong G.R. No. 140917, Oct.
10, 2003).
(5) As the central personnel agency of the
government, it shall establish a career
service and adopt measures to promote
morale,
efficiency,
integrity,
responsiveness, progressiveness and
courtesy in the Civil Service.
a. It may revoke a certificate of
eligibility motu proprio and
consequently, the power to revoke
one that has been given.
b. Where the case simply involves
the rechecking of examination
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papers and nothing more than a
re-evaluation
of
documents
already in the records of the CSC
according to a standard answer
key previously set by it, notice and
hearing is not required. Instead,
what will apply in such a case is
the rule of res ipsa loquitur (Lazo
v. Civil Service Commission, G.R.
No. 108824, Sept. 14, 1994).
c. Implicit from its designation as the
government’s central personnel
agency is its quasi-legislative or
rule-making powers which is
further spelled out by the 1987
Administrative Code, viz., to
implement the civil service law and
other pertinent laws, and to
promulgate policies, standards
and guidelines for the civil service
(Republic v. Maneja, G.R. No.
209052, June 23, 2021 | Lopez).
(6) Strengthen the merit and rewards system
(7) Integrate all human resources development
programs for all levels and ranks
(8) Institutionalize a management climate
conducive to public accountability
(9) Submit to the President and the Congress
an annual report of personnel programs
Scope of Civil Service Commission
(PHIL. CONST. art. IX-B, § 2(1))
(1) Branches
(2) Instrumentalities
(3) GOCCs with original charters
(4) Agencies of the government
(5) Subdivisions
Classes of Service
(1) Career Service: characterized by entrance
(a) based on merit and fitness to be
determined, as far as practicable, by
competitive examinations; or (b) based on
highly
technical
qualifications;
with
opportunity for advancement to higher
career positions and security of tenure.
a. Open Career Positions: where
prior qualification in an appropriate
examination is required
b. Closed career positions: scientific
or highly technical in nature;
c. Career
Executive
Service:
undersecretaries, bureau directors
d. Career Officers: other than those
belonging to the Career Executive
Service who are appointed by the
President (e.g. those in the foreign
service)
e.
f.
g.
Positions in the AFP although
governed by a different merit
system
Personnel of GOCCs with original
charters
Permanent laborers, whether
skilled, semiskilled or unskilled
(2) Non-Career Service: characterized by
entrance on bases other than those of the
usual tests utilized for the career service,
tenure limited to a period specific by law, or
which is co-terminus with that of the
appointing authority or subject to his
pleasure, or which is limited to the duration
a. Elective officials, and their
personal and confidential staff;
b. Department heads and officials of
Cabinet rank who hold office at the
pleasure of the President, and
their personal and confidential
staff;
c. Chairmen and members of
commissions and bureaus with
fixed terms;
d. Contractual personnel;
e. Emergency
and
seasonal
personnel
The CSC cannot disallow an appointment to a
position authorized by law but not included in
the Index of Occupational Service. Although the
CSC rules limit appointments to positions within the
Index of Occupational Service, nevertheless, it is
limited to the implementation of the laws it is tasked
to enforce. RA 8494 exempted the Trade and
Investment Corporation from conforming to the
position classification; thus, the appointment is valid
(Trade and Investment v. CSC, G.R. No. 182249,
March 5, 2013).
Appointments in the Civil Service
General Rule: Made only according to merit and
fitness to be determined, as far as practicable, by
competitive examination
Exceptions:
1. Policy determining – Where the officer lays
down principal or fundamental guidelines or
rules; or formulates a method of action for
government or any of its subdivisions; e.g.
department head.
2. Primarily confidential – Denoting not only
confidence in the aptitude of the appointee
for the duties of the office but primarily
close intimacy which ensures freedom of
intercourse without embarrassment or
freedom from misgivings or betrayals on
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3.
POLITICAL LAW & PUBLIC INTERNATIONAL LAW
confidential matters of state (De los Santos
v. Mallare, G.R. No. L-3881, Aug. 31,
1950); OR one declared to be so by the
President of the Philippines upon the
recommendation of the CSC (Salazar v.
Mathay, G.R. No. L-44061, Sept. 20, 1976)
Highly technical – Requires possession of
technical skill or training in supreme
degree. (De los Santos v. Mallare, supra)
Types of Appointment
(1) Permanent Status: A permanent appointment
shall be issued to a person who meets all the
requirements for the positions to which he is
being appointed, including the appropriate
eligibility prescribed, in accordance with the
provisions of law, rules and standards
promulgated in pursuance thereof.
(2) Temporary Status: In the absence of
appropriate eligibles and when it becomes
necessary in the public interest to fill a vacancy,
a temporary appointment shall be issued to a
person who meets all the requirements for the
position to which he is being appointed except
the appropriate civil service eligibility; provided
that such temporary appointment shall not
exceed 12 months, but the appointee may be
replaced sooner if a qualified civil service
eligible becomes available.
CSC may not terminate the employment of a civil
servant
The CSC may not terminate the employment of a
civil servant. The CSC is not a co-manager or
surrogate administrator of government offices and
agencies. Its functions and authority are limited to
approving or reviewing appointments to determine
their compliance with requirements of the Civil
Service Law. On its own, the Commission does not
have the power to terminate employment or drop
members from the rolls (UP and Torres v. CSC,
G.R. No. 132860, April 3, 2001).
Security of Tenure in Civil Service Law
The concept of security of tenure in the Civil Service
Law is embraced in Section 2(3), Article XI-B. “No
officer or employee of the civil service shall be
removed or suspended except for cause provided
by law.”
Classes of non-competitive positions
● Policy determining – where the officer
lays down principal or fundamental
guidelines or rules or formulates a method
of action for government or any of its
subdivisions. (Nachura, p. 418)
● Primarily confidential – when the nature
of the office requires close intimacy
●
between the appointee and appointing
authority which insures freedom of
intercourse without embarrassment or
freedom from misgiving of betrayal of
personal trust on confidential matters of
state.
Highly technical – it means something
beyond the ordinary requirements of the
profession. Hence, its determination is
always a question of fact. (CSC v. Javier,
G.R. No. 173264, Feb. 22, 2008)
When Position Primarily Confidential
A position is considered primarily confidential if the
nature of the office requires close intimacy between
the appointee and appointing authority which
ensures
freedom
of
intercourse
without
embarrassment or freedom from misgiving or
betrayal of personal trust on confidential matters of
state.
The Guarantee of Security of Tenure for
Primarily Confidential Positions
They are covered by the guarantee of security of
tenure, but the termination of their official relation
can be justified on the ground of loss of confidence
because in that case their cessation from office
involves no removal but the expiration of the term of
office.
The CSC cannot take back-up files in the computer
of an employee to determine if he was acting as
counsel for employees with cases before the
Commission when such employee has a reasonable
expectation of privacy. In determining such, the
following factors should be considered (Pollo v.
Constantino-David, G.R. No. 181881, Oct. 18,
2011):
1. The Employee’s Relationship to the item
seized;
2. Whether the employee took Action to
maintain his privacy in the item
3. Whether the item was in the immediate
Control of the employee;
Rule on Security of Tenure
No officer or employee of the CSC shall be removed
or suspended except for causes provided by law
(PHIL. CONST. art. IX-B, § 2, ¶ 3). Security tenure is
available even to positions which are considered
highly technical, policy-determining and primarily
confidential.
Rule on Partisan Political Activity
Joint Circular No.001 d. 2016 of the COMELEC and
CSC reiterated art. IX, § 2(4) that no officer or
employee in the civil service shall engage, directly
or indirectly, in any electioneering or partisan
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political campaign. However, the prohibition of
engaging in partisan political activity does not apply
to department secretaries. (Santos v. Yatco, G.R.
No. L013932, Dec. 24, 1959)
Right to Self-Organization
The right to self-organization shall not be denied to
government employees. But employees in the civil
service may not resort to strikes, walkouts, and
other temporary work stoppages, like workers in the
private sector, to pressure the government to
accede to their demands. Thus, their right to
organize does not include the right to strike. (SSS v.
CA, G.R. No. 85279, July 28, 1989)
Prohibition against Additional and Double
Compensation
Rule: No elective or appointive public officer or
employee shall receive additional, double, or
indirect
compensation,
unless
specifically
authorized by law, nor accept without the consent of
the Congress, any present, emolument, office or title
of any kind from any foreign government.
Note that pensions or gratuities shall not be
considered as additional, double or indirect
compensation. (PHIL. CONST. art. IX-B, § 8)
a. Additional Compensation: when for one
and the same office for which
compensation has been fixed there is
added to such fixed compensation an
extra reward in the form of bonus and the
like (BERNAS)
b. Double Compensation: refers to two sets
of compensation for two different offices
held concurrently by one officer
Can ex officio members receive per diems?
No, ex officio members of a board are not entitled to
per diems. (PEZA v COA, G.R. No. 189767, July 3,
2012)
Jurisdiction
Scope:
All
branches,
subdivisions,
instrumentalities, agencies of the government,
including government owned and controlled
corporations with original charters.
●
●
●
●
“With Original Charter” means that the GOCC
was created by special law or by Congress
If incorporated under the Corporation Code, it
does not fall within the Civil Service and is not
subject to the CSC jurisdiction
If previously government-controlled, but is later
privatized, it ceases to fall under CSC
Jurisdiction is determined as of the time of filing
the complaint.
COMMISSION ON ELECTIONS
Enforce and administer:
● All laws and regulations relative to the conduct
of an election, plebiscite, initiative, referendum,
and recall. e.g., COMELEC can enjoin
construction of public works within 45 days of
an election.
● The COMELEC can take cognizance of any
question on the conduct of plebiscite such as to
correct or check what the Board of Canvassers
erroneously or fraudulently did during the
canvassing, verify or ascertain the results of the
plebiscite either through pre-proclamation case
or through revision of ballots. The power of the
COMELEC to ascertain the results of the
plebiscite is implicit in the power to enforce all
laws relative to the conduct of plebiscite.
● COMELEC can take jurisdiction over cases
involving party identity and leadership or
controversy as to leadership in the party.
Such jurisdiction is sourced from the
general power of the Commission to
administer laws and rules involving the
conduct of election.
● There is no need for a special legislation for
the authorization of the conduct of recall
elections because it is deemed included in
the constitutional function of COMELEC,
hence, contemplated in its budget in the
GAA (Goh v. Bayron, G.R. No. 212584,
Nov. 25, 2014).
Exercise exclusive original jurisdiction over all
contests relating to the elections, returns, and
qualifications of all elective regional, provincial
and city officials
Election contests in the Sangguniang Kabataan
(SK) are not under COMELEC jurisdiction but under
the jurisdiction of the DILG.
Exercise appellate jurisdiction over all contests
involving:
1. Elective municipal officials decided by trial
courts of general jurisdiction
2. Elective barangay officials decided by trial
courts of limited jurisdiction
a. A petition for certiorari questioning an
interlocutory order of a trial court in an
electoral protest was within the appellate
jurisdiction of the COMELEC. The Court
recognizes the COMELEC’s appellate
jurisdiction over petitions for certiorari
against all acts or omissions of courts in
election cases (Bulilis v. Nuez, G.R. No.
195953, Aug. 9, 2011).
b. Petition for certiorari questioning the
decision of COMELEC division is
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premature as there is a plain and speedy
remedy before COMELEC En Banc
(Villarosa v. Festin, G.R. No. 212953, Aug.
5, 2014).
Decisions, final orders, or rulings of the
COMELEC
contests
involving
elective
municipal and barangay offices shall be final,
executory, and not appealable.
a. Exception: May be appealed to the SC EN
BANC on questions of law When the
decision is brought on a special civil action
for certiorari, prohibition, or mandamus
under Rule 64 for grave abuse of discretion
under Article IX-A Section 7.
Issue writs of certiorari, prohibition and
mandamus in the exercise of its appellate
jurisdiction.
Contempt powers
COMELEC can exercise this power only in relation
to its adjudicatory or quasi-judicial functions. It
CANNOT exercise this in connection with its purely
executive or ministerial functions.
If it is a pre-proclamation controversy,
COMELEC
exercises
quasi-judicial
administrative powers.
the
or
Its jurisdiction over ‘contests’ (after proclamation) is
in exercise of its judicial functions.
Decide, except those involving the right to vote, all
questions
affecting
elections,
including
determination of the number and location of polling
places, appointment of election officials and
inspectors, and registration of voters. These
petitions are cognizable by the Regular Courts
(MTC).
Deputize, with the concurrence of the President,
law enforcement agencies and instrumentalities of
the Government, including the Armed Forces of the
Philippines, for the exclusive purpose of ensuring
free, orderly, honest, peaceful, and credible
elections.
● This power is NOT limited to the election
period.
● Applies to both criminal and administrative
cases.
Register political parties, organizations, or
coalitions, accredit citizens’ arms of the Commission
on Elections.
● Political parties, etc. must present their
platform or program of government.
● There should be sufficient publication.
● Groups that cannot be registered:
1.
2.
3.
4.
Religious denominations/ sects
Those that seek to achieve their goals
through violence or unlawful means
Those that refuse to uphold and
adhere to the Constitution
Those supported by any foreign
government e.g. receipt of financial
contributions related to elections
File, upon a verified complaint, or on its own
initiative, petitions in court for inclusion or exclusion
of voters; investigate and, where appropriate,
prosecute cases of violations of election laws,
including acts or omissions constituting elections
frauds, offenses and malpractices.
COMELEC has exclusive jurisdiction to investigate
and prosecute cases for violations of election laws.
COMELEC can deputize prosecutors for this
purpose. The actions of the prosecutors are the
actions of the COMELEC.
COMELEC can conduct preliminary investigations
on election cases falling within its jurisdiction.
Recommend to the Congress effective measures
to minimize election spending, including limitation of
places where propaganda materials shall be posted,
and to prevent and penalize all forms of election
frauds, offenses, malpractices, and nuisance
candidacies.
Recommend to the President the removal of any
officer or employee it has deputized, or the
imposition of any other disciplinary action, for
violation or disregard of, or disobedience to its
directive, order, or decision.
Submit to the President and the Congress a
comprehensive report on the conduct of each
election, plebiscite, initiative, referendum, or recall
(PHIL. CONST. art. IX-C, § 2).
The vote requirement for a valid COMELEC en Banc
resolution is a majority of the votes of all members,
or 4 votes. If the six members are evenly divided,
the Commission on Elections should rehear the
case (Sevilla v. COMELEC, G.R. No. 203833,
March 19, 2013).
Powers not given to COMELEC
● Decide questions involving the right to vote
(placed under jurisdiction of courts);
● Transfer
municipalities
from
one
congressional district to another for the
purpose of preserving proportionality
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(Montejo v. COMELEC, G.R. No. 118702,
March 16, 1995).
Cases decided by COMELEC subject to judicial
review:
Decisions or determinations by COMELEC in the
exercise of its administrative (not quasi-judicial)
power may be questioned in an ordinary civil action
before the trial court. (Filipinas Engineering &
Machine Shop v. Ferrer, G.R. No. L-31455, Feb. 28,
1985).
● The Court has no power to review on
certiorari an interlocutory order or even a
final resolution issued by a DIVISION of the
COMELEC. The Court can only review a
final decision or resolution of the
COMELEC
en
banc
(Cagas
vs.
COMELEC, G.R. No. 194139, January 24,
2012).
● COMELEC has jurisdiction to determine
the presence of “probable cause” in
election cases. The finding of probable
cause and the prosecution of election
offenses rests in the COMELEC’s sound
discretion (Baytan v. COMELEC, G.R. No.
153945, Feb. 4, 2003).
● The Chief State Prosecutor, who may have
been designated by the COMELEC to
prosecute a criminal action, merely derives
his authority from the COMELEC. It is
beyond his power to oppose the appeal
made by COMELEC (Comelec v. Silva,
G.R. No. 129417, Feb. 10, 1998).
The COMELEC cannot itself, in the same
cancellation (of certificate of candidacy) case,
decide the qualification or lack thereof of the
candidate if such issues are yet undecided or
undetermined by the proper authority.
●
The provisions in Article IX-C, Section 2,
enumerating the powers and functions of
COMELEC does not have the same
exactitude of the provisions of Art. VI, Sec.
17, which provides for the HRET and SET,
or that of Art. VII, Sec. 4, which provides
that the SC en banc shall be the sole judge
of all contests regarding the Presidency
and Vice-Presidency. These tribunals have
jurisdiction
over
the
question
of
qualifications of the President, VP,
Senators, and the HoR.
o Not one of the enumerated powers
of the COMELEC as stated in
Article IX-C, Sec. 2 of the
Constitution
grants
the
commission
the
power
to
●
●
●
●
●
determine the qualifications of a
candidate.
A COMELEC rule or resolution cannot
supplant or vary the legislative enactments
that
distinguish
the
grounds
for
disqualification from those of ineligibility,
and the appropriate proceedings to raise
the said grounds. (Fermin v. COMELEC,
G.R. No. 179695, Dec. 18, 2008)
Insofar as the qualification of a candidate is
concerned, Rule 25 and Rule 23 of the
COMELEC rules do not allow authorization
and do not constitute vestment of
jurisdiction for the COMELEC to determine
the qualification of a candidate.
The facts of qualification must first be
established in a prior proceeding before an
authority vested with jurisdiction. Prior
determination of qualification may be by
statute, by an executive order or by a
judgment of a competent court or tribunal.
Lacking this prior determination, the
certificate of candidacy cannot be
cancelled or denied due course on ground
of false representations regarding a
candidate’s qualifications except if there
exist self-evident facts of unquestioned or
unquestionable veracity and judicial
confessions.
In this light the COMELEC cannot cancel
Poe’s certificate of candidacy lacking prior
determination of her qualifications by a
competent body. (Poe-Llamanzares v.
Comelec et al, G.R. Nos. 221697 &
221698-700, March 8, 2016)
The COMELEC’s power to motu proprio deny due
course to a certificate of candidacy is subject to the
candidate’s opportunity to be heard. Under Article II,
Section 26 of the Constitution, “the state shall
guarantee equal access to opportunities for public
service.” (PHIL. CONST. art. II, § 26). This, however,
does not guarantee a constitutional right to run for
or hold public office. To run for public office is a mere
privilege subject to limitations imposed by law, such
as prohibition on nuisance candidates. To minimize
logistical confusion caused by nuisance candidates,
their COC’s may be denied due course by the
COMELEC, through motu proprio or upon verified
petition of an interested party, subject to an
opportunity to be heard. (Timbol v Commission on
Elections, G.R. No. 206004, Feb. 24, 2015)
Regulation of Public Utilities, Media and
Franchises
The COMELEC may, during the election period,
supervise or regulate the utilization of all franchises
or permits for the operation of transportation and
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other public utilities, media, all grants, privileges and
concessions, granted by the Government. (PHIL.
CONST. art. IX-C, § 4)
The aim is to ensure equal opportunity, time, and
space, and the right to reply, including reasonable
equal rates for public information campaigns and
forums among candidates. (PHIL. CONST. art. IX-C,
§ 4).
Can print media be compelled to allocate free
space?
No. Print media may not be compelled to allocate
free space to the Commission. Such would amount
to a taking of property without just compensation.
(Philippine Press Institute v. COMELEC, G.R. No
119694, May 22, 1995)
Can the COMELEC regulate expressions made
by private citizens?
No. COMELEC had no legal basis to regulate
expressions made by private citizens. As such,
COMELEC’s order to remove the tarpaulin posted
by the Diocese of Bacolod bearing the heading
‘Conscience Vote’ was unconstitutional. (Diocese of
Bacolod v COMELEC, G.R. No 205728, January 21,
2015)
Are the functions under R.A. No. 8436
mandatory?
Yes. The minimum functional capabilities
enumerated under Section 6 of R.A. No. 8436, as
amended, are mandatory. These functions
constitute the most basic safeguards to ensure the
transparency, credibility, fairness and accuracy of
the upcoming elections. The law is clear. A “voterverified paper audit trail” requires the following: (a)
individual voters can verify whether the machines
have been able to count their votes; and (b) that the
verification at minimum should be paper based.
There appears to be no room for further
interpretation of a “voter-verified paper audit trail.”
The paper audit trail cannot be considered the
physical ballot, because there may be instances
where the machine may translate the ballot
differently, or the voter inadvertently spoils his or her
ballot. (Bagumbayan-VNP Movement, Inc. vs
COMELEC, G.R. No. 222731, March 8, 2016)
Jurisdiction
EXCLUSIVE ORIGINAL jurisdiction over all
contests relating to the elections, returns, and
qualifications
of
all
elective
REGIONAL,
PROVINCIAL and CITY officials
Election contests in the Sangguniang Kabataan
(SK) are not under COMELEC jurisdiction but under
the jurisdiction of the DILG.
● APPELLATE jurisdiction over all contests
involving:
o ELECTIVE MUNICIPAL officials decided
by trial courts of general jurisdiction
o ELECTIVE BARANGAY officials decided
by trial courts of limited jurisdiction
● A petition for certiorari questioning an
interlocutory order of a trial court in an electoral
protest was within the appellate jurisdiction of
the COMELEC. The Court recognizes the
COMELEC’s appellate jurisdiction over
petitions for certiorari against all acts or
omissions of courts in election cases (Bulilis v.
Nuez, G.R. No. 195953, Aug. 9, 2011).
● The COMELEC HAS jurisdiction over intraparty disputes. The ascertainment of the identity
of a political party and its legitimate officers is a
matter that is well within its authority. The
COMELEC has the power to enforce and
administer all laws and regulations relative to
the conduct of an election.
● To resolve the issue, the COMELEC need
only refer to the Party Constitution. It need
not go as far as to resolve the root of the
conflict between the parties. It need only
resolve issues as may be necessary in the
exercise of its enforcement powers.
COMMISSION ON AUDIT
Examine, audit, and settle all accounts
pertaining to:
1. Revenue and receipts of funds or property
2. Expenditures and uses of funds or
property owned or held in trust by, or
pertain to:
a. The Government
b. Any of its subdivisions, agencies
or instrumentalities
c. GOCCs with original charters.
COA is endowed with enough latitude to determine,
prevent and disallow irregular, unnecessary,
excessive,
extravagant
or
unconscionable
expenditures of government funds. In resolving
cases brought before it on appeal, respondent COA
is not required to limit its review only to the grounds
relied upon by a government agency’s auditor with
respect to disallowing certain disbursements of
public funds. In consonance with its general audit
power, respondent COA is not merely legally
permitted, but is also duty-bound to make its own
assessment of the merits of the disallowed
disbursement and not simply restrict itself to
reviewing the validity of the ground relied upon by
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the auditor of the government agency concerned. To
hold otherwise would render COA’s vital
constitutional power unduly limited and thereby
useless and ineffective (Yap v. Commission on
Audit, G.R. No.158562, April 23, 2010).
If COA finds the internal control system of audited
agencies inadequate, COA may adopt measures,
including temporary or special pre-audit, as
necessary to correct deficiencies.
Funds cannot be released without auditing in preaudit while in post-audit, the auditing is done only
after the funds are released. (Maritime Industry
Authority v. Commission on Audit, G.R. No. 185812,
January 13, 2015)
Keep the general accounts of the government
COA is not required to limit its review only to the
grounds relied upon by the auditor with respect to
disallowing certain disbursements of public funds. In
consonance with its general audit power, COA is not
merely legally permitted but is also duty-bound to
make its own assessment of the merits of the
disallowed disbursement and not simply restrict to
reviewing the validity of the ground relied upon by
the auditor of the government agency concerned.
The functions of COA can be classified as:
(1) Examining and auditing all forms of government
revenues and expenditures
(2) Settling government accounts
(3) Promulgating accounting and auditing rules
(4) Deciding administrative cases involving
expenditures of public funds.
When the COA examines and audits the use of
public funds and property by accountable officers,
only the diligence of a good father of a family is
required from the latter, not extraordinary diligence
(Angeles v. Commission on Audit, G.R. No. 228795,
Dec. 1, 2020 | Lopez).
To settle government accounts
This means the power to settle liquidated accounts
i.e. accounts which may be adjusted simply by an
arithmetical process. It does not include the power
to fix the amount of an unfixed or undetermined
debt.
To define the scope and techniques for its own
auditing procedures
To promulgate accounting and auditing rules
including those for the prevention and disallowance
of irregular, unnecessary, excessive, extravagant,
or unconscionable expenditures;
Conduct post-audit with respect to the
following:
(1) Constitutional bodies, commissions, and offices
granted fiscal autonomy
(2) Autonomous state colleges and universities
(3) GOCCs and their subsidiaries incorporated
under the Corporation Code
(4) Non-governmental entities receiving subsidy or
equity, directly or indirectly, from or through the
government, which are required by law, through
the granting institution, to submit to such audit.
(5) To decide administrative cases involving
expenditure of public funds
(PHIL. CONST. art. IX-D, § 2)
Preserve vouchers and other supporting papers
pertaining thereto for such period as may be
provided by law
COA’s non-exclusive power to audit
The COA does not have the exclusive power to
examine and audit government entities. As such,
public corporations under COA jurisdiction may
employ private auditors. However, COA’s findings
and conclusions necessarily prevail over those of
private auditors, at least insofar as government
agencies and officials are concerned (DBP v COA,
G.R. No. 88435, January 16, 2002)
Thus, private auditors can be hired but if there is a
conflict, COA audit prevails.
Prosecutors Power to Review Accounts Settled
by COA
Prosecutors may still review accounts already
settled and approved by COA for the purpose of
determining possible criminal liability. This is
because COA’s interest in such accounts is merely
administrative.
Exclusive Authority to Define Scope of Audit
and Examination
Pursuant to its mandate as the guardians of public
funds, the COA has the exclusive authority to define
the scope of its audit and examination, establish the
techniques and methods for such review and
promulgate accounting and auditing rules and
regulations (Veloso v. Commission on Audit, G.R.
No. 193677, Sept. 6, 2011).
What are Considered Private Corporations
Note that not all corporations, which are not
government owned or controlled, are ipso facto to
be considered private corporations as there exists
another distinct class of corporations or chartered
institutions which are otherwise known as “public
corporations.” These corporations are treated by law
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as agencies or instrumentalities of the government.
As presently constituted, the BSP is a public
corporation created by law for a public purpose and
being such the funds of the BSP fall under the
jurisdiction of the Commission on Audit. (Boy Scouts
of the Philippines v. COA, G.R. No. 177131, June 7,
2011)
Complete Discretion afforded to COA
COA is generally accorded complete discretion in
the exercise of its constitutional duty and
responsibility to examine and audit expenditures of
public funds. Only in instances when COA acts
without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of
jurisdiction shall the Court interfere. Thus, COA can
disallow TESDA from paying a healthcare allowance
to their employees. (TESDA v. COA, G.R. No.
196418, Feb. 10, 2015)
The Court’s general policy is to give due deference
to COA’s constitutional prerogatives in the absence
of grave abuse of discretion because of their
presumed expertise in the laws they are entrusted
to enforce. No less than the fundamental law of the
land expressly made COA the guardian of public
funds; endowed it with wide latitude to determine,
prevent, and disallow irregular, excessive,
extravagant, or unconscionable expenditures of
government funds; and vested it with powers over
all accounts pertaining to government revenue and
expenditures, and the uses of public funds and
property. (PNOC-Exploration v. COA, G.R. No.
244461, Sept. 28, 2021 | Lopez).
The Commission on Audit does not have the
discretion to review the validity or conclusiveness of
the Court’s application and interpretation of the law
(Abrenica v. COA, G.R. No. 218185, Sept. 14, 2021
| Lopez)
Jurisdiction
COA is endowed with enough latitude to determine,
prevent, and disallow irregular, unnecessary,
excessive,
extravagant
or
unconscionable
expenditures of government funds. In resolving
cases brought before it on appeal, respondent COA
is not required to limit its review only to the grounds
relied upon by a government agency’s auditor with
respect to disallowing certain disbursements of
public funds. In consonance with its general audit
power, respondent COA is not merely legally
permitted, but is also duty-bound to make its own
assessment of the merits of the disallowed
disbursement and not simply restrict itself to
reviewing the validity of the ground relied upon by
the auditor of the government agency concerned. To
hold otherwise would render COA’s vital
constitutional power unduly limited and thereby
useless and ineffective (Yap v. Commission on
Audit, G.R. No.158562, April 23, 2010).
COA has authority not just over accountable officers
but also over other officers who perform functions
related to accounting such as verification of
evaluations and computation of fees collectible, and
the adoption of internal rules of control. COA has the
authority to define the scope of its audit and
examination, establish the techniques and methods
for such review and promulgate accounting and
auditing rules and regulations (Veloso v.
Commission on Audit, G.R. No. 193677, Sept. 6,
2011).
The Boy Scout of the Philippines (“BSP”) is a
government-owned and controlled corporation
under the jurisdiction of COA. The BSP Charter
(Commonwealth Act 111), entitled “An Act to Create
a Public Corporation to be Known as the Boy Scouts
of the Philippines, and to Define its Powers and
Purposes” created the BSP as a “public corporation”
(Boy Scouts of the Philippines v. COA, G.R. No.
177131, June 7, 2011)
The Manila Economic and Cultural Office (“MECO”)
is subject to audit by the COA. The MECO is sui
generis. It was established when the Philippines
severed diplomatic relations with Taiwan upon
recognition of China. None of its members are
government officials. It is not a GOCC nor an
instrumentality. Its functions are of a kind that would
otherwise be performed by the diplomatic and
consular offices of the Philippines. Nevertheless, the
consular fees collected by the MECO may be
audited by the COA. (Funa v. Manila Economic and
Cultural Office, G.R. No. 193462, Feb. 4, 2014)
Water districts are within the coverage of the COA.
A water district is a GOCC with a special charter
since it is created pursuant to a special law. Thus,
COA has the authority to investigate whether
directors, officials or employees of GOCCs receiving
allowances and bonuses are entitled to such
benefits under applicable laws. (Feliciano v.
Commission on Audit, G.R. No. 147402, January
14, 2004)
(1) Of the Commission in General: No law shall be
passed exempting any entity of the
Government, or any investment of public funds,
from the jurisdiction of the COA (PHIL. CONST.
art. IX-D, § 3)
(2) Over GOCCs: The Constitution vests in the
COA audit jurisdiction over ‘government-owned
and controlled corporations with original
charters, as well as government owned or
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controlled
corporations
without
original
charters’. GOCCs with original charters are
subject to COA pre-audit, while GOCCs without
original charters are subject to COA post-audit.
The determining factor of COA’s audit
jurisdiction is government ownership or control
of the corporation.
(3) Over LGUs: LGUs, through granted local fiscal
autonomy are still within the audit jurisdiction of
the COA (Veloso v. Commission on Audit, G.R.
No. 193677, Sept. 6, 2011).
COA authority in Public Bidding
COA has the power to determine the meaning of
‘public bidding’ and what constitutes failure of the
same when regulations require public bidding for the
sale of government property.
Guidelines on Return of Disallowance
Guidelines on the return of disallowed amounts in
cases involving illegal or irregular government
contracts:
1. If a Notice of Disallowance is set side by the
Court, no return shall be required from any
persons held liable therein.
2. If a Notice of Disallowance is upheld, the
rules on return are as follows:
a. Approving and certifying officers who
acted in good faith, in the regular
performance of official functions, and
with the diligence of a good father of
the family are not civilly liable to return
consistent with Section 38 of the
Administrative Code of 1987.
b. Pursuant to Section 43 of the
Administrative
Code
of
1987,
approving and certifying officers who
are clearly shown to have acted in bad
faith, malice, or gross negligence, are
solidarily liable together with the
recipients for the return of the
disallowed amount.
c. The civil liability for the disallowed
amount may be reduced by the
amounts due in the recipient based on
the application of the principle of
quantum meruit on a case-to-case
basis
d. These rules are without prejudice to
the application of the more specific
provisions of law, OPCA rules and
regulation, and accounting principles
depending on the nature of the
government contract involved. (Estrella
v. COA, G.R. No. 252079, Sept. 14,
2021 | Lopez).
The civil liability of approving or certifying officers
under the Administrative Code and the treatment of
such liability as solidary are grounded upon the
manifest bad faith, malice, or gross negligence of
public officers, who have in their favor the
presumption of good faith and regularity in the
performance of official duty. On the other hand, the
payees’ obligation in a disallowed transaction is
grounded upon the civil law principles of solutio
indebiti and unjust enrichment. Thus, whole the
officers’ good faith or bad faith is determinative of
their liability, such state of mind is immaterial with
regard to the recipients’ obligation to return in
disallowance cases. (Ngalob v. COA, G.R. No.
238882, Jan. 5, 2021 | Lopez).
B. COMPOSITION AND
QUALIFICATIONS OF MEMBERS
CIVIL SERVICE COMMISSION
Composition
One Chairman and 2 Commissioners
Qualifications (PHIL. CONST., art. IX-B, § 1(1))
1. Natural-born citizens of the Philippines;
2. At the time of their appointment, at least 35
years of age
3. With proven capacity for public administration;
and
4. Must not have been candidates for any elective
position in the election immediately preceding
their appointment
Disqualifications
(1) No candidate who has lost in any election shall,
within 1 year after such election, be appointed
to any office in the Government of any GOCC
or in any of their subsidiaries. (PHIL. CONST. art.
IX-B, §6)
(2) No elective official shall be eligible for appoint
or designation in any capacity to any public
office or position during his tenure. (PHIL.
CONST. art. IX-B, § 7, ¶ 1)
Exceptions:
a. the Vice President may be appointed as
member of the Cabinet
b. Member of the Congress is designated to
sit in the JBC
(3) Unless otherwise allowed by law or by the
primary functions of his position, no appointive
official shall hold any other office or employment
in the government or any subdivision, agency or
instrumentality thereof including GOCCs or
their subsidiaries. (PHIL. CONST. art. IX-B, § 7, ¶
2)
(4) No officer or employee in the civil service shall
engage, directly or indirectly, in any
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electioneering or partisan political campaign,
(PHIL. CONST. art.IX-B, § 2, ¶ 4)
Appointment and Term
Appointed by the President with the consent of the
Commission on Appointments. The term is 7 years,
without reappointment. The prohibition of
reappointment applies even if the Commissioner
has served for less than 7 years. (BERNAS)
Appointment to any vacancy shall be only for the
unexpired term of the predecessor. In no case shall
any member be appointed or designated in a
temporary or acting capacity. (PHIL. CONST., art. IXB, § 1, ¶ 2)
COMMISSION ON ELECTIONS
Composition
One Chairman and 6 Commissioners
Qualifications (PHIL. CONST., art. IX-C, § 1, ¶ 1)
(1) Natural-born citizen;
(2) At least 35 years old at the time of appointment;
(3) College degree holder;
(4) Not a candidate in any election Immediately
preceding the appointment; and
(5) Majority, including the chairman, must be
members of the Philippine Bar who have been
engaged in the practice of law for at least 10
years
Appointment and Term
Appointed by the President with the consent of the
commission of Appointment, for a term of 7 years,
without reappointment. (PHIL. CONST. art. IX-C, § 1,
¶ 2)
If the appointment was ad interim, a subsequent
renewal of the appointment does not violate the
prohibition on reappointment because no previous
appointment was confirmed by the Commission on
Appointment. Further, the total term of both
appointments must not exceed the 7-year limit.
(Matibag v. Benipayo, G.R. No. 149036, April 2,
2002)
COMMISSION ON AUDIT
Composition
One Chairman and 2 Commissioners
Qualifications (PHIL. CONST. art. IX-D, § 1, ¶ 1)
1. Natural born citizen;
2. At least 35 years old at the time of
appointment
3.
4.
CPAs with at least 10 years auditing
experience or members of the Bar with at
least 10 years of experience in the practice
of law; at no time shall all members belong
to the same profession, and
Not a candidate in any election immediately
preceding appointment
Appointment and Term
Appointed by the President with the consent of the
Commission of Appointments for a term of 7 years,
without reappointment.
Appointment to any vacancy shall only be for the
unexpired portion of the term of the predecessor.
In no case shall any member be appointed or
designated in a temporary or acting capacity. (PHIL.
CONST. art. IX-D, § 1, ¶ 2)
C. PROHIBITED OFFICES AND
INTERESTS
Prohibited Offices and Interests
No member of a Constitutional Commission shall,
during his tenure:
● Be financially interested, directly or indirectly, in
any contract with, or in any franchise or privilege
granted by the Government, any of its
subdivisions, agencies or instrumentalities
● Engage in the Practice of any profession;
● Engage in the Active management and control
of any business which in any way may be
affected by the functions of his office; and
● Hold any other Office or Employment.
The prohibition includes offices within the
government. Hence, a member of a Constitutional
Commission, unless otherwise allowed by law or by
the primary function of his position, shall not hold
any other office or employment in the government
(Funa v. CSC Chairman, G.R. No. 191672, Nov. 25,
2014)
D. REVIEW OF FINAL ORDERS,
RESOLUTIONS AND DECISIONS
1. RENDERED IN THE
EXERCISE OF QUASIJUDICIAL FUNCTIONS
Each Commission shall decide by a majority of vote
of all its Members any case or matter brought before
it within sixty (60) days from the date of its
submission for decision or resolution. A case or
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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. (PHIL. CONST., art. IX-A, §7)
●
●
●
●
●
recommendation on audits by corporate auditors,
these being administrative in nature. Here, what is
required is a reasonable period with due regard for
the complexities and nuances of each case (PDIC
v. COA, G.R. No. 218068, Mar. 15, 2022 | Lopez).
Decisions, orders or rulings of the COMELEC or
the COA may be brought on certiorari to the SC
under Rule 64.
Decisions, orders or ruling of the CSC should
be appealed to the CA under Rule 43.
Period for appeals is 30 days from receipt of a
copy of the decision, order, or ruling.
It is however a requirement, that a motion for
reconsideration must first be filed before the
commission en banc, before resort to court is
taken.
The certiorari jurisdiction of the court is limited
only to cases and matters rendered by a
commission in the exercise of its adjudicatory
power, or those relating to an election dispute
and not to cases and matters purely
administrative or executive in nature.
2. RENDERED IN THE
EXERCISE OF
ADMINISTRATIVE
FUNCTIONS
Administrative disciplinary cases involving penalty
of suspension for more than 30 days, or fine in an
amount exceeding 30 days’ salary, demotion,
transfer, removal, or dismissal from office shall be
appealable to the CSC.
● Decision may be executed pending appeal
● Decision of CSC may be brought on appeal to
the CA under Rule 43
● Decision of CA may be brought on appeal to the
SC under Rule 45.
● Exoneration of officers or employees from
administrative charges does not bar appeal.
The CSC is the proper party to bring the appeal
(PD 807, §37- 39); (CSC v. Dacoycoy, G.R. No.
135805, April 29, 1999).
Enforcement - It has been held that the CSC can
issue a writ of execution to enforce judgments,
which is deemed final.
In the case of COA, the 60-day period referred to in
Section 7, Article IX-A of the Constitution pertains
only to adversarial suits with contending parties
which are quasi-judicial in nature. This does not
pertain
to
decisions
on
requests
for
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A. DUE PROCESS OF LAW
No person shall be deprived of life, liberty, or
property without due process of law, nor shall any
person be denied the equal protection of the laws.
(PHIL. CONST., art. III, § 1)
Concept and Purpose
Due process of law means simply, first, that there
shall be a law prescribed in harmony with the
general powers of the legislative department of the
Government; second, that this law shall be
reasonable in its operation; third, that it shall be
enforced according to the regular methods of
procedure prescribed; and fourth, that it shall be
applicable alike to all the citizens of the state or to
all of a class. (Rubi v. Provincial Board of Mindoro,
G.R. No. L-14078, March 7, 1919)
Due process evades a precise definition. The
purpose of the guaranty is to prevent arbitrary
governmental encroachment against the life, liberty
and property of individuals. The due process
guaranty serves as a protection against arbitrary
regulation or seizure. Even corporations and
partnerships are protected by the guaranty insofar
as their property is concerned. (White Light
Corporation v. City of Manila, G.R. No. 122846, Jan.
20, 2009)
Scope
The guarantees of the Bill of Rights are universal in
their application to all persons within the territorial
jurisdiction, without regard to any differences of
race, color, or nationality. All natural persons, and
artificial persons, only in so far as their property is
concerned, are protected by the Due Process
clause. (Smith, Bell & Co. v. Natividad, G.R. No.
15574, Sept. 17, 1919)
Relativity
The concept of due process is not a static one. What
is due process of law depends on circumstances. It
varies with the subject-matter and necessities of the
situation. (Rubi v. Provincial Board, citing Moyer vs.
Peabody [1909], 212 U. S., 82)
Procedural And Substantive
a. Procedural
Procedural due process refers to the procedures
that the government must follow before it deprives a
person of life, liberty, or property. Procedural due
process concerns itself with government action
adhering to the established process when it makes
an intrusion into the private sphere. (White Light
Corporation v. City of Manila, G.R. No. 122846, Jan.
20, 2009)
Essence
The essence of procedural due process is embodied
in the basic requirement of [1] notice and [2] a real
opportunity to be heard. (Vivo v. PAGCOR, G.R. No.
187854, Nov. 12, 2013)
While it is true that the right to due process
safeguards the opportunity to be heard and to
submit any evidence one may have in support of his
claim or defense, where the opportunity to be heard
is accorded, and the party can “present its side” or
“defend its interest in due course”, there is no denial
of due process because what the law proscribes is
the lack of opportunity to be heard. (Oca v Custodio,
GR 199825, July 26, 2017)
Publication
Every agency shall file with the Office of the National
Administrative Register ONAR in the University of
the Philippines Law Center three (3) certified copies
of every rule adopted by it. Rules in force on the date
of effectivity of this Code which are not filed within
three (3) months from the date shall not thereafter
be the basis of any sanction against any party or
persons. (Section 3 of Chapter 2, Book VII of the
Administrative Code of 1987)
These requirements of publication and filing were
put in place as safeguards against abuses on the
part of lawmakers and as guarantees to the
constitutional right to due process and to information
on matters of public concern and, therefore, require
strict compliance. (Republic v. Pilipinas Shell, G.R.
No. 173918, April 8, 2008)
However, not all rules and regulations adopted by
every government agency are to be filed with the UP
Law Center. Only those of general or of permanent
character are to be filed. According to the UP Law
Center’s guidelines for receiving and publication of
rules and regulations, interpretative regulations and
those merely internal in nature, that is, regulating
only the personnel of the Administrative agency and
not the public, need not be filed with the UP Law
Center. (The Board of Trustees of the GSIS v.
Velasco, G.R. No. 170463, Feb. 2, 2011)
Late Petitions
Rules of procedure are intended to ensure the
orderly administration of justice and the protection
of substantive rights in judicial and extrajudicial
proceedings. It is a mistake to suppose that
substantive law and adjective law are contradictory
to each other or, as has often been suggested, that
enforcement of procedural rules should never be
permitted if it will result in prejudice to the
substantive rights of the litigants. This is not exactly
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true; the concept is much misunderstood. As a
matter of fact, the policy of the courts is to give effect
to both kinds of law, as complementing each other,
in the just and speedy resolution of the dispute
between the parties. Observance of both
substantive and procedural rights is equally
guaranteed by due process, whatever the source of
such rights, be it the Constitution itself or only a
statute or a rule of court. (Tupas v. CA, G.R. No.
89571, Feb. 6, 1991)
A party having forfeited the right to appeal cannot
claim that he/she has been denied due process.
(Tupas v. CA, G.R. No. 89571, Feb. 6, 1991)
In a case of falsification of public documents, the
accused claimed that his constitutional rights were
violated when the Sandiganbayan denied his motion
for new trial and motion to allow him to present
additional witnesses. The Court ruled that his right
to due process was not violated. The accused had
4 years to present evidence yet he only asked for
the opportunity to present additional evidence via a
motion for reconsideration after the Sandiganbayan
had already admitted all the formal offers of
evidence of the accused. Further, he failed to
present the witness through the compulsory process
of subpoena, during all the time that he testified for
his defense for a period of six (6) months. Moreover,
his motion to present additional witness was denied
due to his failure to comply with Sections 4-5 of Rule
15. In addition, the evidence he seeks to present is
not a newly discovered evidence since it was
already presented by the other parties. All this points
out to the conclusion that he was given ample
opportunity to be heard. (Escobar v. People. G.R.
No. 205576, Nov. 20, 2017)
Motion for Reconsideration
Due process is satisfied when the parties are
afforded fair and reasonable opportunity to explain
their side of the controversy or an opportunity to
move for a reconsideration of the action or ruling
complained of. (Elenita S. Binay v. Office of the
Ombudsman, 213957-58, Aug. 7, 2019)
A city enacted an ordinance classifying certain
areas as agricultural lands. A landowner filed an
application for exemption and an Order was issued
by the Secretary of Agrarian Reform, granting the
exemption. Farmers of landowner’s landholdings
filed an MR of the Order, which was subsequently
granted by the judge, thereby revoking the first
Order. However, this Order was sent to another city
and not to the correct address of the landowner. The
Court ruled that the landowner’s right to due process
was not violated. She was still able to file her MR
from the Order, albeit beyond the allowable period
to file and was still given due course. While it may
be true that she was prevented from filing a timely
MR, it would be erroneous to conclude that she had
been completely denied her opportunity to be heard.
In administrative proceedings, procedural due
process means that one is given the opportunity to
explain one’s side and the opportunity to seek a
reconsideration of the action or ruling complained of,
not only through verbal arguments in court but also
through pleadings. When she filed her MR, she was
able to completely and exhaustively present her
arguments. (Espiritu v. Del Rosario, G.R. No.
204964. Oct. 15, 2014)
There is no denial of the right to due process if there
was an opportunity for the parties to defend their
interests in due course. Petitioner had been able to
file a Motion for Reconsideration Ad Cautelam
before the trial court, and later elevated its case
before the Court of Appeals. There is no denial of
due process if a party was given an opportunity to
be heard in a Motion for Reconsideration. Petitioner
did not take advantage of the opportunities it was
given to lead a responsive pleading. It allowed the
periods it was given for the filing of pleadings to
lapse. (Philippine National Construction Corporation
v. Asiavest Merchant Bankers (M) Berhad, GR. No.
172301, Aug. 19, 2015)
b. Substantive
If due process were confined solely to its procedural
aspects, there would arise absurd situation of
arbitrary government action, provided the proper
formalities are followed. Substantive due process
completes the protection envisioned by the due
process clause. It inquires whether the government
has sufficient justification for depriving a person of
life, liberty, or property. (White Light Corporation v.
City of Manila, G.R. No. 122846, January 20, 2009)
Substantive due process requires that laws be [1]
grounded on reason and [2] be free from
arbitrariness. The government must have sufficient
justification for depriving a person of life, liberty, or
property. Essentially, substantive due process is
satisfied if the deprivation is done in the exercise of
the police power of the State. (Provincial Bus
Operators Association of the Philippines v. DOLE,
G.R. No. 202275, July 17, 2018)
Requisites
Laws which interfere with life, liberty, and property
satisfy substantive due process when there is:
a. Lawful Subject – The interests of the
public generally, as distinguished from
those of a particular class, require such
interference; and
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b.
POLITICAL LAW & PUBLIC INTERNATIONAL LAW
Lawful Means – The means are
reasonably
necessary
for
the
accomplishment of the purpose, and not
unduly oppressive upon individuals.
The legislature may not, under the guise of
protecting the public interests, arbitrarily interfere
with private business, or impose unusual and
unnecessary restrictions upon lawful occupations.
In other words, its determination as to what is a
proper exercise of its police powers is not final or
conclusive, but is subject to the supervision of the
court. (US v. Toribio, G.R. No. L-5060, Jan. 26,
1910)
License to Own and Operate Firearms
With the bearing of arms being a mere privilege,
there could not have been a deprivation of right to
due process in requiring a license for the possession
of firearms. Article III, Section 1 of the Constitution
is clear that only life, liberty, or property is protected
by the due process clause. It is settled that the
license to possess a firearm is neither a property nor
a property right.
Assuming, for the sake of argument, that the right to
possess a firearm were considered a property right,
it is doctrine that property rights are always subject
to the State's police power. Further, the PNP
Guidelines, which suspended the issuance of
permits to carry firearms outside of residence, was
a valid police power measure. The interest of the
general public was satisfied, since the Guidelines
were issued in response to the rise in high-profile
crimes. As to the means employed to retain peace
and order in society, the revocation of all permits to
carry firearms outside of residence would make it
difficult for criminals to commit gun violence and
victimize others. Therefore, the license requirement
to own and operate a firearm is a valid exercise of
police power and not a violation of the right to due
process. (Acosta v. Ochoa, G.R. Nos. 211559,
211567, 212570 & 215634, Oct. 15, 2019)
Requisites of a Valid Ordinance (Police Power of
LGUs) (Must NOT CUPPU, Must be GC)
1. It must not contravene the constitution or any
statute;
2. It must not be unfair or oppressive;
3. It must not be partial or discriminatory;
4. It must not prohibit but may regulate trade;
5. It must not be unreasonable; and
6. It must be general and consistent with public
policy.
Publication
Due process, which is a rule of fairness, requires
that those who must obey a command must first
know the command. Thus, Art. 2 of the Civil Code
prescribes a 15-day period of publication of laws
before they take effect, unless otherwise provided.
The omission of publication of laws would offend
due process insofar as it would deny the public
knowledge of the laws that are supposed to govern
it. The term "laws" should refer to all laws and not
only to those of general application, but including
those of local application and private laws. Covered
by this rule are presidential decrees and executive
orders promulgated by the President. Administrative
rules and regulations must also be published if their
purpose is to enforce or implement existing law
pursuant also to a valid delegation. However, no
publication is required for internal regulations issued
by administrative agencies. Publication must be in
full or it is no publication at all since its purpose is to
inform the public of the contents of the laws.
(Tañada v. Tuvera, G.R. No. L-63915, Dec. 29,
1986)
1. VOID-FOR-VAGUENESS
Concept
A statute or act may be said to be vague when it
lacks comprehensible standards that men of
common intelligence must necessarily guess at its
meaning and differ in its application.
The test in determining whether a criminal statute is
void for uncertainty is whether the language
conveys a sufficiently definite warning as to the
proscribed conduct when measured by common
understanding and practice. It must be stressed,
however, that the "vagueness" doctrine merely
requires a reasonable degree of certainty for the
statute to be upheld - not absolute precision or
mathematical exactitude.
An act will not be held invalid merely because it
might have been more explicit in its wordings or
detailed in its provisions, especially where, because
of the nature of the act, it would be impossible to
provide all the details in advance as in all other
statutes. (Estrada v. Sandiganbayan, G.R. No.
148560, November 19, 2001)
In determining whether the words used in a statute
are vague, words must not only be taken in
accordance with their plain meaning alone, but also
in relation to other parts of the statute. It is a rule that
every part of the statute must be interpreted with
reference to the context, that is, every part of it must
be construed together with the other parts and kept
subservient to the general intent of the whole
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3. The decision must
have something to
Support itself;
4. Evidence
supporting
the
finding
or
conclusion must be
Substantial;
5. The decision must
be based on the
evidence
Presented at the
hearing or at least
contained in the
record
and
disclosed to the
parties affected;
6. The tribunal or body
or any of its judges
must act on its or his
own Independent
consideration of the
law and facts of the
controversy,
and
not simply accept
the views of a
subordinate
in
arriving
at
a
decision;
7. The board or body
should,
in
all
controversial
questions, render its
decision in such a
manner that the
parties
to
the
proceeding
can
Know the various
issues involved, and
the reasons for the
decision rendered.
(Ang Tibay v. CIR, G.R.
No. L-46496)
A lack of formal hearing
in the administrative
level does not violate
procedural due process.
The
due
process
requirement
before
administrative bodies
are
not
as
strict
compared to judicial
tribunals in that it
Academic
Disciplinary
Proceedings
suffices that a party is
given a reasonable
opportunity to be heard.
(Saunar v. Ermita, G.R.
No. 186502)
(WAEEC)
1. The students must
be
informed
in
Writing
of
the
nature and cause of
any
accusation
against them;
2. That they shall have
the right to Answer
the charges against
them
with
the
assistance
of
counsel, if desired;
3. They
shall
be
informed of the
Evidence against
them;
4. They shall have the
right to adduce
Evidence in their
own behalf; and
5. The evidence must
be duly Considered
by the investigating
committee or official
designated by the
school authorities to
hear and decide the
case.
Disciplinary
cases
involving students need
not necessarily include
the right to cross
examination.
An
administrative
proceeding conducted
to investigate students'
participation in a hazing
activity need not be
clothed
with
the
attributes of a judicial
proceeding. Thus, it is
not subject to the
rigorous requirements
of criminal due process,
particularly with respect
to the specification of
the charge involved.
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(ADMU v. Capulong,
G.R. No. 99327)
Deportation
Proceedings
Extradition
Proceedings
(Granting of bail)
(GIHO)
1. There should be a
prior determination
by the Board of
Commissioners of
the existence of the
Ground as charged
against the alien;
2. The alien should be
Informed of the
specific grounds for
deportation;
3. A Hearing should
be
conducted
pursuant to the
Rules of Procedure
presented by the
Commissioner
of
Immigration; and
4. Order
of
deportation based
on
the
determination of the
Commissioner
of
Immigration.
Although a deportation
proceeding does not
partake of the nature of
a
criminal
action,
however, considering
that it is a harsh and
extraordinary
administrative
proceeding affecting the
freedom and liberty of a
person,
the
constitutional right of
such person to due
process should not be
denied.
(Lao Gi v. CA, G.R. No.
81798)
If bail can be granted in
deportation cases, there
is no justification why it
should not also be
allowed in extradition
cases. After all, both are
administrative
proceedings where the
innocence or guilt of the
person detained is not in
issue. (Government of
Hongkong v. Olalia,
G.R. No. 153675)
While our extradition
law does not provide for
the grant of bail to an
extraditee,
however,
there is no provision
prohibiting him or her
from filing a motion for
bail, a right to due
process
under
the
Constitution.
The
applicable standard of
due process, however,
should not be the same
as that in criminal
proceedings.
(Government
of
Hongkong v. Olalia,
G.R. No. 153675)
Bail may be granted to a
possible extraditee only
upon a clear and
convincing showing:
1. That he will not be a
flight risk or a
danger
to
the
community; and
2. That there exist
special,
humanitarian and
compelling
circumstances.
(Rodriguez v. Presiding
Judge of RTC Manila,
G.R. No. 157977)
The grant of the bail
presupposes that the
extraditee has already
presented evidence to
prove his/her right to be
on bail, that she is no
flight risk, and the trial
court
had
already
exercised its sound
discretion and had
already determined that
under the Constitution
and laws in force, the
extraditee is entitled to
provisional release.
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(Rodriguez v. Presiding
Judge of RTC Manila,
G.R. No. 157977)
Thus, the cancellation of
an extraditee’s bail,
without prior notice and
hearing,
could
be
considered a violation of
his/her right to due
process tantamount to
grave
abuse
of
discretion.
(Rodriguez v. Presiding
Judge of RTC Manila,
G.R. No. 157977)
Instances when hearing is not necessary:
(a) When
administrative
agencies
are
exercising their quasi-legislative functions.
(b) When
administrative
agencies
are
exercising their quasi-judicial functions if
temporary pending hearing.
(c) Abatement of nuisance per se.
(d) Granting by courts of provisional remedies.
(e) Cases of preventive suspension.
(f) Removal of temporary employees in the
government.
(g) Issuance of warrants of distraint and/or levy
by the BIR Commissioner.
(h) Cancellation of the passport of a person
charged with a crime.
(i) Suspension of a bank’s operations by the
Monetary Board upon a prima facie finding
of liquidity problems in such bank.
Due Process Standards in Administrative
Proceedings
Due process in administrative proceedings does not
necessarily require a trial type of hearing. Neither
does it require an exchange of pleadings between
or among the parties. Due process is satisfied if the
party who is properly notified of allegations against
him or her is given an opportunity to defend himself
or herself against those allegations, and such
defense was considered by the tribunal in arriving at
its own independent conclusions. (Gutierrez v COA,
GR. No. 200628, Jan. 13, 2015)
No Hearing in Provisional Price-fixing
Such a relaxed procedure is especially true in
administrative bodies, such as the ERB which in
matters of rate or price fixing is considered as
exercising a quasi-legislative, not quasi-judicial
function. As such administrative agency, it is not
bound by the strict or technical rules of evidence
governing court proceedings Relaxed procedures
adopted could not have resulted in the denial of due
process. (Maceda v. ERB, G.R. No. 96266, Jul. 18,
1991)
Pilotage is considered a property right Thus, the
exercise of one's profession falls within the
constitutional
guarantee
against
wrongful
deprivation of, or interference with, property rights
without due process. However, it is important to note
that a regulation of professions does not per se
entail a wrongful deprivation. It is only when a
vested right is taken away without due process of l
aw that it falls under the aegis of Article III, Sec. 1.
(Corona v. UHPAP, G.R. No. 111953)
Due Process Standards in Student Disciplinary
Cases
Due process in disciplinary cases involving students
does not entail proceedings and hearings similar to
those prescribed for actions and proceedings in
courts of justice. The proceedings may be summary.
Cross-examination is not an essential part of the
investigation or hearing. The required proof in a
student disciplinary action, which is an
administrative case, is neither proof beyond
reasonable doubt nor preponderance of evidence
but only substantial evidence or such relevant
evidence as a reasonable mind might accept as
adequate to support a conclusion. What is crucial is
that official action must meet minimum standards of
fairness to the individual, which generally
encompass the right of adequate notice and a
meaningful opportunity to be heard.
A cadet facing dismissal from the military academy
for misconduct has constitutionally protected private
interests (life, liberty, or property); hence,
disciplinary proceedings conducted within the
bounds of procedural due process is a must. For
that reason, the PMA is not immune from the
strictures of due process. Where a person's good
name, reputation, honor, or integrity is at stake
because of what the government is doing to him, the
minimal requirements of the due process clause
must be satisfied.
The statement that "a cadet can be compelled to
surrender some civil rights and liberties in order for
the Code and System to be implemented" simply
pertains to what cadets have to sacrifice in order to
prove that they are men or women of integrity and
honor, such as the right to entertain vices and the
right to freely choose what they want to say or do. In
the context of disciplinary investigation, it does not
contemplate a surrender of the right to due process
but, at most, refers to the cadets' rights to privacy
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and to remain silent. (Cudia v. Superintendent of the
PMA, G.R. No. 211362, Feb. 24, 2015)
CONSTITUTIONAL AND STATUTORY DUE
PROCESS
What is often said about statutory due process is a
procedure created by law, which upholds the
constitutional right of a person to due process.
Dismissal of Employees
To be sure, the Due Process Clause in Article III,
Sec. 1 of the Constitution embodies a system of
rights based on moral principles so deeply
imbedded in the traditions and feelings of our people
as to be deemed fundamental to a civilized society
as conceived by our entire history. Due process is
that which comports with the deepest notions of
what is fair and right and just. It is a constitutional
restraint on the legislative as well as on the
executive and judicial powers of the government
provided by the Bill of Rights.
Due process under the Labor Code, like
constitutional due process, has two aspects:
substantive, (i.e., the valid and authorized causes of
employment termination under the Labor Code) and
procedural, (i.e., the manner of dismissal).
Procedural due process requirements for dismissal
are found in the Implementing Rules of P.D. 442, as
amended, otherwise known as the Labor Code of
the Philippines in Book VI, Rule I, Sec. 2, as
amended by Department Order Nos. 9 and 10.
Breaches of these due process requirements violate
the Labor Code. Therefore, statutory due process
should be differentiated from failure to comply with
constitutional due process.
Constitutional due process protects the individual
from the government and assures him of his rights
in criminal, civil or administrative proceedings; while
statutory due process found in the Labor Code and
Implementing Rules protects employees from being
unjustly terminated without just cause after notice
and hearing.
Where the dismissal is for a just cause, the lack of
statutory due process should not nullify the
dismissal, or render it illegal, or ineffectual.
However, the employer should indemnify the
employee for the violation of his statutory rights.
(Agabon v. NLRC, G.R. No. 158693, Nov. 17, 2004)
Although the closure was done in good faith and for
valid reasons, we find that ITC did not comply with
the notice requirement. While an employer is under
no obligation to conduct hearings before effecting
termination of employment due to authorized cause,
however, the law requires that it must notify the
DOLE and its employees at least one month before
the intended date of closure. (Timber Co. v Ababon,
G.R. No. 164518, Jan. 25, 2006)
Preliminary Investigation
The purpose of a preliminary investigation is to
secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an
open and public accusation of crime, from the
trouble, expense and anxiety of a public trial, and
also to protect the State from useless and expensive
trials. The right to a preliminary investigation is a
statutory grant, and to withhold it would be to
transgress constitutional due process. However, in
order to satisfy the due process clause, it is not
enough that the preliminary investigation is
conducted in the sense of making sure that a
transgressor shall not escape with impunity. A
preliminary investigation serves not only the
purposes of the State. More importantly, it is a part
of the guarantees of freedom and fair play, which
are birthrights of all who live in our country. (Salonga
v. Panon, G.R. No. L-59524, Feb. 18, 1985)
B. EQUAL PROTECTION
The equal protection of the law clause merely
requires that all persons shall be treated alike, under
like circumstances and conditions both as to
privileges conferred and liabilities enforced.
The equal protection of the law clause is against
undue favor and individual or class privilege, as well
as hostile discrimination or the oppression of
inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is
directed or by territory within which is to operate. It
does not demand absolute equality among
residents. (Ichong v. Hernandez, G.R. No. L-7995,
May 31, 1957)
Scope
The guarantees of the Bill of Rights are universal in
their application to all persons within the territorial
jurisdiction, without regard to any differences of
race, color, or nationality. All natural persons, and
artificial persons, only in so far as their property is
concerned, are protected by the Equal Protection
clause. (Smith, Bell & Co. v. Natividad, G.R. No.
15574, Sept. 17, 1919)
The Constitution does not require absolute equality
among persons. It is enough that all persons under
like circumstances or conditions are given the same
privileges and required to follow the same
obligations. In short, a classification based on valid
and reasonable standards does not violate the equal
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protection clause. (Tiu v. Court of Appeals, G.R. No.
127410, Jan. 20, 1999)
1. REQUISITES FOR VALID
CLASSIFICATION
The equal protection of the laws clause of the
Constitution allows classification. Classification in
law, as in the other departments of knowledge or
practice, is the grouping of things in speculation or
practice because they agree with one another in
certain particulars.
All that is required of a valid classification is that
it be reasonable, which means that the
classification should be: (GEES)
1. Be Germane to the purposes of the law;
2. Not limited to Existing conditions only;
3. Applied Equally to all members of the same
class; and
4. Rest on Substantial distinctions which make for
real differences. (Victoriano v. Elizalde Rope
Workers’ Union, G.R. No. L-2524, Sept. 12,
1974)
APPLICATION
General Banking Law of 2002
The General Banking Law provides a shorter period
for redemption of three (3) months or earlier to
juridical entities compared to the one (1) year
redemption period given to natural persons.
However, this does not violate the equal protection
clause. Equal protection permits of reasonable
classification. The difference in the treatment of
juridical persons and natural persons was based on
the nature of the properties foreclosed — whether
these are used as residence, for which the more
liberal one-year redemption period is retained, or
used for industrial or commercial purposes, in which
case a shorter term is deemed necessary to reduce
the period of uncertainty in the ownership of
property and enable mortgagee banks to dispose
sooner of these acquired assets. (Zomer
Development Co. v. Special 20th Division of the CA,
G.R. No. 194461, Jan. 07, 2020)
Section 6 of the Cybercrime Prevention Act
Section 6 of the Cybercrime Prevention Act
imposing a penalty one degree higher than that
provided in the RPC for acts committed by, through
and with the use of information and communications
technologies was assailed for violating equal
protection. The Court upheld the section and
explained that Section 6 merely makes commission
of existing crimes through the internet a qualifying
circumstance. There exists a substantial distinction
between crimes committed through the use of
information and communications technology and
similar crimes committed using other means. In
using the technology in question, the offender often
evades identification and is able to reach far more
victims or cause greater harm. The distinction,
therefore, creates a basis for higher penalties for
cybercrimes. (Disini v. Sec. of Justice, G.R. No.
203335, Feb. 18, 2014)
Disbursement Acceleration Program
The DAP was challenged as “unfair as it [was]
selective” because the funds released under the
DAP was not made available to all the legislators,
with some of them refusing to avail themselves of
the DAP funds, and others being unaware of the
availability of such funds. The Court held that the
challenge based on the contravention of the Equal
Protection Clause, which focuses on the release of
funds under the DAP to legislators, lacks factual and
legal basis. The denial of equal protection of any law
should be an issue to be raised only by parties who
supposedly suffer it, and, in these cases, such
parties would be the few legislators claimed to have
been discriminated against in the releases of funds
under the DAP. The requirement was not met here.
(Araullo v. Aquino III, G.R. No. 209287, July 1, 2014)
Classification Freeze Provision
The classification freeze provision does not violate
the equal protection and uniformity of taxation. Even
though it failed to promote fair competition among
the players in the industry, the classification freeze
provision was not precipitated by a veiled attempt or
hostile attitude on the part of Congress to unduly
favor older brands. Since the provision was done in
good faith and is germane to the purpose of the law,
the Court cannot declare it unconstitutional nor
question its wisdom. (British American Tobacco v.
Camacho, G.R. No. 163583, Aug. 20 2009)
Cityhood Laws
The Cityhood laws were constitutional. Based on the
deliberations by Congress on R.A. 9009, Congress
intended that those with pending cityhood bills
during the 11th Congress would not be covered by
the new and higher income requirement of P100
million imposed by RA 9009. The exemption clauses
found in the individual Cityhood Laws are the
express articulation of that intent to exempt
respondent municipalities from the coverage of RA
9009. Such Cityhood Laws are, therefore, also
amendments to the LGC itself. In the enactment of
the Cityhood Laws, Congress merely took the 16
municipalities
covered
thereby
from
the
disadvantaged position brought about by the abrupt
increase in the income requirement (from 20 million
to 100 million) of RA 9009, acknowledging the
“privilege” that they have already given to those
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newly-converted component cities, which prior to
the enactment of RA 9009, were undeniably in the
same footing or “class” as the respondent
municipalities. But in effect, the Cityhood Laws
granted to 33 municipalities amended RA 9009
through the exemption clauses found therein.
(League of Cities of the Phil. et al. v. COMELEC, et
al. G.R. Nos. 176951, 177499, 178056, April 12,
2011)
VAWC
RA 9262 (An Act Defining Violence Against Women
and Their Children - VAWC) is not violative of the
equal protection clause. There is a valid
classification. The unequal power relationship that
women are more likely to be victims of violence and
the widespread gender bias and prejudice against
women make for real differences justifying the
classification. The distinction is germane to the
purpose of the law to address violence committed
against women. The law applies to women and
children who suffer violence and abuse. (Garcia v.
Hon. Drilon, G.R. No. 179267, June 25, 2013)
RH Law
The RH Law, in providing that the poor are to be
given priority in the government's reproductive
health care program, does not violate the equal
protection clause. In fact, it is pursuant to Section
11, Article XIII of the Constitution which recognizes
the distinct necessity to address the needs of the
underprivileged by providing that they be given
priority in addressing the health development of the
people. It should be noted that Section 7 of the RH
Law prioritizes poor and marginalized couples who
are suffering from fertility issues and desire to have
children. (Imbong v. Ochoa, G.R. 204819, April 8,
2014)
Discounts to PWDs
The Supreme Court upheld the constitutionality of
R.A. No. 9442 or the Magna Carta for Persons with
Disability granting the PWDs a 20% discount on the
purchase of medicine, and a tax deduction scheme
was adopted wherein covered establishments may
deduct the discount granted from gross income
based on the net cost of goods sold or services
rendered. The equal protection clause recognizes a
valid classification, that is, a classification that has a
reasonable foundation or rational basis and not
arbitrary. With respect to R.A. No. 9442, its
expressed public policy is the rehabilitation, selfdevelopment and self-reliance of PWDs. Persons
with disability form a class separate and distinct
from the other citizens of the country. Indubitably,
such substantial distinction is germane and
intimately related to the purpose of the law. Hence,
the classification and treatment accorded to the
PWDs fully satisfy the demands of equal protection.
Thus, Congress may pass a law providing for a
different treatment to persons with disability apart
from the other citizens of the country. (Drugstores
Association of the Philippines, Inc. and Northern
Luzon Drug Corporation v. National Council on
Disability Affairs, et al., G.R. No. 194561, Sept. 4,
2016)
Elective and Appointive Officials
There is a substantial distinction between elective
and appointive officials. The former occupy their
office by virtue of the mandate of the electorate.
They are elected to an office for a definite term and
may be removed therefrom only upon stringent
conditions. On the other hand, appointive officials
hold their office by virtue of their designation thereto
by an appointing authority. Some appointive officials
hold their office in a permanent capacity and are
entitled to security of tenure while others serve at
the pleasure of the appointing authority. (Eleazar P.
Quinto and Gerino A. Tolentino, Jr., vs. COMELEC,
G.R. No. 189698, Feb. 22, 2010)
Tax Ordinance Specific to an Entity
When the taxing ordinance was enacted, Ormoc
Sugar Co., Inc. was the only sugar central in the
City. A reasonable classification should be in terms
applicable to future conditions as well. The taxing
ordinance should not be singular and exclusive as
to exclude any subsequently established sugar
central from the coverage of the tax. A subsequently
established sugar central cannot be subject to tax
because the ordinance expressly points to Ormoc
Sugar Company, Inc. as the entity to be levied upon.
(Ormoc Sugar Company v. Ormoc City, G.R. No. L23794, Feb. 17, 1968)
5 Years of Experience as a Lower Court Judge
as Requirement for RTC Judge
Consideration of experience by JBC as one factor in
choosing recommended appointees does not
constitute a violation of the equal protection clause.
The JBC does not discriminate when it employs
number of years of service to screen and
differentiate applicants from the competition. The
number of years of service provides a relevant basis
to determine proven competence which may be
measured by experience, among other factors. The
difference in treatment between lower court judges
who have served at least five years and those who
have served less than five years is upheld in order
to meet the requirements of proven competence,
experience, integrity, probity, and independence.
The foregoing shows that substantial distinctions do
exist between lower court judges with five year
experience and those with less than five years of
experience and the classification enshrined in the
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assailed policy is reasonable and relevant to its
legitimate purpose. The Court, thus, rules that the
questioned policy does not infringe on the equal
protection clause as it is based on reasonable
classification intended to gauge the proven
competence of the applicants. Therefore, the said
policy is valid and constitutional. (Villanueva v. JBC,
G.R. No. 211833, April 07, 2015)
Doctrine of Relative Unconstitutionality
A statute valid at one time may become void at
another time because of altered circumstances.
Thus, if a statute in its practical operation becomes
arbitrary or confiscatory, its validity, even though
affirmed by a former adjudication, is open to inquiry
and investigation in the light of changed conditions.
This doctrine was invoked in a case to invalidate RA
7653, which started as a valid measure of legislative
power applicable to Central Bank employees, but,
with the enactment of subsequent laws exempting
all rank and file employees of all GFIs from the
Salary Standardization Law, was rendered void on
account of a violation of the equal protection clause.
(Central Bank Employees Association, Inc. v.
Bangko Sentral ng Pilipinas, G.R. No. 148208, Dec.
15, 2004)
Suspect Classification
A suspect classification is one where distinctions are
made based on the most invidious bases for
classification that violate the most basic human
rights, i.e., on the basis of race, national origin, alien
status, religious affiliation and, to a certain extent,
sex and sexual orientation. (Serrano v. Gallant, G.R.
No. 167614, Mar. 24, 2009)
A "suspect class" is defined as "a class saddled with
such disabilities, or subjected to such a history of
purposeful unequal treatment, or relegated to such
a position of political powerlessness as to command
extraordinary protection from the majoritarian
political process. (Zomer Development Co. v.
Special 20th Division of the CA, G.R. No. 194461,
Jan. 07, 2020)
Juridical entities cannot be considered a "suspect
class." Juridical entities enjoy certain advantages
that natural persons do not, such as limited liability.
The properties of juridical entities are also often
used for commercial purposes. In contrast, the
properties of natural persons are more often used
for residential purposes. They are also directly
responsible for the liabilities they incur and, often,
are not equipped with the same resources that
juridical entities may have. Juridical entities, thus,
cannot be considered a "suspect class." (Zomer
Development Co. v. Special 20th Division of the CA,
G.R. No. 194461, Jan. 07, 2020)
2. STANDARDS OF JUDICIAL REVIEW
Philippine jurisprudence has developed three (3)
tests of judicial scrutiny to determine the
reasonableness of classifications.
a. Strict Scrutiny Test
The most demanding of all the three tests. Under the
strict scrutiny test, the legislative classification is
presumed to be unconstitutional and the
government has the burden of proving that the
classification is necessary to achieve a compelling
State interest, and is the least restrictive means to
protect such interest or the means chosen is
narrowly tailored to accomplish the interest.
(Serrano v. Gallant, G.R. NO. 167614, Mar. 24,
2009)
The strict scrutiny test applies when a classification
either (i) interferes with the exercise of fundamental
rights, including the basic liberties guaranteed under
the Constitution, or (ii) burdens suspect classes.
(Spark v. Quezon City, G.R. No. 225442, Aug. 08,
2017)
b.
Intermediate Scrutiny Test
The intermediate scrutiny test requires the
government to show that the challenged
classification serves an important state interest and
that the classification is at least substantially related
to serving the interest. (Serrano v. Gallant, G.R. No.
167614, Mar. 24, 2009)
The intermediate scrutiny test applies when a
classification does not involve suspect classes or
fundamental rights, but requires heightened
scrutiny, such as in classifications based on gender
and legitimacy. (Spark v. Quezon City, G.R. No.
225442, Aug. 08, 2017)
c. Rational Basis Test
Under the rational basis test, a legislative
classification, to survive an equal protection
challenge, must be shown to rationally further a
legitimate state interest. (British American Tobacco
v. Camacho, G.R. No. 163583, Aug. 20 2009)
The rational basis test applies to all other subjects
not covered by the first two tests. (Spark v. Quezon
City, G.R. No. 225442, Aug. 08, 2017)
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C. ARRESTS, SEARCHES AND
SEIZURES
Section 2 is not just a circumscription of the power
of the State over a person’s home and possessions.
More importantly, it protects the privacy and sanctity
of the person himself. It is a guarantee of the right of
the people to be secure in their “persons… against
unreasonable searches and seizures.” It is therefore
also a guarantee against unlawful arrests and other
forms of restraint on the physical liberty of the
person. (Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009)
Under our Constitution, the same is declared a
popular right of the people and, of course,
indisputably it equally applies to both citizens and
foreigners in this country. (Qua Chee Gan v
Deportation Board, G.R. No. L-10280, September
30, 1963).
1. REQUISITES OF A VALID
WARRANT
a. Warrant of Arrest
Arrest is the taking of a person into custody in order
that he may be bound to answer for the commission
of an offense. (ROC, Sec. 1, Rule 113)
An arrest is made by an actual restraint of a person
to be arrested, or by his submission to the custody
of the person making the arrest. No violence or
unnecessary force shall be used in making an
arrest. The person arrested shall not be subject to a
greater restraint than is necessary for his detention.
(ROC, Sec. 2. Rule 113)
If the judge is satisfied from the preliminary
examination conducted by him or by the
investigating officer that the offense complained of
has been committed and that there is reasonable
ground to believe that the accused has committed it,
he must issue a warrant or order for his arrest. (Sec.
6, Rule 112, Revised Rules of Criminal Procedure)
Probable cause for issuance of warrant of arrest
Such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that
an offense has been committed by the person
sought to be arrested.
Judicial determination of probable cause for
warrants of arrest
Before issuing a warrant of arrest, the judge must be
satisfied that based on the evidence submitted,
there is sufficient proof that a crime has been
committed and that the person to be arrested is
probably guilty thereof. At this stage of the criminal
proceeding, the judge is not yet tasked to review in
detail the evidence submitted during the preliminary
investigation. It is sufficient that he personally
evaluates the evidence in determining probable
cause to issue a warrant of arrest. (Pestillos v.
Generoso, G.R. No. 182601, Nov. 10, 2014)
What the Constitution underscores is the exclusive
and personal responsibility of the issuing judge to
satisfy himself the existence of probable cause. In
satisfying himself of the existence of probable cause
for the issuance of a warrant of arrest, the judge is
not required to personally examine the complainant
and his witnesses. (Soliven v. Makasiar, G.R. No.
82585 Nov. 14, 1988
A judge may rely upon the fiscal's certification of the
existence of probable cause and, on the basis
thereof, issue a warrant of arrest. However, the
certification does not bind the judge to come out with
the warrant of arrest.
To be sure, the Judge must go beyond the
Prosecutor’s certification and investigation report
whenever necessary. He should call for the
complainant and witnesses themselves to answer
the court’s probing questions when the
circumstances of the case so require. (Lim Sr. v.
Felix G.R. Nos. 94054-57, Feb. 19, 1991)
b. Search Warrants
A search warrant is an order in writing, issued in the
name of the People of the Philippine Islands, signed
by a judge or a justice of the peace, and directed to
a peace officer, commanding him to search for
personal property and bring it before the court. (Sec.
1, Rule 126, Revised Rules of Criminal Procedure)
The requisites for the issuance of a search warrant
are: (POJEWS)
1. Probable cause is present (in connection with
one specific offense);
2. Such probable cause must be determined
personally by the judge;
3. The judge must examine, in writing and under
oath or affirmation, the complainant and the
witnesses he or she may produce;
4. The applicant and the witnesses testify on the
facts personally known to them; and
5. The warrant specifically describes the place to
be searched and the things to be seized. (People
v. Mamaril, G.R. No. 171980, Oct. 6, 2010)
A search warrant shall not issue except upon
probable cause in connection with one specific
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offense to be determined personally by the judge
after examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be searched
and the things to be seized which may be anywhere
in the Philippines. (ROC, Rule 126, § 4)
A search warrant must conform strictly to the
constitutional requirements for its issuance;
otherwise, it is void. (Diaz v. People, G.R. No.
188794, Sept. 2, 2015)
Although the use of the word “and” implies
conjunction or union, the CA was mistaken in giving
the word undue importance.
The primary
consideration here is the finding of probable cause.
It would not be necessary to examine both the
applicant and other witnesses if either one is
sufficient for the judge to establish probable cause.
(People v. Gabiosa Sr., G.R. No. 248395, Jan. 29,
2020.)
Probable Cause
Definition
Probable cause for a search warrant is defined as
such facts and circumstances which would lead a
reasonably discrete and prudent man to believe that
an offense has been committed and that the objects
sought in connection with the offense are in the
place sought to be searched. (Laud v. People, G.R.
No. 199032, Nov. 19, 2014)
Concept
A finding of probable cause needs only to rest on
evidence showing that, more likely than not, a crime
has been committed and that it was committed by
the accused. Probable cause demands more than
bare suspicion; it requires less than evidence which
would justify conviction. The existence depends to a
large degree upon the finding or opinion of the judge
conducting the examination. However, the findings
of the judge should not disregard the facts before
him nor run counter to the clear dictates of reason.
(Laud v. People, G.R. No. 199032, Nov. 19, 2014)
Probability, Not Absolute or Moral Certainty
Probable cause is concerned with probability, not
absolute or even moral certainty. What is required is
not proof beyond reasonable doubt but merely
probable cause. (Bernas, The 1987 Constitution of
the Republic of the Philippines, 2009)
Conclusions of law unsupported by particulars are
not sufficient to establish probable cause to be used
as basis for the issuance of a warrant. (Bernas, The
1987 Philippine Constitution: A Comprehensive
Reviewer, 2011)
A tip received from a classified informant may be the
basis of a search. (People v. Lo Ho Wing, G.R. No.
88017, Jan. 21, 1991)
Personal Determination by the Judge
Trial Court Discretion
There is no exact test for the determination of
probable cause in the issuance of search warrants.
It is a matter wholly dependent on the finding of trial
judges in the process of exercising their judicial
function. They determine probable cause based on
"evidence showing that, more likely than not, a crime
has been committed and that it was committed" by
the offender. (Worldwide Web Corporation v.
People, G.R. No. 161106, Jan. 13, 2014)
Probing and Exhaustive Examination
In determining the existence of probable cause for
the issuance of a search warrant, the examining
magistrate must make probing and exhaustive, not
merely routine or pro forma examination of the
applicant and the witnesses. (Nala v. Barroso, G.R.
No. 153087, Aug. 7, 2003)
Facts and Circumstances Must Be Examined in
their Totality
Ultimately, in determining the existence of probable
cause, the facts and circumstances must be
personally examined by the judge in their totality,
together with a judicious recognition of the variable
complications and sensibilities attending a criminal
case. (Laud v. People, G.R. No. 199032, Nov. 19,
2014)
Delay in Application Does Not Negate Probable
Cause
The supposed delay in the search warrant’s
application does not dilute the probable cause
finding made herein. The delay may be accounted
for by a witness’s fear of reprisal and natural
reluctance to get involved in a criminal case. (Laud
v. People, G.R. No. 199032, Nov. 19, 2014)
Trial Judge Determination Accorded Great
Deference by the Reviewing Court
Generally, a judge’s determination of probable
cause for the issuance of a search warrant is
accorded great deference by a reviewing court, so
long as there was substantial basis for that
determination. Substantial basis means that the
questions of the examining judge brought out such
facts and circumstances as would lead a reasonably
discreet and prudent man to believe that an offense
has been committed, and the objects in connection
with the offense sought to be seized are in the place
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sought to be searched. (Diaz v. People, G.R. No.
188794, Sept. 2, 2015)
If the judge is satisfied of the existence of facts upon
which the application is based or that there is
probable cause to believe that they exist, he shall
issue the warrant, which must be substantially in the
form prescribed by these Rules. (ROC, Rule 126, §
6)
Personal Examination of the Complainant
and the Witnesses
Purpose
The intent was to ensure that a warrant is issued not
merely on the basis of the affidavits of the
complainant and his witnesses, but only after
examination by the judge of the complainant and his
witnesses. (Diaz v. People, G.R. No. 188794, Sept.
2, 2015)
Personal Examination v. Personal
Determination
What the Constitution requires is for the judge to
conduct an "examination under oath or affirmation
of the complainant and the witnesses he may
produce," after which he determines the existence
of probable cause for the issuance of the warrant.
(Diaz v. People, G.R. No. 188794, Sept. 2, 2015)
Personal examination by the judge of the
complainant and his witnesses is necessary to
enable him to determine the existence or nonexistence of a probable cause. The determination of
whether or not a probable cause exists calls for the
exercise of judgment after a judicial appraisal of
facts and should not be allowed to be delegated in
the absence of any rule to the contrary. (Bache and
Co. v. Ruiz, G.R. No. L-32409. February 27, 1971)
Affidavits are Insufficient
Affidavits of the complainant and his witnesses are
insufficient to establish the factual basis for probable
cause. Personal examination by the judge of the
applicant and his witnesses is indispensable, and
the examination should be probing and exhaustive,
not merely routinary or a rehash of the affidavits.
(Diaz v. People, G.R. No. 188794, Sept. 2, 2015)
The judge must, before issuing the warrant,
personally examine in the form of searching
questions and answers, in writing and under oath,
the complainant and the witnesses he may produce
on facts personally known to them and attach to the
record their sworn statements, together with the
affidavits submitted. (ROC, Rule 126, § 5)
Depositions made by Clerk
The participation of respondent Judge in the
proceedings which led to the issuance of search
warrant was limited to listening to the
stenographer's readings of her notes, to a few words
of warning against the commission of perjury, and to
administering the oath to the complainant and his
witness. This cannot be considered a personal
examination. If there was an examination at all of the
complainant and his witness, it was the one
conducted by the Deputy Clerk of Court. The
Constitution and the Rules require a personal
examination by the judge. (Bache v. Co. v. Ruiz,
G.R. No. L-32409. Feb. 27, 1971)
Compliance is Shown by the Depositions and
the Transcript
Ideally, compliance with the examination
requirement is shown by the depositions and the
transcript. In their absence, however, a warrant may
still be upheld if there is evidence in the records that
the requisite examination was made and probable
cause was based thereon. There must be, in the
records, particular facts and circumstances that
were considered by the judge as sufficient to make
an independent evaluation of the existence of
probable cause to justify the issuance of the search
warrant. (Diaz v. People, G.R. No. 188794, Sept. 2,
2015)
Facts Personally Known to the Applicant
and the Witnesses
Purpose
The oath required must refer to the truth of the facts
within the personal knowledge of the applicant or his
witnesses, because the purpose thereof is to
convince the committing magistrate, not the
individual making the affidavit and seeking the
issuance of the warrant, of the existence of probable
cause. (Burgos v. Chief of Staff, G.R. No. L-6426,
Dec. 26, 1984)
Testimony Must Not be Based on Mere Hearsay
The testimony must be within the personal
knowledge of the complainant or the witnesses he
may produce and not based on mere hearsay. (Nala
v. Barroso, G.R. No. 153087, Aug. 7, 2003)
Testimony Must Not be Based on Personal
Belief
The applicant and the witness must testify on their
personal knowledge, not personal belief. (Nala v.
Barroso, G.R. No. 153087, Aug. 7, 2003)
Particularity of Description
The warrant must be issued in relation to one
specific offense. (ROC, Sec. 4, Rule, 126)
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Purpose
The evident purpose and intent of the requirement
is to limit the things to be seized to those, and only
those, particularly described in the search warrant –
to leave the officers of the law with no discretion
regarding what articles they should seize, to the end
that unreasonable searches and seizures may not
be made and that abuses may not be committed.
(People v. Go, G.R. No. 144639, Sept. 12, 2003)
Test of Sufficiency
A description of a place to be searched is sufficient
if the officer with the warrant can, with reasonable
effort, ascertain and identify the place intended and
distinguish it from other places in the community.
Any designation or description known to the locality
that points out the place to the exclusion of all
others, and on inquiry leads the officers unerringly
to it, satisfies the constitutional requirement. (Laud
v. People, G.R. No. 199032, Nov. 19, 2014)
Particular Description Not Required if Goods by
their Nature are Described Generally
The search warrant must contain a particular
description of the place to be searched and the
person or thing to be seized. These provisions are
mandatory and must be strictly complied with; but
where, by the nature of the goods to be seized, their
description must be rather generally, it is not
required that a technical description be given, as this
would mean that no warrant could issue. (Alvarez v.
CFI, G.R. No. L-45358, Jan. 29, 1937)
Technical Precision of Description Not Required
Technical precision of description is not required. It
is only necessary that there be reasonable
particularity and certainty as to the identity of the
property to be searched for and seized, so that the
warrant shall not be a mere roving commission.
Indeed, the law does not require that the things to
be seized must be described in precise and minute
detail as to leave no room for doubt on the part of
the searching authorities. If this were the rule, it
would be virtually impossible for the applicants to
obtain a warrant as they would not know exactly
what kind of things to look for. Any description of the
place or thing to be searched that will enable the
officer making the search with reasonable certainty
to locate such place or thing is sufficient. (Worldwide
Web Corporation v. People, G.R. No. 161106, Jan.
13, 2014)
Required Wherever and Whenever it is Feasible
The particularity of the description of the place to be
searched and the things to be seized is required
"wherever and whenever it is feasible." A search
warrant need not describe the items to be seized in
precise and minute detail. The warrant is valid when
it enables the police officers to readily identify the
properties to be seized and leaves them with no
discretion regarding the articles to be seized.
(Worldwide Web Corporation v. People, G.R. No.
161106, Jan. 13, 2014)
Search Warrant for an Unnamed Party; John Doe
Search Warrant
A warrant for the apprehension of an unnamed party
is void, except in those cases where it contains a
descriptio personae such as will enable the officer
to identify the accused. The description must be
sufficient to indicate clearly the proper person upon
whom the warrant is to be served. As the search
warrant stated that John Doe had gambling
apparatus in his possession in the building occupied
by him at No. 124 Calle Arzobispo, City of Manila,
and as this John Doe was Jose Ma. Veloso, the
manager of the club, the police could identify John
Doe as Jose Ma. Veloso without difficulty. (People
v. Veloso, G.R. No. L-23051, Oct. 20, 1925)
John Doe Search Warrants – Exception, Not the
Rule
John Doe search warrants should be the exception
and not the rule. The police should particularly
describe the place to be searched and the person or
things to be seized, wherever and whenever it is
feasible. The police should not be hindered in the
performance of their duties, which are difficult
enough of performance under the best of conditions,
by superficial adherence to technicality or farfetched
judicial interference. (People v. Veloso, G.R. No. L23051, Oct. 20, 1925)
As said warrant is issued against 50 “John Does" not
one of whom the witnesses to the complaint could
or would Identify, it is of the nature of a general
warrant, one of a class of writs long proscribed as
unconstitutional and once anathematized as "totally
subversive of the liberty of the subject."
(Pangandaman v. Casar, G.R. No. 71782 April 14,
1988)
Mistake in the Name of the Person Does Not
Invalidate the Warrant
A mistake in the name of the person to be searched
does not invalidate the warrant, especially when the
authorities had personal knowledge of the drugrelated activities of the accused. In fact, a "John
Doe" warrant satisfies the requirements so long as
it contains a descriptio personae such as will enable
the officer to identify the accused. A mistake in the
identification of the owner of the place does not
invalidate the warrant provided the place to be
searched is properly described. (People v. Tiu Won
Chua, G.R. No. 149878, July 1, 2003)
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The warrant must direct that it be served in the day
time, unless the affidavit asserts that the property is
on the person or in the place ordered to be
searched, in which case a direction may be inserted
that it be served at any time of the day or night.
(ROC, Rule 126, § 9)
Period of the Validity of a Search Warrant
A search warrant shall be valid for 10 days from its
date. Thereafter it shall be void. (ROC, Rule 126,
Sec. 10)
Search of House, Room, or Premises to Be
Made in Presence of Two Witnesses
No search of a house, room, or any other premises
shall be made except in the presence of the lawful
occupant thereof or any member of his family or in
the absence of the latter, two witnesses of sufficient
age and discretion residing in the same locality.
(ROC, Rule 126, § 3)
This requirement is mandatory to ensure regularity
in the execution of the search warrant. The Rules of
Court clearly and explicitly establishes a hierarchy
among the witnesses in whose presence the search
of the premises must be conducted. Thus, Section
8, Rule 126 provides that the search should be
witnessed by “two witnesses of sufficient age and
discretion residing in the same locality” only in the
absence of either the lawful occupant of the
premises or any member of his family (People v. Go,
G.R. No. 144639, Sept. 12, 2003)
“Knock and Announce” Principle in the Service
of a Search Warrant
Police officers are obliged to give notice, show their
authority, and demand that they be allowed entry.
They may only break open any outer or inner door
or window of a house to execute the search warrant
if, after such notice and demand, such officers are
refused entry to the place of directed search. This is
known as the “knock and announce” principle which
is embodied in Anglo-American Law. The method of
entry of an officer into a dwelling and the presence
or absence of such notice are as important
considerations in assessing whether subsequent
entry to search and/or arrest is constitutionally
reasonable. (People v. Huang Zhen Hua, G.R. No.
139301, Sept. 29, 2004)
Unannounced Intrusion When Permissible
Unannounced intrusion into the premises is
permissible when:
1. A party whose premises or is entitled to the
possession thereof refuses, upon demand, to
open it;
2. When such person in the premises already knew
of the identity of the officers and of their authority
and persons;
3. When the officers are justified in the honest
belief that there is an imminent peril to life or
limb; and
4. When those in the premises, aware of the
presence of someone outside (because, for
example, there has been a knock at the door),
are then engaged in activity which justifies the
officers to believe that an escape or the
destruction of evidence is being attempted.
Suspects have no constitutional right to destroy
evidence or dispose of evidence. However, the
exceptions above are not exclusive or conclusive. At
times, without the benefit of hindsight and ordinarily
on the spur of the moment, the officer must decide
whether or not to make an unannounced intrusion
into the premises. Although a search and seizure of
a dwelling might be constitutionally defective, if the
police officers’ entry was without prior
announcement, law enforcement interest may also
establish the reasonableness of an unannounced
entry.
Indeed, there is no formula for the determination of
reasonableness. Each case is to be decided on its
own facts and circumstances. In determining the
lawfulness of an unallowed entry and the existence
of probable cause, the courts are concerned only
with what the officers had reason to believe and the
time of the entry. (People v. Huang Zhen Hua, G.R.
No. 139301, Sept. 29, 2004)
When Forcible Entry Justified
The officer, if refused admittance to the place of
directed search after giving notice of his purpose
and authority, may break open any outer or inner
door or window of a house or any part of a house or
anything therein to execute the warrant or liberate
himself or any person lawfully aiding him when
unlawfully detained therein. (ROC, Rule 126, § 7)
The police authorities’ claim that they had to use
some force in order to gain entry cannot be doubted.
The occupants of the house, especially accusedappellant, refused to open the door despite the fact
that the searching party knocked on the door several
times. Furthermore, the agents saw the suspicious
movements of the people inside the house. These
circumstances justified the searching party's forcible
entry into the house, founded as it is on the
apprehension that the execution of their mission
would be frustrated unless they do so. (People v.
Salanguit, G.R. No. 133254-55, April 19, 2001)
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2. WARRANTLESS ARRESTS AND
DETENTION
Purpose
To hold that no criminal can, in any case, be
arrested and searched for the evidence and tokens
of his crime without a warrant, would be to leave
society, to a large extent, at the mercy of the
shrewdest, the most expert, and the most depraved
of criminals, facilitating their escape in many
instances. (Umil v. Ramos, G.R. No. 81567 July 9,
1990)
In warrantless arrests, it is not enough that there is
reasonable ground to believe that the person to be
arrested has committed a crime. A crime must in fact
or actually have been committed first. (People v.
Burgos, G.R. No. L-68955)
Entrapment
It is recognized that in every arrest, there is a certain
amount of entrapment used to outwit the persons
violating or about to violate the law. Not every
deception is forbidden. The type of entrapment the
law forbids is the inducing of another to violate the
law, the "seduction" of an otherwise innocent person
into a criminal career.
Where the criminal intent originates criminal in the
mind of the entrapping person and the accused is
lured into the commission of the offense charged in
order to prosecute him, there is entrapment and no
conviction may be had.
Where, however, the criminal intent originates in the
mind of the accused and the criminal offense is
completed, the fact that a person acting as a decoy
for the state, or public officials furnished the accused
an opportunity for commission of the offense, or that
the accused is aided in the commission of the crime
in order to secure the evidence necessary to
prosecute him, there is no entrapment and the
accused must be convicted.27 The law tolerates the
use of decoys and other artifices to catch a criminal.
(People v. Doria, G.R. No. 125299 January 22,
1999)
Instances When Warrantless Arrest May Be
Made
A peace officer or a private person may, without a
warrant, arrest a person:
1. In Flagrante Delicto: When, in his presence,
the person to be arrested has committed, is
actually committing, or is attempting to commit
an offense;
2. Hot Pursuit Arrest: When an offense has just
been committed and he has probable cause to
believe based on personal knowledge of facts
or circumstances that the person to be
arrested has committed it; and
3. When the person to be arrested is a prisoner
who has escaped from a penal establishment
or place where he is serving final judgment or
is temporarily confined while his case is
pending, or has escaped while being
transferred from one confinement to another.
(ROC, Rule 113, § 5)
a. In Flagrante Delicto
Requisites (OP)
1. The person to be arrested must execute an
Overt act indicating that he has just committed,
is actually committing, or is attempting to commit
a crime; and
2. Such overt act is done in the Presence or within
the view of the arresting officer.
Reliable information alone is insufficient to support
the arrest absent any overt act from the person to
be arrested indicating a crime has just been
committed, was being committed, or is about to be
committed. (Sapi v. People, G.R. No. 200370, June
7, 2017)
Officer Sees the Offense, Although at a Distance
When the illegal act was committed in the presence
of the arresting officers, a warrantless arrest may be
effected. An offense is committed in the presence of
an officer when the officer sees the offense,
although at a distance, or hears the disturbances
created thereby and proceeds at once to the scene
of the crime. Police officers have personal
knowledge of the actual commission of the crime
when they had earlier conducted surveillance
activities of the accused. (People v. Sucro, G.R. No.
93239, March 18, 1991)
For an arrest of a suspect in flagrante delicto, two
elements must concur, namely: (a) the person to be
arrested must execute an overt act indicating that he
has just committed, is actually committing, or is
attempting to commit a crime; and (b) such overt act
is done in the presence or within the view of the
arresting officer. The officer's personal knowledge of
the fact of the commission of an offense is
absolutely required. The officer himself must
witness the crime. Furthermore, the facts do not give
rise to a reasonable suspicion that X was in
possession of shabu. From a meter away, even with
perfect vision a police officer would not have been
able to identify with reasonable accuracy the
contents of the plastic sachet. X's acts of standing
on the street and holding a plastic sachet in his
hands, are not by themselves sufficient to incite
suspicion of criminal activity or to create probable
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cause enough to justify a warrantless arrest.
(Dominguez y Argana v. People, G.R. 235898, Mar.
13, 2019)
Continuing Offense
The crimes of rebellion, subversion, conspiracy or
proposal to commit such crimes, and crimes or
offenses committed in furtherance thereof or in
connection therewith constitute direct assaults
against the State and are in the nature of continuing
crimes. Thus, a rebel may be arrested without a
warrant at any time for he is deemed to be in the act
of committing a crime. (Umil v. Ramos, G.R. No.
81567 July 9, 1990)
Buy-Bust
In buy-bust operations, the arresting officers catch
the malefactor in flagrante delicto. But the arresting
officers must neither instigate nor induce the
arrestee to commit a crime. Entrapment is the
employment of such ways and means for the
purpose of capturing a lawbreaker from whose mind
the criminal intent originated. In such cases, a
search warrant is not necessary because a search
pursuant to a buy-bust operation is one made
incidental to a lawful arrest – the arrestee is caught
in flagrante delicto. (People v. De La Cruz, G.R. No.
101315, May 12, 1993)
Stop and Frisk
When a policeman observes suspicious activity,
which leads him to believe that a crime is about to
be committed, he can investigate the suspicious
looking person and may frisk him for weapons as a
measure of self-protection. Should he find, however,
a weapon on the suspect, which is unlicensed, he
can arrest such person for having committed an
offense in his presence.
For the arrest of one in flagrante delicto to be valid
under Rule 112, Section 5(a), the law tilts in favor of
authority. Thus, speech which in an officer's
estimation is criminally seditious can justify
warrantless arrest in flagrante delicto even if upon
prosecution the officer is proved wrong. The criminal
character of speech is something that is not easily
determined and must await court estimation.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
b. Hot Pursuit Arrest
Requisites (BC-PC-PK)
1. An offense has just Been Committed; and
2. The arresting officer has Probable Cause to
believe based on Personal Knowledge of facts
or circumstances that the person to be arrested
has committed it. (People v. Comprado, G.R.
No. 213225, April 4, 2018)
Element of Immediacy
The clincher in the element of ''personal knowledge
of facts or circumstances" is the required element of
immediacy within which these facts or
circumstances should be gathered. This required
time element acts as a safeguard to ensure that the
police officers have gathered the facts or perceived
the circumstances within a very limited time frame.
This guarantees that the police officers would have
no time to base their probable cause finding on facts
or circumstances obtained after an exhaustive
investigation.
The reason for the element of the immediacy is this
- as the time gap from the commission of the crime
to the arrest widens, the pieces of information
gathered are prone to become contaminated and
subjected to external factors, interpretations and
hearsay. On the other hand, with the element of
immediacy imposed under Section 5(b), Rule 113 of
the Revised Rules of Criminal Procedure, the police
officer's determination of probable cause would
necessarily be limited to raw or uncontaminated
facts or circumstances, gathered as they were within
a very limited period of time. The same provision
adds another safeguard with the requirement of
probable cause as the standard for evaluating these
facts of circumstances before the police officer could
effect a valid warrantless arrest. (Pestilos v.
Generoso, G.R. No. 182601, Nov. 10, 2014)
Manlulu was arrested without a warrant for allegedly
having killed another person at around 1:00AM in
the morning. The warrantless arrest was made
around 7:00PM or about 19 hours later. The SC held
that for there to be a lawful warrantless arrest, the
arresting officer must have personal knowledge of
the offense, which has in fact just been committed.
In other words, the arrest has to immediately follow
the commission of the offense. If a sufficient amount
of time lapses as to allow him to procure a warrant,
then the police officer must do so. In this case, not
only was the arrest 19 hours after the alleged crime,
but the arresting officer also did not have any
personal knowledge of the facts. The SC also held
that personal gathering of information is different
from personal knowledge. (People v. Manlulu, G.R.
No. 102140, Apr. 22, 1994)
Probable Cause
In determining probable cause, the arresting officer
may rely on all the information in his possession, his
fair
inferences
therefrom,
including
his
observations. Mere suspicion does not meet the
requirements of showing probable cause to arrest
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without warrant especially if it is a mere general
suspicion. Probable cause may rest on reasonably
trustworthy information as well as personal
knowledge. Thus, the arresting officer may rely on
information supplied by a witness or a victim of a
crime; and under the circumstances, the arresting
officer need not verify such information.
An arrest without warrant is lawful when the person
to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving
final judgment or temporarily confined while his case
is pending, or has escaped while being transferred
from one confinement to another. (ROC, Sec. 5(c),
Rule 113)
The arresting officer should base his determination
of probable cause on his personal knowledge of
facts and circumstances that the person sought to
be arrested has committed the crime. In other
words, the arresting officer operates on the basis of
more limited facts, evidence or available information
that he must personally gather within a limited time
frame.
Waiver of Right
One should not expect too much of an ordinary
policeman. He is not presumed to exercise the
subtle reasoning of a judicial officer. Oftentimes, he
has no opportunity to make proper investigation but
must act in haste on his own belief to prevent the
escape of the criminal. (Pestilos v. Generoso, G.R.
No. 182601, Nov. 10, 2014)
Personal Knowledge: Hearsay Tip Insufficient
The rule requires that an offense had just been
committed. It connotes immediacy in point of time.
Law enforcers need not personally witness the
commission of a crime. However, they must have
personal knowledge of facts and circumstances
indicating that the person sought to be arrested
committed it. A hearsay tip by itself is not personal
knowledge required by the rule. (Sapi v. People,
G.R. No. 200370, June 7, 2017)
The requirement of personal knowledge is absent in
this case. The Policeman was about 6-10 meters
away when he saw the accused emerge from an
alley holding a plastic sachet. His testimony fails to
state that he had personal knowledge that the
sachet contained shabu, or that he saw the sachet
containing white crystalline substance, to create a
reasonable suspicion that the sachet did indeed
contain shabu. From all indications — the time of the
arrest being 11:30 p.m., the Policeman's location,
and the tinted front windshield of the van through
which he was looking — it was highly doubtful that
the Policeman saw, let alone deciphered, the
contents of the sachet. For sure, it was only when
he held the hand of the accused and confiscated the
plastic sachet that he was able to verify its contents.
(Villasana y Cabahug v. People, G.R. No. 209078,
Sept. 4, 2019)
c. Escapee
Objection to Illegal Arrest Must be Made Before
Plea
Appellant is estopped from questioning the legality
of his arrest considering that he never raised this
before entering his plea. Any objection involving a
warrant of arrest or the procedure in the acquisition
of jurisdiction over the person of an accused must
be made before he enters his plea, otherwise, the
objection is deemed waived. Consequently, any
irregularity attendant to his arrest, if any, had been
cured by his voluntary submission to the jurisdiction
of the trial court when he entered his plea and
participated during the trial. (People v. Salvatierra,
G.R. No. 104663, July 24, 1997)
Accused was seen having a pot session and that the
police who arrested him were conducting a “stakeout” operation. When accused tested positive for
drugs, he was charged with violation of RA 9165.
Accused did not deny that he was positive for drugs
but rather, he questions the alleged illegality of his
arrest. The Court ruled that accused had already
waived the right to question the arrest. He was
assisted by counsel when he entered his plea and
was able to present his evidence. The right to
question the validity of an arrest may be waived if
the accused, assisted by counsel, fails to object to
its validity before arraignment. (Lapi v. People, G.R.
No. 210731, Feb. 13, 2019)
Waiver of an Illegal Arrest, Not a Waiver of an
Illegal Search
A waiver of an illegal arrest, however, is not a waiver
of an illegal search. While the accused has already
waived his right to contest the legality of his arrest,
he is not deemed to have equally waived his right to
contest the legality of the search. (Villanueva v.
People, G.R. No. 199042, Nov. 17, 2014)
A waiver of an illegal warrantless arrest does not
also mean a waiver of the inadmissibility of evidence
seized during an illegal warrantless arrest. (Valdez
v. People, G.R. No. 170180, Nov. 23, 2007)
The right to question the validity of an arrest may be
waived if the accused, assisted by counsel, fails to
object to its validity before arraignment. This waiver,
however, does not carry with it a waiver of the
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inadmissibility of the evidence seized during the
illegal arrest. (Lapi v. People, G.R. No. 210731, Feb.
13, 2019)
Application for Bail, Not a Waiver
An application for or admission to bail shall not bar
the accused from challenging the validity of his
arrest or the legality of the warrant issued therefor,
provided that he raises them before entering his
plea. (ROC, Rule 114, § 26)
3. WARRANTLESS SEARCHES
There are exceptional circumstances when
searches are reasonable even when warrantless.
There are recognized instances of permissible
warrantless searches laid down in jurisprudence.
(Sapi v. People, G.R. No. 200370, June 7, 2017)
Warrantless searches are allowable in the following
circumstances: (WIPE MS CACP)
a. Waiver of right
b. Search Incidental to a lawful arrest
c. Seizure of evidence in Plain view
d. During
exigent
and
Emergency
circumstances
e. Search of a Moving vehicle
f. Stop and frisk rule (Terry Search)
g. Customs search
h. Airport searches
i. Checkpoint Search
j. Warrantless search by a Private individual
[Note: This is found in Sec. 5, Rule 113 of
the Rules of Court where a private person
may arrest a person without a warrant, and
in turn such private individual may validly
conduct a search incidental to a lawful
arrest] (People v. Aruta, G.R. No. 120915,
April 3, 1998)
a. Waiver of Right
Requisites
There is an effective waiver of rights against
unreasonable searches and seizures if the
following requisites are present: (EKI)
1. It must appear that the rights Exist;
2. The person involved had Knowledge, actual or
constructive, of the existence of such right;
3. Said person had an actual Intention to
relinquish the right. (People v. Tudtud, G.R. No.
144037, Sept. 26, 2003)
Who May Waive
The constitutional immunity from unreasonable
searches and seizures, being personal one, cannot
be waived by anyone except:
1. The person whose rights are invaded; or
2. One who is expressly authorized to do so in his
or her behalf. (People v. Damaso, G.R. No.
93516, Aug. 12, 1992)
Prosecution Must Prove the Waiver with Clear
and Convincing Evidence
Silence or lack of resistance can hardly be
considered as consent to the warrantless search.
Although the right against unreasonable searches
and seizures may be surrendered through a valid
waiver, the prosecution must prove that the waiver
was executed with clear and convincing evidence.
Consent to a warrantless search and seizure must
be unequivocal, specific, intelligently given and
unattended by duress or coercion. (Sapi v. People,
G.R. No. 200370, June 7, 2017)
It is the State that has the burden of proving, by clear
and positive testimony, that the necessary consent
was obtained, and was freely and voluntarily given.
(Valdez v. People, G.R. No. 170180, Nov. 23, 2007)
Determined by the Totality of the Circumstances
The validity of a consented warrantless search is
determined by the totality of the circumstances. This
may involve an inquiry into the environment in which
the consent was given such as the presence of
coercive police procedures. (Sapi v. People, G.R.
No. 200370, June 7, 2017)
Waiver Not Presumed
Mere passive conformity or silence to the
warrantless search is only an implied acquiescence,
which amounts to no consent at all. Silence or lack
of aggressive objection is a natural reaction to a
coercive environment brought about by the police
officer's excessive intrusion into his private space.
The prosecution and the police carry the burden of
showing that the waiver of a constitutional right is
one which is knowing, intelligent, and free from any
coercion. In all cases, such waivers are not to be
presumed. (Sapi v. People, G.R. No. 200370, June
7, 2017)
Invalid Waiver Under RA 10951
RA No. 10591 authorizes warrantless inspections of
houses, which are unreasonable and, therefore,
require a search warrant. Signing the Consent of
Voluntary Presentation for Inspection in the pro
forma Individual Application for New Firearm
Registration cannot be considered a valid waiver of
the right against unreasonable searches under
Article III, Section 2 of the Constitution. There is a
legitimate, almost absolute, expectation of privacy in
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one's residence. The inspection contemplated may
only be done with a search warrant. Therefore, the
signing of the Consent of Voluntary Presentation for
Inspection is violative of the protection against
unreasonable searches and seizures. (Acosta v.
Ochoa, G.R. Nos. 211559, 211567, 212570 &
215634, Oct. 15, 2019)
Any objection to the legality of the search warrant
and the admissibility of the evidence obtained
thereby was deemed waived when no objection was
raised by appellant during trial. (People v. Nunez,
G.R. No. 177148, G.R. No. 177148
June
30, 2009)
b. Search Incidental to a Lawful
Arrest
A person lawfully arrested may be searched for
dangerous weapons or anything which may have
been used or constitute proof in the commission of
an offense without a search warrant. (ROC, Rule
126, § 13)
Purpose
The purpose of allowing a warrantless search and
seizure incident to a lawful arrest is to protect the
arresting officer from being harmed by the person
arrested, who might be armed with a concealed
weapon, and to prevent the latter from destroying
evidence within reach. It is therefore a reasonable
exercise of the State’s police power to protect (1)
law enforcers from the injury that may be inflicted on
them by a person they have lawfully arrested; and
(2) evidence from being destroyed by the arrestee.
It seeks to ensure the safety of the arresting officers
and the integrity of the evidence under the control
and within the reach of the arrestee. (People v.
Calantiao, G.R. No. 203984, June 18, 2014)
Requisites
Test for a valid warrantless search incidental to
a lawful arrest: (LCC)
1. The arrest must be Lawful;
2. The item to be searched was within the
arrestee’s Custody or area of immediate control;
and
3. The search was Contemporaneous with the
arrest.
Lawful Arrest Must Precede the Search
General Rule: A search incidental to a lawful arrest
requires that there must first be a lawful arrest
before a search is made. Otherwise stated, a lawful
arrest must precede the search; the process cannot
be reversed. (Sapi v. People, G.R. No. 200370,
June 7, 2017)
Exception:
A
search
substantially
contemporaneous with an arrest can precede the
arrest if the police has probable cause to make the
arrest at the outset of the search. (People v.
Mariacos, G.R. No. 188611, June 16, 2010)
Scope of Warrantless Search
The scope of allowable warrantless search is limited
to the area within which the person arrested could
reach for a weapon or reach for evidence to destroy
it. (Chimel v. California, 395 U.S. 752, June 23,
1969)
Moreover, in lawful arrests, it becomes both the duty
and the right of the apprehending officers to conduct
a warrantless search not only on the person of the
suspect, but also in the permissible area within the
latter’s reach. Otherwise stated, a valid arrest allows
the seizure of evidence or dangerous weapons
either on the person of the one arrested or within the
area of his immediate control. The phrase "within the
area of his immediate control" means the area from
within which he might gain possession of a weapon
or destructible evidence. A gun on a table or in a
drawer in front of one who is arrested can be as
dangerous to the arresting officer as one concealed
in the clothing of the person arrested. (People v.
Calantiao, G.R. No. 203984, June 18, 2014)
In Valeroso, however, the Court held that the
evidence searched and seized from him could not
be used against him because they were discovered
in a room, different from where he was being
detained, and was in a locked cabinet. Thus, the
area searched could not be considered as one
within his immediate control that he could take any
weapon or destroy any evidence against him.
(People v. Calantiao, G.R. No. 203984, June 18,
2014)
The better and established rule is a strict application
of the exception provided in Rule 126, sec. 12 [now
Sec. 13] and that is to absolutely limit a warrantless
search of a person who is lawfully arrested to his or
her person at the time of and incident to his or her
arrest and to "dangerous weapons or anything
which may be used as proof of the commission of
the offense." Such warrantless search obviously
cannot be made in a place other than the place of
arrest.” (Nolasco v. Pano, G.R. No. L- 69803, Jan.
30, 1987)
What May Be Searched
Assuming a valid arrest, the arresting officer may
search the person of the arrestee and the area
within which the latter may reach for a weapon or for
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evidence to destroy, and seize any money or
property found which was:
(a) Used in the commission of the crime, or
(b) The fruit of the crime, or
(c) That which may be used as evidence, or
(d) Which might furnish the arrestee with the
means of escaping or committing violence.
(People v. Comprado, G.R. No. 213225,
April 4, 2018)
c. Seizure of Evidence in Plain
View
Concept
Objects in the "plain view" of an officer who has the
right to be in the position to have that view are
subject to seizure without a warrant.
Requisites
The following elements must be present before
the doctrine may be applied: (VIAJ)
1. A prior Valid intention based on the valid
warrantless arrest in which the police are
legally present in the pursuit of their official
duties;
2. The evidence was Inadvertently discovered
by the police who have the right to be where
they are;
3. The evidence must be immediately Apparent;
and
4. "Plain view" Justified were seizure of
evidence without further search. (People v.
Compacion, G.R. No. 124442, July 20, 2001)
Immediately Apparent Requirement; Probable
Cause
The immediate requirement means that the
executing officer can, at any time of discovery of the
object or the facts therein available to him,
determine probable cause of the object’s
incriminating evidence. Probable cause must be the
direct result of the officer’s instantaneous sensory
perception of the object. The immediately apparent
test does not require an unduly high degree of
certainty as to the incriminating character of the
evidence. (United Laboratories v. Isip, G.R. No.
163858, June 28, 2005)
It is undeniable that the seizure of the prohibited
items in this case was valid under the "plain view"
doctrine, for which the following requisites concur:
(a) the law enforcement officer in search of the
evidence has a prior justification for an intrusion or
is in a position from which he can view a particular
area; (b) the discovery of evidence in plain view is
inadvertent; (c) it is immediately apparent to the
officer that the item he observes may be evidence
of a crime, contraband or otherwise subject to
seizure.
In this case all the elements of plain view were
established. First, the police officers were
conducting a routine checkpoint when they flagged
down X, because he was committing several traffic
infractions. Thus, the police officers had a prior
justification for their act of flagging down X and their
subsequent intrusion. Second, upon asking X for his
registration papers, he voluntarily opened his utility
box, and the two (2) sachets of shabu were plainly
visible to the police officer Z. The discovery of the
sachets was inadvertent and the illicit items were
immediately apparent. Lastly, sachets containing
white crystalline substance were confiscated since
it appeared that the same could be evidence of a
crime, contraband, or otherwise subject to seizure.
This seizure of evidence justified the subsequent
searches and the arrest of Danilo. If not for the said
plastic sachets, there would have been no valid
reason to search or frisk Danilo as his traffic
violations were punishable only by fine. His traffic
violations per se did not justify a search incidental to
a lawful arrest as there was as yet no lawful arrest
to speak of. (De Villa y Guinto v. People, G.R. No.
224039, Sept. 11, 2019.)
Exception to the Inadmissibility of Evidence
Obtained in a Warrantless Search Incident to a
Lawful Arrest Outside the Suspect’s Person and
Premises under his Immediate Control
The Plain View Doctrine is actually the exception to
the inadmissibility of evidence obtained in a
warrantless search incident to a lawful arrest outside
the suspect’s person and premises under his
immediate control. It serves to supplement the prior
justification – whether it be a warrant for another
object, hot pursuit, search incident to lawful arrest,
or some other legitimate reason for being present
unconnected with a search directed against the
accused – and permits the warrantless seizure.
(People v. Calantiao, G.R. No. 203984, June 18,
2014)
Applied Where a Police Officer is Not Searching
for Evidence
The doctrine is usually applied where a police officer
is not searching for evidence against the accused,
but nonetheless inadvertently comes across an
incriminating object. (Valeroso v. CA, G.R. No.
164815, Sept. 3, 2009)
Object Seized Inside a Closed Package
General Rule: An object is in plain view if the object
itself is plainly exposed to sight. Where the object
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seized was inside a closed package, the object itself
is not in plain view and therefore cannot be seized
without a warrant.
Exception: However, if the package proclaims its
contents, whether by its distinctive configuration, its
transparency, or if its contents are obvious to an
observer, then the contents are in plain view and
may be seized.
In other words, if the package is such that an
experienced observer could infer from its
appearance that it contains the prohibited article,
then the article is deemed in plain view. It must be
immediately apparent to the police that the items
that they observe may be evidence of a crime,
contraband or otherwise subject to seizure.
(Caballes v. CA, G.R. No. 136292, Jan. 15, 2002)
Plain View Doctrine Not Applicable When
Evidence Discovered in the Course of a Search
The seizure of the passports, bankbooks, checks,
typewriter, check writer, dry seals and stamp pads
and other assorted documents does not fall within
the “plain view” exception. The assertions of the
police officers that said objects were “inadvertently”
seized within their “plain view” are mere legal
conclusions which are not supported by any clear
narration of the factual circumstances leading to
their discovery. The supposed illegal character of
the items claimed to have been seized within the
“plain view” of the policemen was not readily and
immediately apparent. Rather, the suspicions of the
policemen appear to have been aroused by the
presence of the numerous passports and
immigration documents which they discovered in the
course of their search. (People v. Go, G.R. No.
144639, Sept. 12, 2003)
d.
Exigent
and
Circumstances
Emergency
In the event of a coup d’etat conducted by the
“Reform the Armed Forces Movement Soldiers of
the Filipino People”, the EUROCAR Building was
put under surveillance pursuant to an intelligence
report that it housed large quantities of ammunition.
During the operations, the car of the surveillance
team was fired upon by 5 persons from a crowd
within the vicinity of the EUROCAR Building. The
team proceeded to the building without a warrant
and was able to seize de Gracia and plenty of
explosives and ammunition. The SC held that the
arrests were impelled by the exigencies of the
situation, which concerned the very survival of
society and the government. In this case, the military
operatives had reasonable ground to believe that a
crime was being committed. The team had no
opportunity to apply for a search warrant from the
courts, as the court with jurisdiction, at that time,
was closed due to disorder. (People v. De Gracia,
G.R. Nos. 102009-10, July 6, 1994).
e.
Search of a Moving Vehicle
Concept
The rules governing searches and seizures have
been liberalized when the object of a search is a
vehicle for practical purposes. Police officers cannot
be expected to appear before a judge and apply for
a search warrant when time is of the essence
considering the efficiency of vehicles in facilitating
transactions involving contraband or dangerous
articles. However, the inherent mobility of vehicles
cannot justify all kinds of searches. Law enforcers
must act on the basis of probable cause. (Sapi v.
People, G.R. No. 200370, June 7, 2017)
Rationale
Securing a search warrant is not practicable to
secure a warrant because the vehicle can be quickly
moved out of the locality or jurisdiction in which the
warrant must be sought. (Papa v. Mago, G.R. No. L27360, Feb. 28, 1968)
Visual Search – No Probable Cause Required
Thus, routinary and indiscriminate searches of
moving vehicles are allowed if they are limited to a
visual search. This holds especially true when the
object of the search is a public vehicle where
individuals have a reasonably reduced expectation
of privacy. (Sapi v. People, G.R. No. 200370, June
7, 2017)
A search of a moving vehicle may either be a mere
routine inspection or an extensive search. The
search in a routine inspection is limited to the
following instances:
a. Where the officer merely draws aside the
curtain of a vacant vehicle which is parked
on the public fair grounds;
b. Simply looks into a vehicle;
c. Flashes a light therein without opening the
car's doors;
d. Where the occupants are not subjected to
a physical or body search;
e. Where the inspection of the vehicles is
limited to a visual search or visual
inspection; and
f. Where the routine check is conducted in a
fixed area. (Macad v. People, G.R. No.
227366, Aug. 1, 2018)
Extensive Search – Probable Cause Required
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On the other hand, extensive searches are
permissible only when they are founded upon
probable cause. Any evidence obtained will be
subject to the exclusionary principle under the
Constitution. (Sapi v. People, G.R. No. 200370,
June 7, 2017)
That the object of a warrantless search is allegedly
inside a moving vehicle does not justify an extensive
search absent probable cause. Moreover, law
enforcers cannot act solely on the basis of
confidential or tipped information. A tip is still
hearsay no matter how reliable it may be. It is not
sufficient to constitute probable cause in the
absence of any other circumstance that will arouse
suspicion. (Sapi v. People, G.R. No. 200370, June
7, 2017)
When a vehicle is stopped and subjected to an
extensive search, such a warrantless search has
been held to be valid only as long as the officers
conducting the search have reasonable or probable
cause to believe before the search that they will find
the instrumentality or evidence pertaining to a crime,
in the vehicle to be searched. (Macad v. People,
G.R. No. 227366, Aug. 1, 2018)
A confidential informer tipped the police that a
Gemini car was going to deliver shabu. When they
stopped the car, they saw a gun tucked in Tuazon’s
waist. He did not have any documents, which
strengthened the police’s suspicion. After he was
told to step out of the car, they found plastic sachets
containing shabu on the driver’s seat. These
circumstances are sufficient to establish probable
cause for the warrantless search of the car. Hence,
the sachets of shabu may be admitted as evidence.
(People v. Tuazon, G.R. No. 175783, Sept. 3, 2007)
f.
Stop and Frisk Rule (Terry
Search)
Concept
A "stop and frisk" search is the act of a police officer
to stop a citizen on the street, interrogate him, and
pat him for weapon(s) or contraband. (Sapi v.
People, G.R. No. 200370, June 7, 2017)
Requisites (URIRA)
1. Police Officer observes Unusual conduct.
2. Reasonable suspicion that person is engaged in
some type of criminal activity in light of
experience.
3. Identifies himself as a policeman upon
approach.
4. Makes Reasonable inquiries.
5. There is reasonable fear for one’s own, or
others’ safety. Thus, he is entitled to conduct a
limited search of the outer clothing of such
persons in an Attempt to discover weapons that
might be used for assault. (Terry v. Ohio, 392
U.S. 1, June 10, 1968)
Scope
The allowable scope of a "stop and frisk" search is
limited to a protective search of outer clothing for
weapons. (Sapi v. People, G.R. No. 200370, June
7, 2017)
Totality of Suspicious Circumstances; At Least
2 or More Suspicious Circumstances
For a “stop and frisk” search to be valid, it must be
supported by evidence such that the totality of the
suspicious circumstances observed by the arresting
officer led him/her to believe that an accused was
committing an illicit act. (Telen v. People, G.R.
228107, Oct. 9, 2019)
To sustain the validity of a stop and frisk search, the
arresting officer should have personally observed
two (2) or more suspicious circumstances, the
totality of which would then create a reasonable
inference of criminal activity to compel the arresting
officer to investigate further. (Manibog vs People,
G.R. No. 211214, March 20, 2019)
The police officer must observe at least 2 or more
suspicious circumstances. In this case, the
prosecution failed to prove the legality of the
warrantless arrest and the bare assertion that they
caught X in flagrante delicto of illegal possession of
a hand grenade is insufficient to cloth the police
officers with the authority to restrain X’s liberty. PO3
Y suspicion based on the sight of a metal object is
not sufficient to defeat X’s constitutional right to
privacy. More importantly, the prosecution in this
case failed to prove the existence of a hand grenade
as no evidence was proffered on its chain custody.
(Telen v. People, G.R. 228107, Oct. 9, 2019)
Probable Cause Not Required; But Genuine
Reason Based on Experience
Law enforcers do not have unbridled discretion in
conducting "stop and frisk" searches. While
probable cause is not required, a "stop and frisk"
search cannot be validated on the basis of a
suspicion or hunch. Law enforcers must have a
genuine reason to believe, based on their
experience and the particular circumstances of each
case, that criminal activity may be afoot. Reliance
on one (1) suspicious activity alone, or none at all,
cannot produce a reasonable search. (Sapi v.
People, G.R. No. 200370, June 7, 2017)
g.
Customs Search
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The Tariff and Customs Code of 1957 authorizes
persons having police authority under Section 2203
of the Tariff and Customs Code to enter, pass
through or search any land, inclosure, warehouse,
store or building, not being a dwelling house; and
also to inspect, search and examine any vessel or
aircraft and any trunk, package, or envelope or any
person on board, or to stop and search and examine
any vehicle, beast or person suspected of holding or
conveying any dutiable or prohibited article
introduced into the Philippines contrary to law,
without mentioning the need of a search warrant in
said cases. But in the search of a dwelling house,
the Code provides that said dwelling house may be
entered and searched only upon warrant issued by
a judge or justice of the peace. Thus, except in the
case of the search of a dwelling house, persons
exercising police authority under the customs law
may effect search and seizure without a search
warrant in the enforcement of customs laws. (Papa
v. Mago, G.R. No. L-27360, Feb. 28, 1968)
Requisites:
Customs searches are allowed when persons
exercising police authority under the customs law
effect search and seizure in the enforcement of
customs laws. To be valid, the requirements are:
(ACH)
1. The
person conducting the search is
exercising police Authority under customs
law;
2. The search was for the enforcement of
Customs law; and
3. The place searched is not a dwelling place or
House. (Dela Cruz v People of the Philippines,
G.R. No. 209387, Jan. 11, 2016)
CUSTOMS MODERNIZATION AND TARIFF
ACT
Persons Exercising Police Authority
The following persons are authorized to effect
search, seizure, and arrest:
a. Officials of the Bureau, District Collectors,
Deputy District Collectors, police officers,
agents, inspectors and guards of the
Bureau;
b. Upon authorization of the Commissioner,
officers and members of the Armed Forces
of the Philippines (AFP) and national law
enforcement agencies; and
c. Officials of the BIR on all cases falling
within the regular performance of their
duties, when payment of internal revenue
taxes is involved. (Customs Modernization
And Tariff Act, § 214)
Authority to Enter Properties
Any person exercising police authority may, at any
time, enter, pass through, and search any land,
enclosure, warehouse, store, building or structure
not principally used as a dwelling house.
When a security personnel or any other employee
lives in the warehouse, store, or any building,
structure or enclosure that is used for storage of
goods, it shall not be considered as a dwelling
house for purposes of this Act. (Customs
Modernization And Tariff Act, § 219)
Authority to Search Dwelling House
A dwelling house may be entered and searched only
upon warrant issued by a Judge of a competent
court, the sworn application thereon showing
probable cause and particularly describing the place
to be searched and the goods to be seized.
(Customs Modernization And Tariff Act, § 220)
Authority to Search Vessels or Aircrafts and
Persons or Goods Conveyed Therein
Any person exercising police authority under this Act
may board, inspect, search and examine a vessel or
aircraft and any container, trunk, package, box or
envelope found on board, and physically search and
examine any person thereon. In case of any
probable violation of this Act, the person exercising
police authority may seize the goods, vessel,
aircraft, or any part thereof.
Such power to search includes removal of any false
bottom, partition, bulkhead, or any other obstruction
for the purpose of uncovering any concealed
dutiable or forfeitable goods.
The proceeding herein authorized shall not give rise
to any claim for damage caused to the goods, vessel
or aircraft, unless there is gross negligence or abuse
of authority in the exercise thereof. (Customs
Modernization And Tariff Act, § 221)
Authority to Search Vehicles, Other Carriers,
Persons and Animals
Upon reasonable cause, any person exercising
police authority may open and examine any box,
trunk, envelope, or other container for purposes of
determining the presence of dutiable or prohibited
goods. This authority includes the search of
receptacles used for the transport of human remains
and dead animals. Such authority likewise includes
the power to stop, search, and examine any vehicle
or carrier, person or animal suspected of holding or
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Extensive Search Allowed When Probable
Cause Present
However, an extensive search may be conducted on
a vehicle at a checkpoint when law enforcers have
probable cause to believe that the vehicle's
passengers committed a crime or when the vehicle
contains instruments of an offense. (Sapi v. People,
G.R. No. 200370, June 7, 2017)
Exclusive reliance on information tipped by
informants goes against the very nature of probable
cause. A single hint hardly amounts to the existence
of such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that
an offense has been committed and that the objects
sought in connection with the offense are in the
place to be searched. The finding of should be
premised on more than just the initial information
relayed by assets. It was the confluence of initial tips
and a myriad of other occurrences that ultimately
sustained probable cause. In this case, a radio
message cannot be the sole basis of the finding of
probable cause to warrant the extensive search of
the vehicle of the accuse on the police checkpoint.
(People v. Yanson, G.R. No. 238453, July 31, 2019)
j.
Warrantless Search
Private Individual
by
a
If the search is made at the behest or initiative of the
proprietor of a private establishment for its own and
private purposes, and without the intervention of
police authorities, the right against unreasonable
search and seizure cannot be invoked for only the
act of a private individual, not the law enforcers, is
involved. In sum, the protection against
unreasonable searches and seizures cannot be
extended to acts committed by private individuals so
as to bring it within the ambit of alleged unlawful
intrusion by the government. (People v. Marti, G.R.
No. 81561, Jan. 18, 1991)
REASONABLE SEARCH V.
WARRANTLESS SEARCH
A reasonable search, on the one hand, and a
warrantless search, on the other, are mutually
exclusive. While both State intrusions are valid even
without a warrant, the underlying reasons for the
absence of a warrant are different. (Saluday v.
People, G.R. No. 215305, April 3, 2018)
Reasonable Search
A reasonable search arises from a reduced
expectation of privacy, for which reason Section 2,
Article III of the Constitution finds no application.
Examples include searches done at airports,
seaports, bus terminals, malls, and similar public
places. (Saluday v. People, G.R. No. 215305, April
3, 2018)
Warrantless Search
In contrast, a warrantless search is presumably an
"unreasonable search," but for reasons of
practicality, a search warrant can be dispensed with.
Examples include search incidental to a lawful
arrest, search of evidence in plain view, consented
search, and extensive search of a private moving
vehicle. (Saluday v. People, G.R. No. 215305, April
3, 2018)
REASONABLE SEARCH: BUS SEARCHES
(Saluday v. People, G.R. No. 215305, April 3, 2018)
Prior to Entry
Prior to entry, passengers and their bags and
luggages can be subjected to a routine inspection
akin to airport and seaport security protocol. In this
regard, metal detectors and x-ray scanning
machines can be installed at bus terminals.
Passengers can also be frisked. In lieu of electronic
scanners, passengers can be required instead to
open their bags and luggages for inspection, which
inspection must be made in the passenger's
presence. Should the passenger object, he or she
can validly be refused entry into the terminal.
While in Transit
While in transit, a bus can still be searched by
government agents or the security personnel of
the bus owner in the following three instances:
(IPC)
a. Upon receipt of information that a
passenger carries contraband or Illegal
articles, the bus where the passenger is
aboard can be stopped en route to allow for
an inspection of the person and his or her
effects. This is no different from an airplane
that is forced to land upon receipt of
information about the contraband or illegal
articles carried by a passenger onboard.
b. Whenever a bus picks passengers en
route, the Prospective passenger can be
frisked and his or her bag or luggage be
subjected to the same routine inspection by
government agents or private security
personnel as though the person boarded
the bus at the terminal. This is because
unlike an airplane, a bus is able to stop and
pick passengers along the way, making it
possible for these passengers to evade the
routine search at the bus terminal.
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POLITICAL LAW & PUBLIC INTERNATIONAL LAW
A bus can be flagged down at designated
military or police Checkpoints where State
agents can board the vehicle for a routine
inspection of the passengers and their bags
or luggages.
Requisites
In both situations (prior to entry and while in transit),
the inspection of passengers and their effects prior
to entry at the bus terminal and the search of the bus
while in transit must also satisfy the following
conditions to qualify as a valid reasonable search:
(LIDSE)
1. First, as to the manner of the search, it must
be the Least Intrusive and must uphold the
dignity of the person or persons being
searched, minimizing, if not altogether
eradicating,
any
cause
for
public
embarrassment, humiliation or ridicule.
2. Second, neither can the search result from
any Discriminatory motive such as insidious
profiling, stereotyping and other similar
motives. In all instances, the fundamental
rights of vulnerable identities, persons with
disabilities, children and other similar groups
should be protected.
3. Third, as to the purpose of the search, it must
be confined to ensuring public Safety.
4. Fourth, as to the Evidence seized from the
reasonable search, courts must be convinced
that precautionary measures were in place to
ensure that no evidence was planted against
the accused.
Applies to Other Vehicles
Aside from public transport buses, any moving
vehicle that similarly accepts passengers at the
terminal and along its route is likewise covered by
these guidelines. Hence, whenever compliant with
these guidelines, a routine inspection at the terminal
or of the vehicle itself while in transit constitutes a
reasonable search. Otherwise, the intrusion
becomes unreasonable, thereby triggering the
constitutional guarantee under Section 2, Article III
of the Constitution.
Does Not Apply to Privately-Owned Cars
The guidelines do not apply to privately-owned cars.
Neither are they applicable to moving vehicles
dedicated for private or personal use, as in the case
of taxis, which are hired by only one or a group of
passengers such that the vehicle can no longer be
flagged down by any other person until the
passengers on board alight from the vehicle.
REASONABLE SEARCH: PORT SEARCHES
Searches pursuant to port security measures are
not unreasonable per se. The security measures of
x-ray scanning and inspection in domestic ports are
akin to routine security procedures in airports. The
reason behind the exception to the prohibition
against warrantless searches is that there is a
reasonable reduced expectation of privacy when
coming into airports or ports of travel.
Actual inspection upon showing of probable cause
that a crime is being or has been committed is part
of reasonable security regulations to safeguard the
passengers passing through ports or terminals. Any
perceived curtailment of liberty due to the
presentation of person and effects for port security
measures is a permissible intrusion to privacy when
measured against the possible harm to society
caused by lawless persons.
Thus, when the results of the x-ray scan revealed
the existence of firearms in the bag, the port
authorities have probable cause to conduct a search
of the person’s bag. (Dela Cruz v People of the
Philippines, GR 209387, Jan. 11, 2016)
4. ADMINISTRATIVE ARRESTS
Deportation Proceedings
Section 37 of the Immigration Law, empowering the
Commissioner of Immigration to issue warrants for
the arrest of overstaying aliens is constitutional. The
arrest is a step preliminary to the deportation of the
aliens who had violated the condition of their stay in
this country. The requirement of probable cause, to
be determined by a Judge, does not extend to
deportation proceedings. There need be no
"truncated" recourse to both judicial and
administrative warrants in a single deportation
proceeding. (Harvey v. Miriam Defensor Santiago,
G.R. No. 82544, June 28, 1988)
Drug, Alcohol, and Blood Test
The Court acknowledged that compelled urinalysis
was a form of search but its “reasonableness” must
be judged by balancing the intrusion on the
individual’s interests against the promotion of
legitimate government interests. What was essential
was the school’s custodial responsibility and
authority, the nature of the intrusion, the
confidentiality of the test results and the legitimate
government interest. (Vernonia School District v.
Acton, 515 U.S. 64, June 26, 1995; Board of
Education v. Earls, 536 U.S. 22, June 27, 2002)
The Philippine courts followed the ruling in Vernonia
when it decided a case involving the mandatory drug
testing of candidates for public office, students of
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secondary and tertiary schools, officers and
employees of public and private offices, and
persons charged before the prosecutor’s office with
certain offenses. The SC held that the right to
privacy has been accorded as a facet of the right to
unreasonable searches and seizures.
On the case of mandatory drug testing provided for
in the Dangerous Drug Act, the Supreme Court held
the following:
1.
Candidates for Constitutional Offices –
Unconstitutional
A law cannot provide additional qualifications other
than those outlined in the Constitution.
2. Employees – Constitutional
The random drug testing would be undertaken in
such a manner as to protect the privacy of the
employees involved. Also, the privacy interest in an
office is circumscribed by the company’s work
policies, CBAs, and the right of the employer to
maintain discipline and efficiency in the workplace.
The right to privacy must yield to the necessary and
reasonable requirements of police power.
3. Students – Constitutional
It is within the prerogative of schools to require
compliance with reasonable school regulations, as
a condition for admission or enrollment. The court
found:
a. Schools and their administrators stand in loco
parentis with respect to their students;
b. Minor students have contextually fewer rights
than an adult, and are subject to the custody
and supervision of their parents, guardians,
and schools;
c. Schools, acting in loco parentis, have a duty
to safeguard the health and well-being of
their students and may adopt such measures
as may reasonably be necessary to
discharge such duty; and
d. Schools have the right to impose conditions
on applicants for admission that are fair, just,
and non- discriminatory.
4.
Persons charged before the public
prosecutor's office – Unconstitutional
Defendants in a criminal complaint are not randomly
picked; neither are they beyond suspicion. Certain
persons are singled out and are impleaded against
their will, making a medical test a tool for criminal
prosecution. (Social Justice Society v. Dangerous
Drugs Board, G.R. Nos. 157870, 158633, 161658,
Nov. 3, 2008)
Concept
Any evidence obtained in violation of the right
against unreasonable searches and seizure shall be
inadmissible for any purpose in any proceeding.
(PHIL. CONST., art. III, § 3[2])
Any evidence obtained in violation of the right
against unreasonable searches and seizures shall
be inadmissible for any purpose in any proceeding.
This exclusionary rule instructs that evidence
obtained and confiscated on the occasion of such
unreasonable searches and seizures are deemed
tainted and should be excluded for being the
proverbial fruit of a poisonous tree. In other words,
evidence obtained from unreasonable searches and
seizures shall be inadmissible in evidence for any
purpose in any proceeding. (People v. Comprado,
G.R. No. 213225, April 4, 2018)
To Whom Directed: The State
The constitutional proscription against unlawful
searches and seizures therefore applies as a
restraint directed only against the government and
its agencies tasked with the enforcement of the law.
Thus, it could only be invoked against the State to
whom the restraint against arbitrary and
unreasonable exercise of power is imposed.
(People v. Marti, G.R. No. 81561, Jan. 18, 1991)
If the search is made at the behest or initiative of the
proprietor of a private establishment for its own and
private purposes, and without the intervention of
police authorities, the right against unreasonable
search and seizure cannot be invoked for only the
act of private individual, not the law enforcers, is
involved. In sum, the protection against
unreasonable searches and seizures cannot be
extended to acts committed by private individuals so
as to bring it within the ambit of alleged unlawful
intrusion by the government. (People v. Marti, G.R.
No. 81561, Jan. 18, 1991)
D. PRIVACY OF COMMUNICATIONS
AND CORRESPONDENCE
1. PRIVATE AND PUBLIC
COMMUNICATIONS
Concept
Forms of communication and correspondence
considered private and protected by this provision
include:
a. Letters
b. Messages
c. Telephone calls
EXCLUSIONARY RULE
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d.
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Telegrams and the like (Bernas, The 1987
Constitution of the Republic of the
Philippines, 2009)
Reasonable Expectation of Privacy Test
In ascertaining whether there is a violation of the
right to privacy, courts use the "reasonable
expectation of privacy" test. This test determines
whether a person has a reasonable expectation of
privacy and whether the expectation has been
violated.
The reasonableness of a person’s expectation of
privacy depends on a two-part test:
a. Subjective: Whether, by his conduct, the
individual has exhibited an expectation of
privacy; and
b. Objective: This expectation is one that
society recognizes as reasonable. (Pollo v.
Constantino-David, G.R. No. 181881, Oct.
18, 2011)
Customs, community norms, and practices may,
therefore, limit or extend an individual’s reasonable
expectation of privacy. Hence, the reasonableness
of a person’s expectation of privacy must be
determined on a case-to-case basis since it
depends on the factual circumstances surrounding
the case. (Sps. Hing v. Choachuy, G.R. No. 179736,
June 26, 2013)
In assessing the challenge that the State has
impermissibly intruded into these zones of privacy,
a court must determine whether a person has
exhibited a reasonable expectation of privacy and, if
so, whether that expectation has been violated by
unreasonable government intrusion. (Disini v. Sec.
of Justice, G.R. No. 203335, Feb. 18, 2014)
A government employee has a burden of proving
that he has legitimate expectation of privacy either
in his office or computer files. He can prove this by
alleging and demonstrating the following: he used a
password on his computer, did not share his office
with co-workers and kept the same locked.
However, the existence of a workplace privacy
policy may limit or erode the reasonable expectation
of privacy. (Pollo v. Constantino-David, G.R. No.
181881, Oct. 18, 2011)
Private Communications Can Be Made Public
Private communications can be made public where
a secret involves public questions which the State
should and ought to know, the State may infringe
that privacy of communication by some process or
by appealing to the Court for the purpose of
determining whether or not the privacy should be
maintained. The court may allow intrusions on
privacy of communication and correspondence only
on the ground of probable cause. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009)
Public Figure
The right of privacy of a "public figure" is necessarily
narrower than that of an ordinary citizen. (Ayer v.
Capulong, G.R. No. 82380, April 29, 1988)
Personal Matters
Section 7, Article III of the 1987 Constitution grants
the right of the people to information on matters of
public concern. Personal matters are exempt or
outside the coverage of the people’s right to
information on matters of public concern. The data
treated as "strictly confidential" under EO 420 being
private matters and not matters of public concern,
these data cannot be released to the public or the
press. (KMU v. Dir. Gen. of NEDA, G.R. No.
167798, April 19, 2006)
2. INTRUSION, WHEN ALLOWED
The privacy of communication and correspondence
shall be inviolable except:
a. Upon lawful order of the court, or
b. When public safety or order requires
otherwise as prescribed by law. (PHIL.
CONST., art. III, § 3[1])
a. Upon Lawful Order of the Court
Probable Cause Required
The constitutional text does not give any ground. It
is submitted that the requirement of probable cause
in the preceding section (Art. III, Sec. 2) should be
followed. After all, the privacy right is but an aspect
of the right to be secure in one’s person. (Bernas,
The 1987 Constitution of the Republic of the
Philippines, 2009)
b. When Public Safety or Order
Requires Otherwise as Prescribed
by Law
Prescribed by Law
It should be based upon a government official’s
assessment that public safety and order demand
such intrusion, as provided by law. It is not only that
the discretion of the executive officer is limitable by
law but also that a public officer who exercises this
power must be able to point to a law under which he
acts. (Bernas, The 1987 Constitution of the Republic
of the Philippines, 2009)
Public Order and Safety
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The security of human lives, liberty, and property
against the activities of invaders, insurrectionists,
and rebels. (1971 Constitutional Convention, Nov.
25, 1972)
However, applied to wife who took documents
and papers from husband’s clinic without the
latter's knowledge and consent
The constitutional injunction declaring the privacy of
communication and correspondence to be inviolable
is no less applicable simply because it is the wife
(who thinks herself aggrieved by her husband's
infidelity) who is the party against whom the
constitutional provision is to be enforced. The only
exception to the prohibition in the Constitution is if
there is a lawful order from a court or when public
safety or order requires otherwise, as prescribed by
law. Any violation of this provision renders the
evidence obtained inadmissible for any purpose in
any proceeding.
The intimacies between husband and wife do not
justify any one of them in breaking the drawers and
cabinets of the other and in ransacking them for any
telltale evidence of marital infidelity. A person, by
contracting marriage, does not shed his/her integrity
or his right to privacy as an individual and the
constitutional protection is ever available to him or
to her.
The law insures absolute freedom of communication
between the spouses by making it privileged.
Neither husband nor wife may testify for or against
the other without the consent of the affected spouse
while the marriage subsists. Neither may be
examined without the consent of the other as to any
communication received in confidence by one from
the other during the marriage, save for specified
exceptions. But one thing is freedom of
communication; quite another is a compulsion for
each one to share what one knows with the other.
And this has nothing to do with the duty of fidelity
that each owes to the other. (Zulueta v. CA, G.R.
No. 107383, Feb. 20, 1996)
R.A. 10175 (CYBERCRIME PREVENTION ACT)
Certain Cybercrime Offenses under RA 10175 were
assailed for violating both the right against
unreasonable searches and seizures and the right
to privacy. The court held that relevant to any
discussion of the right to privacy is the concept
known as the Zones of Privacy, as discussed earlier.
In assessing the challenge that the State has
impermissibly intruded into these zones of privacy,
a court must determine whether a person has
exhibited a reasonable expectation of privacy and, if
so, whether that expectation has been violated by
unreasonable government intrusion. The usual
identifying information regarding a person includes
his name, his citizenship, his residence address, his
contact number, his place and date of birth, the
name of his spouse, if any, his occupation, and
similar data. The law punishes those who acquire or
use such identifying information without right,
implicitly to cause damage. Petitioners failed to
show how government effort to curb computerrelated identity theft violates the right to privacy and
correspondence as well as the right to due process
of law.
However, Section 12 on real-time collection of traffic
data was declared unconstitutional for the authority
that Section 12 gives law enforcement agencies is
too sweeping and lacks restraint. While it says that
traffic data collection should not disclose identities
or content data, such restraint is but an illusion.
Admittedly, nothing can prevent law enforcement
agencies holding these data in their hands from
looking into the identity of their sender or receiver
and what the data contains. This will unnecessarily
expose the citizenry to leaked information or, worse,
to extortion from certain bad elements in these
agencies. Section 12, of course, limits the collection
of traffic data to those “associated with specified
communications.” But this supposed limitation is no
limitation at all since, evidently, it is the law
enforcement agencies that would specify the target
communications. The power is virtually limitless,
enabling law enforcement authorities to engage in
“fishing expedition,” choosing whatever specified
communication they want. This evidently threatens
the right of individuals to privacy. (Disini v. Sec. of
Justice, G.R. No. 203335, Feb. 18, 2014)
R.A. 4200 (ANTI-WIRETAPPING ACT)
a.
b.
c.
Only protects letters, messages, telephone
calls, telegrams and the like.
The substance of the conversation need
not be specifically alleged in the
information.
Under Section 3 of R.A. 4200, a peace
officer, who is authorized by a written order
of the Court, may execute any of the acts
declared to be unlawful in the said law in
cases involving the crimes of:
1. Treason
2. Espionage
3. Provoking war and disloyalty in case
of war
4. Piracy and mutiny in the high seas
5. Rebellion (conspiracy and proposal
to commit; inciting to commit)
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6.
Sedition (conspiracy to commit and
inciting to commit)
7. Kidnapping
8. Violations of C.A. No. 616
(punishing espionage and other
offenses against national security)
i.
R.A. 4200 does not distinguish
between a party to the private
communication or a third person.
Hence, both could be held liable
under R.A. 4200 if they commit
any of the prohibited acts under
R.A. 4200. (Ramirez v. CA, G.R.
No. 93833, Sept. 28, 1995)
ii.
The use of a telephone extension
to
overhear
a
private
conversation is not a violation of
R.A. 4200 because it is not
similar to any of the prohibited
devices under the law. Also, a
telephone extension is not
purposely installed for the
purpose of secretly intercepting
or
recording
private
communication. (Gaanan v. IAC,
G.R. No. L- 69809, Oct. 16,
1986)
Online Social Network Privacy
Before one can have an expectation of privacy in his
or her Online Social Network activity, it is first
necessary that said user manifest the intention to
keep certain posts private. In the cyber world,
utilization of privacy tools is the manifestation of the
user’s invocation of his or her right to informational
privacy.
That the photos are viewable by “friends only” does
not necessarily bolster the contention to the right to
privacy. In this regard, the cyber community is
agreed that the digital images under this setting still
remain to be outside the confines of the zones of
privacy in view of the following:
a.
b.
c.
d.
Facebook “allows the world to be more
open and connected by giving its users the
tools to interact and share in any
conceivable way”
A good number of Facebook users
“befriend” other users who are total
strangers;
The sheer number of “Friends” one user
has, usually by the hundreds; and
A user’s Facebook friend can “share” the
former’s post, or “tag” others who are not
Facebook friends with the former, despite
its being visible only to his or her own
Facebook friends.
Setting a post’s or profile detail’s privacy to “Friends”
is no assurance that it can no longer be viewed by
another user who is not Facebook friends with the
source of the content.
Therefore, a Facebook user who opts to make use
of a privacy tool to grant or deny access to his or her
post or profile detail should not be denied the
informational privacy right which necessarily
accompanies said choice. Otherwise, using these
privacy tools would be a feckless exercise, such that
if, for instance, a user uploads a photo or any
personal information to his or her Facebook page
and sets its privacy level at "Only Me" or a custom
list so that only the user or a chosen few can view it,
said photo would still be deemed public by the
courts as if the user never chose to limit the photo’s
visibility and accessibility. Such position, if adopted,
will not only strip these privacy tools of their function
but it would also disregard the very intention of the
user to keep said photo or information within the
confines of his or her private space. (Vivares v. St.
Theresa’s College, G.R. No. 202666, Sept. 29,
2014)
E. FREEDOM OF SPEECH AND
EXPRESSION
The doctrine on freedom of speech was formulated
primarily for the protection of “core” speech such as
speech which communicates political, social, or
religious ideas. Those enjoy the same degree of
protection. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011).
Includes every form of expression, whether oral,
written, tape, or disc recorded. It also includes
movies, symbolic speech (wearing of arm-bands),
peaceful picketing, and conduct which amounts to
speech. (Bernas, The 1987 Philippine Constitution:
A Comprehensive Reviewer, 2011).
1. PRIOR RESTRAINT AND
SUBSEQUENT PUNISHMENT
PRIOR RESTRAINT (CENSORSHIP)
Concept
Prior restraint refers to official governmental
restrictions on the press or other forms of
expression in advance of actual publication or
dissemination. Freedom from prior restraint is
largely freedom from government censorship of
publications, whatever the form of censorship, and
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regardless of whether it is wielded by the executive,
legislative or judicial branch of the government.
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15,
2008)
Essence of Censorship
The Session Law of Minnesota mandated the
abatement, as public nuisances, of malicious,
scandalous, and defamatory publications. After
publishing articles that criticized certain local public
officials and personalities, The Saturday Press,
owned by the petitioner Near, was enjoined from
further publication. The court held that the operation
and effect of the statute in substance is that public
authorities may bring the owner or publisher of a
newspaper or periodical before a judge upon a
charge of conducting a business of publishing
scandalous and defamatory matter...and unless the
owner or publisher is able to disposed to bring
competent evidence to satisfy the judge that the
charges are true and are published with good
motives and for justifiable ends, his newspaper or
periodical is suppressed and further publication is
made punishable as a contempt. This is of the
essence of censorship. (Near v. Minnesota, 283
U.S. 697, June 1, 1931; Bernas, The 1987
Constitution of the Republic of the Philippines, 2009)
Presumed Invalid and Unconstitutional
General Rule: Any system of prior restraints of
expression comes to court bearing a heavy
Presumption against its constitutional validity. The
Government thus carries a heavy burden of showing
justification for in enforcement of such restraint.
There, thus a reversal of the normal presumption of
validity that inheres in every legislation. (SWS v.
COMELEC, G.R. No. 147571, May 5, 2001)
Exception: The technical effect of Article IX (C) (4)
of the Constitution may be seen to be that no
presumption of invalidity arises in respect of
exercises of supervisory or regulatory authority on
the part of the Comelec for the purpose of securing
equal opportunity among candidates for political
office, although such supervision or regulation may
result in some limitation of the rights of free speech
and free press. For supervision or regulation of the
operations of media enterprises is scarcely
conceivable without such accompanying limitation.
Thus, the applicable rule is the general, timehonored one — that a statute is presumed to be
constitutional and that the party asserting its
unconstitutionality must discharge the burden of
clearly and convincingly proving that assertion.
(National Press Club v. COMELEC, G.R. No.
102653 March 5, 1992)
Any prior restraint upon the freedom of the press
bears a heavy presumption against its
constitutionality. In other words, the government
must clearly make out a case to overcome this
presumption, which it failed to do in this case. The
word “security” is so broad that it should not be used
to abrogate the fundamental law. The publication
would not cause an inevitable, immediate, and direct
event that would imperil the safety of the American
forces, such that there was no grave and irreparable
danger. The US Supreme Court also held that the
1st Amendment does not tolerate prior restraints
predicated
upon
beliefs
that
untoward
consequences may result therefrom. The press
must be left free to publish news, whatever the
source, without censorship or restraint because only
a free and unrestrained press can effectively expose
government deception to the people. (New York
Times v. United States, 403 U.S. 713, June 30,
1971)
Government Acts Precluded
Freedom
from
prior
restraint
precludes
governmental acts that:
1. Requires approval of a proposal to publish;
2. Licensing or permits as prerequisites to
publication including the payment of license
taxes for the privilege to publish; and
3. Injunctions against publication.
Even the closure of the business and printing offices
of certain newspapers, resulting in the
discontinuation of their printing and publication, are
deemed as previous restraint or censorship.
Any law or official that requires some form of
permission to be had before publication can be
made, commits an infringement of the constitutional
right, and remedy can be had at the courts. (Chavez
v. Gonzales, G.R. No. 168338, Feb. 15, 2008)
When Prohibition on Prior Restraint Does Not
Apply (WOS)
a. When the nation is at War. (Chavez v.
Gonzales, G.R. No. 168338, Feb. 15, 2008)
(e.g., The government can prevent
publication about the number or location of
its troops)
b. Obscene publications
c. Security of community life may be
protected against incitements to acts of
violence or overthrow by force of orderly
government. (Near v. Minnesota, 283 U.S.
697, June 1, 1931)
Speech During War Time
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In the landmark case of Schenck v. United States,
the Supreme Court affirmed the conviction of
Charles Schenck and Elizabeth Baer for violating
the Espionage Act of 1917 through actions that
obstructed the “recruiting or enlistment service”
during World War I.
government by law protects. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009)
The ruling established that Congress has more
latitude in limiting speech in times of war than in
peacetime. When a nation is at war, many things
that might be said in time of peace are such a
hindrance to its effort that their utterance will not be
endured so long as men fight, and that no Court
could regard them as protected by any constitutional
right.
CONTENT-BASED REGULATION
In many places and in ordinary times, the
defendants, in saying all that was said in the circular,
would have been within their constitutional rights.
But the character of every act depends upon the
circumstances in which it is done.
The question in every case is whether the words
used are used in such circumstances and are of
such a nature as to create a clear and present
danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a
question of proximity and degree. (Schenck v.
United States, 249 U.S. 47, March 3, 1919)
SUBSEQUENT PUNISHMENT
Concept
The aspect of freedom from liability subsequent to
publication precludes liability for completed
publications of views traditionally held innocent.
Otherwise, the prohibition on prior restraint would be
meaningless, as the unrestrained threat of
subsequent punishment, by itself, would be an
effective prior restraint.
Thus, opinions on public issues cannot be punished
when published, merely because the opinions are
novel or controversial, or because they clash with
current doctrines. This fact does not imply that
publishers and editors are never liable for what they
print. Such freedom gives no immunity from laws
punishing scandalous or obscene matter, seditious
or disloyal writings, and libelous or insulting words.
As classically expressed, the freedom of the press
embraces at the very least the freedom to discuss
truthfully and publicly matters of public concern,
without previous restraint or fear of subsequent
punishment. For discussion to be innocent, it must
be truthful, must concern something in which people
in general take a healthy interest, and must not
endanger some important social end that the
2. CONTENT-BASED AND
CONTENT NEUTRAL
REGULATIONS
Concept
A content-based restraint or censorship is where the
restriction is based on the subject matter of the
utterance or speech. (Chavez v. Gonzales, G.R. No.
168338, Feb. 15, 2008)
Subject to the Clear and Present Danger Rule
A governmental action that restricts freedom of
speech or of the press based on content is given the
strictest scrutiny in light of its inherent and invasive
impact. Only when the challenged act has overcome
the clear and present danger rule will it pass
constitutional muster, with the government having
the burden of overcoming the presumed
unconstitutionality. Unless the government can
overthrow this presumption, the content-based
restraint will be struck down. (Chavez v. Gonzales,
G.R. No. 168338, Feb. 15, 2008)
Clear and Present Danger Test
Whether the words used are used in such
circumstances and are of such a nature as to create
a clear and present danger that they will bring about
the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree.
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15,
2008)
Requisites of a Valid Content-Based Regulation
With respect to content-based restrictions, the
government must: (HIIR)
1. The government must show the type of Harm
the speech sought to be restrained would
bring about — especially the gravity and the
imminence of the threatened harm –
otherwise the prior restraint will be invalid;
2. The regulation which restricts the speech
content must serve an important or
substantial government Interest, which is
unrelated to the suppression of free
expression; and
3. The Incidental Restriction on speech must
be no greater than what is essential to the
furtherance of that interest. (Chavez v.
Gonzales, G.R. No. 168338, Feb. 15, 2008)
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CONTENT-NEUTRAL REGULATION
Concept
A content-neutral regulation is merely concerned
with the incidents of the speech, or one that merely
controls the time, place or manner, and under welldefined standards. (Chavez v. Gonzales, G.R. No.
168338, Feb. 15, 2008)
Subject to Intermediate Approach
When the speech restraints take the form of a
content-neutral regulation, only a substantial
governmental interest is required for its validity.
Because regulations of this type are not designed to
suppress any particular message, they are not
subject to the strictest form of judicial scrutiny but an
intermediate approach—somewhere between the
mere rationality that is required of any other law and
the compelling interest standard applied to contentbased restrictions. The test is called intermediate
because the Court will not merely rubberstamp the
validity of a law but also require that the restrictions
be narrowly-tailored to promote an important or
significant governmental interest that is unrelated to
the suppression of expression. (Chavez v.
Gonzales, G.R. No. 168338, Feb. 15, 2008)
Intermediate Approach: O’Brien Test for a Valid
Content-Neutral Regulation
A governmental regulation is sufficiently justified if:
(CISUNOG)
1. It is within the Constitutional power of the
Government;
2. It furthers an Important or Substantial
governmental interest;
3. The governmental interest is Unrelated to the
suppression of free expression; and
4. The incident restriction on alleged freedom of
speech & expression is NO Greater than is
essential to the furtherance of that interest.
(Chavez v. Gonzales, G.R. No. 168338, Feb.
15, 2008)
3. FACIAL CHALLENGES AND
OVERBREADTH DOCTRINE
Specificity of Regulation and Vagueness
Doctrine
The vagueness doctrine is an analytical tool
developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law,
First Amendment cases. A facial challenge is
allowed to be made to a vague statute and also to
one which is overbroad because of possible
"'chilling effect' on protected speech that comes
from statutes violating free speech. A person who
does not know whether his speech constitutes a
crime under an overbroad or vague law may simply
restrain himself from speaking in order to avoid
being charged of a crime. The overbroad or vague
law thus chills him into silence. (Lagman v.
Medialdea, G.R. No. 231658)
It is best to stress that the vagueness doctrine has
a special application only to free-speech cases.
They are not appropriate for testing the validity of
penal statutes. (Lagman v. Medialdea, G.R. No.
231658)
A facial challenge is allowed to be made to a vague
statute and to one which is overbroad because of
possible 'chilling effect' upon protected speech. The
theory is that when statutes regulate or proscribe
speech and no readily apparent construction
suggests itself as a vehicle for rehabilitating the
statutes in a single prosecution, the transcendent
value to all society of constitutionally protected
expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the
person making the attack demonstrate that his own
conduct could not be regulated by a statute drawn
with narrow specificity. This rationale does not apply
to penal statutes.
In sum, the doctrines of strict scrutiny, overbreadth,
and vagueness are analytical tools developed for
testing 'on their faces' statutes in free speech cases
or, as they are called in American law, First
Amendment cases. They cannot be made to do
service when what is involved is a criminal statute.
With respect to such statute, the established rule is
that one to whom application of a statute is
constitutional will not be heard to attack the statute
on the ground that impliedly it might also be taken
as applying to other persons or other situations in
which its application might be unconstitutional. As
has been pointed out, vagueness challenges in the
First Amendment context, like overbreadth
challenges typically produce facial invalidation,
while statutes found vague as a matter of due
process typically are invalidated only 'as applied' to
a particular defendant.
"On its face" invalidation of statutes results in
striking them down entirely on the ground that they
might be applied to parties not before the Court
whose activities are constitutionally protected. It
constitutes a departure from the ‘case and
controversy’ requirement of the Constitution and
permits decisions to be made without concrete
factual settings and in sterile abstract contexts.
(Estrada v. Sandiganbayan, G.R. No. 148560, Nov.
19, 2001)
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Overbreadth Doctrine
Under the overbreadth doctrine, a proper
governmental purpose, constitutionally subject to
state regulation, may not be achieved by means that
unnecessarily sweep its subject broadly, thereby
invading the area of protected freedoms.
Prohibiting placing of campaign decals on private
cars is overbroad, and thus invalid prohibition.
(Adiong v. COMELEC, G.R. No. 103956 March 31,
1992)
Banning the publishing of survey results is also
overbroad because it does not meet the O’Brien
test, since it suppresses one type of expression
while allowing others like editorials. (SWS v.
COMELEC, G.R. No. 147571, May 5, 2001)
Summary of Rules
General Rule: The overbreadth and vagueness
doctrines then have special application only to free
speech cases. They are inapplicable for testing the
validity of penal statutes.
Rationale: All penal laws, like the cybercrime
law, have of course an inherent chilling effect, an
in terrorem effect or the fear of possible
prosecution. But to prevent the State from
legislating criminal laws because they instill such
kind of fear is to render the state powerless in
addressing and penalizing socially harmful
conduct.
Exceptions:
a. When a penal statute is challenged as
applied
b. When a penal statute encroaches upon the
freedom of speech, a facial challenge
grounded on the overbreadth and
vagueness doctrine is acceptable. (Disini v.
Sec. of Justice, G.R. No. 203335, Feb. 18,
2014)
The facial challenge has expanded its scope to
cover statutes not only regulating free speech, but
also those involving religious freedom, and other
fundamental rights because of the expanded scope
of judicial power. (Imbong v. Ochoa, G.R. No.
204819, April 8, 2014)
As Applied v. Facial Challenge
Distinguished from an as-applied challenge which
considers only extant facts affecting real litigants, a
facial invalidation is an examination of the entire law,
pinpointing its flaws and defects, not only on the
basis of its actual operation to the parties, but also
on the assumption or prediction that its very
existence may cause others not before the court to
refrain from constitutionally protected speech or
activities.
General Rule: In an "as applied" challenge, the
petitioner who claims a violation of his constitutional
right can raise any constitutional ground – absence
of due process, lack of fair notice, lack of
ascertainable
standards,
overbreadth,
or
vagueness. Here, one can challenge the
constitutionality of a statute only if he asserts a
violation of his own rights. It prohibits one from
assailing the constitutionality of the statute
based solely on the violation of the rights of
third persons not before the court. This rule is
also known as the prohibition against third-party
standing.
Exception: A petitioner may for instance mount a
"facial" challenge to the constitutionality of a statute
even if he claims no violation of his own rights under
the assailed statute where it involves free speech
on grounds of overbreadth or vagueness of the
statute.
Rationale: To counter the "chilling effect" on
protected speech that comes from statutes
violating free speech. (Disini v. Sec. of
Justice, G.R. No. 203335, Feb. 18, 2014)
4. TESTS TO DETERMINE THE
VALIDITY OF
GOVERNMENTAL
REGULATION
Generally, restraints on freedom of speech and
expression are evaluated by either or a combination
of three tests. As articulated in our jurisprudence,
the Court has applied either the dangerous
tendency doctrine or clear and present danger test
to resolve free speech challenges. More recently,
the Court has concluded that it has generally
adhered to the clear and present danger test.
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15,
2008)
a. Clear and Present Danger Test
Concept
This test is used for statements against lower courts.
Whether the words used are used in such
circumstances and are of such a nature as to create
a clear and present danger that they will bring about
the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree.
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“Clear” connotes a causal connection with the
danger of the substantive evil arising from the
utterance questioned. “Present” refers to the time
element that is identified with imminent and
immediate danger. (Gonzales v. COMELEC, G.R.
No. L-27833, April 18, 1969)
Applies
to
Content-Based
Regulation;
Presumed Unconstitutional
A governmental action that restricts freedom of
speech or of the press based on content is given the
strictest scrutiny in light of its inherent and invasive
impact. Only when the challenged act has overcome
the clear and present danger rule will it pass
constitutional muster, with the government having
the burden of overcoming the presumed
unconstitutionality. Unless the government can
overthrow this presumption, the content-based
restraint will be struck down. (Chavez v. Gonzales,
G.R. No. 168338, Feb. 15, 2008)
As Applied to Broadcast Media
Radio station DYRE was summarily closed for
national security reasons because it allegedly aired
subversive programs. The Court ruled that all forms
of media are entitled to the protection of the freedom
of speech and expression clause. The clear and
present danger test may be applied to test the limits
of free speech. That the words are used in such
circumstances and are of such nature as to create a
clear and present danger that they will bring about
the substantive evils that Congress has a right to
prevent. The SC recognized that the government
also has a right to be protected against broadcasts
that incite the listeners to violently overthrow it.
However, the clear and present danger test is not an
all-embracing interpretation that is applicable to all
utterances in all forums. Freedom of television and
radio broadcasting is lesser in scope than the
freedom accorded to newspaper and print media.
Radio broadcasting receives the most limited
protection from the free expression clause.
Broadcast media have a uniquely pervasive
presence in the lives of all citizens – it reaches even
the privacy of the home. Broadcast media is
uniquely accessible to all, even children – selectivity
is more difficult in radio and TV. In other words, the
audiences of radio and TV have lesser opportunity
to cogitate, analyze, and reject the utterances.
(Eastern Broadcasting v. Dans Jr., G.R. No. L59329, July 19, 1985)
Applied to Cases involving the Court’s Power of
Contempt
The power of contempt should be balanced with the
right to freedom of expression, especially when it
may have the effect of stifling comment on public
matters. The power to punish for contempt is not
exercised without careful consideration of the
circumstances of the allegedly contumacious act,
and the purpose of punishing the act. Especially
where freedom of speech and press is involved, this
Court has given a restrictive interpretation as to
what constitutes contempt. An article which does not
impede, obstruct, or degrade the administration of
justice is not contumacious. The question in every
case is whether the words used are used in such
circumstances and are of such a nature as to create
a clear and present danger that they will bring about
the substantive evils that congress has a right to
prevent. It is a question of proximity and degree.
(Roque v. Chief of Staff, G.R. No. 214986, February
15, 2017)
b. Dangerous Tendency Rule
Concept
If the words uttered create a dangerous tendency
which the state has a right to prevent, then such
words are punishable. It is not necessary that some
definite or immediate acts of force, violence, or
unlawfulness be advocated. It is sufficient that such
acts be advocated in general terms. Nor is it
necessary that the language used be reasonably
calculated to incite persons to acts of force, violence
or unlawfulness. It is sufficient if the natural
tendency and probable effect of the utterance be to
bring about the substantive evil the utterance be to
bring about the substantive evil which the legislative
body seeks to prevent. (Cabansag v. Fernandez,
G.R. No. L-8974, Oct. 18, 1957)
This is used for statements against the Supreme
Court and permits the application of restrictions
when:
a. There is a rational connection between the
speech restrained and the danger
apprehended; and
b. The tendency of one to create the other is
shown. (Gonzales v. COMELEC, G.R. No.
L-27833, April 18, 1969)
Applied to the Cases Involving Independence of
the Court
The "dangerous tendency" rule has been adopted in
cases where extreme difficulty is confronted
determining where the freedom of expression ends
and the right of courts to protect their independence
begins. There must be a remedy to borderline cases
and the basic principle of this rule lies in that the
freedom of speech and of the press, as well as the
right to petition for redress of grievance, while
guaranteed by the constitution, are not absolute.
They are subject to restrictions and limitations, one
of them being the protection of the courts against
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one to create the other
is shown.
Balancing of Interests
Courts
need
to
balance
conflicting
social values and
individual
interests,
and
requires
a
conscious
and
detailed consideration
of the interplay of
interests observable in
a given situation of
type of situation.
STATE REGULATION OF DIFFERENT
TYPES OF MASS MEDIA
Four Aspects of Freedom of the Press
a. Freedom from prior restraint
b. Freedom from punishment subsequent to
publication
c. Freedom of access to information
d. Freedom of circulation. (Chavez v.
Gonzales, G.R. No. 168338, Feb. 15, 2008)
Print v. Broadcast Media
While all forms of communication are entitled to the
broad protection of freedom of expression clause,
the freedom of film, television and radio
broadcasting is somewhat lesser in scope than the
freedom accorded to newspapers and other print
media.
According to U.S. Courts, the three major reasons
why broadcast media stands apart from print media
are:
a. The scarcity of the frequencies by which the
medium operates [i.e., airwaves are
physically limited while print medium may
be limitless];
b. Its "pervasiveness" as a medium; and
c. Its unique accessibility to children.
According to Philippine jurisprudence, first, the
difference in treatment, in the main, is in the
regulatory scheme applied to broadcast media that
is not imposed on traditional print media, and
narrowly confined to unprotected speech (e.g.,
obscenity, pornography, seditious and inciting
speech), or is based on a compelling government
interest that also has constitutional protection, such
as national security or the electoral process.
Second, regardless of the regulatory schemes that
broadcast media is subjected to, the Court has
consistently held that the clear and present danger
test applies to content-based restrictions on media,
without making a distinction as to traditional print or
broadcast media. (Chavez v. Gonzales, G.R. No.
168338, Feb. 15, 2008)
Clear and Present Danger Rule: Applicable to
Broadcast Media IF Content-Based Regulation
All forms of media, whether print or broadcast, are
entitled to the broad protection of the freedom of
speech and expression clause. The test for
limitations on freedom of expression continues to be
the clear and present danger rule. (Eastern
Broadcasting v. Dans, G.R. No. L-59329 July 19,
1985)
However, the clear and present danger rule applies
to all media, including broadcast, but only when the
challenged act is a content-based regulation that
infringes on free speech, expression and the press.
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15,
2008)
Motion Pictures Censorship
When the MTRCB classified the movie Kapit sa
Patalim as "For-Adults-Only," the Supreme Court
dismissed this petition for certiorari solely on the
ground that there are not enough votes for a ruling
that there was a grave abuse of discretion in the
classification.
The test to determine whether freedom of
expression may be limited is the clear and present
danger of an evil of a substantive character that the
State has a right to prevent. Such danger must not
only be clear but also present.
a. There should be no doubt that what is
feared may be traced to the expression
complained of. The causal connection must
be evident.
b. Also,
there
must
be
reasonable
apprehension about its imminence. The
time element cannot be ignored. Nor does
it suffice if such danger be only probable.
The basic postulate, wherefore, is that where the
movies, theatrical productions radio scripts,
television programs, and other such media of
expression are concerned — included as they are in
freedom of expression — censorship, especially so
if an entire production is banned, is allowable only
under the clearest proof of a clear and present
danger of a substantive evil to public morals, public
health or any other legitimate public interest.
(Gonzales v. Katigbak, G.R. No. L-69500 July 22,
1985)
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A limited intrusion into a person's privacy has long
been regarded as permissible where that person is
a public figure and the information sought to be
elicited from him or to be published about him
constitute of a public character. The right of privacy
cannot be invoked resist publication and
dissemination of matters of public interest. The
interest sought to be protected by the right of privacy
is the right to be free from unwarranted publicity,
from the wrongful publicizing of the private affairs
and activities of an individual which are outside the
realm of legitimate public concern. (Ayer v.
Capulong, G.R. No. 82380 April 29, 1988, On the
proposed motion picture entitled "The Four Day
Revolution" involving Sen. Juan Ponce Enrile)
Television Censorship
PD No. 1986 gives the MTRCB the power to screen,
review and examine all "television programs." By the
clear terms of the law, the Board has the power to
approve, delete and/or prohibit the exhibition and/or
television broadcast of television programs. The law
also directs the MTRCB to apply contemporary
Filipino cultural values as standard to determine
those which are objectionable for being immoral,
indecent, contrary to law and/or good customs,
injurious to the prestige of the Republic of the
Philippines and its people, or with a dangerous
tendency to encourage the commission of violence
or of a wrong or crime.
It is significant to note that in Iglesia ni Cristo v. CA,
the Court declared that freedom of religion has been
accorded a preferred status by the framers of our
fundamental laws. Yet despite the fact that freedom
of religion has been accorded a preferred status, still
the Court, did not exempt the Iglesia ni Cristo’s
religious program from petitioner’s review power.
If the Court, in Iglesia ni Cristo, did not exempt
religious programs from the jurisdiction and review
power of petitioner MTRCB, with more reason, there
is no justification to exempt therefrom "The Inside
Story" which, is protected by the constitutional
provision on freedom of expression and of the press,
a freedom bearing no preferred status.
Thus, MTRCB has power to review both religious
shows like the INC program, as well as public affairs
and documentary programs like The Inside Story.
(MTRCB v. ABS-CBN, G.R. No. 155282, Jan. 17,
2005)
Live TV coverage of a criminal case may be
allowed...“mere fear of possible undue influence is
not tantamount to actual prejudice resulting in the
deprivation of the right to a fair trial.” (In Re: Petition
For Radio And TV Coverage Of The Multiple Murder
Case Against Zaldy Ampatuan et al., A.M. No. 1011-5-SC, June 14, 2011)
Radio Censorship
In Santiago v. Far Eastern Broadcasting, the case
hinges on whether the petitioner has a clear legal
right to broadcast any speech over one of the radio
stations owned and operated by the respondent
without first submitting the manuscript, and whether
there is a corresponding duty devolved by law upon
the respondent to permit the petitioner to do so.
The Court ruled that it is not the duty of the
respondent as a public service corporation to
broadcast speeches without requiring the
submission of the manuscript thereof in advance,
but that, on the contrary, the laws and regulations
expressly authorize the respondent to make such
requirement.
a. Section 2 of Act No. 3180, which is the
franchise of the respondent corporation,
provides that the broadcasting service shall
be open to the general public subject to the
general regulations of the grantee for the
allotment of time and the class of
communications
acceptable
for
broadcasting.
b. Commonwealth Act No. 98, where the
c.
Secretary of the Interior "shall examine
all programs, sustaining or sponsored, of
all broadcasting stations," with the power
"to eliminate or cancel from the program
such number or parts thereof as in his
opinion are neither moral, educational
nor entertaining, and prejudicial to public
interest."
Department Order No. 13, which requires
all broadcasting stations to submit daily
to the Secretary of the Interior at least
twenty-four hours in advance of the
actual broadcasting hour, two copies of
all programs to be broadcasted by the
stations. Further, it is provided that if a
program contains any speeches, ...
copies of these or a gist thereof, may be
required by the Secretary of the Interior
to be submitted together with the
program. (Santiago v. Far Eastern
Broadcasting, G.R. No. L-48683, Nov. 8,
1941)
COMMERCIAL SPEECH
Commercial speech is speech that does no more
than propose a commercial transaction. (Central
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Speech that demeans
on the basis of race,
ethnicity,
gender,
religion, age, disability,
or any other similar
ground is hateful.
Protected Speech
Words which by their
very utterance, inflict
injury or tend to incite
an immediate breach
of the peace.
Unprotected Speech
(if
defamatory
or
tortious)
b. Defamation and Libel
Definition
A libel is a public and malicious imputation of a
crime, or of a vice or a defect, real or imaginary, or
any act, omission, condition, status, or circumstance
tending to cause the dishonor, discredit, or contempt
of a natural or juridical person, or to blacken the
memory of one who is dead. (REVISED PENAL CODE,
art. 353)
Libel Not a Constitutionally Protected Speech
Libel is not a constitutionally protected speech and
that the government has an obligation to protect
private individuals from defamation. (Disini v. Sec.
of Justice, G.R. No. 203335, Feb. 18, 2014)
Elements
The elements of libel are: (APIM)
1. The Allegation of a discreditable act or
condition concerning another;
2. Publication of the charge;
3. Identity of the person defamed; and
4. Existence of Malice.
(Disini v. Sec. of Justice, G.R. No. 203335, Feb.
18, 2014)
Proof that Statement is False
In the absence of proof that the defendant knew that
the statement was false or published with reckless
disregard of whether or not it was true, the
defendant cannot be held liable for libel.
(Guingguing v. Court of Appeals, G.R. No. 128959,
Sept. 30, 2005)
When is Malice Present
There is malice when the author of the imputation is
prompted by ill-will or spite and speaks not in
response to duty but merely to injure the reputation
of the person who claims to have been defamed.
(Alonzo v. CA, G.R. No. 110088, Feb. 1, 1995)
Every Defamatory Imputation Presumed
Malicious
General Rule: Every defamatory imputation is
presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is
shown.
Exceptions:
a. A private communication made by any
person to another in the performance of any
legal, moral or social duty; and
b. A fair and true report, made in good faith,
without any comments or remarks, of any
judicial, legislative or other official
proceedings which are not of confidential
nature, or of any statement, report or
speech delivered in said proceedings, or of
any other act performed by public officers
in the exercise of their functions. (REVISED
PENAL CODE, art. 354)
Doctrine of Fair Commentaries
The enumeration under Art. 354 is not an exclusive
list of qualifiedly privileged communications since
fair commentaries on matters of public interest are
likewise privileged.
The doctrine of fair commentaries means "that while
in general every discreditable imputation publicly
made is deemed false, because every man is
presumed innocent until his guilt is judicially proved,
and every false imputation is deemed malicious,
nevertheless, when the discreditable imputation is
directed against a public person in his public
capacity, it is not necessarily actionable. In order
that such discreditable imputation to a public official
may be actionable, it must either be a false
allegation of fact or a comment based on a false
supposition. (Yuchengco v. The Manila Chronicle,
G.R. No. 184315, Nov. 25, 2009)
Cyberlibel – Only the Original Author is Liable
Only the original author of the statement should be
prosecuted for libel. Because of the unique culture
of cyberspace, the inclusion of those who just
shared the statement in the case would have a
chilling effect upon them. This makes the law
overbroad and therefore in violation of freedom of
expression. (Disini v. Sec. of Justice, G.R. No.
203335, Feb. 18, 2014)
Contempt is Akin to a Case of Libel
Contempt is akin to a case of libel for both constitute
limitations upon freedom of the press or freedom of
expression guaranteed by our Constitution. What is
considered a privilege in one may likewise be
considered in the other. The principle of privileged
communications can also be invoked in contempt
charges.
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When a lawyer has become a public figure for being
involved in a public issue, the controversy involving
such individual becomes a matter of public interest.
Therefore, the media has the right to report the
disciplinary case as legitimate news. Such will not
be considered as a violation of the confidentiality
rule in disciplinary proceedings against lawyers.
(Atty. Raymund P. Palad v. Lolit Solis, et al., G.R.
No. 206691, Oct. 3, 2016)
Public officials/figures must prove that the statement
was made with ‘actual malice’ in order to recover
damages for a defamatory falsehood relating to his
official conduct.
Group/Class Libel
Where the defamation is alleged to have been
directed at a group or class, it is essential that the
statement must be so sweeping or all-embracing as
to apply to every individual in that group or class, or
sufficiently specific so that each individual in the
class or group can prove that the defamatory
statement specifically pointed to him, so that he can
bring the action separately, if need be. (Newsweek
v. IAC, G.R. No. L-63559, May 30, 1986)
General Rule: Every defamatory imputation is
presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is
shown.
If the group is a very large one, then the alleged
libelous statement is considered to have no
application to anyone in particular, since one might
as well defame all mankind. Not only does the group
as such have no action; the plaintiff does not
establish any personal reference to himself. As the
size of these groups increases, the chances for
members of such groups to recover damages on
tortious libel become elusive. This principle is said
to embrace two (2) important public policies:
a. First, where the group referred to is large, the
courts presume that no reasonable reader would
take the statements as so literally applying to
each individual member; and
b. Second, the limitation on liability would
satisfactorily safeguard freedom of speech and
expression, as well as of the press, effecting a
sound compromise between the conflicting
fundamental interests involved in libel cases.
(MVRS Publication v. Islamic Da’wah Council of
the Philippines, G.R. No. 135306. Jan. 28, 2003)
LIBEL AGAINST
PUBLIC FIGURES
PUBLIC
OFFICIALS
AND
Public Figure
Those who, by reason of the notoriety of their
achievements or the vigor and success with which
they seek the public's attention. (Gertz v. Welch, 418
U.S. 323, June 25, 1974)
Public Official
Those who hold governmental office. (Gertz v.
Welch, 418 U.S. 323, June 25, 1974)
New York Times Standard – Actual Malice
Actual malice means there was knowledge that it
was false or with reckless disregard of whether it
was false or not. (NY Times v. Sullivan, 376 U.S.
254, 1964).
Exception: If the defamed is a public figure/official,
there is no presumption of malice. Instead, the
public official/figure defamed must prove ‘actual
malice.’
Fair Commentaries
These are privileged and constitute a valid defense
in an action for libel or slander. When the
discreditable imputation is directed against a public
person in his public capacity, it is not necessarily
actionable. In order for it to be actionable, it must
either be a false allegation of fact or a comment
based on a false supposition.
If the comment is an expression of opinion based on
established facts, then it is immaterial that the
opinion happens to be mistaken, as long as it might
reasonably be inferred. The insertion of an old
picketing footage in a news report was not libelous
because it did not convey anything derogatory in
nature, and it was actually simultaneously voiced
over by the narration of the news report. The report
was also merely quoted from the contents and
allegations in the petition and is merely a summary
of the petition. (GMA Network v. Bustos, G.R. No.
146848, Oct. 17, 2006)
LIBEL AGAINST PRIVATE INDIVIDUALS
New York Times Standard Not Applicable to
Defamed Private Individuals
So long as they do not impose liability without fault,
the States may define for themselves the
appropriate standard of liability (less demanding
than the New York Times standard – actual malice)
for a publisher or broadcaster of defamatory
falsehood injurious to a private individual.
The States, however, may not permit recovery of
presumed or punitive damages when liability is not
based on knowledge of falsity or reckless disregard
for the truth, and the private defamation plaintiff who
establishes liability under a less demanding
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standard than the New York Times test may recover
compensation only for actual injury. (Gertz v. Welch,
418 U.S. 323, June 25, 1974)
Rationale
Because private individuals characteristically have
less effective opportunities for rebuttal than do
public officials and public figures, they are more
vulnerable to injury from defamation. Because they
have not voluntarily exposed themselves to
increased risk of injury from defamatory falsehoods,
they are also more deserving of recovery. The state
interest in compensating injury to the reputation of
private individuals is therefore greater than for public
officials and public figures.
To extend the New York Times standard to media
defamation of private persons whenever an issue of
general or public interest is involved would abridge
to an unacceptable degree the legitimate state
interest in compensating private individuals for injury
to reputation and would occasion the additional
difficulty of forcing courts to decide on an ad hoc
basis which publications and broadcasts address
issues of general or public interest and which do not.
(Gertz v. Welch, 418 U.S. 323, June 25, 1974)
c. Sedition
and
Speech
Relation to Rebellion
in
Seditious Speech is an Unprotected Speech
Criticism is permitted to penetrate even to the
foundations of Government. Criticism, no matter
how severe, on the Executive, the Legislature, and
the Judiciary, is within the range of liberty of speech,
unless the intention and effect be seditious. But
when the intention and effect of the act is seditious,
the constitutional guaranties of freedom of speech
and press and of assembly and petition must yield
to punitive measures designed to maintain the
prestige of constituted authority, the supremacy of
the constitution and the laws, and the existence of
the State. (People v. Perez, G.R. No. L-21049, Dec.
22, 1923)
The freedom of speech secured by the Constitution
does not confer an absolute right to speak or publish
without responsibility whatever one may choose. It
is not unbridled license that gives immunity for every
possible use of language and prevents the
punishment of those who abuse this freedom. So
statutes against sedition have guaranty, although
they should not be interpreted so as to agitate for
institutional changes. Thus, another limit of free
speech and writing is seditious speech which is
prohibited under Art. 142 of the Revised Penal
Code. (Mendoza v. People, G.R. No. L-2990, Dec.
17, 1951)
When a fictitious suicide photo and letter were
published in newspapers of general circulation
expressing
disappointment
in
the
Roxas
administration and instructing a fictitious wife to
teach their children to burn photos of the President,
the Court held that such act constitutes inciting to
sedition. It suggests or incites rebellious
conspiracies or riots and tends to turn the people
against the constituted authorities, or to provoke
violence from opposition groups who may seek to
silence the writer, which is the sum and substance
of the offense under consideration. (Mendoza v.
People, G.R. No. L-2990, Dec. 17, 1951)
Reason Why Seditious Utterances are
Prohibited
Manifestly, the legislature has authority to forbid the
advocacy of a doctrine designed and intended to
overthrow the Government without waiting until
there is a present and immediate danger of the
success of the plan advocated. If the State were
compelled to wait until the apprehended danger
became certain, then its right to protect itself would
come into being simultaneously with the overthrow
of the Government, when there would be neither
prosecuting officers nor courts for the enforcement
of the law. (Gitlow vs. New York, 268 U.S. 652, June
7, 1925)
Tests Applied to Seditious Words
1. Clear and Present Danger Test
A political party applied for a permit to hold a public
meeting in Manila. The Mayor refused to grant
permit. The refusal of the Mayor to grant permit for
the holding of a public meeting was predicated upon
fear that in view of the bitterness of the speeches
expected from the minority men who were fresh
from a political defeat and were smarting with
charges of fraud against those in power, there might
be breach of the peace and of public order. The
Court ruled that the danger apprehended was not
imminent and the evil to be prevented was not a
serious one. Thus, the Mayor was ordered by the
Supreme Court in mandamus proceedings to issue
a permit. (Primicias v. Fugoso, G.R. No. L-1800,
Jan. 27, 1948)
2. Dangerous Tendency Test
Citizen Perez made this remark at a political
discussion at a town municipio: “and the Filipinos,
like myself, must use bolos for cutting off Wood’s
head for having recommended a bad thing for the
Philippines.” The court held that criticism, no matter
how severe, on the Executive, the Legislature, and
the Judiciary, is within the range of liberty of speech,
unless the intention and effect be seditious. In this
case, the Court found a seditious tendency which
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could easily produce disaffection among the people
and a state of feeling incompatible with a disposition
to remain loyal to the Government and obedient to
the laws. (People v. Perez, G.R. No. L-21049, Dec.
22, 1923)
Utterances Must Incite the Public to Commit
Sedition
It is not inciting to sedition when it is not proved that
the defendant incited the people to rise publicly and
tumultuously in order to attain any of the ends
mentioned in Art. 139 (sedition), which are:
a. To prevent the promulgation or execution of
any law or the holding of any popular
election;
b. To prevent the National Government, or
any provincial or municipal government, or
any public officer thereof from freely
exercising its or his functions, or prevent
the execution of any administrative order;
c. To inflict any act of hate or revenge upon
the person or property of any public officer
or employee;
d. To commit, for any political or social end,
any act of hate or revenge against private
persons or any social class; and
e. To despoil, for any political or social end,
any person, municipality or province, or the
National Government of all its property or
any part thereof. (People vs. Arrogante, 39
O.G. 1974)
d.
Obscenity/Pornography
Concept; Miller Test for Obscenity
There is no perfect definition of "obscenity" but the
latest word is that of Miller v. California which
established basic guidelines, to wit: (PILV)
1. Whether to the average person, applying
contemporary standards would find the work,
taken as a whole, appeals to the Prurient
Interest;
2. Whether the work depicts or describes, in a
patently offensive way, sexual conduct
specifically defined by the applicable state Law;
and
3. Whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific
Value. (Fernando v. CA, G.R. No. 159751, Dec.
6, 2006; Miller v. California, 413 U.S. 15, June
21, 1973)
But, it would be a serious misreading of Miller to
conclude that the trier of facts has the unbridled
discretion in determining what is "patently offensive.
No one will be subject to prosecution for the sale or
exposure of obscene materials unless these
materials depict or describe patently offensive "hard
core" sexual conduct. Examples included (a)
patently offensive representations or descriptions of
ultimate sexual acts, normal or perverted, actual or
simulated;
and
(b)
patently
offensive
representations or descriptions of masturbation,
excretory functions, and lewd exhibition of the
genitals. What remains clear is that obscenity is an
issue proper for judicial determination and should be
treated on a case to case basis and on the judge’s
sound discretion. (Fernando v. CA, G.R. No.
159751, Dec. 6, 2006)
Sex and obscenity are not synonymous. Obscene
material is material which deals with sex in a manner
appealing to prurient interest. The portrayal of sex,
(e.g., in art, literature and scientific works), is not
itself sufficient reason to deny material the
constitutional protection of freedom of speech and
press. Sex, a great and mysterious motive force in
human life has indisputably been a subject of
absorbing interest to mankind through the ages; it is
one of the vital problems of human interest and
public concern. (Gonzales v. Kalaw-Katigbak, G.R.
No. L-69500, Jul. 22, 1985)
Relative Obscenity
The Court noted that there was “no perfect definition
of obscenity” and that ultimately therefore “obscenity
is an issue proper for judicial determination and
should be treated on a case to case basis and on
the judge’s sound discretion.” (Soriano v. Laguardia,
G.R. No. 164785, April 29, 2009)
Obscenity is an Unprotected Speech
As obscenity is an unprotected speech which the
State has the right to regulate, the State in pursuing
its mandate to protect, as parens patriae, the public
from obscene, immoral and indecent materials must
justify the regulation or limitation. One such
regulation is Article 201 of the Revised Penal Code.
(Fernando v. CA, G.R. No. 159751, Dec. 6, 2006)
Necessarily, that the confiscated materials are
obscene must be proved. (Fernando v. CA, G.R. No.
159751, Dec. 6, 2006)
Procedure for Conviction Under Art. 201
a. The authorities must apply for the issuance
of a search warrant from a judge, if in their
opinion, an obscenity rap is in order;
b. The authorities must convince the court
that the materials sought to be seized are
"obscene", and pose a clear and present
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c.
d.
e.
f.
danger of an evil substantive enough to
warrant State interference and action;
The judge must determine whether or not
the same are indeed "obscene:" the
question is to be resolved on a case-tocase basis and on His Honor's sound
discretion.
If, in the opinion of the court, probable
cause exists, it may issue the search
warrant prayed for;
The proper suit is then brought in the court
under Article 201 of the Revised Penal
Code;
Any conviction is subject to appeal. The
appellate court may assess whether or not
the properties seized are indeed
"obscene." (Pita v. CA, G.R. No. 80806,
Oct. 5, 1989)
Mere Possession Not Punishable; Publicity is
Necessary
Mere possession of obscene materials, without
intention to sell, exhibit, or give them away, is not
punishable under Article 201 of the RPC,
considering the purpose of the law is to prohibit the
dissemination of obscene materials to the public.
The offense in any of the forms under Article 201 is
committed only when there is publicity. The law
does not require that a person be caught in the act
of selling, giving away or exhibiting obscene
materials to be liable, for as long as the said
materials are offered for sale, displayed or exhibited
to the public. (Fernando v. CA, G.R. No. 159751,
Dec. 6, 2006)
5. DOCTRINE OF PRIVILEGED
COMMUNICATION
e. Absolutely
Communications
Privileged
Those which are not actionable even if the author
has acted in bad faith.
This classification includes statements made by
members of Congress in the discharge of their
functions as such, official communications made by
public officers in the performance of their duties, and
allegations or statements made by the parties or
their counsel in their pleadings or motions or during
the hearing of judicial proceedings, as well as the
answers given by witnesses in reply to questions
propounded to them, in the course of said
proceedings, provided that said allegations or
statements are relevant to the issues, and the
answers are responsive or pertinent to the questions
propounded to said witnesses.
f.
Qualifiedly
Communications
Privileged
Those which contain defamatory imputations but are
not actionable unless found to have been made
without good intention justifiable motive.
To this genre belong "private communications" and
"fair and true report without any comments or
remarks” under article 354 of the Revised Penal
Code. (Manila Bulletin v. Domingo, G.R. No.
170341, July 5, 2017)
While generally every defamatory imputation is
presumed malicious, if the communication is
privileged, the presumption does not arise. The
plaintiff assumes the burden of proving malice.
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009)
Requisites
of
a
Qualifiedly
Privileged
Communication under Article 354, No. 1 of the
Revised Penal Code – “Private Communications
In order to prove that a statement falls within the
purview of a qualified privileged communication
under Article 354, No. 1, the following requisites
must concur: (DAG)
1. The person who made the communication had a
legal, moral, or social Duty to make the
communication, or at least, had an interest to
protect, which interest may either be his own or
of the one to whom it is made;
2. The communication is Addressed to an officer
or a board, or superior, having some interest or
duty in the matter, and who has the power to
furnish the protection sought; and
3. The statements in the communication are made
in Good faith and without malice. (Syhunliong v.
Rivera, G.R. No. 200148, June 4, 2014)
F. FREEDOM OF RELIGION
No law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof.
The free exercise and enjoyment of religious
profession and worship, without discrimination or
preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or
political rights. (PHIL. CONST., art. III, § 5)
The constitutional assurance of religious freedom
provides two guarantees:
1. The Establishment Clause
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2. The Free Exercise Clause (Imbong v. Ochoa,
G.R. No. 204819, April 8, 2014)
In Philippine jurisprudence, religion, for purposes of
the religion clauses, has thus far been interpreted as
theistic. In 1937, the Philippine case of Aglipay v.
Ruiz involving the Establishment Clause, defined
religion as a profession of faith to an active power
that binds and elevates man to his Creator.
Concept
The establishment clause principally prohibits the
State from sponsoring any religion or favoring any
religion as against other religions. It mandates a
strict neutrality in affairs among religious groups.
Essentially, it prohibits the establishment of a state
religion and the use of public resources for the
support or prohibition of a religion. (Imbong v.
Ochoa, G.R. No. 204819, April 8, 2014)
Twenty years later, the Court cited the Aglipay
definition in American Bible Society v. City of Manila,
a case involving the Free Exercise clause. The latter
also cited the American case of Davis v. Beason in
defining religion, viz: it has reference to one’s views
of his relations to His Creator and to the obligations
they impose of reverence to His being and character
and obedience to His Will.
Basis
In Philippine jurisdiction, there is substantial
agreement on the values sought to be protected by
the Establishment Clause, namely, voluntarism and
insulation of the political process from interfaith
dissension:
The Davis definition, however, has been expanded
in U.S. jurisprudence to include non-theistic beliefs.
(Estrada v. Escritor, A.M. NO. P-02-1651, June 22,
2006)
Voluntarism, has both a personal and a social
dimension. As a personal value, it refers to the
inviolability of the human conscience which is also
protected by the free exercise clause. From the
religious perspective, religion requires voluntarism
because compulsory faith lacks religious efficacy.
Compelled religion is a contradiction in terms.
Every violation of the free exercise clause involves
compulsion, whereas a violation of the nonestablishment clause need not involve compulsion.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
Accorded Preferred Status
Freedom of religion is accorded preferred status by
the framers of our fundamental law. And the
Supreme Court has consistently affirmed this
preferred status, well aware that it is designed to
protect the broadest possible liberty of conscience,
to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty
of others and with the common good. (Re: Letter of
Tony Valenciano, A.M. No. 10-4-19-SC, March 7,
2017)
Religious freedom, although not unlimited, is a
fundamental personal right and liberty and has a
preferred position in the hierarchy of values.
Contractual rights, therefore, must yield to freedom
of religion. It is only where unavoidably necessary to
prevent an immediate and grave danger to the
security and welfare of the community that
infringement of religious freedom may be justified,
and only to the smallest extent necessary. (Estrada
v. Escritor, A.M. NO. P-02-1651, June 22, 2006)
1. NON-ESTABLISHMENT CLAUSE
AND FREE EXERCISE CLAUSES
a.
Voluntarism
As a social value, it means that the growth of a
religious sect as a social force must come from the
voluntary support of its members because of the
belief that both spiritual and secular society will
benefit if religions are allowed to compete on their
own intrinsic merit without benefit of official
patronage.
b.
Insulation of the Political
Process
From
Interfaith
Dissension
Such voluntarism cannot be achieved unless the
political process is insulated from religion and
unless religion is insulated from politics. Nonestablishment thus calls for government neutrality in
religious matters to uphold voluntarism and avoid
breeding interfaith dissension. (Estrada v. Escritor,
A.M. NO. P-02-1651, June 22, 2006)
Prohibited Acts of the State Under the
Establishment Clause
The non-establishment clause reinforces the wall of
separation between Church and State. It simply
means that:
a. The State cannot set up a Church.
b. The State cannot pass laws which aid one
religion, aid all religion, or prefer one
religion over another.
Non-establishment clause
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c.
d.
e.
f.
POLITICAL LAW & PUBLIC INTERNATIONAL LAW
The State cannot force nor influence a
person to go to or remain away from church
against his will or force him to profess a
belief or disbelief in any religion.
The State cannot punish a person for
entertaining or professing religious beliefs
or disbeliefs, for church attendance or
nonattendance.
No tax in any amount, large or small, can
be levied to support any religious activity or
institution whatever they may be called or
whatever form they may adopt or teach or
practice religion.
The State cannot openly or secretly
participate in the affairs of any religious
organization or group and vice versa.
Its minimal sense is that the State cannot establish
or sponsor an official religion. (Re: Letter of Tony
Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)
In effect, what non-establishment calls for is
government neutrality in religious matters. Such
government neutrality may be summarized in four
general propositions:
a. Government must not prefer one religion
over another or religion over irreligion
because such preference would violate
voluntarism and breed dissension.
b. Government funds must not be applied to
religious purposes because this too would
violate voluntarism and breed interfaith
dissension.
c. Government action must not aid religion
because this too can violate voluntarism
and breed interfaith dissension.
d. Government action must not result in
excessive entanglement with religion
because this too can violate voluntarism
and breed interfaith dissension. (Re: Letter
of Tony Valenciano; citing Bernas, The
1987 Constitution of the Republic of the
Philippines, 2009)
Limiting the prohibition for religious use of the
structure to 20 years obviously opens the facility to
use for any purpose at the end of that period. It
cannot be assumed that a substantial structure has
no value after that period and hence the unrestricted
use of a valuable property is in effect a contribution
of some value to a religious body. Congress did not
base the 20-year provision on any contrary
conclusion. If, at the end of 20 years, the building is,
for example, converted into a chapel or otherwise
used to promote religious interests, the original
federal grant will in part have the effect of advancing
religion. To this extent the Act therefore trespasses
on the Religion Clauses. The restrictive obligations
of a recipient institution under §751 (a) (2) cannot,
compatibly with the Religion Clauses, expire while
the building has substantial value. The limitation of
federal interest in the facilities to a period of 20 years
violates the Religion Clauses of the First
Amendment, as the unrestricted use of valuable
property after 20 years is in effect a contribution to
a religious body. (Tilton v. Richardson, 403 U.S.
672, June 28, 1971)
When viewed in its overall context, the creche
display violates the Establishment Clause. The
creche angel's words endorse a patently Christian
message: Glory to God for the birth of Jesus Christ.
Moreover, nothing in the creche's setting detracts
from that message. Although the government may
acknowledge Christmas as a cultural phenomenon,
it may not observe it as a Christian holy day by
suggesting that people praise God for the birth of
Jesus. (County of Allegheny v. ACLU, 492 U.S. 573,
July 2, 1989)
It is not necessary that there be a direct
governmental compulsion for the non-establishment
clause to be violated. Enactment of laws which
coerce or influence, directly or indirectly, any
individual to follow a religion or irreligion is sufficient
for the said clause to be violated. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009)
The expulsion or excommunication of members of a
religious institution or organization is a matter best
left to the discretion of church officials, and the laws
and canons of said institution or organization. It is
not for the courts to exercise control over church
authorities in the performance of their discretionary
and official functions. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009)
Permitted Acts of the State Under the
Establishment Clause
a. Constitutionally Created
Tax Exemptions
Charitable institutions, churches and parsonages or
convents appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively
used for religious, charitable, or educational
purposes shall be exempt from taxation. (PHIL.
CONST., art. VI, § 28[3])
Limited Public Aid to Chaplaincies
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No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for
the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, or other
religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is
assigned to the armed forces, or to any penal
institution,
or
government
orphanage
or
leprosarium. (PHIL. CONST., art. VI, § 29[2])
Religious Instruction in Public Elementary and
High Schools
At the option expressed in writing by the parents or
guardians, religion shall be allowed to be taught to
their children or wards in public elementary and high
schools within the regular class hours by instructors
designated or approved by the religious authorities
of the religion to which the children or wards belong,
without additional cost to the Government. (PHIL.
CONST., art. XIV, § 3[3])
Ownership of Sectarian Educational Institutions
Educational institutions, other than those
established by religious groups and mission boards,
shall be owned solely by citizens of the Philippines
or corporations or associations at least sixty per
centum of the capital of which is owned by such
citizens. The Congress may, however, require
increased Filipino equity participation in all
educational institutions. (PHIL. CONST., art. XIV,
§4[2])
b. Jurisprudence
The holding of Catholic masses at the basement of
the QC Hall of Justice is not a case of establishment,
but merely accommodation.
a. There is no law, ordinance or circular
issued by any duly constitutive authorities
expressly
mandating
that
judiciary
employees attend the Catholic masses at
the basement.
b. When judiciary employees attend the
masses to profess their faith, it is at their
own initiative, without any coercion from the
judges or administrative officers.
c. No government funds are being spent
because the lightings and air conditioning
continue to be operational even if there are
no religious rituals there.
d. The basement has neither been converted
into a Roman Catholic chapel nor has it
been permanently appropriated for the
exclusive use of its faithful.
e.
f.
The allowance of the masses has not
prejudiced other religions
In no case shall a particular part of a public
building be a permanent place for worship
for the benefit of any and all religious
groups. There shall also be no permanent
display of religious icons in all halls of
justice in the country. In case of religious
rituals, religious icons and images may be
displayed but their presentation is limited
only during the celebration of such
activities. After any religious affair, the
icons and images shall be hidden or
concealed from public view. (Re: Letter of
Tony Valenciano, A.M. No. 10-4-19-SC,
March 7, 2017)
Aglipay of the Philippine Independent Church
sought to prohibit the issuance and sale of such
stamps commemorating a Catholic Eucharistic
Congress for violating the command that no public
money should be appropriated to support any
system of religion. The SC held that the statute
contemplates no religious purpose. The stamps
were not sold for the benefit of the Catholic Church,
but merely to advertise the Philippines as the seat
of the Eucharistic Congress. Thus, the resulting
propaganda possibly in favor of the Catholic Church
is merely incidental and should not frustrate the
main purpose of the law, which is to generate profit
and boost tourism. (Aglipay v. Ruiz, G.R. No. L45459, March 13, 1937)
Government programs that neutrally provide
benefits to a broad class of citizens and without
reference to religion do not violate the nonestablishment clause, as when government
furnishes a disabled child enrolled in a sectarian
school with a sign language interpreter to facilitate
his education because the service is part of a
general government program that neutrally
distributes benefits to any child qualifying as
disabled under the IDEA, without regard to the
sectarian or non-sectarian or public or non-public
nature of the school the child attends. Neither does
the IDEA create a financial incentive for parents to
choose a sectarian school. Most cases, where
governmental aids were struck down, challenged
programs which gave direct grants of government
aid, relieving sectarian schools of costs they
otherwise would have borne. In this case, the child
is the primary beneficiary and whatever benefits that
may accrue to the school is merely incidental.
(Zobrest, et al. v. Catalina Foothills School District,
509 U.S. 1, June 18, 1993)
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If there is nothing unconstitutional or illegal in
holding a fiesta and having a patron saint for the
barrio, then any activity intended to facilitate the
worship of the patron saint (such as the acquisition
and display of his image) cannot be branded as
illegal. The barrio fiesta is a socio-religious affair. Its
celebration is an ingrained tradition in rural
communities. The fiesta relieves the monotony and
drudgery of the lives of the masses. Not every
governmental
activity
which
involves
the
expenditure of public funds and which has some
religious tint is violative of the constitutional
provisions regarding separation of church and state,
freedom of worship and banning the use of public
money or property. (Garces v. Estenzo, G.R. No. L53487, May 25, 1981)
The express purpose of the statute was the
furtherance of educational opportunities for the
young, and the law merely makes available to all
children the benefits of a general program to lend
school books free of charge, and the financial
benefit is to parents and children, not to schools.
Parochial schools, in addition to their sectarian
function, perform the task of secular education, and,
on the basis of this meager record, the Court cannot
agree with appellants that all teaching in a sectarian
school is religious or that the intertwining of secular
and religious training is such that secular textbooks
furnished to students are in fact instrumental in
teaching religion. (Board of Education v. Allen, 392
U.S. 236, June 10, 1968)
The menorah display does not have the prohibited
effect of endorsing religion, given its "particular
physical setting." Its combined display with a
Christmas tree and a sign saluting liberty does not
impermissibly endorse both the Christian and
Jewish faiths, but simply recognizes that both
Christmas and Chanukah are part of the same
winter-holiday season, which has attained a secular
status in our society. The widely accepted view of
the Christmas tree as the preeminent secular
symbol of the Christmas season emphasizes this
point. The tree, moreover, by virtue of its size and
central position in the display, is clearly the
predominant element, and the placement of the
menorah beside it is readily understood as simply a
recognition that Christmas is not the only traditional
way of celebrating the season. The absence of a
more secular alternative to the menorah negates the
inference of endorsement. Similarly, the presence of
the mayor's sign confirms that in the particular
context the government's association with a
religious symbol does not represent sponsorship of
religious beliefs but simply a recognition of cultural
diversity. Given all these considerations, it is not
sufficiently likely that a reasonable observer would
view the combined display as an endorsement or
disapproval of his individual religious choices.
(County of Allegheny v. ACLU, 492 U.S. 573, July 2,
1989)
The RH Law does not violate the Establishment
Clause. The petitioners are misguided in their
supposition that the State cannot enhance its
population control program through the RH Law
simply because the promotion of contraceptive use
is contrary to their religious beliefs. Indeed, the State
is not precluded to pursue its legitimate secular
objectives without being dictated upon by the
policies of any one religion. (Imbong v. Ochoa, G.R.
No. 204819, April 8, 2014)
2. TESTS TO DETERMINE THE
VALIDITY OF
GOVERNMENTAL
REGULATION
TESTS FOR CONSTITUTIONALITY OF
STATUTES
Abington Test
To withstand the strictures of the Establishment
Clause: (SAIR)
1. There must be a Secular legislative purpose;
and
2. A primary effect that neither Advances nor
Inhibits Religion.
If the purpose and the primary effect of the
enactment is the advancement or inhibition of
religion, then the enactment exceeds the scope of
legislative power as circumscribed by the
Constitution. (School Dist. of Abington Tp. v.
Schempp, 374 U.S. 203, June 17, 1963)
Lemon Test
The Lemon test requires a challenged policy to meet
the following criteria to pass scrutiny under the
Establishment Clause. The test for determining
whether a law meets the requirements of the
Establishment Clause is that: (SAIREE)
1. The statute must have a Secular legislative
purpose;
2. Its primary or principal effect must be one that
neither Advances nor Inhibits Religion; and
3. The statute must not foster an Excessive
Entanglement with religion. (Lemon v.
Kurtzman, 403 U.S. 602, June 28, 1971)
Agostini Test for Excessive Entanglement
To determine/assess excessive entanglement, the
following must be taken into consideration:
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1. The character and purposes of the benefitted
institutions;
2. The nature of the aid that the State provides; and
3. The resulting relationship between the
government and religion, e. g., whether it was
neutral and nonideological. (Agostini v. Felton,
521 U.S. 203, June 23, 1997)
Mitchell Test for Determining a Statute’s Effect
Three primary criteria for determining whether a
statute/government aid has the effect of advancing
religion:
1. If it results in governmental indoctrination;
2. If it defines its recipients by reference to religion;
or
3. If it creates an excessive entanglement.
The US Supreme Court further held that under the
neutrality principle, aid that is offered to a broad
range of groups or persons without regard to religion
are valid. One way to assure the said neutrality is
through the principle of private choice, wherein the
government is not considered to have provided any
support of religion when aid to schools, even if
direct, is a) neutrally available and b) before
reaching or benefitting any religious school, first
passes through the hands of numerous private
citizens who are free to direct the aid elsewhere.
(Mitchell v. Helms, 530 US 793, June 28 2000)
The right of the people to information on matters of
public concern shall be recognized. (Phil Const., art.
III, § 7)
Subject to reasonable conditions prescribed by law,
the State adopts and implements a policy of full
public disclosure of all its transactions involving
public interest. (Phil Const., art. II, § 28)
3. SEPARATION OF CHURCH
AND STATE
The separation of Church and State shall be
inviolable ((PHIL. CONST., art. II, § 6)
There are two (2) principal parts in the freedom of
religion: 1) the non-establishment clause, and 2)
free exercise clause.
In the book of Fr. Bernas, Government Neutrality is:
1. Government must not prefer one
religion over another or religion over
irreligion because such preference
would violate voluntarism and breed
dissension;
2. Government funds must not be applied
to religious purposes because this too
would violate voluntarism and breed
interfaith dissension;
3. Government action must not aid religion
because
this
too
can
violate
voluntarism and breed interfaith
dissension; and
4. Government action must not result in
excessive entanglement with religion
because
this
too
can
violate
voluntarism and breed interfaith
dissension.
(Bernas,
The
1987
Constituion of the republic of the
Philippines, p. 346.)
Free Exercise Clause
Concept
The right to religious profession and worship has a
two-fold aspect: freedom to believe and freedom to
act on one’s belief. The first is absolute as long as
the belief is confined within the realm of thought.
The second is subject to regulation where the belief
is translated into external acts that affect the public
welfare. (Re: Letter of Tony Valenciano, A.M. No.
10-4-19-SC, March 7, 2017)
The court determines whether an act is a religious
ceremony and not any religious group or sect, or a
follower of the said group or sect. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009)
Freedom to believe
Absolute as long as the belief is confined within the
realm of thought. The individual is free to believe (or
disbelieve) as he pleases concerning the hereafter.
He may not be required to prove his beliefs. He may
not be punished for his inability to do so. Religion,
after all, is a matter of faith. "Men may believe what
they cannot prove." Everyone has a right to his
beliefs and he may not be called to account because
he cannot prove what he believes. (Re: Letter of
Tony Valenciano, A.M. No. 10-4-19-SC, March 7,
2017)
Freedom to act on one's beliefs
But where the individual externalizes his beliefs in
acts or omissions that affect the public, his freedom
to do so becomes subject to the authority of the
State. As great as this liberty may be, religious
freedom, like all other rights guaranteed in the
Constitution, can be enjoyed only with a proper
regard for the rights of others. It is error to think that
the mere invocation of religious freedom will
stalemate the State and render it impotent in
protecting the general welfare. The inherent police
power can be exercised to prevent religious
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practices inimical to society. (Re: Letter of Tony
Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)
Purpose
The Free Exercise Clause accords absolute
protection to individual religious convictions and
beliefs and proscribes government from questioning
a person’s beliefs or imposing penalties or
disabilities based solely on those beliefs. The
Clause extends protection to both beliefs and
unbelief. (Estrada v. Escritor, A.M. NO. P-02-1651,
June 22, 2006)
However, a law advancing a legitimate
governmental interest is not necessarily invalid as
one interfering with the free exercise of religion
merely because it also has an incidental and
detrimental effect on the same. (Centeno v. VillalonPornillos, G.R. No. 113092, Sept. 1, 1994)
Benevolent neutrality and claims of religious
freedom cannot shield respondent judge from
liability for misconduct under our laws. She
knowingly entered into a civil marriage with her first
husband. She knew its effects under our laws. She
had sexual relations with her second husband while
her first marriage was subsisting. She cannot claim
that engaging in sexual relations with another
person during the subsistence of a marriage is an
exercise of her religious expression. Legal
implications and obligations attach to any person
who chooses to enter civil marriages. This is
regardless of how civil marriages are treated in that
person’s religion. Also, as a lawyer and a judge, is
expected to abide by the law. Her conduct affects
the credibility of the courts in dispensing justice.
Thus, in finding respondent administratively liable
for violation of her marriage obligations under our
laws, this court protects the credibility of the judiciary
in administering justice. (Perfecto v. Esidera, A.M.
NO. RTJ-15-2417, July 22, 2015)
Basis
The basis of the free exercise clause is the respect
for the inviolability of the human conscience. Under
this part of religious freedom guarantee, the State is
prohibited from unduly interfering with the outside
manifestations of one's belief and faith. (Imbong v.
Ochoa, G.R. No. 204819, April 8, 2014)
Permitted Acts of the State Under the Free
Exercise Clause
The free exercise clause does not relieve one of the
obligations to comply with a law that incidentally
forbids (or requires) the performance of an act that
his religious belief requires (or forbids):
1. If the law is not specifically directed to religious
practice.
2. If the law is constitutional as applied to those
who engage in the specified act for non-religious
purposes.
If the law is not specifically directed to religious
practice and is applied equally to all, regardless of
whether they do the act for religious or non-religious
purposes, it does not offend the free exercise
clause.
The balancing of interests test, whereby
government actions that substantially burden a
religious practice must be justified by a compelling
governmental interest, is inapplicable to an acrossthe-board criminal prohibition of a particular form of
conduct. Otherwise, this would create an
extraordinary right to ignore general laws in the
name of religion for as long as no compelling State
interest intervenes. (Employment Division v. Smith,
494 U.S. 872, April 17, 1990)
A law that burdens religious practice need not be
justified by a compelling governmental interest, if it
is a) neutral and b) of general applicability. However,
when the law is not neutral or not of general
application, the same must undergo the most
rigorous of scrutiny:
1. It must be justified by a compelling
governmental interest.
2. It must be narrowly tailored to advance the said
interest. (Church of the Lukumi Babalu Aye, Inc.
v. Hialeah, 508 U.S. 520, June 11 1993)
The Supreme Court upheld the exemption of
members of the Iglesia ni Cristo, from the coverage
of a closed shop agreement between their employer
and a union because it would violate the teaching of
their church not to join any group. (Victoriano v.
Elizalde Rope Workers’ Union, G.R. No. L-2524,
Sept. 12, 1974)
An exemption may be accorded to the Jehovah’s
Witnesses with regard to the observance of the flag
ceremony out of respect for their religious beliefs,
however ‘bizarre’ those beliefs may seem to others.
Nevertheless, their right not to participate in the flag
ceremony does not give them a right to disrupt such
patriotic exercises. (Ebralinag v. Division
Superintendent, G.R. No. 95770, March 1, 1993)
City Ordinance No. 3000, as amended, which
requires obtaining of a Mayor's permit before any
person can engage in any of the businesses, trades
or occupations enumerated therein, does not
impose any charge upon the enjoyment of a right
granted by the Constitution, nor tax the exercise of
religious practices. Hence, it cannot be considered
unconstitutional, even if applied to plaintiff Society.
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(American Bible Society v. City of Manila, G.R. No.
L-9637, April 30, 1957)
The First Amendment does not prohibit the
challenged regulation from being applied to
petitioner even though its effect is to restrict the
wearing of the headgear (yarmulke) required by his
religious beliefs. That Amendment does not require
the military to accommodate such practices as
wearing a yarmulke in the face of its view that they
would detract from the uniformity sought by dress
regulations. Here, the Air Force has drawn the line
essentially between religious apparel that is visible
and that which is not, and the challenged regulation
reasonably and even-handedly regulates dress in
the interest of the military's perceived need for
uniformity. (Goldman v. Weinberger, 475 U.S. 503,
March 25, 1986)
Not all acts done by those who are priests, bishops,
ustadz, imams, or any other religious make such act
immune from any secular regulation. The religious
also have a secular existence. They exist within a
society that is regulated by law. The tarpaulin, on its
face, does not convey any religious doctrine of the
Catholic church. That the position of the Catholic
church appears to coincide with the message of the
tarpaulin regarding the RH Law does not, by itself,
bring the expression within the ambit of religious
speech. (Diocese of Bacolod v. COMELEC, G.R.
No. 205728, Jan. 21, 2015)
Prohibited Acts of the State Under the Free
Exercise Clause
A state statute which forbids any person to solicit
money or valuables for any alleged religious cause,
unless a certificate therefor shall first have been
procured from a designated official, who is required
to determine whether such cause is a religious one
and who may withhold his approval if he determines
that it is not, is a previous restraint upon the free
exercise of religion and a deprivation of liberty
without due process of law in violation of the
Fourteenth Amendment. (Cantwell v. Connecticut,
310 U.S. 296, May 19, 1940)
The religious views espoused by respondents might
seem incredible, if not preposterous, to most people.
But if those doctrines are subject to trial before a jury
charged with finding their truth or falsity, then the
same can be done with the religious beliefs of any
sect. When the triers of fact undertake that task,
they enter a forbidden domain. The First
Amendment does not select any one group or any
one type of religion for preferred treatment. It puts
them all in that position. Thus, the District Court
ruled properly when it withheld from the jury all
questions concerning the truth or falsity of the
religious beliefs or doctrines of respondents. This
course was required by the First Amendment's
guarantee of religious freedom. (United States v.
Ballard, 322 U.S. 78, April 24, 1944)
The provisions of City Ordinance No. 2529, as
amended, which requires the payment of license fee
for conducting the business of general merchandise,
cannot be applied to plaintiff society, for in doing so,
it would impair its free exercise and enjoyment of its
religious profession and worship, as well as its rights
of dissemination of religious beliefs. (American Bible
Society v. City of Manila, G.R. No. L-9637, April 30,
1957)
The State's claim that it is empowered, as parens
patriae, to extend the benefit of secondary
education to children regardless of the wishes of
their parents cannot be sustained against a free
exercise, for the Amish have introduced convincing
evidence that accommodating their religious
objections by forgoing one or two additional years of
compulsory education will not impair the physical or
mental health of the child, or result in an inability to
be self-supporting or to discharge the duties and
responsibilities of citizenship, or in any other way
materially detract from the welfare of society.
(Wisconsin v. Yoder, 406 U.S. 205, May 15, 1972)
The ordinances' texts and operation demonstrate
that they are not neutral, but have as their object the
suppression of Santeria's central element, animal
sacrifice. That this religious exercise has been
targeted is evidenced by Resolution 87-66's
statements of "concern" and "commitment," and by
the use of the words "sacrifice" and "ritual" in
Ordinances 87-40, 87-52, and 87-71. Moreover, the
latter ordinances' various prohibitions, definitions,
and exemptions demonstrate that they were
"gerrymandered" with care to proscribe religious
killings of animals by Santeria church members but
to exclude almost all other animal killings. Although
Ordinance 87-72 appears to apply to substantial
nonreligious conduct and not to be overbroad, it
must also be invalidated because it functions in
tandem with the other ordinances to suppress
Santeria religious worship. (Church of the Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, June 11
1993)
BENEVOLENT NEUTRALITY AND
CONSCIENTIOUS OBJECTORS
Benevolent neutrality protects religious realities,
tradition and established practice with a flexible
reading of the principle.
Accommodations are government policies that take
religion specifically into account not to promote the
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government’s favored form of religion, but to allow
individuals and groups to exercise their religion
without hindrance. Their purpose or effect therefore
is to remove a burden on, or facilitate the exercise
of, a person’s or institution’s religion.
The government may take religion into account to
exempt, when possible, from generally applicable
governmental regulation individuals whose religious
beliefs and practices would otherwise thereby be
infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise
may flourish. Accommodation is forbearance and
not alliance. it does not reflect agreement with the
minority, but respect for the conflict between the
temporal and spiritual authority in which the minority
finds itself.
Benevolent
neutrality
gives
room
for
accommodation of religious exercises as required
by the Free Exercise Clause. It allows breaches in
the wall of separation to uphold religious liberty,
which after all is the integral purpose of the religion
clauses.
Although the Philippines’ constitutional history and
interpretation mandate benevolent neutrality,
benevolent neutrality does not mean that the Court
ought to grant exemptions every time a free exercise
claim comes before it. But it does mean that the
Court will not look with hostility or act indifferently
towards religious beliefs and practices and that it will
strive to accommodate them when it can within
flexible constitutional limits; it does mean that the
Court will not simply dismiss a claim under the Free
Exercise Clause because the conduct in question
offends a law or the orthodox view for this precisely
is the protection afforded by the religion clauses of
the Constitution, i.e., that in the absence of
legislation granting exemption from a law of general
applicability, the Court can carve out an exception
when the religion clauses justify it.
The Court thus lays down the doctrine that in
Philippine jurisdiction, we adopt the benevolent
neutrality approach not only because of its merits as
discussed above, but more importantly, because our
constitutional history and interpretation indubitably
show that benevolent neutrality is the launching pad
from which the Court should take off in interpreting
religion clause cases. The ideal towards which this
approach is directed is the protection of religious
liberty not only for a minority, however small – not
only for a majority, however large – but for each of
us to the greatest extent possible within flexible
constitutional limits. (Estrada v. Escritor, A.M. NO.
P-02-1651, June 22, 2006)
Sherbert Test
This is the applicable test for benevolent neutrality.
The test involves the following:
1. Does the law burden the person of his free
exercise of religion;
2. Is the person sincere in his belief; and
3. Does the State have a compelling interest in
implementing
the
law/regulation/policy?
(Estrada v. Escritor, A.M. No. P-02-1651, Aug.
4, 2003)
Conscientious objectors
A person who for moral or religious reasons is
opposed to participating in any war, and who may
be excused from military conscription but remains
subject to service in civil work for the nation’s health,
safety or interest. (Black’s Law Dictionary, 9th ed.)
RH Law
Sections 7, 23 and 24 commonly mandate that a
hospital or a medical practitioner to immediately
refer a person seeking health care and services
under the law to another accessible healthcare
provider despite their conscientious objections
based on religious or ethical beliefs.
In this case, the conscientious objector's claim to
religious freedom would warrant an exemption from
obligations under the RH Law, unless the
government succeeds in demonstrating a more
compelling state interest in the accomplishment of
an important secular objective. Necessarily so, the
plea of conscientious objectors for exemption from
the RH Law deserves no less than strict scrutiny.
The obligation to refer imposed by the RH Law
violates the religious belief and conviction of a
conscientious objector. Once the medical
practitioner, against his will, refers a patient seeking
information on modem reproductive health
products, services, procedures and methods, his
conscience is immediately burdened as he has been
compelled to perform an act against his beliefs.
In case of conflict between the religious beliefs and
moral convictions of individuals, on one hand, and
the interest of the State, on the other, to provide
access and information on reproductive health
products, services, procedures and methods to
enable the people to determine the timing, number
and spacing of the birth of their children, the Court
is of the strong view that the religious freedom of
health providers, whether public or private, should
be accorded primacy.
Accordingly, a conscientious objector should be
exempt from compliance with the mandates of the
RH Law. If he would be compelled to act contrary to
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his religious belief and conviction, it would be
violative of "the principle of non-coercion" enshrined
in the constitutional right to free exercise of religion.
(Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)
Conscientious Objection to Military Service
Escritor was the court interpreter at the RTC of Las
Pinas. A complaint for disgraceful and immoral
conduct under the Revised Administrative Code was
filed against Escritor because of living with a man
not her husband. As a defense, she asserted that
this conjugal arrangement was in conformity with
her religious congregation which was the Jehovah’s
witnesses. In discussing the Free Exercise Clause,
the court tackled United States v. Seeger, which
involved four men who claimed "conscientious
objector" status in refusing to serve in the Vietnam
War. One of the four, Seeger, was not a member of
any organized religion opposed to war, but when
specifically asked about his belief in a Supreme
Being, Seeger stated that "you could call (it) a belief
in a Supreme Being or God. These just do not
happen to be the words that I use." Forest Peter,
another one of the four claimed that after
considerable meditation and reflection "on values
derived from the Western religious and
philosophical tradition," he determined that it would
be "a violation of his moral code to take human life
and that he considered this belief superior to any
obligation to the state." The Court avoided a
constitutional question by broadly interpreting not
the Free Exercise Clause, but the statutory definition
of religion in the Universal Military Training and
Service Act of 1940 which exempt from combat
anyone "who, by reason of religious training and
belief, is conscientiously opposed to participation in
war in any form." (Estrada v. Escritor A.M. No. P-021651, June 22, 2006. See also Gerona v. Secretary
of Education, G.R. No. L-13954, Aug. 12, 1959)
As seen in U.S. v. Seeger, supra, it may also be
used as a ground for exemption from compulsory
military service. It also includes those with a sincere
and meaningful belief which occupies in the life of
its possessor a place parallel to that filled by the God
of those admittedly qualifying for the exemption.
(380 U.S. 163, March 8, 1965)
G. LIBERTY OF ABODE AND
FREEDOM OF MOVEMENT
The liberty of abode and of changing the same
within the limits prescribed by law shall not be
impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in
the interest of national security, public safety or
public health, as may be provided by law. (PHIL.
CONST., art. III, § 6)
1. SCOPE AND LIMITATIONS
Rights Guaranteed
a. Freedom to choose and change one’s
place of abode
b. Freedom to travel within the country and
outside
Liberty of Abode
But one can search in vain for any law, order, or
regulation, which even hints at the right of the Mayor
of the city of Manila or the chief of police of that city
to force citizens of the Philippine Islands — and
these women despite their being in a sense lepers
of society are nevertheless not chattels but
Philippine citizens protected by the same
constitutional guaranties as are other citizens — to
change their domicile from Manila to another
locality. (Villavicencio v. Lukban, G.R. No. L-14639,
March 25, 1919)
The order of the Court of Appeals releasing
petitioner on bail constitutes such lawful order as
contemplated by the above provision. The condition
imposed by the Court of Appeals is simply
consistent with the nature and function of a bail
bond, which is to ensure that petitioner will make
himself available at all times whenever the Court
requires his presence. Besides, a closer look at the
questioned condition will show that petitioner is not
prevented from changing abode; he is merely
required to inform the court in case he does so. (Yap
Jr. v. Court of Appeals, G.R. No. 141529, June 6,
2001)
Right to Travel
AO1 does not infringe upon petitioners’ right to
travel but merely bars motorcycles, bicycles,
tricycles, pedicabs, and any non- motorized vehicles
as the mode of traveling along limited access
highways. The right to travel does not mean the right
to choose any vehicle in traversing a toll way. The
right to travel refers to the right to move from one
place to another. Petitioners can traverse the toll
way any time they choose using private or public
four-wheeled vehicles. Petitioners are not denied
the right to move from Point A to Point B along the
toll way. Petitioners are free to access the toll way,
much as the rest of the public can. The mode by
which petitioners wish to travel pertains to the
manner of using the toll way, a subject that can be
validly limited by regulation. (Mirasol v. DPWH, G.R.
No. 158793, June 8, 2006)
City councils are authorized to enact curfew
ordinances (as what respondents have done in this
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case) and enforce the same through their local
officials. In other words, PD 603 provides sufficient
statutory basis - as required by the Constitution - to
restrict the minors' exercise of the right to travel.
Considering that the right to travel is a fundamental
right in our legal system guaranteed no less by our
Constitution, the strict scrutiny test is the applicable
test. (SPARK v. Quezon City, G.R. No. 225442,
Aug. 8, 2017)
No Right of Return to One’s Country
Essentially, the right involved is the right to return to
one's country, a totally distinct right under
international law, independent from although related
to the right to travel. Thus, the Universal Declaration
of Humans Rights and the International Covenant
on Civil and Political Rights treat the right to freedom
of movement and abode within the territory of a
state, the right to leave a country, and the right to
enter one's country as separate and distinct rights.
The Declaration speaks of the "right to freedom of
movement and residence within the borders of each
state" separately from the "right to leave any
country, including his own, and to return to his
country." (Marcos v. Manglapus, G.R. No. 88211,
Sept. 15, 1989)
Limitations
a. LIBERTY OF ABODE: Lawful order of the
court and within the limits prescribed by
law.
b. RIGHT TO TRAVEL: May be curtailed
even by administrative officers in the
interest of national security, public safety,
or public health, as may be provided by law.
(PHIL. CONST., art. III, § 6)
2. WATCH-LIST AND HOLD
DEPARTURE ORDERS
Watch-list Orders vs. Hold Departure Orders
1. Watch-list Orders issued against:
a. Accused in criminal cases (irrespective of
nationality in RTC or below); OR
b. Any person with pending case in DOJ
2. Hold Departure Orders issued against:
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 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
Both issued by the Secretary of Justice (Department
Circular No. 41)
Article III, Section 6 of the 1987 Constitution should
by no means be construed as delimiting the inherent
power of the Courts to use all means necessary to
carry their orders into effect in criminal cases
pending before them. When by law jurisdiction is
conferred on a Court or judicial officer, all auxiliary
writs, process and other means necessary to carry
it into effect may be employed by such Court or
officer. Holding an accused in a criminal case within
the reach of the Courts by preventing his departure
from the Philippines must be considered as a valid
restriction on his right to travel so that he may be
dealt with in accordance with law. The offended
party in any criminal proceeding is the People of the
Philippines. It is to their best interest that criminal
prosecutions should run their course and proceed to
finality without undue delay, with an accused holding
himself amenable at all times to Court Orders and
processes. (Silverio v. CA, G.R. No. 94284, April 8,
1991)
[The DOJ] does not have inherent power to issue a
hold-departure order, unlike the courts, or to restrict
the right to travel in [any way]. It is limited to the
powers expressly granted to it by law and may not
extend the same on its own accord or by any
skewed interpretation of its authority. Without a valid
legislation, the DOJ's actions will perpetually be met
with legal hurdles to the detriment of the due
administration of justice. (Genuino v. De Lima, G.R.
No. 197930, April 17, 2018)
H. RIGHT TO INFORMATION
The right of the people to information on matters of
public concern shall be recognized. (PHIL. CONST.,
art. III, § 7)
Subject to reasonable conditions prescribed by law,
the State adopts and implements a policy of full
public disclosure of all its transactions involving
public interest. (PHIL. CONST., art. II, § 28)
Rights Guaranteed
a. Right to information on matters of public
concern
b. Right of access to official records and
documents
These are political rights available to citizens only.
They are "subject to such limitations as may be
provided by law." (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer)
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Not absolute
The constitutional guarantee to information does not
open every door to any and all information. It is
limited to matters of public concern, and is subject
to such limitations as may be provided by law.
Likewise, the State’s policy of full public disclosure
is restricted to transactions involving public interest,
and is further subject to reasonable conditions
prescribed by law.
(Sereno v. Committee on Trade and Related
Matters of NEDA, G.R. No. 175210, Feb. 1, 2016)
1. Scope and limitations
Matters of Public Concern
The people have the right to information on matters
of public concern, and access to official records
shall be allowed to citizens as may be provided by
law. It is a self-executing provision.
The threshold question is, therefore, whether or not
the information sought is of public interest or public
concern. "Public concern" like "public interest" is a
term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the
public may want to know, either because these
directly affect their lives, or simply because such
matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to
determine in a case by case basis whether the
matter at issue is of interest or importance, as it
relates to or affects the public. (Legazpi v. CSC,
G.R. No. L-72119, May 29, 1987)
In case of conflict, there is a need to strike a balance
between the right of the people and the interest of
the Government to be protected. (Sereno v.
Committee on Trade and Related Matters of NEDA,
G.R. No. 175210, Feb. 1, 2016)
Examples of Matters of Public Concern
according to Jurisprudence:
a. Loanable funds of GSIS
b. Civil service eligibility of sanitarian
employees
c. Appointments made to public offices and
the utilization of public property
d. National board examinations such as the
CPA Board Exams
e. Names of nominees of partylists
f. Negotiations leading to the consummation
of the transaction
(Valmonte v. Belmonte, G.R. No. 74930; Legazpi v.
CSC, G.R. No. L-72119; Gonzales v. Narvasa, G.R.
No. 140835; Antolin v. Domondon, G.R. No.165036;
Bantay Republic v. COMELEC, G.R. No. 177271;
Chavez v. PEA and Amari, G.R. No. 133250)
Examples of Matters of Public Information
according to Jurisprudence:
a. Decision and voting slips of the MTRCB
board for the classification of movies
b. Civil Service eligibility of sanitarians
c. Party-list nominees through medium other
than the “Certified List”
d. GSIS loans granted to former Batasang
Pambansa members
e. Examination papers and answer keys in the
CPA Board Exam
f. Definite
propositions
and
“official
recommendations” of agencies preceding
and even before the consummation of the
contract
(Aquino-Sarmiento v. Morato, G.R. No. 92541;
Legaspi v. CSC, G.R. No. L-72119; Bantay Republic
Act or BA-RA 7941 v. COMELEC, G.R. No.
177271,; Valmonte v. Belmonte Jr., G.R. No.
74930,; Antolin v. Domondon, G.R. No.165036;
Chavez v. Public Estates Authority, G.R. No.
133250)
The right to information is paramount, and that the
wiretapping issue is subservient to this right. The
“Hello Garci” tapes should be played, because
prohibiting its airing would be prior restraint.
(Chavez v. Gonzales, G.R. No. 168338)
Limitations
Restrictions to the right to information may be:
a. Based on kinds of information
b. Based on access
c. Based on reasonable regulation for the
convenience of and for order in the office
that has custody of the documents
(Baldoza v. Dimaano, A.M. No. 1120-MJ,
1976)
d. Based on availability.
Based on Kinds of Information
The constitutional guarantee of the people's
right to information do not cover: (BENT DISC)
a.
b.
c.
d.
e.
f.
g.
h.
Banking transactions
Executive Sessions
National Security matters
Trade secrets
Diplomatic correspondence
Intelligence information
Supreme Court deliberations
Closed Door cabinet meetings
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There are certain classes of information which may
be withheld from the public and even from
Congress. These are national security matters or
confidential diplomatic matters, trade secrets and
banking transactions, the identity of informants in
criminal investigations, confidential or classified
matters which come to the knowledge of public
officials by reason of their office. (Chavez v. PCGG,
G.R. No 130716)
Before a definite proposition is reached by an
agency, there are no official acts, transactions, or
decisions yet which can be accessed by the public
under the right to information. Only when there is an
official recommendation can a definite proposition
arise and, accordingly, the public’s right to
information attaches. (DFA v. BCA International,
G.R. No. 210858)
Without doubt, therefore, ensuring and promoting
the free exchange of ideas among the members of
the committee tasked to give tariff recommendations
to the President were truly imperative. The fact that
some members of the committee were not part of
the President's Cabinet was of no moment. The
Court regarded the meeting of the committee as a
Closed-door Cabinet meeting. (Sereno v.
Committee on Trade and Related Matters of NEDA,
G.R. No. 175210, supra)
The chemical composition of special lubricants is a
trade secret. The ingredients constitute the very
fabric of the company’s business. To compel its
disclosure is to cripple their business and to place it
at an undue disadvantage. Trade secrets should
receive greater protection from discovery because
they deserve economic value from being generally
unknown and not readily ascertainable by the public.
(Air Philippines v. Pennswell, Inc, G.R. No. 172835)
Based on Access
a. Opportunity to inspect and copy records at
his expense (Chavez v. PEA and Amari,
supra)
b. Not the right to compel custodians of official
records to prepare lists, abstracts,
summaries and the like (Valmonte v.
Belmonte, supra)
A distinction has to be made between the discretion
to refuse outright the disclosure of or access to a
particular information and the authority to regulate
the manner in which the access is to be afforded.
The first is a limitation upon the availability of access
to the information sought, which only the Legislature
may impose. The second pertains to the
government agency charged with the custody of
public records. (Legaspi v. CSC, G.R. No. 72119,
May 29, 1987)
The regulations which the Register of Deeds, or the
Chief of the General Land Registration Office, or the
Secretary of Justice is empowered to promulgate
are confined to prescribing the manner and hours of
examination to the end that damage to, or loss of,
the records may be avoided, that undue interference
with the duties of the custodian of the books and
documents and other employees may be prevented,
that the right of other persons entitled to make
inspection may be insured, and the like. (Subido v.
Ozaeta, G.R. No. L-1631, May 29, 1987)
Although citizens are afforded the right to
information and, pursuant thereto, are entitled to
access to official records, the Constitution does not
accord them a right to compel custodians of official
records to prepare lists, abstracts, summaries and
the like in their desire to acquire information on
matters of public concern. (Valmonte v. Belmonte
Jr., G.R. No. 74930, Feb. 13, 1989)
Access to Court Records
The right of the public to be informed of the
proceedings in court is not founded in the desire or
necessity of people to know about the doing of
others, but in the necessity of knowing whether its
servant, the judge, is properly performing his duty.
Unlike court orders and decisions, however,
pleadings and other documents filed by parties to a
case need not be matters of public concern or
interest. For they are filed for the purpose of
establishing the basis upon which the court may
issue an order or a judgment affecting their rights
and interests.
In fine, access to court records may be permitted at
the discretion and subject to the supervisory and
protective powers of the court, after considering the
actual use or purpose for which the request for
access is based and the obvious prejudice to any of
the parties. (Hilado v. Judge Reyes, G.R. No.
163155)
Court deliberations are traditionally recognized as
privileged communications (deliberative process
privilege). This privilege may be invoked by judges
and also by court officials and employees who are
privy to these deliberations. It is understood that the
rule
extends
to
documents
and
other
communications which are part of or are related to
the deliberative process. However, to invoke the
privilege, there must be a showing that the
document is both predecisional and deliberative.
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Court records which can be shown to possess both
these qualities cannot be the subject of subpoena.
(In Re: Production of Court Records and Documents
and the Attendance of Court officials and employees
as witnesses under the subpoenas of Feb 10,2012
and the various letters for the Impeachment
Prosecution Panel dated Jan 19 and 25, 2012, Feb.
14, 2012)
Diplomatic Negotiations
It is clear that while the final text of the JPEPA may
not be kept perpetually confidential – since there
should be “ample opportunity for discussion before
a treaty is approved” – the offers exchanged by the
parties during the negotiations continue to be
privileged even after the JPEPA is published. It is
reasonable to conclude that the Japanese
representatives submitted their offers with the
understanding that “historic confidentiality” would
govern the same. Disclosing these offers could
impair the ability of the Philippines to deal not only
with Japan but with other foreign governments in
future negotiations. (Akbayan v. Aquino, G.R. No.
170516)
Negotiations for Treaties and Executive
Agreements
Information regarding negotiations for treaties and
executive agreements prior to conclusion of the
agreement is privileged information. (Senate v.
Ermita, G.R. No. 169777, April 20, 2006)
Deliberative Process Privilege
U.S. courts have established two fundamental
requirements, both of which must be met, for the
deliberative process privilege to be invoked:
a. Predecisional – The communication must
be predecisional, i.e., antecedent to the
adoption of an agency policy; and
b. Deliberative – The communication must
be deliberative, i.e., a direct part of the
deliberative process in that it makes
recommendations or expresses opinions
on legal or policy matters.
The deliberative process privilege exempts
materials that are 'predecisional' and 'deliberative,'
but requires disclosure of policy statements and final
opinions 'that have the force of law or explain
actions that an agency has already taken.
As a qualified privilege, the burden falls upon the
government agency asserting the deliberative
process privilege to prove that the information in
question satisfies both requirements - predecisional
and deliberative. The agency bears the burden of
establishing the character of the decision, the
deliberative process involved, and the role played by
the documents in the course of that process. It may
be overcome upon a showing that the discoverant's
interests in disclosure of the materials outweigh the
government's interests in their confidentiality. The
determination of need must be made flexibly on a
case-by-case, ad hoc basis, and the factors relevant
to this balancing include: the relevance of the
evidence, whether there is reason to believe the
documents may shed light on government
misconduct, whether the information sought is
available from other sources and can be obtained
without compromising the government's deliberative
processes, and the importance of the material to the
discoverant's case. (DFA v. BCA International, G.R.
No. 210858, June 29, 2016)
Presidential Communications Privilege
Applies to decision-making of the President; rooted
in the constitutional principle of separation of power
and the President's unique constitutional role;
applies to documents in their entirety, and covers
final and post-decisional materials as well as predeliberative ones; meant to encompass only those
functions that form the core of presidential authority.
Requisites:
1. The communications relate to a "quintessential
and non-delegable power" of the President;
2. The communications are "received" by a close
advisor of the President; and
3. There is no adequate showing of a compelling
need that would justify the limitation of the
privilege and of the unavailability of the
information elsewhere by an appropriate
investigating authority. (Neri v. Senate
Committee, G.R. No. 180643, March 25, 2008)
Publication of Laws and Regulations
The very first clause of Section I of Commonwealth
Act 638 reads: "There shall be published in the
Official Gazette..." The word "shall" used therein
imposes upon respondent officials an imperative
duty. That duty must be enforced if the
Constitutional right of the people to be informed on
matters of public concern is to be given substance
and reality. The law itself makes a list of what should
be published in the Official Gazette. It is needless to
add that the publication of presidential issuances "of
a public nature" or "of general applicability" is a
requirement of due process. It is a rule of law that
before a person may be bound by law, he must first
be officially and specifically informed of its contents.
Publication is necessary to apprise the public of the
contents of [penal] regulations and make the said
penalties binding on the persons affected thereby.
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(Tanada v. Tuvera, G.R. No. L-63915, April 24,
1985).
Other Constitutional Provisions Related to the
Right to Information
Subject to reasonable conditions prescribed by law,
the State adopts and implements a policy of full
public disclosure of all its transactions involving
public interest. (PHIL. CONST., art. II, § 28)
I.
RIGHT TO ASSOCIATION
Scope
Persons, both in the public and private sectors, may
form unions, associations, and societies. The right
is recognized as belonging to the people whether
employed or unemployed, and whether employed in
the government or in the private sector. (Bernas,
The 1987 Constitution: A Commentary, 2009)
Does Not Include the Right to Compel Others
The provision guarantees the right to form
associations. It does not include the right to compel
others to form an association. (Bernas, The 1987
Constitution: A Commentary, 2009)
Article III, Section 8 guarantees the freedom to
associate as well as the freedom not to associate.
The provision is not a basis to compel others to form
or join an association. (Acosta v. Ochoa, G.R. Nos.
211559, 211567, 212570 & 215634, Oct. 15, 2019)
Aspect of Right of Liberty
The right to form associations shall not be impaired
except through a valid exercise of police power. It is
therefore an aspect of the general right of liberty.
It is also an aspect of the freedom of contract.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
Aspect of Freedom of Expression and of Belief
Insofar as the associations may have for their object
the advancement of beliefs and ideas, the freedom
of association is an aspect of the freedom of speech
and expression, subject to the same limitation.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
Hierarchy of Civil Liberties
The Constitution recognizes a hierarchy of values.
Hence, the degree of protection an association
enjoys depends on the position which the
association's objective or activity occupies in the
constitutional hierarchy of values. (Bernas, The
1987 Philippine Constitution: A Comprehensive
Reviewer, 2011)
Not Absolutely Guaranteed to Top-level and
Middle Managers
The [Constitutional] Commission intended the
absolute right to organize of government workers,
supervisory employees, and security guards to be
constitutionally guaranteed. By implication, no
similar absolute constitutional right to organize for
labor purposes should be deemed to have been
granted to top-level and middle managers. As to
them the right of self-organization may be regulated
and even abridged conformably to Art. III, § 8.
If these managerial employees would belong to or
be affiliated with a Union, the latter might not be
assured of their loyalty to the Union in view of
evident conflict of interests. The Union can also
become company-dominated with the presence of
managerial employees in Union membership
(United Pepsi-Cola Supervisory Union (UPSU) v.
Laguesma, G.R. No. 122226, March 25, 1998)
IRR of RA 10951; Sports Shooter Applicant
Section 4.10 of the Rules Implementing RA 10951
does not compel a sports shooter applicant to join a
gun club or sports shooting association; it only
provides that they must submit a certification from
the president of a recognized gun club or sports
shooting association that he or she is joining the
competition. Thus, Section 4.10 does not violate
Article III, Section 8 of the Constitution. (Acosta v.
Ochoa, G.R. Nos. 211559, 211567, 212570 &
215634, Oct. 15, 2019)
Registration Not a Limitation to the Right
The registration of labor unions is not a limitation to
the right of assembly or association, which may be
exercised with or without said registration. The latter
is merely a condition sine qua non for the acquisition
of legal personality by labor organizations,
associations or unions and the possession of the
"rights and privileges granted by law to legitimate
labor organizations". Such requirement is a valid
exercise of the police power, because the activities
in which labor organizations, associations and union
of workers are engaged affect public interest, which
should be protected. (Philippine Assoc. of Free
Labor Unions v. Sec. of Labor, G.R. No. L-22228,
Feb. 27, 1969)
State Not Obligated to Accord Official Status
The right to organize does not equate to the state’s
obligation to accord official status to every single
association that comes into existence. It is one thing
for individuals to galvanize themselves as a
collective, but it is another for the group that they
formed to not only be formally recognized by the
state, but also bedecked with all the benefits and
privileges that are attendant to official status. In
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pursuit of public interest, the state can set
reasonable regulations — procedural, formal, and
substantive — with which organizations seeking
state imprimatur must comply. (Quezon City PTCA
Federation, Inc. vs DepEd, G.R. No. 188720,
February 23, 2016)
B.P. 222
B.P. 222, which prevents political parties and groups
from supporting directly or indirectly any barangay
candidate’s campaign for election does not violate
the right to form associations. [T]he ban is narrow,
not total, and has the purpose of preventing the
clear and imminent danger of the debasement of the
electoral process. It operates only on concerted or
group action of political parties. (Occeña v.
COMELEC, G.R. No. L-60258, 1984)
Automatic or Compulsory Membership
Compulsory membership is an annotation on a lot
owner's certificate of title. Hence, petitioners were
bound by this annotation. The constitutional
guarantee of freedom of association can only be
invoked against the State, and does not apply to
private transactions, like a sale, where a condition
was validly imposed by the vendor. Automatic
membership in a homeowners' association does not
violate lot owners' right to freedom of association
because they were not forced to buy their lots from
the developer. (Cezar Yatco Real Estate Services,
Inc. v. Bel-Air Village Association, Inc., G.R. No.
211780, Nov. 21, 2018.)
A closed shop agreement is legal since it is a valid
form of union security. (Villar v. Inciong, G.R. No. L50283-84, April 20, 1983).
Organization of the Integrated Bar of the
Philippines Legally Unobjectionable
Compulsory membership in the Integrated Bar of the
Philippines does not violate the freedom of
association. [It] has become an imperative means
to raise the standards of the legal profession,
improve the administration of justice, and enable the
Bar to discharge its public responsibility fully and
effectively. (In Re: Edillion, AC-1928, December 19,
1980)
Right to Strike of Employees in the Public Sector
To grant employees of the public sector the right to
strike, there must be a clear and direct legislative
authority therefor. In the absence of any express
legislation allowing government employees to strike,
recognizing their right to do so, or regulating the
exercise of the right, employees in the public service
may not engage in strikes, walkouts and temporary
work stoppages like workers in the private sector.
(Bangalisan v. CA, G.R. No. 124678, July 31, 1997).
In cases of CSC employees (e.g., SSS, public
school teachers)
Government employees may, through their unions
or associations, either petition the Congress for the
betterment of the terms and conditions of
employment which are within the ambit of legislation
or negotiate with the appropriate government
agencies for the improvement of those which are not
fixed by law. If there be any unresolved grievances,
the dispute may be referred to the Public Sector
Labor - Management Council for appropriate action.
But employees in the civil service may not resort to
strikes, walk-outs and other temporary work
stoppages, like workers in the private sector, to
pressure the Government to accede to their
demands. (Social Security System Employees
Association (SSEA) v. Court of Appeals, G.R. No.
85279, July 28, 1989)
Other Constitutional Provisions Related to the
Right to Association:
The State shall guarantee the rights of all workers to
self-organization,
collective
bargaining
and
negotiations, and peaceful concerted activities,
including the right to strike in accordance with law.
(Phil Const., art. III, § 3, par. 2)
The right to self-organization shall not be denied to
government employees. (Phil Const., art. IX-B, § 2,
par. 5)
J. NON-IMPAIRMENT OF
CONTRACTS
No law impairing the obligation of contracts shall be
passed. (PHIL. CONST., art. 3, § 10)
The non-impairment clause is a limit on the exercise
of legislative power and not of judicial or quasijudicial power. The SEC, through the hearing panel
that heard the petition for approval of the
Rehabilitation Plan, was acting as a quasi-judicial
body and thus, its order approving the plan cannot
constitute an impairment of the right and the
freedom to contract. (BPI v. SEC, G.R. No. 164641,
2007)
Not absolute
Jurisprudence has established that a valid exercise
of police power is superior to the obligation of
contracts.
(Bernas,
The
1987
Philippine
Constitution: A Comprehensive Reviewer, 2011)
Settled is the rule that the non-impairment clause of
the Constitution must yield to the loftier purposes
targeted by the Government. The right granted by
this provision must submit to the demands and
necessities of the State's power of regulation. Such
authority to regulate businesses extends to the
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banking industry which, as this Court has time and
again emphasized, is undeniably imbued with public
interest. (Goldenway v. Merchandising Corporation
v. Equitable PCI Bank, G.R. No. 195540, 2013)
Non-Impairment Clause Prevails:
a. Against the removal of tax exemptions,
where the consideration for the contract is
the tax exemption itself
b. Regulation on loans
What Constitutes Impairment
a. If it changes the terms and conditions of a
legal contract either as to the time or mode
of performance.
b. If it imposes new conditions or dispenses
with those expressed
c. If it authorizes for its satisfaction something
different from that provided in its terms.
(Bernas, The 1987 Philippine Constitution:
A Comprehensive Reviewer, 2011)
(Clemens v. Nolting, 42 Phil. 702, Jan. 24,
1922)
K. ADEQUATE LEGAL ASSISTANCE
AND FREE ACCESS TO COURTS
Free access to the courts and quasi-judicial bodies
and adequate legal assistance shall not be denied
to any person by reason of poverty. (PHIL. CONST.,
art. 3, § 11)
The new Constitution has expanded the right so that
in addition to giving free access to courts it now
guarantees free access also to "quasi judicial
bodies" and to "adequate legal assistance" as well.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
Those protected include low paid employees,
domestic servants and laborers. (Cabangis v.
Almeda Lopez, G.R. No. 47685, September 20,
1940)
‘Pauper’ vs. ‘Indigent’
They need not be persons so poor that they must be
suppored at public expense. "It suffices that plaintiff
is indigent... And the difference between 'paupers'
and 'indigent' persons is that the latter are 'persons
who have no property or sources of income
sufficient for their support aside from their own labor
though self-supporting when able to work and in
employment.'" (Acar v. Rosal, G.R. No. L-21707,
March 18,1967)
Indigent Party
A party may be authorized to litigate his action, claim
or defense as an indigent if the court, upon an ex
parte application and hearing, is satisfied that the
party is one who has no money or property sufficient
and available for food, shelter and basic necessities
for himself and his family.
Such authority shall include an exemption from
payment of docket and other lawful fees, and of
transcripts of stenographic notes which the court
may order to be furnished him. The amount of the
docket and other lawful fees which the indigent was
exempted from paying shall be a lien on any
judgment rendered in the case favorable to the
indigent, unless the court otherwise provides. (ROC,
Rule 3, § 21)
Indigent Litigants Exempt From Payment of
Legal Fees
Indigent litigants whose gross income and that of
their immediate family do not exceed an amount
double the monthly minimum wage of an employee;
and who do not own real property with a fair market
value as stated in the current tax declaration of more
than three hundred thousand (P300,000.00) pesos
shall be exempt from the payment of legal fees.
The legal fees shall be a lien on any judgment
rendered in the case favorable to the indigent litigant
unless the court otherwise provides.
To be entitled to the exemption herein provided, the
litigant shall execute an affidavit that he and his
immediate family do not earn a gross income
abovementioned, and they do not own any real
property with the fair value aforementioned,
supported by an affidavit of a disinterested person
attesting to the truth of the litigant’s affidavit. The
current tax declaration, if any, shall be attached to
the litigant’s affidavit. (ROC, Rule 141, § 19)
Matter of Right
If the applicant for exemption meets the salary and
property requirements under Section 19 of Rule
141, then the grant of the application is mandatory
and is a matter of right. (Algura v. The Local
Government Unit of the City of Naga G.R. No.
150135, Oct. 30, 2006)
Matter of Discretion
On the other hand, when the application does not
satisfy one or both requirements, then the
application should not be denied outright; instead,
the court should apply the "indigency test" under
Section 21 of Rule 3 – that the applicant has no
money or property sufficient and available for food,
shelter and basic necessities for himself and his
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an offense he is
suspected to have
committed
4. When a person
voluntarily
surrenders to the
police
The investigation is
being conducted by
the government with
respect to a criminal
offense (police, DOJ,
NBI)
3. Confessions made
by an accused at
the
time
he
voluntarily
surrendered to the
police or outside
the context of a
formal investigation
4. Statements made
to a private person
5. Signing of arrest
reports
and
booking sheets
Signing
and
possession of marked
money
When Rights End
The Criminal Process includes:
a. Investigation prior to the filing of charges
b. Preliminary examination and investigation
after charges are filed
c. Period of trial
RIGHTS OF A PERSON UNDER
CUSTODIAL INVESTIGATION
The Miranda doctrine requires that: (S3A)
1. Any person under custodial investigation has the
right to remain Silent;
2. Anything he says can and will be used Against
him in a court of law;
3. He has the right to talk to an Attorney before
being questioned and to have his counsel
present when being questioned; and
4. If he cannot Afford an attorney, one will be
provided before any questioning if he so desires.
(People v. Cabanada, G.R. No. 221424, July 19,
2017)
RIGHT TO REMAIN SILENT
If the individual is alone and indicates in any manner
that he does not wish to be interrogated, the police
may not question him. The mere fact that he may
have answered some questions or volunteered
some statements on his own does not deprive him
of the right to refrain from answering any further
inquiries until he has consulted with an attorney and
thereafter consents to be questioned. (Miranda v.
Arizona, 384 U.S. 436, Jun. 13, 1966)
Silence Not an Implied Admission of Guilt
Clearly, when appellant remained silent when
confronted by the accusation of "AAA" at the police
station, he was exercising his basic and
fundamental right to remain silent. At that stage, his
silence should not be taken against him. Thus, it
was error on the part of the trial court to state that
appellant’s silence should be deemed as implied
admission of guilt. (People v. Guillen, G.R. No.
191756, Nov. 25, 2013)
A person under investigation has the right to refuse
to answer any question. His silence, moreover, may
not be used against him. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009)
Must Include an Explanation that Anything Said
Can and Will be Used Against Him
The warning of the right to remain silent must be
accompanied by the explanation that anything said
can and will be used against the individual in court.
This warning is needed in order to make him aware
not only of the privilege, but also of the
consequences of forgoing it. (Miranda v. Arizona,
384 U.S. 436, June 13, 1966)
RIGHT TO COMPETENT AND
INDEPENDENT COUNSEL
Purpose
The right to counsel at all times is intended to
preclude the slightest coercion as would lead the
accused to admit something false. The lawyer,
however, should never prevent an accused from
freely and voluntarily telling the truth. (People v.
Mojello, G.R. No. 145566, March 9, 2004)
Being independent refers to those who do not have
an adverse interest to that of the accused. (Bernas,
The 1987 Philippine Constitution: A Comprehensive
Reviewer, 2011)
Moreover, being independent does not mean that
the choice of a lawyer by a person under
investigation is exclusive as to preclude other
equally competent and independent attorneys from
handling the defense. (People v. Mojello, G.R. No.
145566, March 9, 2004)
Non-Independent Counsel
The Constitution further requires that the counsel be
independent; thus, he cannot be:
a. A special counsel
b. Public or private prosecutor
c. Counsel of the police
d. A municipal attorney whose interest is
admittedly adverse to that of the accused
e. Barangay captain
f. Lawyer applying for a position in the NBI
where it was NBI conducting the
investigation (People v. Reyes, G.R. No.
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178300, March 17, 2009; People v.
Tomaquin, G.R. No. 133188, July 23, 2004;
People v. Januario, G.R. No. 98252, Feb.
7, 1997)
Competent Counsel: Effective and Vigilant
A competent counsel is an effective and vigilant
counsel. An "effective and vigilant counsel"
necessarily and logically requires that the lawyer be
present and able to advise and assist his client from
the time the confessant answers the first question
asked by the investigating officer until the signing of
the extrajudicial confession. (People v. Tomaquin,
G.R. No. 133188, July 23, 2004)
Mandatory; Must be Provided if Person Cannot
Afford
The right to counsel is mandatory. Thus, if the
person under custodial investigation cannot afford
the services of a competent and independent
counsel, he must be provided with one. (PHIL.
CONST., art. III, § 12[1])
Counsel of Choice Not Exclusive
The right to counsel does not mean that the accused
must personally hire his own counsel. The
constitutional requirement is satisfied when a
counsel is:
1. Engaged by anyone acting on behalf of the
person under investigation; or
2. Appointed by the court upon petition of the said
person or by someone on his behalf. (People v.
Espiritu, G.R. No. 128287, Feb. 2, 1999)
The phrase "preferably of his own choice" does not
convey the message that the choice of a lawyer by
a person under investigation is exclusive as to
preclude other equally competent and independent
attorneys from handling the defense; otherwise the
tempo of custodial investigation will be solely in the
hands of the accused who can impede, nay,
obstruct the progress of the interrogation by simply
selecting a lawyer who, for one reason or another,
is not available to protect his interest. (People v.
Mojello, G.R. No. 145566, March 9, 2004)
The Miranda rights or the Section 12(1) rights were
conceived for the first of these three phases, that is,
when the inquiry is under the control of police
officers. It is in this situation that the psychological if
not physical atmosphere of custodial investigations,
in the absence of proper safeguards, is inherently
coercive. Outside of this situation, Section 12(1) no
longer applies and Sections 14 and 17 come into
play instead. (Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009)
RIGHT TO BE INFORMED OF HIS RIGHTS
The right to be informed of his rights is more than
the routine-reading out of the rights. It implies a
correlative obligation on the part of the police
investigator to explain, and contemplates an
effective
communication
that
results
in
understanding what is conveyed. Short of this, there
is a denial of the right, as it cannot be said that the
person has been informed of his right. (Bernas, The
1987 Constitution of the Republic of the Philippines,
2009)
Prior to any questioning, the person must be warned
that he has a right to remain silent, that any
statement he does make may be used as evidence
against him, and that he has a right to the presence
of an attorney, either retained or appointed. The
defendant may waive effectuation of these rights,
provided the waiver is made voluntarily, knowingly
and intelligently. If, however, he indicates in any
manner and at any stage of the process that he
wishes to consult with an attorney before speaking,
there can be no questioning. (Miranda v Arizona,
384 U.S. 436, Jun. 13, 1966)
1. REQUISITES OF A VALID WAIVER
The rights of persons under custodial investigation
cannot be waived except:
1. In writing; and
2. In the presence of counsel. (PHIL. CONST., art.
III, § 12[1])
R.A. 7438 Extrajudicial Confession (Sec. 2)
Any extrajudicial confession made by a person
arrested, detained or under custodial investigation:
1. Shall be in writing; and
2. Signed by such person in the presence of his
counsel or in the latter's absence:
a. Upon a valid waiver, and
b. In the presence of any of the following as
chosen by him/her:
1. Parents
2. Elder brothers and sisters
3. Spouse
4. Municipal mayor
5. Municipal judge
6. District school supervisor
7. Priest or minister of the gospel
RA 7438 does not propose that the persons
mentioned above appear in the alternative or as a
substitute for counsel without any condition or
clause. It is explicitly stated therein that before the
above-mentioned persons can appear two (2)
conditions must be met:
1. Counsel of the accused must be absent, and
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inadmissible only the extrajudicial confession or
admission made during custodial investigation."
Here, appellant's conviction was based not on his
alleged uncounseled confession or admission but
on the testimony of the prosecution witness. (People
v. Bio, G.R. No. 195850, Feb. 16, 2015)
However, there is merit in Juanito’s claim that his
constitutional rights during custodial investigation
were violated by Judge Dicon when the latter
propounded to him incriminating questions without
informing him of his constitutional rights. It is settled
that at the moment the accused voluntarily
surrenders to, or is arrested by, the police officers,
the custodial investigation is deemed to have
started. So, he could not thenceforth be asked about
his complicity in the offense without the assistance
of counsel. Judge Dicon’s claim that no complaint
has yet been filed and that neither was he
conducting a preliminary investigation deserves
scant consideration. The fact remains that at that
time Juanito was already under the custody of the
police authorities, who had already taken the
statement of the witnesses who were then before
Judge Dicon for the administration of their oaths on
their statements. At any rate, while it is true that
Juanito’s extrajudicial confession before Judge
Dicon was made without the advice and assistance
of counsel and hence inadmissible in evidence, it
could however be treated as a verbal admission of
the accused, which could be established through the
testimonies of the persons who heard it or who
conducted the investigation of the accused. (People
v. Baloloy, G.R. No. 140740, April 12, 2002)
Applicable to Accused Aliens
The fact that all accused are foreign nationals does
not preclude application of the "exclusionary rule"
because the constitutional guarantees embodied in
the Bill of Rights are given and extend to all persons,
both aliens and citizens.(People v. Wong Chien
Ming, G.R. Nos. 112801-11, Apr. 12, 1996)
Exclusionary Rule Not Applicable to the
Violator of the Right
The constitutional provision makes the confessions
and admissions inadmissible “against him,” that is,
against the source of the confession or admission.
And it is he alone who can ask for exclusion. They
are, however, admissible against the person
violating the constitutional prohibition, to the extent
that admissibility is allowed by the ordinary rules on
evidence. (Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009)
Inter Alios Acta Rule
General Rule: An extrajudicial confession is binding
only on the confessant and is not admissible against
his or her co-accused because it is considered as
hearsay against them. The rights of a party cannot
be prejudiced by an act, declaration, or omission of
another.
Exception: An admission made by a conspirator
under Section 31, Rule 130 of the Rules of Court.
This provision states that the act or declaration of a
conspirator in furtherance of the conspiracy and
during its existence may be given in evidence
against the co-conspirator after the conspiracy is
shown by evidence other than such act of
declaration. It is admissible against a co-accused
when it is used as circumstantial evidence to show
the probability of participation of said co-accused in
the crime.
Thus, in order that the admission of a conspirator
may be received against his or her co-conspirators,
it is necessary that:
a. The conspiracy be first proved by evidence
other than the admission itself;
b. The admission relates to the common
object; and
c. It has been made while the declarant was
engaged in carrying out the conspiracy.
(People v. Cachuela, G.R. No. 191752,
June 10, 2013)
In order that an extra-judicial confession may be
used against a co-accused of the confessant, there
must be a finding of other circumstantial evidence
which when taken together with the confession
would establish the guilt of a co-accused beyond
reasonable doubt. (People v. Constancio, G.R. No.
206226, April 04, 2016)
Even after charges are filed, the police may still
attempt to extract extrajudicial confessions or
admissions outside judicial supervision. For this
reason, Section 12(1) still applies. (Bernas, The
1987 Constitution of the Republic of the Philippines,
2009)
M. RIGHTS OF THE ACCUSED
1.
All persons, except those charged with
offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient
sureties, or be released on recognizance
as may be provided by law. The right to bail
shall not be impaired even when the
privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be
required. (PHIL. CONST., art. 3, § 13)
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2.
3.
POLITICAL LAW & PUBLIC INTERNATIONAL LAW
No person shall be held to answer for a
criminal offense without due process of law.
In all criminal prosecutions, the accused
shall be presumed innocent until the
contrary is proved, and shall enjoy the right
to be heard by himself and counsel, to be
informed of the nature and cause of the
accusation against him, to have a speedy,
impartial, and public trial, to meet the
witnesses face to face, and to have
compulsory process to secure the
attendance of witnesses and the production
of evidence in his behalf. However, after
arraignment,
trial
may
proceed
notwithstanding the absence of the
accused provided that he has been duly
notified and his failure to appear is
unjustifiable. (PHIL. CONST., art. 3, § 14)
Rights of the Accused [D-BIH-CIS-CPA]
a. Criminal due process
b. Bail
c. Presumption of innocence
d. Right to be heard
e. Assistance of counsel
f. Right to be informed of the nature and
cause of accusation
g. Right to speedy, impartial, and public trial
h. Right to confrontation
i. Compulsory process
j. Trials in absentia
1. CRIMINAL DUE PROCESS
Concept
As to procedural due process, the requirement that
no person shall be held to answer for a criminal
offense without due process of law simply requires
that the procedure established by law be followed. If
that procedure fully protects life, liberty and property
of the citizens in the state, then it will be held to be
due process of law. (U.S. v. Ocampo, G.R. No. L5527, Dec. 22, 1910)
This presupposes that the penal law being applied
satisfies the substantive requirements of due
process. (Bernas, The 1987 Philippine Constitution:
A Comprehensive Reviewer, 2011)
In criminal proceedings then, due process is
satisfied if the accused is "informed as to why he is
proceeded against and what charge he has to meet,
with his conviction being made to rest on evidence
that is not tainted with falsity after full opportunity for
him to rebut it and the sentence being imposed in
accordance with a valid law. It is assumed, of
course, that the court that rendered the decision is
one of competent jurisdiction." (Nunez v.
Sandiganbayan, G.R. Nos. L-50581-50617, Jan. 30,
1982)
Another aspect of due process is the right to be tried
by an impartial judge (cold neutrality of an
independent, wholly-free, disinterested and
impartial tribunal). (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011).
There must be allegation and proof that the judges
have been unduly influenced, not simply that they
might be, by the barrage of publicity because the
subliminal effects of publicity are basically
unbeknown and beyond knowing. (Bernas, The
1987 Constitution of the Republic of the Philippines,
2009)
Right to Appeal
The right to appeal is not a natural right or a part of
due process; it is merely a statutory privilege, and
may be exercised only in the manner and in
accordance with the provisions of law. (Manila
Mining Corp. v. Amor, G.R. No. 182800, April 20,
2015)
Due Process and Military Tribunal
A military commission or tribunal cannot try and
exercise jurisdiction, even during the period of
martial law, over civilians for offenses allegedly
committed by them as long as civil courts are open
and functioning, and that any judgement rendered
by such body relating to a civilian is null and void for
lack of jurisdiction on the part of the military tribunal
concerned. (Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009)
1. BAIL
Concept
Bail is the security given for the release of a person
in custody of the law, furnished by him or a
bondsman, to guarantee his appearance before any
court as required under the conditions hereinafter
specified. Bail may be given in the form of corporate
surety; property bond, cash deposit, or
recognizance. (ROC, Rule 114, § 1)
Purpose
To honor the presumption of innocence until his guilt
is proven beyond reasonable doubt
To enable him to prepare his defense without being
subjected to punishment before conviction (Cortes
v. Catral, A.M. No. RTJ-97-1387, Sept. 10, 1997)
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The main purpose of bail is to relieve an accused
from the rigors of imprisonment until his conviction
and secure his appearance at the trial. Thus, as bail
is intended to secure one’s provisional liberty, the
same cannot be posted before custody over him has
been acquired by the judicial authorities, either by
lawful arrest or voluntary surrender. Only those who
have been either arrested, detained, or otherwise
deprived of their freedom, will ever have the
occasion to seek the protective mantle extended by
the right to bail. But the person seeking provisional
release need not wait for a formal complaint or
information to be filed against him. (Paderanga v.
Court of Appeals, G.R. No. 115407, Aug. 28, 1995)
General Rule: All persons actually detained
shall, before conviction be entitled to bail. (PHIL.
CONST., art. 3, § 13).
Since bail is constitutionally available to “all
persons”, it must be available to one who is detained
even before formal charges are filed.
Exceptions:
a.
Persons charged with offenses punishable
by reclusion perpetua, life imprisonment
and death, when evidence of guilt is strong
For the purpose of determining whether an
offense is punishable by reclusion
perpetua, what is determinative is the
penalty provided for by law regardless of
the attendant circumstances.
To require more than that would practically
entail a full-dress trial thereby defeating the
purpose of bail which is to enable the
accused to obtain liberty pending trial.
Strong evidence means “proof evident” or
“presumption great.”
b.
Persons who are members of the AFP
facing a court martial
Trial Court Conviction
If convicted by the trial court, bail is only
discretionary pending appeal (Magno v. Abbas,
G.R. No. L-19361, Feb.y 26, 1965; Comendador, et
al. v. Villa, G.R. No. 93177, Aug. 2, 1991)
When a person who is out on bail is convicted, the
bondsman must surrender him for execution of the
final judgement. (ROC, Rule 114, § 2[d])
Under Section 13, Article 3, Before Conviction,
Bail is Either:
1.
A matter of right: When the offense
charged is punishable by any penalty lower
than reclusion perpetua. To this extent, the
right is absolute.
2.
A matter of discretion: When the offense
charged is punishable by reclusion
perpetua, it shall be denied if the evidence
of guilt is strong. Once it is determined that
the evidence of guilt is not strong, bail
becomes a matter of right. (People v.
Nitcha, G.R. No. 113517, Jan. 19, 1995)
Discretion refers to the court’s discretion to
determine whether or not the evidence of guilt is
strong.
Do not confuse interpretation of Bail under Bill of
Rights with the interpretation of Bail under Rule 114
of the Revised Rules of Criminal Procedure as to:
a. Bail as a Matter of Right (Sec 4),
b. Bail as a Matter of Discretion (Sec 5),
c. Non-Bailable offenses (Sec 7).
Strong Evidence Means Evident Proof or
Presumption is Great
Evident proof means clear, strong evidence which
leads a well-guarded dispassionate judgment to the
conclusion that the offense has been committed as
charged, and that the accused is the guilty agent.
Presumption is great when the circumstances
testified to are such that the inference of guilt
naturally to be drawn therefrom is strong, clear, and
convincing to an unbiased judgment and excuses all
reasonable probability of any other conclusion.
(People v. Judge Cabral, G.R. No. 131909, Feb. 18,
1999)
Since the grant of bail is discretionary and can only
be determined by judicial findings, such discretion
can only be exercised after evidence is submitted to
the court, the petitioner has the right of cross
examination and to introduce his own evidence in
rebuttal. (Santos v. Judge How, A.M. No. RTJ-051946, Jan. 26, 2007)
Bail is a matter of right when the offense charged is
punishable by any penalty lower than reclusion
perpetua (Art. III, Sec 13, 1987 Constitution). Bail
becomes a matter of discretion if the offense
charged is punishable by death, reclusion perpetua,
or life imprisonment. Consequently, bail will be
denied if the evidence of guilt presented by the
prosecution is strong (Art. III, Sec. 7, 1987
Constitution). In this case, X is charged with
violating Sec. 5 Art. II of RA 9165, which is
punishable by life imprisonment. Hence, X’s bail
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becomes a matter of judicial discretion if the
evidence of his guilt is not strong.
When bail is discretionary, the trial court must
conduct bail hearings to determine whether the
evidence of guilt of the accused is strong. During the
bail hearings, the prosecution has the burden of
proof. The court’s grant or denial of the bail
application must contain a summary of the
prosecution’s evidence which should be the basis of
the judge in its conclusion in determining the weight
of the evidence of the accused's guilt. The
jurisprudential standard on providing a summary of
the prosecution’s evidence entails that the summary
of the evidence presented during the prior hearing is
formally recognized as having been presented and,
most importantly, considered. A summary is
necessarily a reasonable recital of any evidence
presented by the prosecution. An incomplete
enumeration or selective inclusion of pieces of
evidence cannot be considered a summary (People
v. Tanes y Belmonte, G.R. No. 240596, April 3,
2019)
Health Considerations
A mere claim of illness is not a ground for bail. Bail
is not a sick pass for an ailing or aged detainee or
prisoner needing medical care outside the prison
facility. (People v. Fitzgerald, G.R. No. 149723, Oct.
27, 2006)
BUT SEE: The currently fragile state of Enrile’s
health presents another compelling justification for
his admission to bail.
Bail for the provisional liberty of the accused,
regardless of the crime charged, should be allowed
independently of the merits of the charge, provided
his continued incarceration is clearly shown to be
injurious to his health or to endanger his life. Indeed,
denying him bail despite imperiling his health and
life would not serve the true objective of preventive
incarceration during the trial.
b.
He has voluntarily submitted himself to the
jurisdiction of the court by surrendering to
the proper authorities.
The Court held that when the person has actually
posted a bail bond, which was accepted by the
court, he has effectively submitted himself to the
jurisdiction of the court over his person. (Paderanga
v. Court of Appeals, G.R. No. 115407, Aug. 28,
1995)
Other Rights in Relation to Bail:
1.
2.
The right to bail shall not be impaired even
when the privilege of the writ of habeas
corpus is suspended
Excessive bail shall not be required (PHIL.
CONST., art. 3, § 13).
Factors to be considered in setting the amount
of bail: (F3P3 CAWN)
a. Financial Ability of the accused to give bail
b. Forfeiture of other bail
c. The accused was a Fugitive from justice
when arrested
d. Probability of the accused appearing at
the trial
e. Penalty for the offense charged
f. Pendency of other cases where the
accused is on bail
g. Character and reputation of the accused
h. Age and health of the accused
i. Weight of the evidence against the
accused
j. Nature and circumstance of the offense
(ROC, Rule 114, § 9)
Where the right to bail exists, it should not be
rendered nugatory by requiring a sum that is
excessive. (De La Camara v. Enage, G.R. Nos. L32951-2, Sept. 17, 1971)
Accordingly, we conclude that the Sandiganbayan
arbitrarily ignored the objective of bail to ensure the
appearance of the accused during the trial; and
unwarrantedly disregarded the clear showing of the
fragile health and advanced age of Enrile. As such,
the Sandiganbayan gravely abused its discretion in
denying Enrile’s Motion to Fix Bail. (Juan Ponce
Enrile v. Sandiganbayan, G.R. No. 213847, Aug. 18,
2015)
To fix bail at an amount equivalent to the civil liability
of which petitioner is charged is to permit the
impression that the amount paid as bail is an
exaction of the civil liability that accused is charged
of; this we cannot allow because bail is not intended
as a punishment, nor as a satisfaction of civil liability
which should necessarily await the judgment of the
appellate court. (Yap v. CA, G.R. 141529, June 6,
2001)
A person is considered to be “in the custody of
law” when:
a. He is arrested by virtue of a warrant of
arrest or by warrantless arrest.
Courts Cannot Strictly Require Cash Bond
The condition that the accused may have
provisional liberty only upon his posting of a cash
bond is abhorrent to the nature of bail and
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transgresses our law on the matter. The allowance
of a cash bond in lieu of sureties is authorized in this
jurisdiction only because our rules expressly provide
for it. And even where cash bail is allowed, the
option to deposit cash in lieu of a surety bond
primarily belongs to the accused.
Recognizance
An obligation of record entered into before a court
guaranteeing the appearance of the accused for
trial. It is in the nature of a contract between the
surety and the state. The details on how
recognizance can be obtained or when it is
applicable is left to legislation. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009)
Apart from bail, a person may attain provisional
liberty through recognizance, which is an obligation
of record entered into by a third person before a
court, guaranteeing the appearance of the accused
for trial. It is in the nature of a contract between the
surety and the state. (People v. Abner, G.R. No. L2508, Oct. 27, 1950)
Dismissal of Appeal in Criminal Cases Due to
Jumping of Bail
The Court of Appeals/Supreme Court may, upon
motion of the appellee or motu proprio, dismiss the
appeal if the appellant:
a. If appellant escapes from prison or
confinement;
b. If appellant jumps bail; or
c. If appellant flees to another country during
the pendency of the appeal (ROC, Rule
124, § 8; Rule 125, § 1)
Bail in Deportation Proceedings
As a general rule, the constitutional right to bail is
available only in criminal proceedings. Thus, they do
not apply in deportation proceedings, which are
administrative in nature. However, see Mejoff v.
Director of Prisons, where the court applied the
general principles of international law found in the
UDHR and ordered released under a bond in a
Habeas Corpus petition. (Bernas, The 1987
Philippine
Constitution:
A
Comprehensive
Reviewer, 2011)
Bail in Extradition Cases
Our extradition law does not provide for the grant of
bail to an extraditee. There is no provision
prohibiting him or her from filing a motion for bail, a
right to due process under the Constitution.
However, an extradition proceeding, while
ostensibly administrative, bears all earmarks of a
criminal process. A potential extraditee may be
subject to arrest, to a prolonged restraint of liberty,
and forced to transfer to the demanding state
following the proceedings.
The standard used in granting bail in extradition
cases is “clear and convincing evidence.” This
standard should be lower than proof beyond
reasonable doubt but higher than preponderance of
evidence.
The potential extraditee must prove by “clear and
convincing evidence” that:
a. he is not a flight risk and will abide with all
the orders and processes of the extradition
court, and
b. that there exist special, humanitarian, and
compelling reasons for him to be released
on bail. (Government of Hong Kong v.
Olalia, Jr., G.R. No.153675, April 19, 2007)
Right to Bail of Military Personnel
Tradition has recognized the non-existence of the
right to bail because of the disciplinary structure of
the military and because soldiers are allowed the
fiduciary right to bear arms and can therefore cause
great havoc. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011).
Right to a Hearing
In cases where the accused is charged with an
offense punishable by reclusion perpetua, a
hearing, mandatory in nature and which should be
summary or otherwise in the discretion of the court,
is required with the participation of both the defense
and a duly notified representative of the prosecution
for the purpose of ascertaining whether or not the
evidence of guilt is strong.
The constitutional right to bail necessarily includes
the right to a hearing. When bail is denied without a
hearing, a fundamental right is violated. Hence, the
presentation of evidence for the prosecution in
private inquiry, in the absence of the detainee, and
the subsequent issuance of an order on the basis of
the private inquiry, cannot be allowed. The hearing,
however, need not be separate and distinct from the
trial itself. And it need only be summary. The right to
a prompt hearing is waived by agreeing to
postponements.
Parallel to the accused’s right to a hearing is the
prosecution’s right to present evidence. If the
prosecution is denied such right, the grant of bail is
void. (Bernas, The 1987 Constitution of the Republic
of the Philippines, 2009)
2. PRESUMPTION OF INNOCENCE
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Concept
Its principal effect is that no person shall be
convicted unless the prosecution has proved him
guilty beyond reasonable doubt. (Bernas, The 1987
Constitution: A Comprehensive Reviewer, 2011)
Petitioner, which is a corporate entity, has no
personality to invoke the right to be presumed
innocent which right is available only to an individual
who is an accused in a criminal case (Feeder
International Line v. CA, G.R. 94262, May 31, 1991).
Prima Facie Presumption
The Constitution does not prohibit the legislature
from providing that proof of certain facts leads to a
prima facie presumption of guilt, provided that the
facts proved have a reasonable connection to the
ultimate fact presumed. (U.S. v Luling, G.R. No. L11162, Aug. 12, 1916)
Accusation Not Synonymous With Guilt
An accusation, according to the fundamental law, is
not synonymous with guilt. The challenged proviso
(par. 2, § 4 of BP Blg. 52) contravenes the
constitutional presumption of innocence, as a
candidate is disqualified from running for public
office on the ground alone that charges have been
filed against him before a civil or military tribunal. It
condemns before one is fully heard. A person
disqualified to run for public office on the ground that
charges have been filed against him is virtually
placed in the same category as a person already
convicted of a crime with the penalty of arresto,
which carries with it the accessory penalty of
suspension of the right to hold office during the term
of the sentence. (Dumlao v. COMELEC, G.R. No. L52245, Jan. 22, 1980)
Conviction in Illegal Drugs Cases
To convict an accused of the illegal sale of
dangerous drugs, the prosecution must not only
prove that the sale took place, but also present the
corpus delicti in evidence. The only time that
conviction may be sustain despite noncompliance
with the chain of custody requirements is if there
were justifiable grounds provided. Before the courts
may consider the seized drugs as evidence despite
noncompliance with the legal requirements,
justifiable grounds must be identified and proven.
The prosecution must establish the steps taken to
ensure that the integrity and evidentiary value of the
seized items were preserved. It is the positive duty
to establish its reason for the procedural lapses.
(People v. Ternida y Munar, G.R. No. 212626, June
3, 2019)
Both the RTC and CA seriously overlooked the longstanding legal tenet that the starting point of every
criminal prosecution is that the accused has the
constitutional right to be presumed innocent. This
presumption of innocence is overturned only when
the prosecution has discharged its burden of proof
in criminal cases that it has proven the guilt of the
accused beyond reasonable doubt, with each and
every element of the crime charged in the
information proven to warrant a finding of guilt for
that crime or for any other crime necessarily
included therein.
This burden of proof never shifts. The accused can
simply rely on his right to be presumed innocent. It
is thus immaterial, in this case or in any other cases
involving dangerous drugs, that the accused put
forth a weak defense.
The prosecution therefore, in cases involving
dangerous drugs, always has the burden of proving
compliance with RA 9165, which lays down the
procedure that police operatives must follow to
maintain the integrity of the confiscated drugs used
as evidence. In this case, there were far too many
unexplained absences in the procedure: the time
and place in the markings on the sachets, certificate
of inventory, pictures during the actual buy-bust
operation, inventory of the evidence and witnesses
present. The chain of custody was clearly broken.
The Court cannot presume that the accused
committed the crimes they have been charged with
as the State must fully establish that. Nor can the
Court shirk from their responsibility of protecting the
liberties of our citizenry just because the lawmen are
shielded by the presumption of the regularity of their
performance of duty. This by no means defeats the
much stronger presumption of innocence in favor of
every person whose life, property and liberty comes
under the risk of forfeiture on the strength of a false
accusation of committing some crime. When
catching drug pushers, police officers must always
be advised to do so within the bounds of the law.
With the chain of custody having been
compromised, the X deserves acquittal as his right
to the presumption of innocence has not been
overturned. (People vs. Dagdag, G.R. No. 225503,
Jun. 26, 2019)
The presumption of regularity in the performance of
duty cannot overcome the stronger presumption of
innocence in favor of the accused. The right of the
accused to be presumed innocent until proven guilty
is a constitutionally protected right; therefore, the
burden lies with the prosecution to prove the
accused’s guilt beyond reasonable doubt. In this
case, the prosecution failed to prove the corpus
delicti of the crimes of sale and possession of illegal
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drugs due to unexplained breaches of procedure
committed by the buy-bust team in the seizure,
custody, and handling of the seized drugs. Given the
fact that a buy-bust operation is a planned
operation, it is questionable why the buy-bust team
could not have ensured the presence of the required
witnesses pursuant to Sec 21, Art II of RA 9165, or
at the very least marked, photographed, and
inventoried the seized items immediately after
seizure or confiscation. In other words, the
prosecution was not able to overcome the
presumption of innocence of X. (People v. Fulinara
y Fabelania, G.R. No. 237975, Jun. 19, 2019)
Continues Pending Appeal
Presumption of innocence persists even when there
is conviction by lower court and case is still on
appeal. Such presumption is not destroyed until
there is proof that accused is guilty beyond
reasonable doubt based on evidence. (Bernas, The
1987 Constitution: A Comprehensive Reviewer,
2011)
Equipoise Rule
Where the evidence in a criminal case is evenly
balanced, the constitutional presumption of
innocence tilts the scales in favor of the accused.
(People v. Erguiza, G.R. No. 171348, Nov. 26 2008)
Anti-Hazing Law
Section 14 of the Anti-Hazing Law provides that an
accused's presence during a hazing is prima facie
evidence of his or her participation. However, this
does not violate the constitutional presumption of
innocence. The constitutional presumption of
innocence is not violated when there is a logical
connection between the fact proved and the ultimate
fact presumed. When such prima facie evidence is
unexplained or not contradicted by the accused, the
conviction founded on such evidence will be valid.
However, the prosecution must still prove the guilt
of the accused beyond reasonable doubt. The
existence of a disputable presumption does not
preclude the presentation of contrary evidence.
Neither has it been shown how Section 14 does
away with the requirement that the prosecution must
prove the participation of the accused in the hazing
beyond reasonable doubt. (Fuertes v. Senate of the
Philippines, G.R. No. 208162, Jan. 07, 2020)
3. RIGHT TO BE HEARD
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. (PHIL. CONST., art. 3, § 14(2)).
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. (PHIL. CONST., art. 3, § 12(1)).
The accused must be 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, April 21, 1999)
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, Feb
1, 2012)
Nevertheless, a party is not compelled to speak if it
chooses to be silent. If it avails itself of the right to
be heard, well and good; but if not, that is also its
right. In the latter situation, however, it cannot later
complain that, because it was not heard, it was
deprived of due process. (Stronghold Insurance Co.,
Inc. v. CA, G.R. No. 88050, Jan 30, 1992
4. RIGHT TO COUNSEL
In criminal cases, the right of an accused person to
be assisted by a member of the bar is immutable.
Otherwise, there would be a grave denial of due
process. Thus, even if the judgment had become
final and executory, it may still be recalled, and the
accused afforded the opportunity to be heard by
himself and counsel.
The right to counsel is absolute and may be invoked
at all times. More so, in the case of an on-going
litigation, it is a right that must be exercised at every
step of the way, with the lawyer faithfully keeping his
client. (Telan v. CA, G.R. No. 95026 Oct. 4, 1991)
Duty of Court to Inform Accused of his Right to
Counsel
a. Inform accused that he has the right to have
his own counsel before being arraigned;
b. After giving such information, to ask
accused whether he desires the aid of
counsel;
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c.
d.
POLITICAL LAW & PUBLIC INTERNATIONAL LAW
If he so desires to procure the services of
counsel, the court must grant him
reasonable time to do so; and
If he so desires to have counsel but is
unable to employ one, the court must
assign a counsel de officio to defend him.
(People v. Agbayani, G.R. No. 122770, Jan
16, 1998) (ROC, Rule 116, § 6)
The right to counsel of an accused is guaranteed by
our Constitution, our laws and our Rules of Court.
During custodial investigation, arraignment, trial and
even on appeal, the accused is given the option to
be represented by a counsel of his choice. But when
he neglects or refuses to exercise this option during
arraignment and trial, the court shall appoint one for
him. While the right to be represented by counsel is
absolute, the accused's option to hire one of his own
choice is limited. (People v. Serzo, G.R. No.
118435, June 20, 1997)
When an accused unaided by counsel qualifiedly
admits his guilt to an ambiguous or vague
information from which a serious crime can be
deduced, it is not prudent for the trial court to render
a serious judgment finding the accused guilty of a
capital offense without absolutely any evidence to
determine and clarify the true facts of the case.
(People v. Holgado, G.R. No. L-2809, March 22,
1950)
Waiver
Accused persons are perfectly entitled to waive
[their right to counsel] and they may defend
themselves in person. The law expressly authorizes
them to defend themselves in person, without the
assistance of counsel. It is understood, of course,
that they waive their right to be assisted by counsel
when they not only do not appoint or request one,
but voluntarily submit to trial, and especially when
they actually exercise therein the right of defense by
cross-examining the witnesses for the prosecution
and by introducing evidence in their own behalf. (US
v. Go Leng, G.R. No. 6707, February 8, 1912)
5. RIGHT TO BE INFORMED OF THE
NATURE AND CAUSE OF
ACCUSATION
Purpose
a. To furnish the accused with a description of
the charge against him as will enable him
to make his defenses.
b. To avail himself of his conviction or
acquittal against a further prosecution for
the same cause.
To inform the court of the facts alleged. (U.S. v.
Karelsen, G.R. No. 1376, Jan. 21, 1904)
Sufficiency of Complaint or Information
A complaint or information is sufficient if it states the:
1. Name of the accused;
2. Designation of the offense given by the statute;
3. Acts or omissions complained of as constituting
the offense;
4. Name of the offended party;
5. Approximate date of the commission of the
offense; and
6. Place where the offense was committed.
When an offense is committed by more than one
person, all of them shall be included in the complaint
or information. (ROC, Rule 110, § 6)
If the information fails to allege the material
elements of the offense, the accused cannot be
convicted thereof even if the prosecution is able to
present evidence during the trial with respect to
such elements.
The real nature of the crime charged is determined
from the recital of facts in the information. It is not
based on the caption, preamble or from the cited
provision of law allegedly violated. (People v.
Labado, G.R. No. L-38548, July 24, 1980)
In a situation where a court (in a fused action for the
enforcement of criminal and civil liability) may validly
order an accused-respondent to pay an obligation
arising from a contract, a person’s right to be notified
of the complaint, and the right to have the complaint
dismissed if there is no cause of action, are
completely defeated. If the accused-respondent is
completely unaware of the nature of the liability
claimed against him or her at the onset of the case,
he is blindsided. It is a clear violation of a person's
right to due process. (Gloria S. Dy v. People of the
Philippines, GR No. 189081, August 10, 2016)
Qualifying and Aggravating Circumstances
Must be Alleged
The complaint or information shall state the
designation of the offense given by the statute, aver
the acts or omissions constituting the offense, and
specify
its
qualifying
and
aggravating
circumstances. If there is no designation of the
offense, reference shall be made to the section or
subsection of the statute punishing it. (ROC, Rule
110, § 8)
Since the qualifying circumstance of “common law
spouse” was not alleged in the Information for rape
against appellant, he could not be convicted of rape
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in the qualified form as he was not properly informed
of the nature and cause of accusation against him.
In a criminal prosecution, it is a fundamental rule
that every element of the crime charged must be
alleged in the complaint or information. (People v.
Begino, G.R. No. 181246, March 20, 2009)
Date of Commission of the Crime
General Rule: It is unnecessary to state in the
information the precise date that the offense was
committed
Exception: When it is an essential element of the
offense. (People v. Bugayong, G.R. No. 126518,
Dec. 2, 1998)
When the time given in the complaint is not
essential, it need not be proven as alleged. The
complaint will be sustained if there is proof that the
offense was committed at any time within the period
of the statute of limitations and before the
commencement of the action. The date of
commission is not an element of rape. The
gravamen of rape is carnal knowledge of a woman.
(People v. Rafon, G.R. No. 169059, Sept. 5, 2007)
The Supreme Court has upheld complaints and
information in prosecutions for rape which merely
alleged the month and year of its commission.
(People v. Ching, G.R. No. 177150, Nov. 22, 2007)
Waiver
The right to assail the sufficiency of the information
or the admission of evidence may be waived by the
accused-appellant. An information which lacks
certain essential allegations may still sustain a
conviction when the accused fails to object to its
sufficiency during the trial, and the deficiency was
cured by competent evidence presented therein.
(People v. Palarca G.R. No. 146020, May 29, 2002)
6. RIGHT TO SPEEDY, IMPARTIAL
AND PUBLIC TRIAL
b. Right to Speedy Trial
Factors Used in Determining Whether the Right
to a Speedy Trial Has Been Violated: (TL-RAP)
1. Time expired from the filing of the information
2. Length of delay involved
3. Reasons for the delay
4. Assertion or non-assertion of the right by the
accused
5. Prejudice caused to the defendant (Bernas, The
1987 Constitution: A Comprehensive Reviewer
2011)
The test of violation of the right to speedy trial has
always been to begin counting the delay from the
time the information is filed, not before the filing. The
delay in the filing of the information, which in the
instant case has not been without reasonable
cause, is therefore not to be reckoned with in
determining whether there has been a denial of the
right to speedy trial. (Martin v. General Fabian Ver,
G.R. No. L-62810 July 25, 1983)
Trial includes hearing, reception of evidence and
other processes, such as decision in the first
instance, appeal and final executory decision in the
last instance. (Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009)
Remedy if the Right to Speedy Trial was
violated:
a. He can move for the dismissal of the case
b. If he is detained, he can file a petition for
the issuance of writ of habeas corpus.
(Bernas, The 1987 Constitution: A
Comprehensive Reviewer, 2011)
The right to speedy trial is considered violated only
when the proceeding is attended by vexatious,
capricious and oppressive delays. Courts are
required to do more than a mathematical
computation of the number of postponements of the
scheduled hearings of the case and to give
particular regard to the facts and circumstances
peculiar to each case. (Nelson Imperial, et al. v.
Maricel M. Joson, et al.; Santos O. Francisco v.
Spouses Gerard and Maricel Joson Nelson;
Imperial, et al. v. Hilarion C. Felix, et al., G.R. Nos.
160067, 170410, 171622, Nov. 17, 2010)
Where a prosecuting officer, without good cause,
secures postponements of the trial of a defendant
against his protest beyond a reasonable period of
time, as in this instance for more than a year, the
accused is entitled to relief by a proceeding in
mandamus to compel a dismissal of the information,
or if he be restrained of his liberty, by habeas corpus
to obtain his freedom. (Conde v. Rivera, G.R. No. L21741, Jan. 25, 1924)
Dismissal Based on the Right to Speedy Trial
If the dismissal is valid, it amounts to an acquittal
and can be used as basis to claim double jeopardy.
This would be the effect even if the dismissal was
made with the consent of the accused. (Bernas, The
1987 Constitution: A Comprehensive Reviewer,
2011)
Speedy Trial v. Speedy Disposition of Cases
The right to a speedy trial is available only to an
accused and is a peculiarly criminal law concept,
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while the broader right to a speedy disposition of
cases may be tapped in any proceedings conducted
by state agencies. In this case, the appropriate right
involved is the right to a speedy disposition of cases,
the recovery of ill-gotten wealth being a civil suit.
(Coconut Producers Federation, Inc. et al. v.
Republic of the Philippines; Wigberto E. Tanada, et
al., intervenors; Danilo S. Ursua v. Republic of the
Philippines, G.R. Nos. 177857-58 & G.R. No.
178193, Jan. 24, 2012)
b. Right to Impartial Trial
The accused is entitled to the “cold neutrality of an
impartial judge.” It is an element of due process.
When a judge has previously convicted a person of
a crime i.e., arson, he should disqualify himself from
hearing another case involving the same person, but
with a different crime, i.e., malversation (Ignacio v.
Villaluz, G.R. No. L-37527-52, May 25, 1979)
c. Right to Public Trial
The attendance at the trial is open to all irrespective
of their relationship to the accused. However, if the
evidence to be adduced is offensive to decency or
public morals, the public may be excluded. (Garcia
v. Domingo, G.R. No. L-30104, July 25, 1973)
The purpose is to serve as a “safeguard against any
attempt to employ our courts as instruments of
prosecution.” The knowledge that every trial is
subject to the contemporaneous review in the forum
of the public opinion is an effective restraint on
possible abuse of judicial power. (Garcia v.
Domingo, G.R. No. L-30104, July 25, 1973)
The right of the accused to a public trial is not
violated if the hearings are conducted on Saturdays,
either with the consent of the accused or if he failed
to object thereto.
A recognized exception to the general rule that a
trial must be public is that the general public may be
excluded when the evidence to be presented in the
proceeding may be characterized as “offensive to
decency or public morals”.
An accused is entitled to a public trial, at least to the
extent of having his friends, relatives and counsel
present – no matter with what offense he may be
charged. (In Re: Oliver, 333 U.S. 257, March 8,
1948)
7. RIGHT OF CONFRONTATION
Purpose
1.
2.
To afford the accused an opportunity to crossexamine the witness
To allow the judge the opportunity to observe
the conduct or demeanor of the witness
(Bernas,
The
1987
Constitution:
A
Comprehensive Reviewer, 2011)
Exceptions to the right to face witnesses:
a. The admissibility of “dying declarations”
b. Trial in absentia under Section 14(2)
c. With respect to child testimony (Bernas,
The 1987 Constitution: A Comprehensive
Reviewer, 2011)
Where a party has had the opportunity to crossexamine an opposing witness but failed to avail
himself of it, he necessarily forfeits the right to crossexamine and the testimony given on direct
examination of the witness will be received or
allowed to remain in the record. (People v. Seneris,
G.R. No. L-48883, Aug. 6, 1980)
It is demandable only during trials. Thus, it cannot
be availed of during preliminary investigations.
Right of confrontation is available during trial which
begins only upon arraignment.
Section 7 of the Special Rules of Procedure
prescribed for Shari’a courts aforecited provides that
if the plaintiff has no evidence to prove his claim, the
defendant shall take an oath and judgment shall be
rendered in his favor by the Court. On the other
hand, should defendant refuse to take an oath,
plaintiff may affirm his claim under oath, in which
case judgment shall be rendered in his favor. Said
provision effectively deprives a litigant of his
constitutional right to due process. It denies a party
his right to confront the witnesses against him and
to cross-examine them. It should have no place
even in the Special Rules of Procedure of the
Shari’a courts of the country. (Tampar v. Usman,
G.R. No. 82077, Aug. 16, 1991)
The principle requiring a testing of testimonial
statements by cross-examination has always been
understood
as
requiring,
not
necessarily
an actual cross-examination,
but
merely
an opportunity to exercise the right to crossexamine if desired. (Fulgado v. CA, G.R. No. L61570 Feb. 12, 1990)
8. RIGHT TO COMPULSORY
PROCESSES
Compulsory process to secure:
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a.
b.
POLITICAL LAW & PUBLIC INTERNATIONAL LAW
The attendance of witnesses
The production of evidence in his behalf
The 1973 and 1987 Constitutions expanded the
right to compulsory process which now includes the
right to secure the production of evidence in one's
behalf. By analogy, U.S. v. Ramirez which laid down
the requisites for compelling the attendance of
witnesses, may be applied to this expanded
concept. Thus, the movant must show:
1. That the evidence is really material;
2. That he is not guilty of neglect in previously
obtaining the production of such evidence;
3. That the evidence will be available at the time
desired; and
4. That no similar evidence could be obtained.
(Bernas,
The
1987
Constitution:
A
Comprehensive Reviewer, 2011)
Subpoena and Subpoena Duces Tecum
Subpoena is a process directed to a person
requiring him or her to attend and to testify at the
hearing or the trial of an action, or at any
investigation conducted by competent authority, or
for the taking of his or her deposition. It may also
require him or her to bring with him or her any
books, documents, or other things under his or
her control, in which case it is called a
subpoena duces tecum. (Rule 21, §1, Rules of
Court)
The right to compulsory process of securing the
attendance of witnesses cannot be invoked on
appeal if he made no effort during the trial to avail
himself of it. (Bernas, The 1987 Constitution: A
Commentary, 2009)
Preliminary investigation is not too early a stage to
stand guard against any significant erosion of the
constitutional right to due process. At this stage, the
accused should not be denied access to evidence
favorable to him since preliminary investigation can
result in arrest or deprivation of liberty. (Bernas, The
1987 Constitution: A Commentary, 2009)
9. TRIAL IN ABSENTIA
Trial in absentia simply means that the accused
waives his right to meet the witnesses face to face.
The trial may proceed, despite the absence of the
accused. Its purpose is to prevent unnecessary
delays in trial caused by the failure of the accused
to attend provided that his absence is unjustifiable.
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009)
Requisites (ANU)
1. The accused has been validly Arraigned and
2. Accused has been duly Notified; and
3. His failure to appear is Unjustifiable. (Parada
v. Veneracion, A.M. No. RTJ-96-1353, March
11, 1997)
This is allowed to speed up disposition of criminal
cases. (People v. Salas, G.R. No. L-66469, July 29,
1986)
Voluntary Waiver
Trial in absentia can also take place when the
accused voluntarily waives his right to be present.
The right may be waived provided that after
arraignment he may be compelled to appear for the
purpose of identification by the witnesses of the
prosecution, or provided he unqualifiedly admits in
open court after his arraignment that he is the
person named as the defendant in the case on trial.
Thus, for an accused to be excused from attending
trial, it is not enough that he vaguely agrees to be
identified by witnesses in his absence. He must
unqualifiedly admit that every time a witness
mentions as name by which he is known, the
witness is to be understood as referring to him.
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009)
Presence of the Accused Not Absolutely
Required
After repeated warnings, the trial judge ordered the
accused removed from court and told him that the
trial would continue in his absence until he promised
to conduct himself in a manner befitting a courtroom.
On appeal, the SC held that the behavior of the
accused had forfeited his right to be present.
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009 citing Illinois v. Allen)
Judgement In Absentia
While the accused is entitled to be present during
promulgation of judgment, the absence of his
counsel during such promulgation does not affect its
validity.
Promulgation of judgment in absentia is valid
provided that the essential elements are
present:
1. That the judgment be recorded in the criminal
docket; and
2. That a copy be served upon the accused or
counsel. Recording the decision in the criminal
docket of the court satisfies the requirement of
notifying the accused of the decision wherever
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he may be. (Estrada v. People, G.R. No.
162371, Aug. 25, 2005)
WHEN PRESENCE OF THE ACCUSED IS A
DUTY
a. Arraignment and Plea
b. During Trial, for identification
c. Promulgation of Sentence
Exception: Light offense where accused need not
personally appear.
It is important to state that the provision of the
Constitution authorizing the trial in absentia of the
accused in case of his non-appearance after
arraignment despite due notice simply means that
he thereby waives his right to meet the witnesses
face to face among others. An express waiver of
appearance after arraignment, as in this case, is of
the same effect. However, such waiver of
appearance and trial in absentia does not mean that
the prosecution is thereby deprived of its right to
require the presence of the accused for purposes of
identification by its witnesses which is vital for the
conviction of the accused. Such waiver of a right of
the accused does not mean a release of the
accused from his obligation under the bond to
appear in court whenever so required. The accused
may waive his right but not his duty or obligation to
the court. (Carredo v. People, G.R. No. 77542,
March 19, 1990)
N. RIGHT AGAINST INVOLUNTARY
SERVITUDE
1.
2.
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. (PHIL. CONST., art. 3, § 18)
Involuntary Servitude
Every condition of enforced or compulsory service
of one to another no matter under what form such
servitude may be disguised. (Rubi v. Provincial
Board, G.R. No. L-14078, March 7, 1919)
A private person who contracts obligations of
rendering services in a civil capacity to the Army as
an employee in its offices cannot, by law, either civil
or military, be compelled to fulfill them by
imprisonment and deportation from his place of
residence. (In Re A.O. Brooks, G.R. No. L-507,
November 5, 1901).
Slavery
The status or condition of a person over whom any
or all of the powers attaching to the right of
ownership are charged. (R.A. No. 10364, Sec. 3(e))
Debt Bondage
The pledging by the debtor of his or her personal
services or labor or those of a person under his or
her control as security or payment for a debt, when
the length and nature of services is not clearly
defined or when the value of the services as
reasonably assessed is not applied toward the
liquidation of the debt. (R.A. 10364, Sec. 3(i))
Political Prisoners
A state cannot hold “political prisoners”. (Bernas,
The 1987 Constitution: A Comprehensive Reviewer,
152, 2011)
Exceptions [P2EPOM]:
1. Punishment for a crime.
2. Personal military or civil service in the interest of
national defense.
3. In naval enlistment, a person who enlists in a
merchant ship may be compelled to remain in
service until the end of the voyage.
4. Posse Comitatus (every able-bodied person is
ultimately responsible for keeping peace) for the
apprehension of criminals.
5. Return to work order issued by the DOLE
Secretary or the President.
6. Minors under patria potestas are obliged to obey
their parents. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 152,
2011)
O. RIGHT AGAINST EXCESSIVE
FINES, AND CRUEL AND
INHUMAN PUNISHMENTS
Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither
shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the
Congress hereafter provides for it. Any death
penalty already imposed shall be reduced to
reclusion perpetua.
The employment of physical, psychological, or
degrading punishment against any prisoner or
detainee or the use of substandard or inadequate
penal facilities under subhuman conditions shall be
dealt with by law. (PHIL. CONST., art. III, § 19)
“Cruel and unusual,” as these words are found in the
Constitution, do not have the same meaning as
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“clearly excessive” found in Article 5 of the Revised
Penal Code. The fact that the punishment
authorized by the statute is severe does not make it
cruel and unusual. Thus, to be “cruel and unusual”
or “excessive” within the meaning of the constitution,
the penalty must be flagrantly disproportionate to
the offense no matter under what circumstances the
offense may be committed; but to be “clearly
excessive” under Article 5 of the Revised Penal
Code, it need only be disproportionate to the
circumstances of the offense and of the offender.
It has been held that to come under the
constitutional ban on excessive and inhuman
punishment, the punishment must be ‘flagrantly and
plainly oppressive,’ ‘wholly disproportionate to the
nature of the offense as to shock the moral sense of
the community.’ (People v. Estoista, G.R. No. L5793, Aug. 27, 1953)
Cruel and Inhuman
Involves torture or lingering suffering (e.g., being
drawn and quartered).
Degrading
It exposes a person to public humiliation (e.g., being
tarred and feathered, then paraded throughout
town).
Excessive Fine
When under any circumstance, the fine is
disproportionate to the offense.
Guides for Determining Whether a Punishment
is “Cruel and Unusual”
a. It must not be so severe as to be degrading
to the dignity of human beings.
b. It must not be applied arbitrarily.
c. It must not be unacceptable to
contemporary society.
d. It must not be excessive.
Note
It must serve a penal purpose more effectively than
a less severe punishment would. (Brennan
concurring in Furman v. Georgia, 408 U.S. 238,
1972)
R.A. 9346 prohibited the imposition of the death
penalty. Only by an Act of Congress can it be reborn.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
Anti-Hazing Law
The Anti Hazing Law does not violate the prohibition
on cruel and unusual punishment. The prohibition
contemplates "extreme corporeal or psychological
punishment.“ Penalties like fines or imprisonment
may be cruel, degrading, or inhuman only when they
are "flagrantly and plainly oppressive and wholly
disproportionate to the nature of the nature of the
offense as to shock the moral sense of the
community." However, if the penalty has a legitimate
purpose, then the punishment is proportionate, and
the constitutional prohibition is not violated. The
Anti-Hazing Law seeks to punish the conspiracy of
silence and secrecy, tantamount to impunity, that
would otherwise shroud the crimes committed.
Hence, the penalty has a legitimate purpose, and
the constitutional prohibition is not violated. (Fuertes
v. Senate of the Philippines, G.R. No. 208162, Jan.
07, 2020)
DEATH PENALTY
Death penalty was abolished because:
a. It inflicts traumatic pain not just on the
convict but also on his family, even if the
penalty is not carried out.
b. There was no convincing evidence that it is
effective as a deterrent of serious crime.
c. Penology favors reformative rather than
vindictive penalties.
d. Life is too precious a gift to be placed at the
discretion of a human judge.
e. The law itself, by imposing so many
safeguards before such is carried out,
manifests a reluctance to impose it.
(Bernas, The 1987 Philippine Constitution:
A Comprehensive Reviewer, 2011)
Legislature may re-impose it, subject to the
following conditions:
1. That Congress defines what is meant by
heinous crimes;
2. That Congress specify and penalize by death,
only those crimes that qualify as heinous in
accordance with the definition set in heinous
crimes law or death penalty law; and
3. That Congress, in enacting this death penalty
bill, be singularly motivated by “compelling
reasons involving heinous crimes.” (People v.
Echegaray, G.R. No. 117472, Feb. 7, 1997)
Heinous Crimes
Heinous crimes are those which are grievous,
odious, and hateful; and by reason of their manifest
wickedness, viciousness, atrocity, and perversity,
are repugnant and outrageous to the common
standards and norms of decency and morality in a
just, civilized, and ordered society. (People v.
Echegaray, G.R. No. 117472, Feb. 7, 1997)
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Instances When Death Penalty Shall Not Be
Imposed
a. Guilty person is 70 years old and above;
b. Guilty person is below 18 years old; and
c. Where upon appeal or automatic review of
the case by the SC, the required majority
vote is not obtained for the imposition of the
death penalty. (REVISED PENAL CODE,
art. 47)
It is a capitation tax imposed on all persons of a
certain age. At present it is the tax one pays for his
or her residence certificate which generally serves
as a personal identification instrument. (Bernas, The
1987 Philippine Constitution: A Comprehensive
Reviewer, 2011)
————- end of topic ————
The duty of a judge when an accused pleads guilty
to a capital offense is to look into the evidence to
see if death is the proper penalty. (People v. Vinuya,
G.R. No. 125925, Jan. 28, 1999)
P. NON-IMPRISONMENT FOR DEBTS
No person shall be imprisoned for debt or nonpayment of a poll tax. (PHIL. CONST., art. 3, § 20)
Debt
A contractual obligation, whether express or implied,
resulting in any liability to pay money. Thus, all other
types of obligations are not within the scope of this
prohibition. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011)
Imprisonment for Fraudulent Debt
1. The fraudulent debt constitutes a crime (e.g.
estafa); and
2. The debtor has been duly convicted.(Bernas,
The
1987
Philippine
Constitution:
A
Comprehensive Reviewer, 2011)
BP 22
The gravamen of the offense punished by BP 22 is
the act of making and issuing a worthless check or
a check that is dishonored upon its presentation for
payment. It is not the non-payment of an obligation
which the law punishes. The law is not intended or
designed to coerce a debtor to pay his debt. The
thrust of the law is to prohibit, under pain of penal
sanctions, the making of worthless checks and
putting them in circulation. (Lozano v. Martinez,
G.R. No. L-63419, Dec. 18, 1986)
Subsidiary Imprisonment
If an accused fails to pay the fine imposed upon him,
this may result in his subsidiary imprisonment
because his liability is ex delicto and not ex
contractu. (Alejo v. Judge Inserto, A.M. No. 1098
CFI, May 31, 1976)
Poll Tax
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CITIZENSHIP
TOPIC OUTLINE UNDER THE SYLLABUS
A. WHO ARE FILIPINOS
B. MODES OF ACQUIRING CITIZENSHIP
C. LOSS AND RE-ACQUISITION OF
PHILIPPINE CITIZENSHIP
D. DUAL
CITIZENSHIP
AND
DUAL
ALLEGIANCE
CITIZENSHIP
What is Citizenship
Citizenship is a legal device denoting political
affiliation. (David v. Senate Electoral Tribunal, G.R.
No. 221538, September 20, 2016.)
It is one's "personal and … permanent membership
in a political community. … The core of citizenship
is the capacity to enjoy political rights, that is, the
right to participate in government principally through
the right to vote, the right to hold public office[,] and
the right to petition the government for redress of
grievance.” (Go v. Republic of the Philippines, G.R.
202809, July 2, 2014, citing Bernas, The 1987
Constitution of the Republic of the Philippines: A
Commentary, 2009)
A. WHO ARE FILIPINOS
The following are citizens of the Philippines:
(a) Those who are citizens of the Philippines at
the time of the adoption of the 1987
Constitution.
(b) Those whose fathers or mothers are
citizens of the Philippines.
(c) Those born before January 17, 1973, of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of
majority.
(d) Those who are naturalized in accordance
with law. (PHIL CONST., art. IV, § 1)
Citizens at the time of adoption of the 1987
Constitution
Philippine citizens at the time of the adoption of the
1987 Constitution were those who were citizens
under the 1973 Constitution. In turn, citizens of the
Philippines at the time of adopting the 1973
Constitution were citizens under the 1935
Constitution. Thus, what determines citizenship is
the Constitution in effect at the time of a person’s
birth.
Children of Filipino fathers or mothers (Jus
Sanguinis)
If a child is born under the 1973 or 1987 Constitution
and either his father or mother is a Filipino citizen at
the time the child is born, the child is a Filipino citizen
no matter where he may be born. This is how the
principle of jus sanguinis is applied in the 1987
Constitution. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011)
Illegitimate Child of a Filipina Mother
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The citizenship of an illegitimate child of a Filipina
mother is Filipino. This is true whether the child is
born under the 1935 or the 1973 or 1987
Constitution. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011)
from reaching the age of majority. (Cuenco v. Sec.
of Justice, G.R. No. L-18069, May 26, 1962;
Cabiling v. Commissioner Fernandez Jr., G.R. No.
183133, July 26, 2010, Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011)
Illegitimate Child of a Foreign Mother
• If the father is unknown à Follow the
mother's citizenship.
• If the father is known and is Filipino à The
illegitimate child is considered Filipino after
proving the paternity. (Tecson v.
COMELEC, G.R. No. 161434, March 3,
2004)
Kinds of citizenship
(a) Natural born citizens
(b) Naturalized citizens
Election of Philippine Citizenship
Those born under the 1935 Constitution whose
mothers were Philippine citizens (at the time at least
of their marriage to an alien father) may elect
Philippine citizenship.
The Court interprets Section 1, Par. 3 of Article IV of
the Philippine Constitution as applying not only to
those who elect Philippine citizenship after February
2, 1987 but also to those who, having been born of
Filipino mothers, elected citizenship before that
date.
The provision in Paragraph 3 was intended to
correct an unfair position which discriminates
against Filipino women. (Co v. House of
Representatives Electoral Tribunal, G.R. Nos.
92191-92 & 92202-03, July 30, 1991.)
(a) Prior to the 1973 Constitution - If a Filipina
married an alien, she loses her Filipino
citizenship. Hence, her child would have to
elect Filipino citizenship upon reaching the
age of majority.
(b) Under the 1973 Constitution - Children born
of Filipino mothers were already considered
Filipinos.
(c) Therefore, the provision on election of
citizenship under the 1987 Constitution only
applies to those persons who were born
under the 1935 Constitution.
In order for the children to elect Filipino citizenship,
the mother must have been Filipinos at the time of
their marriage (Cu v. Republic, G.R. No. L-3018,
July 18, 1951; Villahermosa v. Commissioner of
Immigration, G.R. No. L-1663, Mar. 31, 1948)
The election must be made within a reasonable
period after reaching the age of majority. The phrase
"reasonable time" has been interpreted to mean that
the elections should be made within three (3) years
Who are Natural Born Citizens
(a) Those who are citizens of the Philippines
from birth without having to perform any act
to acquire or perfect their Philippine
citizenship (Phil Const., art. IV, § 2)
“Having to perform an act” means that the act must
be personally done by the citizen.
The process is certainly not analogous to
naturalization proceedings to acquire Philippine
citizenship, or the election of such citizenship by one
born of an alien father and a Filipino mother under
the 1935 Constitution, which is an act to perfect it.
(Poe-Llamanzares v. COMELEC, G.R. No. 221697,
March 8, 2016)
(a) Those born before January 17, 1973, of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of
majority (Phil Const., art. IV, § 2)
(b) Those who were repatriated and were
originally natural born citizens (Bengzon v.
HRET, G.R. No. 142840, May 7, 2001)
Who are Naturalized Citizens
Foreigners adopted into the political body of a nation
and clothed with the privileges of a citizen. (So v.
Republic, G.R. No. 170603, Jan. 29, 2007)
Natural Born Citizens v. Naturalized Citizens
In general, the law cannot treat Natural Born
Citizens and those who were naturalized differently
except in the instances where the Constitution itself
makes a distinction. Otherwise there would be a
violation of the equal protection clause. (Bernas,
The 1987 Constitution of the Republic of the
Philippines: A Commentary, 2009)
Natural Born Citizens & Public Office
Under the Constitution, the following must be
natural-born citizens:
1. President (PHIL CONST., art. VII, § 2)
2. Vice-President (PHIL CONST., art. VII, § 3)
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3. Members of Congress (PHIL CONST., art. VI §
3 & 6)
4. Justices of SC and lower collegiate courts
(PHIL CONST., art. VIII, § 7(1))
5. Ombudsman and his deputies (PHIL CONST.,
art. XI, § 8)
6. Members of Constitutional Commissions:
● CSC (PHIL CONST., art. IX-B, §1(1))
● COMELEC (PHIL CONST., art. IX-C, §1)
● COA (PHIL CONST., art. IX-D, § 1(1))
● Members of the central monetary authority
(PHIL CONST., art. XII, § 20)
● Members of the Commission on Human
Rights (PHIL CONST., art. XIII, § 17(2))
Former Filipino Citizens Running for Public
Office
Natural-born Filipinos who have been naturalized
elsewhere and wish to run for elective public office
must comply with all of the following requirements:
1. Taking the oath of allegiance to the Republic.
This effects the retention or reacquisition of
one's status as a natural-born Filipino. This also
enables the enjoyment of full civil and political
rights, subject to all attendant liabilities and
responsibilities under existing laws, provided the
solemnities recited in Section 5 of Republic Act
No. 9225 are satisfied.
2. Making a personal and sworn renunciation of
any and all foreign citizenship before any public
officer authorized to administer an oath. This,
along with satisfying the other qualification
requirements under relevant laws, makes one
eligible for elective public office.
B. ACQUISITION AND LOSS OF
CITIZENSHIP
(a) Jus sanguinis - acquisition of citizenship
on the basis of blood relationship
(b) Jus soli - acquisition of citizenship on the
basis of place of birth
(c) Naturalization - the legal act of adopting an
alien and clothing him with the privilege of a
native born-citizen
(Bernas, The 1987 Constitution of the Republic
of the Philippines: A Commentary, 2009)
Two ways of acquiring citizenship in the
Philippines
Basic Philippine law follows the rule of jus sanguinis
and provides for naturalization. (Bernas, The 1987
Philippine
Constitution:
A
Comprehensive
Reviewer, 2011)
Naturalization is a mode for both acquisition
(governed by CA 473) and reacquisition (governed
by CA 63) of Philippine citizenship.
Losing Citizenship
a.
b.
c.
d.
e.
f.
g.
Naturalization in a foreign country (C.A. 63,
§ 1(1))
Express renunciation or expatriation (CA
63, §1(2)
Taking an oath of allegiance to another
country upon reaching the age of majority;
Marriage by a Filipino woman to an alien, if
by the laws of her husband’s country, she
becomes a citizen thereof.
Accepting a commission and serving in the
armed forces of another country, unless
there is an offensive/defensive pact with
the country, or it maintains armed forces in
RP with RP’s consent;
Denaturalization;
Being found by final judgment to be a
deserter of the AFP
C. RETENTION AND
REACQUISITION OF CITIZENSHIP
Philippine citizenship may be lost or reacquired in
the manner provided by law (PHIL CONST., art. IV, §
3)
Citizens of the Philippines who marry aliens shall
retain their citizenship, unless by their act or
omission they are deemed, under the law, to have
renounced it. (PHIL CONST., art. IV, § 4)
Reacquiring Citizenship
Citizenship may be Reacquired by:
a. Repatriation
b. Naturalization
c. Legislative Act
REPATRIATION
Repatriation results in the recovery of the original
nationality. This means that a naturalized Filipino
who lost his citizenship will be restored to his prior
status as a naturalized Filipino citizen. On the other
hand, if he was originally a natural-born citizen
before he lost his Philippine citizenship, he will be
restored to his former status as a natural-born
Filipino. (Bengzon v. HRET, G.R. No. 142840, May
7, 2001)
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Natural-born Filipinos who are deemed to have lost
their citizenship may re-acquire the same via
repatriation proceedings. This involves taking an
oath of allegiance and filing the same with the civil
registry. (C.A. No. 63, sec. 4)
Repatriation Not a Matter of Right
Repatriation is not a matter of right, but it is a
privilege granted by the State. The State has the
power to prescribe by law the qualifications,
procedure, and requirements for repatriation. It has
the power to determine if an applicant for
repatriation meets the requirements of the law for it
is an inherent power of the State to choose who will
be its citizens, and who can reacquire citizenship
once it is lost. (Tabasa v. CA, G.R. No. 125793, Aug.
29, 2006)
c.
d.
Person convicted of crimes involving Moral
turpitude; or
Person suffering from Mental alienation or
incurable contagious diseases. (R.A. No.
8171, § 1)
Effective Date of Repatriation
The effective date is the date of application for
repatriation not the date when repatriation was
approved (Lee v. Commission on Elections &
Frivaldo, G.R. No. 120295, June 28, 1996)
Repatriation under R.A. No. 9225
Citizens who lost their citizenship by reason of their
naturalization as citizens of a foreign country are
deemed to have reacquired their Philippine
citizenship upon taking the oath of allegiance.
As distinguished from the lengthy process of
naturalization, repatriation simply consists of the
taking of an oath of allegiance to the Republic of the
Philippines and registering said oath in the Local
Civil Registry of the place where the person
concerned resides or last resided. He would not
even need to file a petition in court. (Bengson III v.
HRET, G.R. No.142840, May 7, 2001)
This reacquisition works to restore natural-born
status as though it was never lost at all.
Who May be Repatriated:
a. Filipino women who have lost their
Philippine citizenship by marriage to aliens
b. Natural-born Filipinos who have lost their
Philippine citizenship, including their minor
children, on account of political or
economic necessity (R.A. No. 8171, § 1)
Natural-born Filipinos who became foreign citizens
after R.A. 9225 took effect, shall retain their
Philippine citizenship upon taking the same oath.
The taking of oath of allegiance is required for both
categories of natural-born Filipino citizens who
became citizens of a foreign country. (David v.
Agbay, G.R. No, 199113, March 18, 2015)
How is Repatriation Effected
1. By taking the necessary oath of allegiance
to the Republic of the Philippines.
2. Registration in the proper civil registry and
in the Bureau of Immigration.
Repatriation and Domicile
To reacquire domicile he must provide proof of
intent to stay in the Philippines. After he does that,
his occasional absence from the recovered domicile
does not have the effect of removing him from the
domicile for as long as he manifests animus
manendi et revertendi.
The Bureau of Immigration shall thereupon cancel
the pertinent alien certificate of registration and
issue the certificate of identification as Filipino
citizen to the repatriated citizen (R.A. No. 8171, § 2)
Who Cannot be Repatriated (OVM2)
a. Person Opposed to organized government
or affiliated with any association or group of
persons who uphold and teach doctrines
opposing organized government;
b. Person defending or teaching the necessity
or propriety of Violence, personal assault,
or association for the predominance of their
ideas;
Reacquisition v. Retention
Natural-born Filipinos who have lost their citizenship
by naturalization in a foreign country shall re-acquire
their Philippine citizenship upon taking the oath of
allegiance to the Republic of the Philippines.
The domicile is not established strictly from the time
that a person was repatriated under R.A. No. 9225.
The Court said that other evidence may be admitted
to determine the time that domicile is established.
Also, issue of residence could be decided
particularly on the facts-of-the-case basis, as what
would a series of jurisprudence would also dictate.
Hence, domicile cannot strictly be established only
from a person’s repatriation. (Poe-Llamanzares v.
Comelec et al., G.R. Nos. 221697 & 221698-700,
March 8, 2016)
D. NATURALIZATION
What is naturalization
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Naturalization signifies the act of formally adopting
a foreigner into the political body of a nation by
clothing him or her with the privileges of a citizen.
(So v. Republic, G.R. No. 170603, Jan. 29, 2007)
Three Modes of Naturalization
(a) Administrative Naturalization (R.A. No.
9139)
(b) Judicial Naturalization (C.A. No. 473)
(c) Legislative Naturalization in the form of a
law enacted by Congress granting
Philippine citizenship to an alien
C.A. No. 473 v. R.A. No. 9139
C.A. No. 473 and R.A. No. 9139 are separate and
distinct laws—the former covers all aliens
regardless of class while the latter covers nativeborn aliens who lived here in the Philippines all their
lives, who never saw any other country and all along
thought that they were Filipinos; who have
demonstrated love and loyalty to the Philippines and
affinity to the customs and traditions. (So v.
Republic, G.R. No. 170603, Jan. 29, 2007)
2.
3.
4.
5.
Denaturalization: Cancellation of Certificate of
Naturalization
a.
b.
a. C.A. No. 473
Qualifications
1. Not less than twenty-one years of age on the day
of the hearing of the petition;
2. Resided in the Philippines for a continuous
period of 10 years or more;
3. Of good moral character; believes in the
principles underlying the Philippine Constitution;
conducted himself in a proper and
irreproachable manner during the entire period
of his residence towards the government and
community
4. Must own real estate in the Philippines worth
P5,000 or more OR must have lucrative trade,
profession, or lawful occupation;
5. Able to speak or write English or Spanish or
anyone of the principal languages; and
6. Enrolled his minor children of school age in any
of the recognized schools where Philippine
history, government and civics are taught or
prescribed as part of the school curriculum,
during the entire period of the residence in the
Philippines required of him. (C.A. 473, § 2)
Special Qualifications
(ANY will result to reduction of the 10-year period of
continuous residency requirement to 5 years under
no. 2 above)
1. Having honorably held office under the
Government of the Philippines or under that of
any of the provinces, cities, municipalities, or
political subdivisions thereof;
Established a new industry or introduced a
useful invention in the Philippines;
Married to a Filipino woman;
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
Born in the Philippines (C.A. 473, § 3)
c.
d.
e.
If it is shown that said naturalization certificate
was obtained fraudulently or illegally.
If the person naturalized shall, within the five
years next following the issuance of said
naturalization certificate, return to his native
country or to some foreign country and establish
his permanent residence there: Provided, That
the fact of the person naturalized remaining for
more than one year in his native country or the
country of his former nationality, or two years in
any other foreign country, shall be considered
as prima facie evidence of his intention of taking
up his permanent residence in the same.
If the petition was made on an invalid
declaration of intention.
If it is shown that the minor children of the
person naturalized failed to graduate from a
public or private high schools recognized by the
Office of Private Education of the Philippines,
where Philippine history, government and civics
are taught as part of the school curriculum,
through the fault of their parents either by
neglecting to support them or by transferring
them to another school or schools. A certified
copy of the decree cancelling the naturalization
certificate shall be forwarded by the clerk of the
Court to the Department of the Interior and the
Bureau of Justice.
If it is shown that the naturalized citizen has
allowed himself to be used as a dummy
requiring Philippine citizenship as a requisite for
the exercise, use or enjoyment of a right,
franchise or privilege (C.A. No. 473, § 18)
b. R.A. No. 9139
Qualifications
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1. The applicant must be born in the Philippines
and residing therein since birth;
2. The applicant must not be less than eighteen
(18) years of age, at the time of filing of his/her
petition;
3. The applicant must be of good moral character
and believes in the underlying principles of the
Constitution, and must have conducted
himself/herself in a proper and irreproachable
manner during his/her entire period of residence
in the Philippines in his relation with the duly
constituted government as well as with the
community in which he/she is living;
4. The applicant must have received his/her
primary and secondary education in any public
school or private educational institution dully
recognized by the Department of Education,
Culture and Sports, where Philippine history,
government and civics are taught and
prescribed as part of the school curriculum and
where enrollment is not limited to any race or
nationality: Provided, That should he/she have
minor children of school age, he/she must have
enrolled them in similar schools;
5. The applicant must have a known trade,
business, profession or lawful occupation, from
which he/she derives income sufficient for
his/her support and if he/she is married and/or
has dependents, also that of his/her family:
Provided, however, That this shall not apply to
applicants who are college degree holders but
are unable to practice their profession because
they are disqualified to do so by reason of their
citizenship;
6. The applicant must be able to read, write and
speak Filipino or any of the dialects of the
Philippines; and
7. The applicant must have mingled with the
Filipinos and evinced a sincere desire to learn
and embrace the customs, traditions and ideals
of the Filipino people (R.A No. 9139, § 3)
Disqualifications
a. Those opposed to organized government
or affiliated with any association of group of
persons who uphold and teach doctrines
opposing all organized governments;
b. Those defending or teaching the necessity
of or propriety of violence, personal assault
or assassination for the success or
predominance of their ideas;
c. Polygamists or believers in the practice of
polygamy;
d.
e.
f.
g.
h.
Those convicted of crimes involving moral
turpitude;
Those suffering from mental alienation or
incurable contagious diseases;
Those who, during the period of their
residence in the Philippines, have not
mingled socially with Filipinos, or who have
not evinced a sincere desire to learn and
embrace the customs, traditions and ideals
of the Filipinos;
Citizens or subjects with whom the
Philippines is at war, during the period of
such war; and
Citizens or subjects of a foreign country
whose laws do not grant Filipinos the right
to be naturalized citizens or subjects
thereof. (R.A. No. 9139, § 4)
c. Effects of Judicial Naturalization
Effects
a. The legitimate minor children of the
naturalized father become Filipinos as well.
b. The wife also becomes a Filipino citizen,
provided that she does not have any
disqualification which would bar her from
being naturalized. (C.A. No. 473, § 15,
Tuang v. Galang, G.R. No. L-18775, Nov.
30, 1963)
Naturalization & Res Judicata
A naturalization proceeding not being a judicial
adversary proceeding, the decision rendered
therein is not res judicata as to any of the reasons
or matters which would support a judgment
cancelling the certificate of naturalization for illegal
or fraudulent procurement (Republic v. Go Bon Lee,
G.R. No. L-11499, Apr. 29, 1966)
Pursuant to P.D. No. 836 and 923, naturalization
extends to the alien wife and minor children of the
person naturalized upon the wife's showing that she
does not suffer from any of the disqualifications
under Letter of Instructions No. 270, and that she
and her minor children reside permanently in the
Philippines at the time of her husband's
naturalization. In other words, the only persons to
undergo the proceeding before the Special
Committee on Naturalization will only be the person
naturalized and his wife. The minor children, in the
words of Letter of Presidential Decree No. 836,
follow the acquired Filipino citizenship of their
mother. (Republic v. Lao, G.R. Nos. 205218 &
207075, Feb. 10, 2020)
When Res Judicata Applies
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Res judicata may only be applied in cases of
citizenship when the following concur:
1. A person's citizenship must be raised as a
material issue in a controversy where said
person is a party;
2. The Solicitor General or his authorized
representative took active part in the resolution
thereof;
The finding on citizenship is affirmed by the
Supreme Court. (Go v. Bureau of Immigration
and Deportation, G.R. no. 191810, Jun. 22,
2015)
Dual Citizenship and Dual Allegiance
Dual allegiance of citizens is inimical to the national
interest and shall be dealt with by law. (PHIL CONST.,
art. 4, § 5)
Dual Citizenship
Allows a person who acquires foreign citizenship to
simultaneously enjoy the rights he previously held
as a Filipino citizen. This is completely voluntary,
and results in the application of different laws of two
or more states to a dual citizen.
Dual Allegiance
a. Aliens who are naturalized as Filipinos but
remain loyal to their country of origin;
b. Public officers who, while serving the
government, seek citizenship in another
country.
Dual Citizenship vs. Dual Allegiance
Dual citizenship arises when, as a result of the
concurrent application of the different laws of two or
more states, a person is simultaneously considered
a national by the said states, as is the case of
respondent.
Dual allegiance, on the other hand, refers to the
situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states.
While dual citizenship is involuntary, dual allegiance
is the result of an individual's volition. (Mercado v.
Manzano, G.R. No. 135083, May 26, 1999)
Prohibition against Dual Allegiance
The constitution prohibits dual allegiance not dual
citizenship. Dual allegiance arising from e.g., mixed
marriages or birth in foreign soil was seen as more
insidious than dual citizenship.
with by law." In other words, the Constitution leaves
the disposition of the problem of dual citizenship and
dual allegiance to ordinary legislation.
Unlike those with dual allegiance, who must,
therefore, be subject to strict process with respect to
the termination of their status, for candidates with
dual citizenship, it should suffice if, upon the filing of
their certificates of candidacy, they elect Philippine
citizenship to terminate their status as persons with
dual citizenship considering that their condition is
the unavoidable consequence of conflicting laws of
different states. (Mercado v. Manzano, G.R. No.
135083, May 26, 1999)
R.A. 9225
R.A. 9225 provides that a Filipino who has
previously renounced his Filipino citizenship can
reacquire it without renouncing his foreign
citizenship. Likewise, a Filipino who acquires foreign
citizenship after the effectivity of R.A. 9225 retains
his Filipino citizenship. R.A. 9225 is a law about dual
citizenship not dual allegiance. (AASJS v.
Datumanong, G.R. No. 160869, May 11, 2007)
R.A. 9225, however, requires that those who
acquired dual citizenship must specifically renounce
foreign citizenship upon filing of candidacy. (R.A.
9225 § 5[2])
The continued use of foreign passport render the
renunciation of foreign citizenship nugatory. The
renunciation of foreign citizenship must be complete
and unequivocal. The requirement that the
renunciation must be made through an oath
emphasizes the solemn duty of the one making the
oath of renunciation to remain true to what he has
sworn to. Allowing the subsequent use of a foreign
passport because it is convenient for the person to
do so is rendering the oath a hollow act. It devalues
the act of taking of an oath, reducing it to a mere
ceremonial formality. (Maquiling v. COMELEC, G.R.
No. 195649, April 16, 2013)
Derivative Citizenship
The unmarried child, whether legitimate, illegitimate
or adopted, below eighteen (18) years of age, of
those who re-acquire Philippine citizenship upon
effectivity of this Act shall be deemed citizenship of
the Philippines. (R.A. 9225 § 4)
————- end of topic ————-
To the extent, however, that dual citizenship also
imports dual allegiance, then it must also be "dealt
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LAW ON PUBLIC OFFICERS
TOPIC OUTLINE UNDER THE SYLLABUS
A. PUBLIC OFFICERS; DE FACTO AND DE
JURE
B. CIVIL
SERVICE;
SCOPE,
APPOINTMENTS,
PERSONNEL
ACTIONS, AND REMOVAL
1. Preventive
Suspension
and
Dismissal from Service
2. Illegal Dismissal, Reinstatement,
and Back Salaries
C. ACCOUNTABILITY
OF
OFFICERS; OMBUDSMAN
PUBLIC
A. PUBLIC OFFICERS; DE FACTO
AND DE JURE
Law on Public Officers
A branch of law that deals with the following:
(1) Public office, its creation, modification, and
dissolution;
(2) Eligibility of public officers;
(3) Manner of their election or appointment and
assumption of office;
(4) Rights, duties, powers, inhibitions, and
liabilities;
(5) Modes of terminating their official relations.
(Cruz, C.L., The Law on Public Officers, 1, 2018)
Public Office
The right, authority, and duty created and conferred
by law, by which for a given period, either fixed by
law or enduring at the pleasure of the appointing
power, an individual is invested with some portion of
the sovereign functions of the government, to be
exercised by him for the benefit of the public.
(Agpalo, Administrative Law, Law on Public Officers
and Election Law, 247-48, 2005)
Two Concepts of Public Office:
(1) Functional unit of government – It is within
the framework of government organization, and
refers to any major functional unit of a
department or bureau including regional office.
(2) Position - Held by an individual whose
functions are defined by law or regulation
(Agpalo, Administrative Law, Law on Public Officers
and Election Law, 247, 2005)
Public Office Not a Property Right
It is not a property right but a protected right. It
cannot be taken from its incumbent without due
process. It is property in the broad sense since the
right to hold office includes everything of pecuniary
value to its possessor. The right to public office is
protected by the right to security of tenure, which is
guaranteed by the Constitution. A public office is
personal to the public officer and is not transmissible
to his heirs upon his death. No heir may be allowed
to continue holding his office in his place. (Segovia
v. Noel, 47 Phil. 543, 1925)
Public office is not a property
It is, however, well settled x x x that a public office is
not property within the sense of the constitutional
guaranties of due process of law, public trust or
agency. x x x The basic idea of the government x
x x is that of a popular representative
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government, the officers being mere agents and
not rulers of the people, one where no one man
or set of men has a proprietary or contractual
right to an office, but where every officer
accepts office pursuant to the provisions of the
law and holds the office as a trust for the people
he represents. (Montesclaros v. COMELEC, GR
No. 152295, 2002)
Public Office Not a Contract
The right of an incumbent of an office does not
depend on any contract in the sense of an
arrangement or bargain between him and the public.
Generally speaking, the nature of the relation of a
public officer to the public is inconsistent with either
a property or a contract right. (De Leon, The Law on
Public Officers and Election Law, 6-7, 2011)
How created:
(1) By the Constitution (e.g. Office of the President)
(2) By valid statutory enactments (e.g. Office of the
Insurance Commissioner)
(3) By authority of the law (e.g. Davide
Commission)
Essential characteristics of “public office”
(1) Authority conferred by law;
(2) Fixed tenure of office;
(3) Power to exercise some of the sovereign
functions of government;
(4) Key element of such test is that “officer is
carrying out a sovereign function;”
(5) Essential elements to establish public position
as “public office” are:
(a) Position must be created by Constitution,
legislature, or through authority conferred
by legislature;
(b) Portion of sovereign power of government
must be delegated to position;
(c) Duties and powers must be defined,
directly or impliedly, by legislature or
through legislative authority;
(d) Duties must be performed independently
without control of superior power other than
law; and
(e) Position must have some permanency and
continuity and not be only temporary or
occasional.
(Cruz, C.L., The Law on Public Officers, 4-5, 2018;
Barney v. Hawkins, 1927)
NOTE: It is submitted, however, that permanency
and continuity are not indispensable characteristics
of a public office given that there can be public
offices that may be created for a special purpose or
for a fixed duration only.
Elements of Public Office: (LSDIP)
(1) Created by Law or by authority of law;
(2) Possesses a delegation of portion of Sovereign
powers of government, for benefit of the public;
(3) Powers conferred and duties imposed Defined
by Constitution, legislature, or by its authority;
(4) Duties performed Independently and only
controlled by law unless placed under general
control of superior office or body;
(5) Permanent or continuous. (State v. Taylor, 144
N.W. 2d. 289,1966; Javier v. Sandiganbayan,
G.R. 147026-27, 2009).
Public Officer, Definitions
(1) Administrative Code. "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 authority to do the act or exercise
that function. [Section 2(14), Introductory
Provisions, Administrative Code of 1987]
(2) Revised Penal Code. Any person who, by direct
provision of 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.
[Article 203, Revised Penal Code]
(3) Anti-Graft and Corrupt Practices Act. "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 [Section 2(b), RA 3019].
(4) Code of Conduct and Ethical Standards for
Public Officers. "Public Officials" includes elective
and appointive officials and employees, permanent
or temporary, whether in the career or non-career
service, including military and police personnel,
whether or not they receive compensation,
regardless of amount. [Section 3(b), RA 6713]
(5) Plunder Law. “Public Officer” means any person
holding any public office in the Government of the
Republic of the Philippines by virtue of an
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appointment, election or contract. [Section 1(a), RA
7080]
Employee
A person in the service of government or any of its
agencies,
divisions,
subdivisions,
or
instrumentalities. (1987 Administrative Code)
Public Officer v. Employee, Distinguished
"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
authority to do the act or exercise that function.
[Section
2(14),
Introductory
Provisions,
Administrative Code of 1987]
Thus, an officer is distinguishable from a mere
employee in the sense that:
(1) Position has greater importance, dignity and
independence;
(2) Required to take an official oath, and to give an
official bond;
(3) Greater liability to account for misfeasance or
nonfeasance in office;
(4) Tenure of office is usually different from that of
an ordinary employee.
Classifications of Public Officer
(1) Constitutional or statutory
(2) National or local
(3) Legislative, executive or judicial
(4) Lucrative or honorary
(5) Discretionary or ministerial
(6) Appointive or elective
(7) Civil or military
(8) De jure or de facto
De Facto
De facto means “in point of fact.” To speak of
something as being de facto is, thus, to say” that it
is “actual [or] existing in fact as opposed to “existing
by right or according to law,” that is, de jure.
Being factual though not being founded on right or
law, de facto is, therefore, “illegitimate but in effect.”
(In Re: Nomination of Atty. Lynda Chaguile, AM No.
13-04-03, 10 December 2013 citing Black’s Law
Dictionary, 8th Edition, 2004)
De Facto Officer
The broad definition of what constitutes an officer de
facto was formulated by Lord Holt in Parker v. Kent,
and reiterated by Lord Ellenborough and full King’s
Bench in 1865 in Rex v. Bedford Level, "One who
has the reputation of being the officer he assumes
and yet is not a good officer in point of law."
A de facto officer is one who is in possession of the
office and discharging its duties under color of
authority. By color of authority is meant that derived
from an election or appointment, however irregular
or informal, so that the incumbent is not a mere
volunteer. [CSC v. Joson, GR No. 154674, 27 May
2004 citing State v. Oates, 57 N.W. 296 (1983)]
A de facto officer is one who derives his
appointment from one having colorable authority to
appoint, if the office is an appointive office, and
whose appointment is valid on its face. He may also
be one who is in possession of an office, and is
discharging its duties under color of authority, by
which is meant authority derived from an
appointment, however irregular or informal, so that
the incumbent is not a mere volunteer. (Funa v.
Agra, G.R. No. 191644, 2013).
For him to be a de facto officer, the office must be
validly created. (Tuanda v. Sandiganbayan, G.R.
No. 110544, 1995)
Requisites of De Factor Officer
(1) Valid and legitimate office;
(2) Actual physical possession of the office in good
faith;
(3) Color of right or general acquiescence by the
public.
De Facto Doctrine
In Luna v. Rodriguez, GR No. L-12647, 26
November
1917,
the
Supreme
Court
explained/described the doctrine as follows:
[O]ne whose acts, though not those of a lawful
officer, the law, upon principles of policy and
justice will hold valid so far as they involve the
interest of the public and third persons, where
the duties of the office were exercised:
(a) Without a known appointment/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 assumes to be;
(b) Under color of a known or valid appointment
or election, where the officer has failed to conform
to some precedent requirement or conditions,
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for example, a failure to take the oath or give a bond
or similar defect;
(c) Under color of a known election or
appointment, void because the officer was not
eligible, or because there was a want of power in
the electing or appointing body, or by reason of
some defect or irregularity in its exercise, such
ineligibility, want of power or defect being
unknown to the public; and
(d) Under color of an election, or
appointment, by or pursuant to a public
unconstitutional law, before the same is
adjudged to be such. [Citing State v. Carroll, 38
Conn., 449; Wilcox v. Smith, 5 Wendell [N.Y. ], 231;
21 Am. Dec., 213; Sheehan’s Case, 122 Mass., 445;
23 Am. Rep., 323.]
Legal Effects of Acts of De Facto Officers:
The De Facto Office Doctrine
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 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, GR No. 202860, 10 April
2019]
A de facto officer’s acts are just as valid for all
purposes as those of a de jure officer, in so far
as the public or third persons who are interested
therein are concerned, viz.: “A de facto officer is
one who derives his appointment from one having
colorable authority to appoint, if the office is an
appointive office, and whose appointment is valid on
its face. He may also be one who is in possession
of an office, and is discharging [his] duties under
color of authority, by which is meant authority
derived from an appointment, however irregular or
informal, so that the incumbent is not a mere
volunteer. Consequently, the acts of the de facto
officer are just as valid for all purposes as those
of a de jure officer, in so far as the public or third
persons who are interested therein are
concerned.” (Funa v. Agra, GR No. 191644, 19
February 2013)
Insofar as the rights of a third person are concerned,
the lawful acts of a de facto officer if done within the
scope and by the apparent authority of the office, is
considered valid and binding as if he were the officer
legally elected and qualified for the office and in full
possession thereof.
Entitlement to Salary
General Rule: Rightful incumbent may recover from
a de facto officer the salary received by the latter
during the time of wrongful tenure even though the
latter is in good faith and under color of title.
Exception: When there is no de jure officer, the de
facto officer is entitled to salaries for the period when
he actually discharged functions. (Civil Liberties
Union v. Executive Secretary, GR No 83896,
February 22, 1991)
How De Facto Officer Ousted
A de facto officer may be ousted in a direct
proceeding where the title will be the principal issue,
not in a collateral action or in an action to which he
is not a party.
The proper remedy is to institute quo warranto
proceeding under Rule 66 of the ROC. The title to a
public office may not be contested except directly,
by quo warranto.
De Jure Officer
One who has the lawful right to the office in all
respects, but who has either been ousted from it, or
who has never actually taken possession of it. When
the officer de jure is also the officer de facto, the
lawful title and possession are united.
Usurper
One who takes possession of the office and
undertakes to act officially without any color of right
or authority, either actual or apparent. Note that it is
the color of authority, not the color of title, that
distinguishes an officer de facto from a usurper. It
means that the authority to hold office is by some
election or appointment, however irregular or
informal.
De Jure v De Facto Officer
The difference between the basis of the authority
of a de jure officer and that of a de facto officer is
that one rests on right (de jure), the other on
reputation (de facto). It may be likened to the
difference between character and reputation. One
is the truth of a man, the other is what is thought
of him. [CSC v. Joson, GR No. 154674, 27 May
2004 citing Ridout v. State, 30 S.W. 2d. 255 (1930)]
A de jure officer has a legal right to the office but he
may not be in possession of the office; while a de
facto officer possesses the office because of the
color of authority.
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APPOINTMENTS
Classifications
(1) Career
Characteristics:
(1) Entrance based on merit and fitness to be
determined by competitive examinations or
based on highly technical qualifications;
(2) Opportunity for advancement to higher career
positions; and
(3) Security of tenure
Levels of Positions
1st Level: Clerical, trades, crafts and custodial
service positions involving non-professional/subprofessional in a non-supervisory or supervisory
capacity requiring less than 4 years of collegiate
studies.
2nd Level: Professional, technical and scientific
positions in a non-supervisory/supervisory capacity
requiring at least 4 years of college work up to
division chief level.
3rd Level: Career Executive Service positions
The position of department manager is not a third
level position which is appointed by the President.
For said reason, a PEZA department manager only
needs the approval of the PEZA Director-General to
validate his appointment or re-appointment. As he
need not possess a CESO or CSEE eligibility, the
CSC has no valid and legal basis in invalidating his
appointment or re-appointment. (Agyao v. CSC,
G.R. 182591, 2011)
(2) Non-career
Characteristics:
(1) Entrance on bases other than those of the usual
test of merit and fitness;
(2) Tenure which is limited to:
(a) Period specified by law;
(b) Coterminous with that of appointing
authority;
(c) Subject to appointing authority’s pleasure;
(d) Limited to the duration of a particular
project.
They, however, enjoy constitutional guarantee that
they cannot be removed except for cause and after
due hearing.
Revocation or Recall of Appointment
General Rule: Appointment once made
irrevocable and not subject to reconsideration.
is
Grounds when CSC has power to recall, on its
own initiative, an appointment initially
approved:
(1) Non-compliance with the procedures/criteria
provided in the agency’s merit promotional plan
(2) Failure to pass through the agency’s
selection/promotion board
(3) Violation of the existing collective agreement
between management and employees relative
to promotion
(4) Violation of other existing civil service law, rules
and regulations
Personnel
Any action denoting movement or progress of
personnel in the civil service. (EO 292, Rule V, § 1,
cited in City Mayor Debulgado v. CSC, G.R. 111471,
1994).
Includes the following: (PART R2D2)
(1) Appointment through certification
(2) Promotion
(3) Transfer
(4) Reinstatement
(5) Reemployment
(6) Detail
(7) Reassignment
(8) Demotion
It is the CSC which is empowered to look into the
validity of creation of positions and appointments of
personnel appointed by the Mayor whose
appointments were confirmed by the CSC. There
being a valid appointment confirmed by CSC and
the concerned personnel having rendered services,
payment of their salaries is proper and legal.
(Tolentino v. Loyola, G.R. 153809, 2011)
Valid personnel actions
(1) Extending temporary appointment, however,
this must not amount to removal.
(2) Transfer or re-assignment but this must not
involve a reduction in rank, status, and salary,
without break in service.
(3) Detail must be made in the interest of public
service, absent showing of manifest abuse or
improper motive or purpose.
REMOVAL
Personnel actions amounting to removal
(1) Shortening term is removal
(2) Control does not extend to removal
(3) Demotion
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(4) Denial of optional retirement and refusal to
reinstate
While a temporary transfer or assignment of
personnel is permissible even without the
employee’s prior consent, it cannot be done when
the transfer is a preliminary step toward his removal,
or is a scheme to lure him away from his permanent
position, or designed to indirectly terminate his
service, or force his resignation. Such a transfer
would in effect circumvent the provision which
safeguards the tenure of office of those who are in
the Civil Service. (Garcia v. Lejano, G.R. L-12220,
1960).
Waiver of security of tenure
Acceptance of temporary appointment or
assignment, without reservations is a waiver of
security of tenure.
1. PREVENTIVE SUSPENSION AND
DISMISSAL FROM SERVICE
PREVENTIVE SUSPENSION
Merely a preventive measure, a preliminary step in
an administrative investigation. The purpose of the
suspension order is to prevent the accused from
using his position and the powers and prerogatives
of his office to influence potential witnesses or
tamper with records which may be vital in the
prosecution of the case against him. If after such
investigation, the charge is established and the
person investigated is found guilty of acts warranting
his suspension or removal, then, as a penalty, he is
suspended, removed or dismissed. (Villasenor v.
Sandiganbayan, G.R. No. 180700, 2008)
Two kinds of preventive suspension of
government employees charged with offenses
punishable by removal or suspension:
(1) Preventive suspension pending investigation;
and
(2) Preventive suspension pending appeal if the
penalty imposed by the disciplining authority is
suspension or dismissal and, after review, the
respondent is exonerated.
Preventive suspension pending investigation
The proper disciplining authority may preventively
suspend any subordinate officer or employee under
his authority pending as investigation, if the charge
against such officers or employee 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, EO 292]
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Preventive suspension pending investigation is
not a penalty. It is a measure intended to enable
the disciplining authority to investigate charges
against respondent by preventing the latter from
intimidating or any way influencing witnesses
against him. If the investigation is not finished and
a decision is not rendered within that period, the
suspension will be lifted and the respondent will
automatically be reinstated. If after investigation
respondent is found innocent of the charges and is
exonerated, he should be reinstated. [Gloria v. CA,
GR No. 131012, 21 April 1999]
Preventive suspension pending appeal
(Execution of the dismissal from service up
to the time of actual reinstatement)
a) APPOINTIVE NATIONAL. An appeal shall not
stop the decision from being executory, and in case
the penalty is suspension or removal, the
respondent shall be considered having been under
preventive suspension during the pendency of the
appeal in the event he wins an appeal. [Sec. 47(4),
Book V, EO 292]
b) ELECTIVE LOCAL. An appeal shall not prevent
a decision from becoming final or executory. The
respondent shall be considered as having been
placed under preventive suspension during the
pendency of an appeal in the event he wins such
appeal. In the event the appeal results in an
exoneration, he shall be paid his salary and such
other emoluments during the pendency of the
appeal. [Sec. 68, RA 7160]
c) APPOINTIVE LOCAL. An appeal shall not
prevent the execution of a decision of removal or
suspension of a respondent-appellant. In case the
respondent-appellant is exonerated, he shall be
reinstated to his position with all the rights and
privileges appurtenant thereto from the time he had
been deprived thereof. [Sec. 88, RA 7160]
The Court explained that if the penalty is public
censure, reprimand, or suspension of not more than
one month, the same is final and unappealable. In
all other cases, the decision may be appealed, but
shall not stop the decision from being executory.
Thus: On August 17, 2000, AO 14-A was issued
amending Sec. 7, Rule III of the Rules of Procedure
of the OMB. The rule, as thus amended, pertinently
reads: Section 7. Finality and execution of
decision. — Where . . . the penalty imposed is public
censure or reprimand, suspension of not more than
one month, or a fine equivalent to one month salary,
the decision shall be final and unappealable. In all
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other cases, the decision may be appealed . . . . An
appeal shall not stop the decision from being
executory. In case the penalty is suspension or
removal and the respondent wins such appeal, he
shall be considered as having been under
preventive suspension and shall be paid the salary
and such other emoluments that he did not receive
by reason of the suspension or removal. (GupilanAguilar v. Office of the Ombudsman, GR No.
197307, 26 February 2014)
There is no dispute as to the power of the
Ombudsman to place a public officer charged with
an administrative offense under preventive
suspension. That power is clearly confined under
Section 24 of R.A. No. 6770. The law sets forth two
conditions that must be satisfied to justify the
issuance of an order of preventive suspension
pending an investigation, to wit:
(1) The evidence of guilt is strong; and
(2) Either the following circumstance co-existing
with the first requirement:
(a) The charge involves dishonesty, oppression
or grave misconduct or neglect in the
performance of duty;
(b) The charge would warrant removal from the
service; or
(c) The respondent’s continued stay in office
may prejudice the case filed against him.
(Ombudsman v. Valeroso, G.R. 167828,
2007)
Preventive suspension is merely a preventive
measure, a preliminary step in an administrative
investigation; the purpose thereof is to prevent the
accused from using his position and the powers and
prerogatives of his office to influence potential
witnesses or tamper with records which may be vital
in the prosecution of the case against him.
(Ombudsman v. Francisco, G.R. 172553, 2011)
Prior notice and hearing are not required in the
issuance of a preventive suspension order.
Settled is the rule that prior notice and hearing are
not required in the issuance of a preventive
suspension order. (Carabeo v. CA, G.R.
178000/178003, 2009)
Preventive Suspension in Criminal Cases
Any incumbent public officer against whom any
criminal prosecution under a valid information under
this Act or under Title Seven Book II (Crimes
Committed by Public Officers) of the Revised Penal
Code or for any offense involving fraud upon
government or public funds or property whether as
a simple or as complex offense and in whatever
stage of execution and mode of participation, is
pending in court shall be suspended from office.
Should he be convicted by final judgement, he shall
lose all retirement or gratuity benefits under any law,
but if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which
he failed to receive during suspension, unless in the
meantime administrative proceedings have been
filed against him. In the event that such convicted
officer, who may have been separated from the
service has already received such benefits he shall
be liable to restitute the same to the government.
[Sec. 13, RA 3019]
It is now settled that Sec. 13 of Republic Act No.
3019 makes it mandatory for the Sandiganbayan to
suspend any public official against whom a valid
information charging violation of that law, Book II,
Title 7 of the Revised Penal Code, or any offense
involving fraud upon government or public funds or
property is filed. The court trying a case has neither
discretion nor duty to determine whether preventive
suspension is required to prevent the accused from
using his office to intimidate witnesses or frustrate
his prosecution or continuing committing
malfeasance
in
office.
(Villasenor
v.
Sandiganbayan, G.R. 180700, 2008)
GROUNDS FOR PREVENTIVE SUSPENSION OF
POLICE OFFICERS [RA 8551, SEC. 55]
(Preventive Suspension Pending Criminal
Case)
The court shall immediately suspend the accused
from office for a period not exceeding 90 days from
arraignment:
(1) Upon the filing of a complaint or information
sufficient in form and substance against a
member of the PNP;
(2) For grave felonies where the penalty imposed
by law is 6 years and 1 day or more.
Exception: If it can be shown by evidence that the
accused is harassing the complainant and/or
witnesses, the court may order the preventive
suspension of the accused PNP member even if the
charge is punishable by a penalty lower than 6 years
and 1 day.
General Rule: The period of preventive suspension
shall not be more than 90 days.
Exception: If the delay in the disposition of the case
is due to the fault, negligence or petitions of the
respondent.
The preventive suspension may be sooner lifted by
the court in the exigency of the service upon
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dismissal and is, as an
ordinary rule, entitled
only to the last salary
in that position.
Where to file claims for backwages: The claim for
recovery of back salaries involves settlement of
accounts or claims against the government and
should therefore be filed with the Commission on
Audit.
Amount of Back Salaries
An illegally terminated civil service employee is
entitled to back salaries limited only to a maximum
period of five years, and not full back salaries from
his illegal termination up to his reinstatement.
(Galang v. Land Bank, G.R. 175276, 2011)
Back salaries during preventive suspension
General Rule: A public official is not entitled to any
compensation if he has not rendered any service.
(Reyes v. Hernandez, G.R. No. Apr. 8, 1941)
Two conditions before an employee may be
entitled to back salaries in preventive
suspension cases:
(1) The employee must be found innocent (or
exonerated) of the charges; and
(2) His suspension must be unjustified or the official
was innocent. (CSC v. Cruz, G.R. 187858,
2011)
REMEMBER:
1) For
Preventive
Suspension
Pending
Investigation – No payment of salary during the
suspended period even if exonerated. (Gloria
v. CA, GR No. 131012, 21 April 1999)
2) For Preventive Suspension Pending Appeal –
Payment of salary allowed during the
suspended period if exonerated and
suspension is unjustified. (Gloria v. CA, GR No.
131012, 21 April 1999) Thus:
a) Exonerated means that the finding of
administrative liability is reversed OR the
ultimate finding is not the same as the
administrative charge.
b) If administrative penalty is suspension,
then suspension is justified – not entitled to
back salary.
and must be compensated. The rule on payment of
back salaries during the period of suspension of a
member of the civil service who is subsequently
ordered reinstated, is already settled in this
jurisdiction.
Such
payment
of
salaries
corresponding to the period when an employee is
not allowed to work may be decreed not only if he is
found innocent of the charges that caused his
suspension (Sec. 35, RA 2260), but also when the
suspension is unjustified. (CSC v. Cruz, G.R.
187858, 2011).
The mere reduction of the penalty on appeal does
not entitle a government employee to back salaries
if he was not exonerated of the charge against
him. If the exoneration of the employee is relative
(as distinguished from complete exoneration), an
inquiry into the factual premise of the offense
charged and of the offense committed must be
made. If the administrative offense found to have
been actually committed is of lesser gravity than the
offense charged, the employee cannot be
considered exonerated if the factual premise for the
imposition of the lesser penalty remains the same.
(CSC v. Cruz, G.R. No. 187858, 2011).
The "no work, no pay" principle does not apply
where it has been sufficiently shown that a public
official was wrongfully prevented from entering the
office and carrying out his duties. He may recover
his salary for the duration that he was thus
prevented from assuming his post, and it is
immaterial that his appointment is temporary
because what is material is not the nature of the
appointment but the act of wrongful deprivation of
office. (De Leon, The Law on Public Officers and
Election Law, 234, 2011 citing Celerian v. Tantuico
Jr., G.R. No. L-50147, 1990)
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 back salaries of the
illegally dismissed employee. (De Leon, The Law on
Public Officers and Election Law, 234, 2011 citing
David v. Gania, G.R. No. 156039, 1990)
The reasoning behind these conditions runs this
way: although an employee is considered under
preventive suspension during the pendency of a
successful appeal, the law itself only authorizes
preventive suspension for a fixed period; hence, his
suspension beyond this fixed period is unjustified
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where he belongs is a specie of corruption. (NPC v.
CSC, G.R. 152093, 2012)
i.
Simple neglect of duty
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 vs. San Juan Jr., G.R. 192890, 2013)
ii.
iii.
iv.
Ultra vires acts
Acts which are clearly beyond the scope of one's
authority. They are null and void and cannot be
given any effect. The doctrine of estoppel cannot
operate to give effect to an act which is otherwise
null and void or ultra vires. (Acebedo Optical
Company v. CA, G.R. No. 100152, 2000)
Crimes peculiar to certain public officers
Crimes committed by public officers are classified
under:
(1) Revised Penal Code
(a) Malfeasance and misfeasance in office
(b) Frauds and illegal exactions and
transactions
(c) Malversation of public
(d) Infidelity of public officers
(e) Other offenses and irregularities
committed by public officers which
include disobedience, refusal of
assistance, maltreatment of prisoners,
anticipation,
prolongation
and
abandonment of the duties and powers
of public office, usurpation of powers
and unlawful appointments
(2) Anti-Graft and Corrupt Practices Act
(3) Code of Conduct and Ethical Standards
(a) 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.
(4) Forfeiture of Unexplained Wealth Act
(5) Civil Service Decree
(a) For any violation of the provisions on:
v.
Warrant and checks receivables
for taxes or other indebtedness of
the government
Issuance of official receipts
Limitation on cash advances
Liability for acts done by direction
of a superior officer
Prohibition against pecuniary
interest
(6) Government Auditing Code
(7) Local Government Code
(8) National Internal Revenue Code
(9) Omnibus Election Code
Public officers may not be held criminally liable for
failure to perform a duty commanded by law when,
for causes beyond their control, performance is
impossible.
However, the absence of corrupt intent is not a
defense to an action against an officer for a statutory
penalty for misconduct such as taking illegal fees, or
for willful failure or refusal to perform a mandatory
ministerial duty.
The mere expiration of his term of office will not
prevent the prosecution and punishment of a
public officer for a misdemeanor committed in
office; nor the re-election of a public official
extinguishes the criminal liability incurred by
him during his previous term of office.
Discipline of Public Officers
General Rule: A public officer is not liable for
injuries sustained by another due to official acts
done within the scope of his authority.
Exceptions: (BM-NID)
(1) Bad faith;
(2) Malice;
(3) Negligence;
(4) Death or Injury to persons or damage to
property
Administrative liability is separate from and
independent of criminal liability
It is a fundamental principle in the law on public
officers that administrative liability is separate from
and independent of criminal liability. A simple act or
omission can give rise to criminal, civil or
administrative liability, each independently of the
others. This is known as the threefold liability rule.
Thus, absolution from a criminal charge is not a bar
to an administrative prosecution, and vice versa.
The dismissal of the administrative cases against
the petitioners will not necessarily result in the
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dismissal of the criminal complaints filed against
them. (Regidor, Jr. v. People, G.R. 166086-92,
2009; Office of the President v. Cataquiz, G.R.
183445, 2011)
Proof of damage or actual injury
Proof of damage or actual injury is not required for
administrative liability to attach to a public officer. It
is enough that the act was contrary to the
established norms of conduct for government
service. However, an employee of GSIS who altered
IP addresses without authority, not in the
performance of his duties, will not be guilty of grave
misconduct but conduct prejudicial to the best
interest of service. To constitute misconduct, the act
or acts must have a direct relation to and be
connected with the performance of official duties.
(GSIS v. Mayordomo, G.R. No. 191218, 2011)
Presumption of good faith in the discharge of
official duties
Every public official is entitled to the presumption of
good faith in the discharge of official duties.
Although a public officer is the final approving
authority and the employees who processed the
transaction were directly under his supervision,
personal liability does not automatically attach to
him but only upon those directly responsible for the
unlawful expenditures. (Dimapilis-Baldoz v.
Commission on Audit, G.R. 199114, 2013)
Concept of public office is a public trust
The concept of public office is a public trust and the
corollary requirement of accountability to the people
at all times, as mandated under the 1987
Constitution, is plainly inconsistent with the idea that
an elective local official's administrative liability for a
misconduct committed during a prior term can be
wiped off by the fact that he was elected to a second
term of office, or even another elective post. Election
is not a mode of condoning an administrative
offense, and there is simply no constitutional or
statutory basis in our jurisdiction to support the
notion that an official elected for a different term is
fully absolved of any administrative liability arising
from an offense done during a prior term. (CarpioMorales v. CA and Binay, G.R. 217126-27, 2015)
Public officers and employees must at all times be
accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act
with patriotism and justice, and lead modest lives.
The basic idea of government in the Philippines is
that of a representative government, the officers
being mere agents and not rulers of the people, one
where no one man or set of men had a proprietary
or contractual right to an office, but where every
officer accepts office pursuant to the provisions of
law and holds the office as a trust for the people
whom he represents. (Bernas, 1987 Philippine
Constitution: A Commentary, 924, 2009, citing
Cornejo v. Gabriel, 41 Phil. 188, 1920)
Public Officers and employees owe the State and
this Constitution allegiance at all times and any
public officer or employee who seeks to change his
citizenship or acquire the status of an immigrant of
another country during his tenure shall be dealt with
by law (PHIL. CONST., art. XI, § 18.)
Jurisdiction in Disciplinary Cases
(1) The Secretaries and heads of agencies and
instrumentalities,
provinces,
cities
and
municipalities shall have jurisdiction to
investigate and decide matters involving
disciplinary action against officers and
employees under their jurisdiction. Their
decision shall be final in case the penalty
imposed is suspension for not more than 30
days or fine in an amount not exceeding 30
days’ salary.
(2) In case the decision rendered by a bureau or
office head is appealable to the Commission,
the same may be initially appealed to the
department and finally to the Commission and
pending appeal, the same shall be executory
except when the penalty is removal, in which
case the same shall be executory only after
confirmation by the Secretary concerned.
(3) The Commission shall decide upon appeal all
administrative disciplinary cases involving the
imposition of a penalty of suspension for more
than 30 days, or fine in an amount exceeding 30
days’ salary, demotion in rank or salary,
transfer, removal or dismissal from office.
(4) A complaint may be filed directly with the
Commission by a private citizen against a
government official or employee in which case
it may hear and decide the case or it may
deputize any department, agency, official, or
group of officials to conduct the investigation.
(5) Disciplinary cases and cases involving
“personnel actions” affecting employees in the
civil service are within the exclusive jurisdiction
of the Civil Service Commission, which is the
sole arbiter of controversies relating to the civil
service.
(6) Executive Order No. 151, or the Presidential
Commission Against Graft and Corruption,
exercises jurisdiction to investigate all
administrative complaints involving graft and
corruption filed in any form or manner against
presidential appointees in the executive
department of the government, including those
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in GOCCs. Such jurisdiction extends to
nonpresidential appointees who may have
acted in conspiracy or who may have been
involved with a presidential appointee.
(7) The Sandiganbayan has exclusive original
jurisdiction over presidents, directors or
trustees, or managers of GOCCs, without any
distinction with respect to the manner of their
creation, whenever charges of graft and
corruption are involved.
(8) RA No. 4670, otherwise known as the Magna
Carta for Public School Teachers, covers and
governs administrative proceedings involving
public school teachers.
Impeachment v. Quo Warranto
While both impeachment and quo warranto seek the
ultimate removal of an incumbent government
officer, the two differ as to nature, jurisdiction,
grounds, the applicable procedural rules, and
limitations.
Condonation Doctrine
The condonation doctrine is the doctrine that
provides that a reelected official should no longer be
made accountable for an administrative offense
committed during his previous term.
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.
In Carpio-Morales, the Court abandoned the
"condonation doctrine," explaining that "election is
not a mode of condoning an administrative offense,
and there is simply no constitutional or statutory
basis in our jurisdiction to support the notion that an
official elected for a different term is fully absolved
of any administrative liability arising from an offense
done during a prior term."
The abandonment should be prospectively applied.
(Dimapilis v. Commission on Elections, G.R. No.
227158, April 18, 2017)
The ruling promulgated in Carpio-Morales v. Court
of Appeals on the abandonment of the doctrine of
condonation had, indeed, become final only on April
12, 2016, and thus the abandonment should be
reckoned from April 12, 2016. (Crebello v.
Ombudsman, GR No. 232325, 2019)
Impeachment is political; quo warranto is judicial. In
impeachment, the Congress is the prosecutor, the
trier, and the judge, whereas quo warranto petitions
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.
The 1987 Constitution, as supplemented by the
internal rules of procedure of the Congress, directs
the course of impeachment proceedings. Quo
warranto cases, on the other hand, are dictated by
the Rules of Court. 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 meted, 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. [Re: Letter of Mrs. Ma. Cristina Roco
Corona, A.M.No. 20-7-10-SC, January 12, 2011]
Impeachment v. Quo Warranto
Who may be impeached: (VP-SOC)
(1) President
(2) Vice President
(3) Supreme Court Justices
(4) Constitutional Commission members
(5) Ombudsman (Phil. Const., art. XI, sec. 2)
Impeachment
Pertains to the power of Congress to remove a
public official for serious crimes or misconduct as
provided in the Constitution. It is a mechanism
designed to check abuse of power. (Chief Justice
Renato C. Corona v. Senate of the Philippines
sitting as an Impeachment Court, G.R. No. 200242,
2012)
Grounds: (GOT BBC)
(1) Graft and corruption
(2) Other high crimes
(3) Treason
(4) Betrayal of public trust
(5) Bribery
(6) Culpable violation of the Constitution (Phil.
Const., art. XI, sec. 2)
NOTE: Thus, OMB decisions prior to April 12, 2016
absolving respondent public officials from
administrative charges by reason of the application
of the doctrine of condonation would still be valid.
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It is an exclusive list. Congress cannot add to the list
of impeachable offenses.
These officers cannot be charged in court with
offenses that have removal from office as penalty.
But after an official has been impeached, he can be
charged with the appropriate offense.
Resignation by an impeachable official does not
place him beyond the reach of impeachment
proceedings; he can still be impeached.
Disbarment. Members of the Supreme Court must,
under Article VIII (7) (1) of the Constitution, be
members of the Philippine Bar and may be removed
from office only by impeachment (Article XI [2],
Constitution). To grant a complaint for disbarment of
a Member of the Court during the Member's
incumbency, would in effect be to circumvent and
hence to ran afoul of the constitutional mandate that
Members of the Court may be removed from office
only by impeachment for and conviction of certain
offenses listed in Article XI (2) of the Constitution.
(Cuenco v. Fernan, GR No. 3135, 1988)
Other public officers and employees
They may be removed from office as provided by
law but, not by impeachment. (Phil. Const., art. XI,
sec. 2)
Who may initiate impeachment case
The House of Representatives has exclusive power
to initiate all cases of impeachment. (Phil. Const.,
art. XI, sec. 3, par. (1))
Procedure:
(1) Filing of a verified complaint for
impeachment, which may be filed by:
(a) Any member of the House of
Representatives or
• If the verified complaint or
resolution is filed by at
least 1/3 of all the
Members of the House,
the same shall constitute
the
Articles
of
Impeachment, and trial by
the Senate shall proceed
(b) Any citizen upon a resolution or
endorsement by any Member of the
House
(2) Inclusion of the complaint in the Order of
Business within 10 session days
(3) Referral to the proper Committee (i.e.
Committee on Justice) within 3 session
days
(4) Submission by the Committee of its report
with the corresponding resolution, after
hearing and by a majority vote, to the
House within 60 days from such referral
(5) Calendaring of the resolution for
consideration by the House within 10
session days from receipt thereof
(6) At least 1/3 vote of all the members of the
House shall be necessary to:
(a) Affirm the resolution with the Articles of
Impeachment of the Committee or
(b) Override its contrary resolution (Phil.
Const., art. XI, sec. 3, par. (2) to (4))
Sufficiency of form and substance of the
complaint
The determination of sufficiency of form and
substance of an impeachment complaint is an
exponent of the express constitutional grant of rulemaking powers of the House of Representatives. In
the discharge of that power and the exercise of its
discretion, the House has formulated determinable
standards as to the form and substance of an
impeachment complaint. Furthermore, the
Impeachment Rules are clear in echoing the
constitutional requirements and providing that
there must be a "verified complaint or resolution,”
and that the substance requirement is met if there
is "a recital of facts constituting the offense
charged and determinative of the jurisdiction of
the committee.” The Supreme Court cannot look
into the narration of facts constitutive of the
offenses, because such would require the Court
to determine what constitutes an impeachable
offense. Such a determination is considered to be
purely a political question and thus left to the
sound determination of the legislature. (Gutierrez
v. House Committee on Justice, G.R. 193459,
2011).
Roles of the 3 branches of Government in
impeachment:
(1) Senate has sole power to try and decide cases
of impeachment (Phil. Const., art. XI, sec. 3,
par. (6));
(2) If the President is on trial, the Chief Justice
presides but does not vote (Id.);
(3) The Supreme Court can determine if Congress
committed grave abuse of discretion amounting
to lack or excess of jurisdiction (ex. recognizing
two impeachment complaints).
For impeachment, judgment of conviction requires
the concurrence of 2/3 of all the Members of the
Senate. (Phil. Const., art. XI, sec. 3, par. (6))
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Limitation
Only one impeachment proceeding should be
initiated against an impeachable officer within a
period of one year. (Gutierrez v. House Committee
on Justice, G.R. 193459, 2011)
The SC found it well-within its power to determine
whether Congress committed a violation of the
Constitution or gravely abused its discretion in the
exercise of its functions and prerogatives that could
translate as lack or excess of jurisdiction in taking
cognizance of two impeachment complaints that are
inquisitorial in function, akin to a preliminary
investigation. (Gutierrez v. House Committee on
Justice, G.R. 193459, 2011).
1-year period; When reckoned
The 1-year period shall be counted from the time of
the filing of the first impeachment complaint.
Impeachment proceedings pertain to the
proceedings in the House of Representative which
commences from the initiation of the complaint, to
the referral to proper committees, to submission of
the report to the House, subsequent deliberation,
and ends with the transmittal of the Article of
Impeachment to the Senate. An impeachment case
pertains to a trial in the Senate which commences
at the time the Articles of Impeachment are
transmitted to the Upper House. (Gutierrez v. House
Committee on Justice, G.R. 193459, 2011).
Effects of impeachment: (LDR)
(1) Removal from office of the official concerned
(2) Disqualification to hold any public office
(3) Public officer still Liable to prosecution, trial,
and punishment if the impeachable offense
committed also constitutes a felony or crime.
(Phil. Const., art. XI, sec. 3, par. (7))
THE OMBUDSMAN
act or omission appears to be illegal, unjust,
improper, or inefficient.
(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.
(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.
(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 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.
(6) Publicize matters covered by its investigation
when circumstances so warrant and with due
prudence.
(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. (Sec. 13, Art.
XI, 1987 Constitution)
The Ombudsman and his Deputies, as protectors of
the people, shall act promptly on complaints filed in
any form or manner against officers or employees of
the Government, or of any subdivision, agency or
instrumentality thereof, including governmentowned or controlled corporations, and enforce their
administrative, civil and criminal liability in every
case where the evidence warrants in order to
promote efficient service by the Government to the
people. (Sec. 13, R.A. 6770)
Judicial Review of Administrative and Criminal
Proceedings Before the Ombudsman
1) Provisionary (Interlocutory; e.g. Preventive
Suspension Order) – R65 with CA for GAD
(Ombudsman v. Capulong; Dagan v. Ombudsman;
Carpio-Morales v. CA)
Powers, Functions and Duties of the Office of
the Ombudsman
(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
b) Light Penalties (public censure or reprimand,
suspension of not more than one (1) month’s
salary) = final and unappealable decisions - R65
with CA for GAD (Sec. 27, RA 6770; Crebello v.
2) Administrative
a) Finding of Liability – R43 with CA (Fabian v.
Desierto)
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Sandiganbayan; Canlas v. Bolongan)
c) Dismissal (No Finding of Liability) - R65 with CA
for GAD (Crebello v. Sandiganbayan; Canlas v.
Bolongan)
3) Criminal
a) Finding of Probable Cause – R65 with SC
(Ornales v. Deputy Ombudsman; Enemecio v.
Ombudsman; Tirol v. Del Rosario)
b) Dismissal – R65 with SC (Enemecio v.
Ombudsman; PAO v. Ombudsman)
4) Consolidated administrative and criminal
cases - Rule 43, CA or Rule 65, SC. (Cortes v.
Ombudsman, G.R. No. 187896-97, June 10, 2013)
The Office of the Special Prosecutor
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. (PHIL. CONST., art. XI, § 7.)
Under the present Constitution, the Special
Prosecutor (Raul Gonzalez) is a mere subordinate
of the Tanodbayan Ombudsman) and can
investigate and prosecute cases only upon the
latter's authority or orders. The Special Prosecutor
cannot initiate the prosecution of cases but can only
conduct the same if instructed to do so by the
Ombudsman. Even his original power to issue
subpoena, which he still claims under Section 10(d)
of PD 1630, is now deemed transferred to the
Ombudsman, who may, however, retain it in the
Spedal Prosecutor in connection with the cases he
is
ordered
to
investigate.
(Zaldivar
v.
Sandiganbayan, G.R. No. 79690-707, April 27,
1988).
Under PD 1487, as amended by PD 1607,
Tanodbayan was both prosecutor and Ombudsman.
Harmonisation of the laws left the Special
Prosecutor to continue to exercise powers of the
former Tanodbayan except those specifically
passed on to the Ombudsman.
Since the power to investigate has been vested to
the Ombudsman, the Special Prosecutor can only
investigate and prosecute if authorised by the
Ombudsman.
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National Agency - refers to a unit of the National
Government (Sec. 2(5), Introductory Provisions,
Administrative Code).
Local Agency - refers to a local government or a
distinct unit therein (Sec. 2(6), Introductory
Provisions, Administrative Code).
Department - refers to an executive department
created by law. For purposes of Book IV, this
shall include any instrumentality, as herein
defined, having or assigned the rank of a
department, regardless of its name or
designation (Sec. 2(7), Introductory Provisions,
Administrative Code).
Bureau - refers to any principal subdivision or unit of
any department. For purposes of Book IV, this
shall include any principal subdivision or unit of
any instrumentality given or assigned the rank of
a bureau, regardless of actual name or
designation, as in the case of department-wide
regional offices (Sec. 2(8), Introductory
Provisions, Administrative Code).
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 (Sec. 2(9),
Introductory Provisions, Administrative Code).
Instrumentality - refers to any agency of the
National Government, not integrated within the
department framework vested with special
functions or jurisdiction by law, endowed with
some if not all corporate powers, administering
special funds, and enjoying operational
autonomy, usually through a charter. This term
includes
regulatory
agencies,
chartered
institutions and government-owned or controlled
corporations
(Sec.
2(10),
Introductory
Provisions, Administrative Code).
NOTE: Definition of “Instrumentality” under the
Administrative Code is still relevant, especially to
regulatory agencies EXCEPT for those corporate
entities or those endowed with corporate powers,
which are now covered under the definition of
GICP/GCE under the GOCC Governance Act of
2011.
When the law vests in a government instrumentality
corporate powers, the instrumentality does not
become a corporation. Unless the government
instrumentality is organized as a stock or non-stock
corporation, it remains a government instrumentality
exercising not only governmental but also corporate
powers (Manila International Airport Authority v.
Court of Appeals, G.R. No. 155650).
Many government instrumentalities are vested with
corporate powers but they do not become stock or
non-stock corporations, which is a necessary
condition before an agency or instrumentality is
deemed a government-owned or controlled
corporation. Examples are the Mactan International
Airport Authority, the Philippine Ports Authority, the
University of the Philippines and Bangko Sentral ng
Pilipinas. All these government instrumentalities
exercise corporate powers but they are not organized
as stock or non-stock corporations as required by
Section 2(13) of the Introductory Provisions of the
Administrative Code (Manila International Airport
Authority v. Court of Appeals, G.R. No. 155650).
Government-Owned or -Controlled Corporation
(GOCC) - refers to any agency organized as a
stock or nonstock corporation, vested with
functions relating to public needs whether
governmental or proprietary in nature, and
owned by the Government of the Republic of the
Philippines
directly
or
through
its
instrumentalities either wholly or, where
applicable as in the case of stock corporations,
to the extent of at least a majority of its
outstanding
capital
stock: Provided,
however, That for purposes of this Act, the term
"GOCC" shall include GICP/GCE and GFI as
defined herein. (GOCC Governance Act of 2011,
Republic Act No. 10149, [June 6, 2011])
Government Instrumentalities with Corporate
Powers
(GICP)/Government
Corporate
Entities (GCE) - refer to instrumentalities or
agencies of the government, which are neither
corporations nor agencies integrated within
the departmental framework, but vested by
law with special functions or jurisdiction,
endowed with some if not all corporate
powers, administering special funds, and
enjoying operational autonomy usually
through a charter (Sec. 3(n), GOCC
Governance Act of 2011).
An agency will be classified as a government
instrumentality vested with corporate powers when
the following elements concur:
it performs governmental functions; and
it enjoys operational autonomy. It does not matter
that the government instrumentality is endowed
with corporate powers (Light Rail Transit
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Authority v. Quezon City, G.R. No. 221626,
2019).
that function (Sec. 2(14), Introductory Provisions,
Administrative Code).
NOTE: Legal consequence of being classified as a
government instrumentality is that it’s exempted
from real property tax. (Light Rail Transit Authority
v. Quezon City, G.R. No. 221626, 2019)
“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 (Sec.
2(15), Introductory Provisions, Administrative
Code).
Hence, in addition to government-owned and
controlled
corporations
(GOCCs)
and
instrumentalities, a third category of government
agencies under the jurisdiction of the OGCC is
now recognized — government instrumentalities
vested with corporate powers or government
corporate entities. These entities remain
government instrumentalities because they are
not integrated within the department framework
and are vested with special functions to carry out
a declared policy of the national government. An
agency will be classified as a government
instrumentality vested with corporate powers
when the following elements concur: a) it performs
governmental functions, and b) it enjoys
operational autonomy. The PHC passes these
twin criteria. (Philippine Heart Center v. Local
Government of Quezon City, G.R. No. 225409,
[March 11, 2020])
Regulatory agency - refers to any agency expressly
vested with jurisdiction to regulate, administer or
adjudicate matters affecting substantial rights
and interest of private persons, the principal
powers of which are exercised by a collective
body, such as a commission, board or council
(Sec.
2(11),
Introductory
Provisions,
Administrative Code).
Chartered institution - refers to any agency
organized or operating under a special charter,
and vested by law with functions relating to
specific constitutional policies or objectives. This
term includes the state universities and colleges
and the monetary authority of the State (Sec.
2(12), Introductory Provisions, Administrative
Code).
“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 authority to do the act or exercise
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C. POWERS OF ADMINISTRATIVE
AGENCIES
Nature of Powers
Special and Limited Jurisdiction. In general, the
jurisdiction of administrative officers and
agencies is special and limited. They possess a
limited jurisdiction, or purely constitutional or
statutory powers, and they possess only such
powers and authority as have been specifically
conferred upon them by the Constitution or
specifically granted to them by their enabling
statutes and those as may be necessarily
implied in the exercise thereof or incidental to
the attainment of their purposes or objectives.
Broad Powers within Jurisdiction. However, the
powers conferred on them must be
commensurate with the duties to be performed
and the purposes to be lawfully effected. In
various instances, the powers of particular
administrative bodies have been held broad
and plenary within their fields, and in such case,
it is only where such power and authority have
been manifestly abused that a court may
interfere.
Powers Limited by Constitution, Law, and
Regulations. A government agency must
respect the presumption of constitutionality and
legality to which statutes and administrative
regulations are entitled until such statute or
regulation is repealed or amended, or until set
aside in an appropriate case by a competent
court, and ultimately by the Supreme Court. It is
not authorized to substitute its own judgment for
any applicable law or administrative regulation
with the wisdom or propriety of which it does not
agree, at least not before such law or regulation
is set aside by the authorized agency of the
government. (De Leon, Administrative Law:
Text and Cases 66, 2016)
While it is a fundamental rule that an administrative
agency has only such powers as are expressly
granted to it by law, it is likewise a settled rule that
an administrative agency has also such powers
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NON-DELEGABILITY PRINCIPLE.
The rule is that what has been delegated cannot be
delegated, or as expressed in the Latin maxim:
potestas delegate non delegare potest. This rule is
based upon the ethical principle that such delegated
power constitutes not only a right but a duty to be
performed by the delegate by the instrumentality of
his own judgment acting immediately upon the
matter of legislation and not through the intervening
mind of another. This rule however admits of
recognized exceptions such as the grant of rulemaking power to administrative agencies. They
have been granted by Congress with the authority
to issue rules to regulate the implementation of a law
entrusted to them. Delegated rule-making has
become a practical necessity in modern governance
due to the increasing complexity and variety of
public functions. [Dagan v. Philippine Racing
Commission, GR No. 175220, 2009]
Notably, the principle of non-delegability should not
be confused as a restriction to delegate rule-making
authority to implementing agencies for the limited
purpose of either filling up the details of the law for
its enforcement (supplementary rule-making) or
ascertaining facts to bring the law into actual
operation (contingent rule-making).
TESTS OF DELEGATION.
Two tests determine the validity of delegation of
legislative power: (1) the completeness test and (2)
the sufficient standard test. A law is complete
when it sets forth therein the policy to be
executed, carried out or implemented by the
delegate. It lays down a sufficient standard when
it provides adequate guidelines or limitations in
the law to map out the boundaries of the
delegate's authority and prevent the delegation
from running riot. To be sufficient, the standard
must specify the limits of the delegate's authority,
announce the legislative policy and identify the
conditions under which it is to be implemented.
(Abakada Guro v. Purisima, GR No. 166715, 2008)
NOTE:
If the law passes the completeness test (e.g. K to 12
Law), there is no need to comply with the
sufficient standard test, it would constitute as
a valid delegation.
If the law is not complete, but passes the sufficient
standard test, it would constitute as a valid
delegation.
If the law fails the sufficient standard test, then it
would constitute as an undue delegation
and hence, unconstitutional.
Exceptions (To the Rule Requiring Standards;
When Not Required): (SPIRPE)
d. Handling of State property or
funds
e. When the law does not involve
Personal or property rights
f. Matters of Internal administration
g. Power of the board to make
Recommendation
h. Matters involving Privileges (like
use of property, engaging in
profession)
i. Regulation or Exercise of police
power to protect general welfare,
morals and public policy
NOTE: Still subject to reasonableness standard:
Bear reasonable relation to the purpose sought to
be accomplished
Supported by good reasons
Free from constitutional infirmities or charge of
arbitrariness.
EXAMPLES OF VALID DELEGATION
Issuance prohibiting selling of shares without prior
license for public interest. (People v. Rosenthal,
GR No. 46076, 1939)
Prohibition of animal drawn carriage to use the
roads during certain times for public
convenience and welfare. (Calalang v.
Williams, GR No. 47800, 1940)
Authorizing President to make reforms and changes
in GOCCs for economy and efficiency.
(Cervantes v. Auditor General, GR No. L-4043,
1952)
K to 12 Law implementation is complete in
conditions and parameters through the
legislative policy on the power delegated to the
DepEd, CHED, and TESDA. (Council of
Teachers v. Secretary of Education, GR No.
216930, 2018)
EXAMPLES OF INVALID/UNDUE DELEGATION
2013 PDAF article – Post enactment identification of
by the legislators. (Belgica v. Ochoa, GR No.
208566, 2013)
Section 8, PD 910 (Malampaya Fund) - The phrase
"and for such other purposes as may be
hereafter directed by the President" under
Section 8 of PD 910 constitutes an undue
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inherent power of the Executive to
adopt rules and regulations to execute or
implement the law is different from the
delegated legislative power to prescribe rules.
The inherent power of the Executive to
adopt rules to execute the law does not require
any legislative standards for its exercise while
the delegated legislative power requires
sufficient legislative standards for its exercise.
xxx xxx xxx Whether the rule-making power by
the Executive is a delegated legislative power
or an inherent Executive power depends on the
nature of the rule-making power involved. If the
rule-making power is inherently a legislative
power, such as the power to fix tariff rates, the
rule-making power of the Executive is a
delegated legislative power. In such event, the
delegated power can be exercised only if
sufficient standards are prescribed in the law
delegating the power. If the rules are issued
by the President in implementation or
execution of self-executory constitutional
powers vested in the President, the rulemaking power of the President is not a
delegated legislative power. x x x. The rule is
that the President can execute the law
without any delegation of power from the
legislature. Otherwise, the President
becomes a mere figure-head and not the
sole Executive of the Government. (Genuino
v. De Lima, G.R. Nos. 197930, 199034 &
199046, April 17, 2018)
However, the questioned circular in Genuino v. De
Lima does not come under the inherent power
of the executive department to adopt rules and
regulations as clearly the issuance of HDO
and WLO is not the DOJ's business. As
such, it is a compulsory requirement that
there be an existing law, complete and
sufficient in itself, conferring the expressed
authority to the concerned agency to
promulgate rules. On its own, the DOJ cannot
make rules, its authority being confined to
execution of laws. (Genuino v. De Lima, G.R.
Nos. 197930, 199034 & 199046, April 17, 2018)
Kinds of Administrative Rules and Regulations
An administrative regulation may be classified as
follows (Republic v. Drugmaker's Laboratories, Inc.,
G.R. No. 190837, 2014):
(1) Legislative rules are in the nature of
subordinate legislation and designed to
implement a primary legislation by providing
the details thereof. They usually implement
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existing law, imposing general, extra-statutory
obligations pursuant to authority properly delegated
by Congress and effect a change in existing law or
policy which affects individual rights and
obligations.
(2) Interpretative rules are intended to interpret,
clarify or explain existing statutory regulations
under which the administrative body operates.
Their purpose or objective is merely to construe the
statute being administered and purport to do no
more than interpret the statute. Simply, they try to
say what the statute means and refer to no single
person or party in particular but concern all those
belonging to the same class which may be covered
by the said rules.
When an administrative rule is merely interpretative
in nature, its applicability needs nothing further than
its bare issuance for it gives no real consequence
more than what the law itself has already
prescribed. When, upon the other hand, the
administrative rule goes beyond merely providing for
the means that can facilitate or render least
cumbersome the implementation of the law but
substantially adds to or increases the burden of
those governed, it behooves the agency to accord
at least to those directly affected a chance to be
heard, and thereafter to be duly informed, before
that new issuance is given the force and effect of
law. (CIR v. Court of Appeals, G.R. No. 119761,
1996)
(3)
Contingent rules
are
those
issued
by an administrative authority based on the
existence of certain facts or things upon which
the enforcement of the law depends.
Congress may provide that a law shall take effect
upon the happening of future specified
contingencies leaving to some other person or body
the power to determine when the specified
contingency has arisen.
It may delegate a power not legislative which it may
itself rightfully exercise. The power to ascertain
facts is such power which may be delegated.
The finding by an administrative authority of the
existence of conditions defined in the statute
under which its provisions shall become
operative comes under the head of rule-making
since it usually involves judgment, if not
discretion.
The true distinction, therefore, is between the
delegation of power to make the law which
necessarily involves a discretion as to what it shall
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effective fifteen (15) days from the date of filing.
[Secs. 3-4, Chapter 2, Book VII, Administrative
Code of 1987]
(Pharmaceuticals and Health Care Association of
the Philippines v. Duque, G.R. 173034, 2007)
It must be reasonable.
According to the Administrative Code, 3 copies of
every rule should be filed in the Office of the
National Administrative Register (ONAR) of the UP
Law Center. Failure to comply with this makes the
administrative issuance ineffective & may not be
enforced. (GMA v. MTRCB, G.R. 148579, 2007)
This registration requirement is part of publication.
Not all rules and regulations adopted by every
government agency are to be filed with the UP Law
Center. Only those of general or of permanent
character are to be filed. Internal rules which are
meant to regulate the personnel of the GSIS are not
subject to filing with the UP Law Center.
(Board of Trustees v. Velasco, G.R. 17046, 2011).
NOTE: Whenever publication is required, it is the
condition sine qua non that will make the regulation
effective. Thus, filing alone without publication
is not the operative act that will make the
administrative rule effective. (Republic v. Express
Telecommunications, GR No. 147096, 2002)
It must be within the scope of the authority
given by the legislature (must not be
ultra vires)
This simply means that the resulting IRRs must
not be ultra vires as to be issued beyond the
limits of the authority conferred. It is basic that an
administrative agency cannot amend an act of
Congress for administrative IRRs are solely
intended to carry out, not to supplant or to modify,
the law. The administrative agency issuing the IRRs
may not enlarge, alter, or restrict the provisions of
the law it administers and enforces, and cannot
engraft additional non-contradictory requirements
not contemplated by the Legislature. (Lokin, Jr. v.
Commission on Elections, G.R. Nos. 179431-32 &
180443, 2010)
The DOH’s power under the Milk Code to control
information regarding breast milk vis-a-vis breast
milk substitutes is not absolute, as the power to
control does not encompass the power to absolutely
prohibit the advertising, marketing, and promotion of
breast milk substitutes. Neither the Milk Code nor
the Revised Administrative Code grants the DOH
the authority to fix or impose administrative fines.
Without any express grant of power to fix or impose
such fines, the DOH cannot provide for those fines
in the RIRR. The DOH exceeded its authority by
providing for such fines or sanctions in the RIRR.
The police power legislation must be firmly
grounded on public interest and welfare, and a
reasonable relation must exist between purposes
and means. And if distinction and classification
ha[ve] been made, there must be a reasonable
basis for said distinction. (PBOAP v. DOLE citing
Ichong v. Hernandez)
2. QUASI-JUDICIAL (ADJUDICATORY)
POWER
Powers and functions which involve the decision or
determination by administrative agencies of the
rights, duties, and obligations of specific individuals
and persons, as contrasted with powers (i.e., rulemaking) of administrative agencies which, while
they may involve decisions or determinations in the
broadest sense, involve persons generally rather
than specially, and usually operate only
prospectively. (De Leon, Administrative Law: Text
and Cases 172, 2016)
DEFINITION. The Quasi-Judicial Power has been
defined as the power of the administrative
authorities to make determinations of facts in the
performance of their official duties and to apply the
law as they construe it to the facts so found. The
exercise of this power is only incidental to their main
function, which is the enforcement of the law. (Carlo
Cruz, Philippine Administrative Law 49, 2016)
QUASI-JUDICIAL BODY. A quasi-judicial body has
been defined as "an organ of government other than
a court and other than a legislature, which affects
the rights of private parties through either
adjudication or rule making." The most common
types of such bodies have been listed as follows
[Presidential Anti-Dollar Salting Task Force v. Court
of Appeals, G.R. No. 83578, March 16, 1989 citing
GONZALES, ADMINISTRATIVE LAW, A TEXT 1315 (1979)]:
Agencies created to function in situations wherein
the government is offering some gratuity,
grant, or special privilege, like the defunct
Philippine Veterans Board, Board on Pensions
for Veterans, and NARRA, and Philippine
Veterans Administration.
Agencies set up to function in situations wherein
the government is seeking to carry on
certain government functions, like the
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administration of justice whereby the judgment of a
court of competent jurisdiction may not be opened,
modified or vacated by any court or tribunal of
concurrent jurisdiction.([Freeman, Inc. v. Securities
and Exchange Commission, G.R. No. 110265, [July
7, 1994], 304 PHIL 139-148 citing Mercado v.
Ubay, GR No. L-35830, 24 July 1990)
As a rule, where legislation provides for an appeal
from decisions of certain administrative bodies to
the Court of Appeals, it means that such bodies are
co-equal with the Regional Trial Courts, in terms of
rank and stature, and logically, beyond the control
of the latter. [Presidential Anti-Dollar Salting Task
Force v. Court of Appeals, G.R. No. 83578, 1989]
Courts may not interfere with administrative and
discretionary functions of administrative agencies. It
should be emphasized here, as again stressed by
the Court in the case of Republic, et al. vs. De los
Angeles, et al., G.R. No. L-30240, March 25, 1988,
that "it is well-recognized principle that purely
administrative and discretionary functions may
not be interfered with by the courts. In general,
courts have no supervising power over the
proceedings and actions of the administrative
departments of government. This is generally
true with respect to acts involving the exercise
of judgment or discretion, and findings of fact.
There should be no thought of disregarding the
traditional line separating judicial and
administrative competence, the former being
entrusted with the determination of legal
questions and the latter being limited as a result
of its expertise to the ascertainment of the
decisive facts." [Presidential Commission on Good
Government v. Peña, G.R. No. 77663, [April 12,
1988], 243 PHIL 93-135]
The doctrine of judicial stability or non-interference
in the regular orders or judgments of a co-equal
court is an elementary principle in the administration
of justice: 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 the injunction. The rationale for the
rule is founded on the concept of jurisdiction: a court
that acquires jurisdiction over the 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. [Barroso v. Omelio, G.R. No. 194767 ,
2015]
Enforcement of decisions
It must be in accordance with the manner prescribed
by the statute. If there is no provision, resort to the
courts is necessary for enforcement.
When fully authorized by law, administrative
agencies (e.g. Civil Aeronautics Board) can impose
fines in the nature of civil penalty for violations of its
rules and regulations. Thus, in CAB v. PAL: There
exists but an insignificant doubt in Our mind that the
C.A.B. is fully authorized by law (Republic Act 776)
to impose fines in the nature of civil penalty for
violations of its rules and regulations. To deprive the
C.A.B. of that power would amount to an absurd
interpretation of the pertinent legal provision
because the CAB is given full power on its own
initiative to determine whether to "impose, remit,
mitigate, increase or compromise" "fines and civil
penalties", a power which is expressly given to the
Civil Aeronautics Administrator whose orders or
decision may be reviewed, revised, reversed,
modified or affirmed by the CAB. Besides, to
deprive the C.A.B. of its power to impose civil
penalties would negate its effective general
supervision and control over air carriers if they
can just disregard with impunity the rules and
regulations designed to insure public safety and
convenience in air transportation. If every time
the C.A.B. would like to impose a civil penalty on
an erring airline for violation of its rules and
regulations it would have to resort to courts of
justice in protracted litigations then it could not
serve its purpose of exercising a competent,
efficient and effective supervision and control
over air carriers in their vital role of rendering
public service by affording safe and convenient
air transit. (Civil Aeronautics Board v. Philippine Air
Lines, Inc., G.R. No. L-40245, April 30, 1975)
NOTE: Administrative agencies that have been, by
authority of law, granted the power to render
decisions, issue orders, or impose fines would have
the corresponding power to enforce the same as
well, such as the Energy Regulatory Commission
(ERC), National Telecommunications Commission
(NTC), and Civil Aeronautics Board.
Characteristics of Quasi-Judicial Proceedings –
(PJAC)
Adversarial in nature; every proceeding is adversary
in substance if it may result in an order in favor
of one person against another.
Such proceedings partake of the nature of Judicial
proceedings if it involves taking and evaluation
of evidence, determination of facts based upon
evidence presented and rendering an order or
decision supported by the facts proved.
Particular proceedings before an administrative
agency have been held Civil rather than criminal
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in nature.
The proceeding for forfeiture while administrative in
character thus possesses a criminal or penal
aspect. (Cabal v. Kapunan, G.R. L-19052,
1962).
Requisites of Quasi-Judicial Proceedings: (JD)
Jurisdiction (defined by law/charter) - power and
authority given by law to hear and decide a
case; consists of TWO elements—jurisdiction
over subject-matter and over the person.
Without jurisdiction, acts are void and open to
collateral attack.
Administrative agencies are tribunals of
specialized or limited jurisdiction, which is
dependent entirely upon the validity and the
terms of the statutes reposing power in
them.
An administrative agency cannot enlarge its
own jurisdiction nor can jurisdiction be
conferred upon an agency by parties before
it.
When a particular statute authorizes an
administrative agency to act in a particular
situation, it necessarily confers upon such
agency authority to determine whether the
situation is such as to authorize the agency
to act; an administrative agency’s
determination as to its jurisdiction is not
conclusive to the courts.
Expiration of a statute may be held not to
deprive an administrative agency of
jurisdiction to enforce the statute as to
liabilities incurred while the statute was in
force, where a general saving statute
continues such liabilities.
Administrative agencies are creatures of the
law and they have no general powers but
only such as conferred by law; where the
law confines in an administrative officer the
power to determine particular questions or
matters upon facts presented, the
jurisdiction of such office shall prevail over
courts.
In order for the Court to acquire jurisdiction over
an administrative case, the complaint must
be filed during the incumbency of the
respondent. Once jurisdiction is acquired, it
is not lost by reason of respondent’s
cessation from office. (Office of the Court
Administrator v. Andaya, A.M. RTJ-092181, 2013).
Due Process — Doctrine of primary jurisdiction.
If the determination 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 remedy will be supplied by the
courts.
Failure to comply with this doctrine renders the
action open to a motion to suspend pending
referral of the issues to the administrative
agency.
Administrative Due Process
The right to a hearing, which includes the right
to present one’s case and submit evidence
in support thereof. However, a “trial-type”
proceeding is not required. The essence is
the opportunity to be heard.
The tribunal or body or any of its judges must
act on its or his own independent
consideration of the law and facts of the
controversy, and not simply accept the
views of a subordinate in arriving at a
decision.
The decision must be based on the evidence
presented at the hearing or at least
contained in the record and disclosed to the
parties affected.
The decision must have something to support
itself.
The tribunal must consider the evidence
presented.
Evidence supporting the conclusion must be
substantial.
The board or body should, in all controversial
questions, render its decision in such a
manner that the parties to the proceeding
can know the various issues involved and
the reasons for the decision rendered. (Ang
Tibay v. CIR, G.R. L-46496, 1940)
Doctrines:
For as long as the parties were given fair and
reasonable opportunity to be heard and to
submit evidence in support of their arguments
before judgment was rendered, the demands of
due process are sufficiently met. (Casimiro v.
Tandog G.R. 146137, 2005)
Procedural due process is the constitutional
standard demanding that notice and an
opportunity to be heard be given before
judgment is rendered. As long as a party is
given the opportunity to defend his interests in
due course, he would have no reason to
complain; the essence of due process is in the
opportunity to be heard. A formal or trial-type
hearing is not always necessary. (Imperial v.
GSIS, G.R. 191224, 2011)
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A decision is void for lack of due process if, as a
result, a party is deprived of the opportunity to
be heard. A void decision may be assailed or
impugned at any time either directly or
collaterally by means of a separate action, or by
resisting such decision in any action or
proceeding where it is invoked. (Uy vs. Court of
Appeals, G.R. 109557, 2000)
The rule requiring an administrative officer to
exercise his own judgment and discretion does
not preclude him from utilizing the aid of his
subordinates in the hearing and reception of
evidence. (American Tobacco v. Director of
Patents, G.R. No. 26803, 1975)
When an administrative agency acts as a collegiate
body, its power and duties cannot be exercised
by the members individually. (GMCR v. Bell
Telecommunications, G.R. No. 126496, 1997)
The essence of due process in administrative
proceedings is the opportunity to explain one’s
side or seek a reconsideration of the action or
ruling complained of. (Antonio v. Villa, G.R.
114694, 2005)
There is no denial of due process just because no
cross-examination took place. What is
important is that she was given the opportunity
to do so. (Vertudes v. Buenaflor, G.R. 153166,
2005)
In administrative proceedings, the filing of charges
and giving reasonable opportunity for the
person charged to answer the accusation
against
him
constitute
the
minimum
requirements of due process. (Cayago v. Lina,
G.R. 149539, 2005)
Some proceedings are instituted by simple ex parte
applications. Others are instituted by filing of a
charge or complaint by an aggrieved person.
Under other statutes, particular administrative
agencies may institute proceedings on their
own initiative, motion, or complaint.
Due Process requirements are usually in the statute,
but if none is provided, the Constitutional
guarantee of due process of law must be
upheld. (Notice, to enable a party to be heard
and to present evidence, is not a mere
technicality or a trivial matter in any judicial or
quasi-judicial proceedings. The service of
summons is a very vital and indispensable
ingredient of Due Process). When an agency
fails to afford previous notice, it may be cured
by subsequently giving the party an opportunity
to be heard. Motion for reconsideration is a
means to cure the defect of notice.
Non-filing of any administrative charge against the
accused preparatory to his dismissal, and
therefore the dismissal effected without any
administrative complaint, violated the right of
the accused to substantive and procedural due
process. He is entitled to reinstatement and to
payment of the salaries, allowances, and other
benefits withheld from him by reason of his
discharge from the service. (Calinisan v.
Roaquin, G.R. 159588, 2010)
The subsequent desistance by complainant does
not free the respondent from liability, as the
purpose of an administrative proceeding is to
protect the public service based on the timehonored principle that a public officer is a public
trust. (Encinas v. Agustin Jr., G.R. 187317,
2013)
The Revised Rules on Administrative Cases in the
Civil Service themselves provide that
administrative investigations shall be conducted
without strict recourse to the technical rules of
procedure and evidence applicable to judicial
proceedings. (Adalin v. Taninas, G.R. L198682, 2013)
The dismissal of the criminal complaint does not
affect the administrative case arising from the
same incident which gave rise to said criminal
case. (Gabriel v. Ramos, A.M. P-06-2256,
2013)
The essence of due process in administrative
proceedings is the opportunity to explain one's
side or seek a reconsideration of the action or
ruling complained of. As long as the parties are
given the opportunity to be heard before
judgment is rendered, the demands of due
process are sufficiently met. What is offensive
to due process is the denial of the opportunity
to be heard. Nothing is irregular in considering
the investigation terminated and submitting the
case for resolution based on available evidence
upon failure of the respondent to file his
counter-affidavit or answer despite giving him
ample opportunity to do so. Moreover, Section
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3032, 2013; Re: Letter Complaint of Merlita B.
Fabiana Against Presiding Justice Andres B. Reyes,
A.M. No. CA-13-51-J, 2013)
Administrative proceedings are governed by the
"substantial evidence rule." Otherwise stated, a
finding of guilt in an administrative case would have
to be sustained for as long as it is supported by
substantial evidence that the respondent has
committed
acts
stated
in
the
complaint. Substantial evidence is more than a
mere scintilla of evidence. It means such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion,
even if other minds equally reasonable might
conceivably opine otherwise. (Office of the
Ombudsman v. Valencia, G.R. No. 183890, [April
13, 2011], 664 PHIL 190-209)
The AMLC’s investigation of money laundering
offenses and its determination of possible money
laundering offenses, specifically its inquiry into
certain bank accounts allowed by court order, does
not transform it into an investigative body exercising
quasi-judicial powers. Hence, Section 11 of the
AMLA, authorizing a bank inquiry court order,
cannot be said to violate SPCMB’s constitutional
right to procedural process. (Subido Pagente
Certeza Mendoza and Binay Law Offices v. CA,
G.R. No. 216914, 2017)
Authority to hear can be delegated
This subdelegation of power has been justified by
"sound principles of organization" which demand
that "those at the top be able to concentrate their
attention upon the larger and more important
questions of policy and practice, and their time be
freed, so far as possible, from the consideration of
the smaller and far less important matters of detail."
Thus, it is well-settled that while the power to decide
resides solely in the administrative agency vested
by law, this does not preclude a delegation of the
power to hold a hearing on the basis of which the
decision of the administrative agency will be made.
(American Tobacco v. Director of Patents, GR No.
26803, 1975)
The (Securities and Exchange) Commission
empowered the Prosecution And Enforcement
Department (PED) to conduct the hearing and to
decide on the revocation of a certificate of
registration. The provisions of Pres. Decree No.
902-A as amended do not prohibit the respondent
Commission from designating an officer or a division
to hear a case. The Court reiterates that in the
absence in the rules of the Commission of a
provision designating a particular officer or
department that should try a particular action, the
Commission can validly call upon any of its qualified
departments to try a particular action, including the
PED to hear and make a preliminary ruling on the
case. This was what the Commission did to meet the
demands or orderly and responsible administration
of all the task assigned to it as a government
agency. [Skyworld v. SEC, GR No. 95778, 1992]
Preliminary Investigation is not a quasi-judicial
proceeding
The prosecutor in a preliminary investigation does
not determine the guilt or innocence of the accused.
He does not exercise adjudication nor rule-making
functions. Preliminary investigation is merely
inquisitorial, and is often the only means of
discovering the persons who may be reasonably
charged with a crime and to enable the fiscal to
prepare his complaint or information. It is not a trial
of the case on the merits and has no purpose except
that of determining whether a crime has been
committed and whether there is probable cause to
believe that the accused is guilty thereof. While the
fiscal makes that determination, he cannot be said
to be acting as a quasi-court, for it is the courts,
ultimately, that pass judgment on the accused, not
the fiscal. [Bautista v. Court of Appeals, GR No.
143375, 2001]
Contempt Power. "The power to punish for
contempt is inherent in all courts; its existence is
essential to the preservation of order in judicial
proceedings, and to the enforcement of judgments,
orders and mandates of courts, and, consequently,
in the administration of justice" (Slade
Perkins vs. Director of Prisons, 58 Phil., 271; U.
S. vs. Loo Hoe, 36 Phil., 867; In Re Sotto, 46 Off.
Gaz. 2570; In Re Kelly, 35 Phil., 944). The exercise
of this power has always been regarded as a
necessary incident and attribute of courts (Slade
Perkins vs. Director of Prisons, Ibid.). [Guevara v.
Commission on Elections, G.R. No. L-12596, [July
31, 1958], 104 PHIL 268-278)]
Its exercise by administrative bodies has been
invariably limited to making effective the power to
elicit testimony (People vs. Swena, 296 P., 271).
And the exercise of that power by an
administrative body in furtherance of its
administrative function has been held invalid
(Langenberg vs. Decker, 31 N.E. 190; In Re Sims
37 P., 135; Roberts vs. Hacney, 58 S.W., 810).
[Guevara v. Commission on Elections, G.R. No. L12596, [July 31, 1958], 104 PHIL 268-278)]
The power to hold in contempt, it has time and
again been held, must be exercised, not on the
vindictive, but on the preservative principle. It is
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General Rule: the decision of Solicitor-General and
Secretary of Justice is binding and final.
Exception: When the claim involves 1 million
pesos, in which case, the dispute is appealed to the
Office of the President.
Administrative Res Judicata
Decisions and orders of administrative agencies
have upon their finality, the force and effect of a final
judgment within the purview of the doctrine of res
judicata. The extent of whether an administrative
decision operates as res judicata also depends on
the interpretation of the enabling statute.
The application of the doctrine of res judicata is
dependent upon the type of determination and
proceedings. It is applicable in administrative
actions that have been characterized as
“adjudicatory,” “judicial,” or “quasi- judicial.”
On the other hand, it is inapplicable in administrative
determinations which are of “administrative,”
“executive,” “legislative,” or “ministerial” nature.
While it is true that this Court has declared that the
doctrine of res judicata applies only to judicial or
quasi-judicial proceedings, and not to the exercise
of administrative powers, we have also limited the
latter to proceedings purely administrative in nature.
Therefore, when the administrative proceedings
take on an adversary character, the doctrine of
res judicata certainly applies. As this Court held
in Fortich v. Corona: “The rule of res judicata
which forbids the reopening of a matter once
judicially determined by competent authority
applies as well to the judicial and quasi-judicial
acts of public, executive or administrative
officers and boards acting within their
jurisdiction as to the judgments of courts having
general judicial powers.” (Derla v. Vda. de
Hipolito, G.R. No. 157717, 2011)
Example: The principle of res judicata is applicable
in labor relations proceedings which are “nonlitigious and summary in nature without regard to
legal technicalities obtaining in courts of law.” (Rules
and Regulations Implementing the Labor Code,
Sec. 5, Rule XIII, Book V).
Not Applicable
When the question of citizenship is resolved by a
court or an administrative body as a material
issue in the controversy after a full-blown
hearing. (Zita Ngo Burca v. Republic, G.R.
122226, 1998; United Pepsi Cola v. Laguesma,
G.R. L-24252, 1973)
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When WCC Referee awards the employee less than
what the law provides (BF Goodrich v. WCC,
G.R. L-42319, 1978)
In the exercise of administrative powers, such as
when the Philippine Commission Against Graft
and Corruption conducts an investigation over a
presidential appointee that is administrative in
nature, which is different from the investigation
conducted by the Ombudsman to determine
criminal liability. (Montemayor v. Bundalian,
G.R. No. 149335, 2003)
If former judgment is based on a prohibited or null
and void contract. Therefore, there is no valid
judgment which can be predicated on res
judicata. (BF Goodrich v. WCC, G.R. No.
38569, 1988)
The essential requisites for the existence of res
judicata are: (1) the former judgment must be final;
(2) it must have been rendered by a court having
jurisdiction of the subject matter and the parties;
(3) it must be a judgment on the merits; and (4)
there must be, between the first and second actions:
(a) identity of parties (b) identity of subject
matter and (c) identity of cause of action (Ipekdjian
v. CTA citing Navarro vs. Director of Lands, L18814, July 31, 1962; Aring vs. Original, L-18464,
Dec. 29, 1962).
Principle of res judicata in the mode of
"conclusiveness of judgment"
The principle of res judicata in the mode of
"conclusiveness of judgment" applies when the
NLRC ruling was affirmed by the Court of Appeals.
It was a judicial affirmation through a decision duly
promulgated and rendered final and executory when
no appeal was undertaken within the reglementary
period. The jurisdiction of the NLRC, which is a
quasi-judicial body, was undisputed. Neither can the
jurisdiction of the Court of Appeals over the NLRC
decision be the subject of a dispute. The NLRC case
was clearly decided on its merits; likewise on the
merits was the affirmation of the NLRC by the Court
of Appeals. With respect to the fourth element of
identity of parties, we hold that there is substantial
compliance. The parties in SSC and NLRC cases
are not strictly identical. Jurisprudence however
does not dictate absolute identity but only
substantial identity. There is substantial identity of
parties when there is a community of interest
between a party in the first case and a party in the
second case, even if the latter was not impleaded in
the first case. (SSC v. Rizal Poultry and Livestock
Association, G.R. 167050, 2011)
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judgment." (Cariño v. Commission on Human
Rights, G.R. No. 96681, 1991).
Thus, in Cariño v. Commission on Human Rights,
the CHR cannot try and resolve on the merits
(adjudicate) as it only has the power to investigate
under the 1987 Constitution.
RATE-FIXING POWER
POLICE POWER. The regulation of rates to be
charged by public utilities is founded upon the police
powers of the State and statutes prescribing rules
for the control and regulation of public utilities are a
valid exercise thereof. (Republic v. MERALCO, GR
No. 141314, 2002)
NOTE: Rate-fixing power does not necessarily
include the right to impose fines unless expressly
provided by its charter. (RCPI v. NTC, GR No.
93237, 1992; PAL v. CAB, GR No. 119528, 1997)
NOT THE POWER TO DESTROY. The rule is that
the power of the State to regulate the conduct and
business of public utilities is limited by the
consideration that it is not the owner of the property
of the utility, or clothed with the general power of
management incident to ownership, since the
private right of ownership to such property remains
and is not to be destroyed by the regulatory power.
The power to regulate is not the power to destroy
useful and harmless enterprises, but is the power to
protect, foster, promote, preserve, and control with
due regard for the interest, first and foremost, of the
public, then of the utility and of its patrons. Any
regulation, therefore, which operates as an effective
confiscation of private property or constitutes an
arbitrary or unreasonable infringement of property
rights is void, because it is repugnant to the
constitutional guaranties of due process and equal
protection of the laws. (Philippine Communications
Satellite Corp. v. Alcuaz, G.R. No. 84818, 1989)
PRESCRIBING RATES IS EITHER LEGISLATIVE
OR ADJUDICATIVE. The function of prescribing
rates by an administrative agency may be either a
legislative or an adjudicative function. If it were a
legislative function, the grant of prior notice and
hearing to the affected parties is not a
requirement of due process. As regards rates
prescribed by an administrative agency in the
exercise of its quasi-judicial function, prior
notice and hearing are essential to the validity of
such rates. When the rules and/or rates laid down
by an administrative agency are meant to apply to
all enterprises of a given kind throughout the
country, they may partake of a legislative character.
Where the rules and the rates imposed apply
exclusively to a particular party, based upon a
finding of fact, then its function is quasi-judicial in
character. (Philippine Consumers Foundation, Inc.
v. Secretary of Education, Culture and Sports, G.R.
No. 78385, 1987)
PROVISIONAL RATES. An administrative agency
may be empowered to approve provisionally, when
demanded by urgent public need, rates of public
utilities without a hearing. The reason is easily
discerned from the fact that provisional rates are by
their nature temporary and subject to adjustment in
conformity with the definitive rates approved after
final hearing. [Padua v. Ranada, G.R. Nos. 141949
& 151108, 2002].
SUBSEQUENT
RATES.
Subsequent toll rate
adjustments are mandated by law to undergo both
the requirements of public hearing and publication.
[Francisco, Jr. v. Toll Regulatory Board, G.R. Nos.
166910, 169917, 173630 & 183599, 2010]
REASONABLE AND JUST RATE. 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. (Republic v. MERALCO, GR
No. 141314, 2002)
AGAINST ARBITRARY AND EXCESSIVE RATES.
In regulating rates charged by public utilities, the
State protects the public against arbitrary and
excessive rates while maintaining the efficiency and
quality of services rendered. However, the power to
regulate rates does not give the State the right to
prescribe rates which are so low as to deprive the
public utility of a reasonable return on
investment. Thus, the rates prescribed by the State
must be one that yields a fair return on the public
utility upon the value of the property performing the
service and one that is reasonable to the public for
the services rendered. The fixing of just and
reasonable rates involves a balancing of the
investor and the consumer interests. (Republic v.
MERALCO, GR No. 141314, 2002)
SUBJECT TO JUDICIAL REVIEW. While the power
to fix rates is (generally) a legislative function,
whether exercised by the legislature itself or
delegated through an administrative agency, a
determination of whether the rates so fixed are
reasonable and just is a purely judicial question and
is subject to the review of the courts. (Republic v.
MERALCO, GR No. 141314, 2002)
FINDINGS AND CONCLUSIONS ON THE RATE
ARE RESPECTED. The findings and conclusions of
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primary jurisdiction, such as:
Courts will respect the sense-making a.k.a. primary
jurisdiction of administrative agencies. Under the
"sense-making and expeditious doctrine of primary
jurisdiction . . . the courts cannot or will not
determine a controversy involving a question which
is within the jurisdiction of an administrative tribunal,
where the question demands the exercise of sound
administrative discretion requiring the special
knowledge, experience, and services of the
administrative tribunal to determine technical and
intricate matters of fact, and a uniformity of ruling is
essential to comply with the purposes of the
regulatory
statute
administered. [Presidential
Commission on Good Government v. Peña, G.R.
No. 77663, [April 12, 1988], 243 PHIL 93-135]
Courts must allow specialized competence of
administrative
agencies
through
Primary
Jurisdiction and Exhaustion of Administrative
Remedies. The Court recently had occasion to
stress once more, in G.R. No. 82218, Reyes vs.
Caneba, March 17, 1988, that "(T)he thrust of the
related doctrines of primary administrative
jurisdiction and exhaustion of administrative
remedies is that courts must allow administrative
agencies to carry out their functions and discharge
their responsibilities within the specialized areas of
their respective competence. Acts of an
administrative agency must not casually be
overturned by a court, and a court should as a rule
not substitute its judgment for that of the
administrative agency acting within the perimeters
of its own competence." [Presidential Commission
on Good Government v. Peña, G.R. No. 77663,
[April 12, 1988], 243 PHIL 93-135]
Courts cannot or will not determine a controversy
involving a question which is within the jurisdiction
of the administrative tribunal prior to the resolution
of that question by the administrative tribunal, where
the question demands the exercise of sound
administrative discretion requiring the special
knowledge, experience and services of the
administrative tribunal to determine technical and
intricate matters of fact. (Professional Regulation
Commission v. Alo, G.R. No. 214435, 2022).
Relief must first be obtained in an administrative
proceeding before a remedy will be supplied by the
court, even if the matter is within the jurisdiction of
a court. (Republic v. Martinez, G.R. No. 158253,
2007)
Exceptions to the Doctrine of Primary
Jurisdiction
There are established exceptions to the doctrine of
where there is estoppel on the part of the party
invoking the doctrine;
where the challenged administrative act is patently
illegal, amounting to lack of jurisdiction;
where there is unreasonable delay or official
inaction that will irretrievably prejudice the
complainant;
where the amount involved is relatively small so as
to make the rule impractical and oppressive;
where the question involved is purely legal and will
ultimately have to be decided by the courts of
justice;
where judicial intervention is urgent;
when its application may cause great and
irreparable damage;
where the controverted acts violate due process;
when the issue of non-exhaustion of administrative
remedies has been rendered moot;
when there is no other plain, speedy and adequate
remedy;
when strong public interest is involved; and,
in quo warranto proceedings. (Aklan v. Jody King
Construction & Development Corp, G.R. No.
197592, 2013)
The Doctrine of Primary Jurisdiction does not
apply in a case seeking to enjoin the Senate
Committee from conducting further hearings
against Senator Villar on the alleged double
insertion of P200 million for the C-5 Road
Extension Project in the 2008 General
Appropriations Act. The issues presented here do
not require the expertise, specialized skills and
knowledge of respondent for their resolution. On the
contrary, the issues here are purely legal questions
which are within the competence and jurisdiction of
the Court, and not an administrative agency or the
Senate to resolve. (Pimentel v. Senate, G.R. No.
187714, 2011)
The Supreme Court may defer to the competence
and expertise of the SEC if there are supervening
events which could have substantially changed the
factual backdrop of the case while it was pending
before the Court. (Nestle v. Uniwide, G.R. 174674,
2010).
However, complaints for criminal violations of the
Securities Regulation Code must be filed with the
SEC, not DOJ or the courts, because it is
considered a specialized dispute. (Baviera v.
Paglinawan, G.R. 168380, 2007).
It bears stressing that the remedies of mandamus
and prohibition may be availed of only when there is
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all the remedies within
the
administrative
machinery
before
resort to courts is
allowed. (Id.)
Holiday (ITH). E.O. No. 226 is a law of special nature
and should prevail over A.O. No. 18. (NOTE:
Otherwise, filed out of time that will result to
dismissal.) (Phillips Seafood (Philippines) Corp. v.
Board of Investments, G.R. No. 175787, 2009)
EFFECT
OF
FAILURE
TO
OBSERVE
EXHAUSTION OF ADMINISTRATIVE REMEDIES.
However, failure to observe the doctrine of
exhaustion of administrative remedies does not affect
the court's jurisdiction. Thus, the doctrine may be
waived as in Soto v. Jareno: Failure to observe the
doctrine of exhaustion of administrative
remedies does not affect the jurisdiction of the
court. We have repeatedly stressed this in a long
line of decisions. 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. [Republic v. Felix, G.R. No. 203371, [June 30,
2020] citing Republic v. Gallo, GR No. 207074, 2018]
(2) Resorted to court as per special law. In this
case, a special law, RA 7394, likewise expressly
provided for immediate judicial relief from decisions
of the DTI Secretary by filing a petition
for certiorari with the "proper court." Hence, private
respondent should have elevated the case directly
to the CA through a petition for certiorari. In filing a
petition for certiorari before the CA raising the issue
of the OP's lack of jurisdiction, complainant Moran,
Jr. thus availed of the proper remedy. (Moran v. OP,
G.R. No. 192957, 2014)
WHEN THERE IS NO SPECIAL LAW, APPEAL TO
OP
Decisions of the various agencies of government
have been appealed to the OP, consistent with the
President's power of control over all the executive
departments, bureaus, and offices. The doctrine of
exhaustion of administrative remedies empowers the
OP to review any determination or disposition of a
department head. The doctrine allows, indeed
requires, an administrative decision to first be
appealed to the administrative superiors up to the
highest level before it may be elevated to a court of
justice for review.
In Phillips Seafood (Philippines) Corporation v. Board
of Investments, we recognized that under the Office
of the President’s Administrative Order No. 18, a
decision or order issued by a department or
agency need not be appealed to the OP when
there is a special law that provides for a different
mode of appeal. R.A. No. 9295 does not provide for
an appeal procedure; thus, the assailed decision and
resolution from the MARINA should have been
appealed with the OP. (Peñafrancia v. 168 Shipping,
GR No. 188952, 2016)
WHEN THERE IS A SPECIAL LAW, GO TO
COURT.
(1) Did not resort to court as per special law. In
the instant case, the enabling law of respondent
BOI, E.O. No. 226, explicitly allows for immediate
judicial relief from the decision of respondent BOI
involving petitioner's application for an Income Tax
Modes of Judicial Review of Administrative
Agencies Exercising Quasi-Judicial Power
Rule 43, Rules of Court
Scope. This Rule shall apply to appeals from
judgments or final orders of the Court of Tax
Appeals and from awards, judgments, final
orders or resolutions of or authorized by any
quasi-judicial agency in the exercise of its
quasi-judicial functions. Among these agencies
are the Civil Service Commission, Central
Board of Assessment Appeals, Securities and
Exchange Commission, Office of the President,
Land Registration Authority, Social Security
Commission, Civil Aeronautics Board, Bureau
of Patents, Trademarks and Technology
Transfer, National Electrification Administration,
Energy
Regulatory
Board,
National
Telecommunications Commission, Department
of Agrarian Reform under Republic Act No.
6657, Government Service Insurance System,
Employees
Compensation
Commission,
Agricultural Invention Board, Insurance
Commission, Philippine Atomic Energy
Commission,
Board
of
Investments,
Construction Industry Arbitration Commission,
and voluntary arbitrators authorized by law.
[Sec. 1, Rule 43, Rules of Court]
Cases Not Covered. This Rule (43) shall not apply
to judgments or final orders issued under
the Labor Code of the Philippines. [Sec. 2,
Rule 43, Rules of Court]
Where to Appeal. An appeal under this Rule may
be taken to the Court of Appeals within the
period and in the manner herein provided,
whether the appeal involves questions of
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fact, of law, or mixed questions of fact and
law. [Sec. 3, Rule 43, Rules of Court]
Period of Appeal. The appeal shall be taken within
fifteen (15) days from notice of the award,
judgment, final order or resolution, or from the
date of its last publication, if publication is
required by law for its effectivity, or of the denial
of petitioner's motion for new trial or
reconsideration duly filed in accordance with
the governing law of the court or agency a quo.
Only one (1) motion for reconsideration shall be
allowed. Upon proper motion and the payment
of the full amount of the docket fee before the
expiration of the reglementary period, the Court
of Appeals may grant an additional period of
fifteen (15) days only within which to file the
petition for review. No further extension shall be
granted except for the most compelling reason
and in no case to exceed fifteen (15) days. [Sec.
4, Rule 43, Rules of Court]
NOTE: Enumeration of quasi-judicial agencies
under Rule 43 is not exclusive; hence, appeal
from the decisions of quasi-judicial bodies like
the Professional Regulatory Commission and
the Food and Drug Administration, even if not in
the list, can be appealed to the CA via Rule 43.
The fact that the FDA is not among the agencies
enumerated in Rule 43 as subject of a petition for
review to the CA is of no consequence. In CayaoLasam v. Ramolete, the Court disagreed with the
opinion of the CA that the enumeration of the
agencies mentioned in Section 1 of Rule 43 was
exclusive. Thus: Indeed, the PRC is not expressly
mentioned as one of the agencies which are
expressly enumerated under Section 1, Rule 43 of
the Rules of Court. However, its absence from the
enumeration does not, by this fact alone, imply its
exclusion from the coverage of said Rule. The Rule
expressly provides that it should be applied to
appeals from awards, judgments, final orders or
resolutions of any quasi-judicial agency in the
exercise of its quasi-judicial functions. The phrase
"among these agencies" confirms that the
enumeration made in the Rule is not exclusive to the
agencies therein listed.
(Alliance for the Family Foundation, Philippines, Inc.
v. Garin, G.R. Nos. 217872 & 221866, August 24,
2016)
Rule 65, Rules of Court
When any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted
without or in excess its or his jurisdiction, or
with grave abuse of discretion amounting to lack
or excess of jurisdiction, and there is no appeal,
or any plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying
that judgment be rendered annulling or modifying
the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and
justice may require. [Sec. 1, Rule 65, Rules of Court]
Special
Notes
on
the
Constitutional
Commissions (COMELEC, COA, and CSC)
(1) COMELEC and COA – Rule 64 via Rule 65
A judgment or final order or resolution of the
Commission on Elections and the Commission on
Audit may be brought by the aggrieved party to the
Supreme Court on certiorari under Rule 65, except
as hereinafter provided. [Sec. 1, Rule 64, Rules of
Court citing Bar Matter No. 803, 17 February 1998]
(2) CSC – via Rule 43; part of enumerated quasijudicial bodies.
BUT: Why is COMELEC and COA under Rule 64
via Rule 65 while CSC is under Rule 43?
(3) ART. IX-A, Sec. 7, 1987 CONSTITUTION
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.
(4) RA 7902 (Expanding the CA Jurisdiction) is
the law that expressly provided that the Exclusive
appellate jurisdiction over all final judgments,
decisions, resolutions, orders or awards of Regional
Trial Courts and quasi-judicial agencies,
instrumentalities, boards or commissions,
including xxx the Civil Service Commission xxx.
Thus, by special law, final judgments, decisions,
resolutions, orders or awards of the CSC must
be appealed to the CA; hence, CSC under Rule
43.
Thus, the judicial review scenarios are as follows:
1. Ordinary Appeal (Rule 43)
• Quasi-Judicial Agency to CA –
Rule 43 (Question of Fact or
Question of Law or Mixed
Question of Fact and Question of
Law)
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TABLE OF CONTENTS
Political Law – Part Two
ELECTION LAW ................................................................................................................................................... 8
A.
SUFFRAGE; QUALIFICATION AND DISQUALIFICATION OF VOTERS.............................................. 9
B.
1.
2.
3.
REGISTRATION OF VOTERS; INCLUSION AND EXCLUSION PROCEEDINGS ......................... 10
Overseas Absentee Voting ............................................................................................................... 13
Local Absentee Voting ...................................................................................................................... 14
Persons Deprived of Liberty Voting................................................................................................... 15
C.
1.
2.
POLITICAL PARTIES AND THE PARTY-LIST SYSTEM OF REPRESENTATION............................. 17
Registration ....................................................................................................................................... 17
Grounds for Refusal or Cancellation of Registration ......................................................................... 18
D.
1.
2.
3.
4.
5.
6.
7.
8.
9.
CANDIDACY......................................................................................................................................... 18
Certificate of Candidacy .................................................................................................................... 18
Ministerial Duty of Comelec to Receive Certificates of Candidacy ................................................... 23
Effect of Filing of Certificate of Candidacy ........................................................................................ 23
Eligibility and Material Representation .............................................................................................. 24
Withdrawal of Certificates of Candidacy ........................................................................................... 25
Effects of Denial and Cancellation of Certificate of Candidacy due to Material Misrepresentation... 25
Substitution of Candidates ................................................................................................................ 26
Nuisance Candidates and Effects of Declaration of Nuisance Candidacy ........................................ 27
Disqualification of Candidates; Effects .............................................................................................. 29
E.
a.
b.
c.
CAMPAIGN........................................................................................................................................... 31
Limitations on Expenses and Prohibited Contributions ..................................................................... 31
Lawful Election Propaganda ............................................................................................................. 34
Statement of Contributions and Expenses ........................................................................................ 38
1.
2.
3.
4.
i.
ii.
iii.
REMEDIES ........................................................................................................................................... 39
Pre-election ....................................................................................................................................... 39
During election .................................................................................................................................. 44
Pre-Proclamation Controversy .......................................................................................................... 44
Post-Proclamation ............................................................................................................................. 49
Election Protest..................................................................................................................................... 49
Quo Warranto.................................................................................................................................... 50
Jurisdiction ........................................................................................................................................ 51
F.
G.
PROSECUTION FOR ELECTION OFFENSES ................................................................................... 54
LOCAL GOVERNMENT ..................................................................................................................................... 58
A.
PRINCIPLES OF LOCAL AUTONOMY ................................................................................................ 58
B.
1.
2.
3.
4.
LOCAL GOVERNMENT UNIT .............................................................................................................. 66
Powers of Local Government Units, In General ................................................................................ 66
Local Elective and Appointive Officials ............................................................................................. 91
Rules of Succession.......................................................................................................................... 91
Term Limitations and Recall .............................................................................................................. 94
PUBLIC INTERNATIONAL LAW ....................................................................................................................... 99
PRELIMINARIES ......................................................................................................................................... 99
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A.
POLITICAL LAW & PUBLIC INTERNATIONAL LAW
DOCTRINE OF INCORPORATION AND TRANSFORMATION ........................................................ 100
B.
SOURCES OF OBLIGATIONS IN INTERNATIONAL LAW (STATUTE OF THE INTERNATIONAL
COURT OF JUSTICE, ART. 38) ................................................................................................................... 100
C.
SUBJECTS OF INTERNATIONAL LAW ............................................................................................ 104
D.
DIPLOMATIC AND CONSULAR LAW (VIENNA CONVENTION ON DIPLOMATIC RELATIONS;
VIENNA CONVENTION ON CONSULAR RELATIONS) .............................................................................. 108
E.
TREATIES; VIENNA CONVENTION ON THE LAW OF TREATIES .................................................. 110
F.
NATIONALITY AND STATELESSNESS (R.A. NO. 9225; HAGUE CONVENTION OF 1930) .......... 114
G.
1.
2.
3.
4.
5.
6.
JURISDICTION OF STATES.............................................................................................................. 117
Territoriality Principle ....................................................................................................................... 117
Nationality Principle......................................................................................................................... 117
Protective Principle ......................................................................................................................... 117
Universality Principle ....................................................................................................................... 117
Passive Personality Principle .......................................................................................................... 118
Conflict of Jurisdiction ..................................................................................................................... 118
H.
TREATMENT OF ALIENS; EXTRADITION AND DEPORTATION .................................................... 118
I. INTERNATIONAL HUMAN RIGHTS LAW (THE UNITED NATIONS’ UNIVERSAL DECLARATION OF
HUMAN RIGHTS) .......................................................................................................................................... 120
J.
1.
2.
3.
4.
5.
INTERNATIONAL HUMANITARIAN LAW (R.A. NO. 9851)................................................................... 124
War Crimes, Genocide and Other Crimes Against Humanity ......................................................... 124
Jurisdiction and Double Jeopardy ................................................................................................... 126
Irrelevance of Official Capacity ....................................................................................................... 127
Responsibility of Superiors.............................................................................................................. 127
Nonprescription ............................................................................................................................... 127
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iii.
ELECTION LAW
TOPIC OUTLINE UNDER THE SYLLABUS
A. SUFFRAGE;
QUALIFICATION
DISQUALIFICATION OF VOTERS
AND
B. REGISTRATION OF VOTERS; INCLUSION
AND EXCLUSION PROCEEDINGS
1. Overseas Absentee Voting
2. Local Absentee Voting
3. Persons Deprived of Liberty Voting
Jurisdiction
Presidential Electoral Tribunal
Senate Electoral Tribunal
House of Representatives
Electoral Tribunal
COMELEC
RTC
MTC
G. PROSECUTION OF ELECTION OFFENSES
C. POLITICAL PARTIES AND THE PARTYLIST SYSTEM OF REPRESENTATION
1. Registration
2. Grounds for Refusal or Cancellation of
Registration
D. CANDIDACY
1. Certificate of Candidacy
2. Ministerial Duty of Comelec to Receive
Certificates of Candidacy
3. Effect of Filing of Certificate of Candidacy
4. Eligibility and Material Misrepresentation
5. Withdrawal of Certificates of Candidacy
6. Effects of Denial and Cancellation of
Certificate of Candidacy due to Material
Misrepresentation
7. Substitution of Candidates
8. Nuisance Candidates and Effects of
Declaration of Nuisance Candidacy
9. Disqualification of Candidates; Effects
E. CAMPAIGN
1. Limitations on Expenses and Prohibited
Contributions
2. Lawful Election Propaganda
3. Statement of Contributions and Expenses
F. REMEDIES
1. Pre-election
i.
Petition for Disqualification
ii.
Petition Not to Give Due Course or
Cancel Certificates of Candidacy
iii.
Petition to Declare a Nuisance
Candidate
2. During election
i.
Petition to Postpone Elections
ii.
Petition to Declare Failure of
Elections
3. Pre-Proclamation Controversy
4. Post-Proclamation
a. Election Contest
i.
Election Protest
ii.
Quo Warranto
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POLITICAL LAW & PUBLIC INTERNATIONAL LAW
A. SUFFRAGE; QUALIFICATION
AND DISQUALIFICATION OF
VOTERS
QUALIFICATION AND DISQUALIFICATION
OF VOTERS
Constitutional Rules:
(1) Qualifications and Requirements. 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. (Phil Const., art. V, § 1)
(2) Prohibited Requirements. No literacy,
property, or other substantive requirement shall
be imposed on the exercise of suffrage. (Phil
Const., art. V, § 1)
(3) Ballot Secrecy. The Congress shall provide a
system for securing the secrecy and sanctity of
the ballot as well as a system for absentee
voting by qualified Filipinos abroad. (Phil
Const., art. V, § 2)
(4) Disabled And Illiterates. The Congress shall
also design a procedure for the disabled and the
illiterates to vote without the assistance of other
persons. Until then, they shall be allowed to
vote under existing laws and such rules as the
Commission on Elections may promulgate to
protect the secrecy of the ballot. (Phil Const.,
art. V, § 2)
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, RA 8189)
Qualifications:
(1) Citizen of the Philippines
(2) Not Disqualified by law
(3) Resident of the Philippines for at least 1 YEAR
(4) Resident of the place wherein he proposes to
vote for at least 6 months immediately
preceding the election
(5) At least 18 years old
REMEMBER: No literacy, property, or other
substantive requirement can be imposed on the
exercise of suffrage. (Phil Const., art. V, § 1)
Grounds for Disqualification to Register as
Voter:
(1) Any person who has been sentenced by final
judgment to suffer imprisonment of not less
than one (1) year (i.e. 1 year or more
imprisonment), such disability not having been
removed by plenary pardon or amnesty:
Provided, however, That any person
disqualified to vote under this paragraph shall
automatically reacquire the right to vote upon
expiration of five (5) years after service of
sentence;
(2) Any person who has been adjudged by final
judgment by a competent court or tribunal of
having committed any crime involving
disloyalty
to
the
duly
constituted
government such as rebellion, sedition,
violation of the firearms laws or any crime
against national security, unless restored to
his full civil and political rights in accordance
with law: Provided, That he shall automatically
reacquire the right to vote upon expiration of five
(5) years after service of sentence; and
(3) Insane or incompetent persons declared as
such
by
competent
authority
unless
subsequently declared by proper authority that
such person is no longer insane or incompetent.
(Sec. 11, RA 8189)
NOTE: These qualifications are continuing
requirements. Congress may not add qualifications
but can provide for procedural requirements and
disqualifications. However, the disqualifications
must not amount to qualifications.
Thus, the exercise of the right of suffrage, as in the
enjoyment of all other rights, is subject to existing
substantive and procedural requirements embodied
in our Constitution, statute books and other
repositories of law. As to the procedural limitation,
the right of a citizen to vote is necessarily
conditioned upon certain procedural requirements
he must undergo: among others, the process of
registration. (Akbayan Youth v. COMELEC, G.R.
No. 147066, 2001)
Dual Citizenship Law — Former natural-born
Filipino citizens who acquired foreign citizenship
through naturalization are deemed not to have lost
their Philippine citizenship under conditions
provided in this act. (Citizenship Retention and Reacquisition Act of 2003, § 2)
Derivative Citizenship — The unmarried child,
whether legitimate, illegitimate, or adopted, under
18 years of age, of those who re-acquire Philippine
citizenship under the Dual Citizenship Law shall be
deemed citizens of the Philippines. (Citizenship
Retention and Re-acquisition Act of 2003, § 4)
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Requirements for Naturalized Citizens:
To vote — swear an oath of allegiance.
To be elected to public office — renounce foreign
citizenship.
To be appointed to public office — swear an oath
of allegiance to the Philippines and renounce foreign
citizenship.
(Citizenship Retention and Re-acquisition Act of
2003, § 3)
Residence — One’s domicile or legal residence. It
is where a party actually or constructively has his
permanent home, or where he, no matter where he
may be found, eventually intends to return and
remain. (Romualdez-Marcos v. Commission on
Elections, G.R. No. 119976)
Residency Requirements:
Domicile — This is in reference to the 1-year
residency requirement in the Philippines.
Elements:
(1) Physical presence in the country
(2) Intention to Remain
(3) Intention to Abandon the old domicile
(4) It must be Voluntary, must concur.
NOTE: All elements must concur.
Temporary Residence — This is in reference to the
6-month residency requirement in the place where
one wants to vote. In this case, residence can either
mean domicile or temporary residence.
To successfully effect a transfer of domicile, one
must demonstrate:
(1) An actual removal or change of domicile;
(2) A bona fide intention of abandoning the former
place of residence and establishing a new one;
and
(3) Acts which correspond with that purpose.
There must be animus manendi coupled with
animus non revertendi. (Asistio v. Canlas, G.R.
No. 191124, Apr. 27, 2010)
B. REGISTRATION OF VOTERS;
INCLUSION AND EXCLUSION
PROCEEDINGS
Registration
It does not confer the right to vote; it is just a
condition precedent to the exercise of the right.
It is the act of accomplishing and filing of a sworn
application for the 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 (ERB). (R.A. No. 8189,
§ 3.)
No Bio-No Boto Policy
Biometrics – refers to a quantitative analysis that
provides a positive identification of an individual
such as voice, photograph, fingerprint, signature,
iris, and/or such other identifiable features. (R.A. No.
10367s, § 2(b))
The biometrics registration requirement is not a
"qualification" to the exercise of the right of
suffrage, but a mere aspect of the registration
procedure, of which the State has the right to
reasonably regulate. Unless it is shown that a
registration requirement rises to the level of a
literacy, property or other substantive requirement
as contemplated by the Framers of the
Constitution—that is, one which propagates a socioeconomic standard which is bereft of any rational
basis to a person's ability to intelligently cast his vote
and to further the public good—the same cannot be
struck down as unconstitutional. (Kabataan Partylist vs. COMELEC, G.R. No. 221318, Dec. 16, 2015)
The public has been sufficiently apprised of the
implementation of RA 10367, and its penalty of
deactivation in case of failure to comply. Thus, there
was no violation of procedural due process.
(Kabataan Partylist vs. COMELEC, G.R. No.
221318)
However, the power of COMELEC to restrict a
citizen's right of suffrage should not be arbitrarily
exercised. (Timbol vs. COMELEC, G.R. No.
206004, Feb. 24, 2015)
Who shall submit for biometrics registration?
(1) New Voters — COMELEC shall implement a
mandatory biometrics registration system
(2) Registered voters whose biometrics have not
been captured. (R.A. No. 10367)
Validation
It is the process of taking the biometrics of
registered voters whose biometrics have not yet
been captured. It shall be conducted by the City or
Municipal Election Officer. (R.A. No. 10367, § 2)
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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. No
registration shall, however, be conducted
during the period starting one hundred twenty
(120) days before a regular election and ninety
(90) days before a special election. (Sec. 8, RA
8189)
REMEMBER: Registration can be done by voters
daily anytime during office hours EXCEPT 120 days
before a regular election and 90 days before a
special election.
When is registration not allowed:
(1) 120 days before regular election
(2) 90 days before special election. (R.A. No. 8189,
§8)
Disqualifications to Register as Voter:
Same grounds for disqualifications for suffrage:
(1) Sentenced by final judgment to imprisonment of
at least 1 year
(2) Conviction by final judgment of any of the
following crimes:
(a) crime
involving
disloyalty
to
the
government (i.e. rebellion, sedition)
(b) firearms law
(c) crimes against national security
(3) Insanity or incompetence declared by
competent court. (OEC, § 118)
Registration
of
Illiterates/Persons
With
Disabilities
Illiterate or PWD voters may register with the
assistance of the Election Officer or any member of
an accredited citizen’s arms; application for
registration may be prepared by any relative within
the fourth (4th) civil degree of consanguinity or
affinity or by the Election Officer or any member of
an accredited citizen’s arms using the data supplied
by the applicant. (R.A. No. 8189, § 14)
NOTES:
(1) Each precinct shall have no more than 200
voters and shall comprise of contiguous and
compact territories except when precincts are
clustered.
(2) No Election Officer shall hold office in a
particular city/municipality for more than 4
years. COMELEC has the authority to effect
transfer.
COMELEC Power to Fix Periods
Both Section 29 of R.A. No. 6646 and Section 28 of
R.A. No. 8436 grant the COMELEC the power to
fix other periods and dates for pre-election
activities only if the same cannot be reasonably
held within the period provided by law. This grant
of power, however, is for the purpose of enabling the
people to exercise the right of suffrage – the
common underlying policy of RA 8189, RA 6646 and
RA 8436. Thus, the Court found no ground to
hold that the mandate of continuing voter
registration cannot be reasonably held within
the period provided by RA 8189, Sec. 8 – daily
during office hours, except during the period
starting 120 days before the May 10, 2010
regular elections. There is thus no occasion for
the COMELEC to exercise its power to fix other
dates or deadlines therefor.
(Palatino v.
COMELEC, G.R. No. 189868, 2009)
List of Voters
It refers to an enumeration of names of registered
voters in a precinct duly certified by the Election
Registration Board for use in the election. (R.A. No
8189)
Book of voters
Refers to the compilation of all registration records
in a precinct. (R.A. No. 8189, §3)
Alteration of Book Of Voters:
(1) Deactivation/Reactivation
(2) Exclusion/Inclusion
(3) Cancellation of registration in case of death
(4) Annulment of book of voters
(5) New voters
(6) Transfer of residence
Annulment of book of voters — A voter, election
officer, or duly registered political party may file a
verified petition for the annulment of a book of voters
with the COMELEC. Last day for filing is within 90
days before an election.
(OEC, §145)
Grounds for Annulment of Book of Voters
(1) Not prepared in accordance with law
(2) Prepared through:
• Fraud
• Forgery
• Force
• Intimidation
• Impersonation
• Bribery
• Similar irregularity
• Contains data that are Statistically
improbable (R.A. No. 8189, §39)
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Grounds for Deactivation of Voter Registration
Deactivation — It is the removal of the
registration records of certain persons from the
corresponding precinct book of voters and
placing the same in the inactive file, properly
marked “deactivated” and dated in indelible ink,
after entering the cause of deactivation. (R.A. No.
8189, §27)
The board shall deactivate the registration and
remove the registration records of the following
persons from the corresponding precinct book of
voters and place the same, properly marked and
dated in indelible ink, in the inactive file after
entering the cause or causes of deactivation:
(1) Any person who has been sentenced by final
judgment to suffer imprisonment for not less
than one (1) year, such disability not having
been removed by plenary pardon or amnesty:
Provided, however, That any person
disqualified to vote under this paragraph shall
automatically reacquire the right to vote upon
expiration of five (5) years after service of
sentence as certified by the clerks of courts of
the Municipal/ Municipal Circuit/ Metropolitan/
Regional Trial Courts and the Sandiganbayan;
(2) Any person who has been adjudged by final
judgment by a competent court or tribunal of
having caused/committed any crime involving
disloyalty to the duly constituted government
such as rebellion, sedition, violation of the antisubversion and firearms laws, or any crime
against national security, unless restored to his
full civil and political rights in accordance with
law; Provided, That he shall regain his right to
vote automatically upon expiration of five (5)
years after service of sentence;
(3) Any person declared by competent authority to
be insane or incompetent unless such
disqualification
has
been
subsequently
removed by a declaration of a proper authority
that such person is no longer insane or
incompetent;
(4) Any person who did not vote in the two (2)
successive preceding regular elections as
shown by their voting records. For this purpose,
regular elections do not include the
Sangguniang Kabataan (SK) elections;
(5) Any person whose registration has been
ordered excluded by the Court; and
(6) Any person who has lost his Filipino citizenship;
(R.A. 8189, §27)
(7) Voters who fail to submit for [Biometrics]
validation on or before the last day of filing of
application for registration shall be deactivated
pursuant to the Biometrics Registration Act
(R.A. 10367, §7).
Grounds for Deactivation:
(1) Convicted by final judgment to suffer
Imprisonment of not less than 1 year;
(2) Disloyalty;
(3) Insanity;
(4) Loss of citizenship;
(5) Failed to vote for 2 successive preceding
regular elections;
(6) Registration was ordered Excluded by the
court; and
(7) Failure to submit Biometrics validation.
Reactivation of Voter Registration:
(1) 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;
(2) Any time but not later than 120 days before a
regular election and 90 days before a special
election;
(3) Election officer shall submit said application to
the ERB for appropriate action;
(4) 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;
(5) Local heads or representatives of political
parties shall be properly notified on approved
applications. (R.A. No. 8189)
NOTE: Reactivation procedure here also applies to
those deactivated for non-validation under RA
10367.
Rules on Transfer of Voter Registration
(1) Any registered voter who has transferred
residence to another city or municipality may
apply with the Election Officer of his new
residence for the transfer of his registration
records.
(2) The application for transfer of registration shall
be subject to the requirements of notice and
hearing and the approval of the Election
Registration Board, in accordance with this Act.
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the Philippines and the Philippine National Police
and other government officers and employees who
are duly registered voters and who, on election day,
may temporarily be assigned in connection with the
performance of election duties to places where they
are not registered voters. (RA 7166, §12)
POLLING PLACE: WHERE TO VOTE
General Rule: Voter must vote at the polling place
where registered.
Exceptions:
(1) Board of Election Inspectors. Members of the
board of election inspectors and their
substitutes may vote in the polling place where
they are assigned on election day: Provided,
That they are registered voters within the
province, city or municipality where they are
assigned: and Provided, finally, That their
voting in the polling places where they are not
registered voters be noted in the minutes of the
board of election inspectors. (OEC, §169)
(2) Government Employees and Officials. Any
person who by reason of public functions and
duties, is 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.
(EO 157 s.1987, §1)
(3) Members of the Media. The Commission on
Elections shall extend the right to vote under the
local absentee voting system provided under
existing laws and executive orders to 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. (RA 10380, §2)
(4) Overseas Voter. 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. (R.A. 9189, §4 (as
amended by R.A. 10590, §3))
(5) Detainee Voter. 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.
3.
Persons Deprived of Liberty Voting
Detainee
A detainee is any person:
(1) Confined in jail,
(a) formally charged for any crime/s and
(b) awaiting/undergoing trial; or
(2) Serving a sentence of imprisonment for less
than one (1) year; or
(3) 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(a), COMELEC
Resolution No. 9371 s.2012, §2(a))
Escorted Voting
This is a voting mechanism for:
(1) Detainee voters who are residents/ registered
voters of municipalities/cities other than the
town/city of incarceration; and/or
(2) Detainee voters in jail facilities where no special
polling places are established. (COMELEC
Resolution No. 9371 s.2012, §2(a))
NOTE: The pertinent provisions of COMELEC
Resolution No. 9149, promulgated on February 22,
2011 and other Resolutions as far as the registration
period, qualifications and disqualifications of
applicants for registration, the procedures for filing,
processing and hearing of applications, and notices
and publication requirements are adopted.
(COMELEC Resolution No. 9371)
Reckoning Period of Age and Residence
Detainees. Those 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. (COMELEC Resolution No.
9371)
Detainees who are already registered voters may
apply for transfer of registration records as
warranted by the circumstances.
Detainee Voting for National Positions Only
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The VVPAT ensures that the candidates selected by
the voter in his or her ballot are the candidates voted
upon and recorded by the vote-counting machine.
(Bagumbayan-VNP Movement, Inc. v. COMELEC,
G.R. No. 222731)
The voter himself or herself verifies the accuracy of
the vote. In instances of Random Manual Audit and
election protests, the VVPAT becomes the best
source of raw data for votes. (Bagumbayan-VNP
Movement, Inc. v. COMELEC, G.R. No. 222731)
COMELEC Supervision and Control over the
Conduct of Automated Elections
The power and duty of the COMELEC to administer
election laws and to have control and supervision
over the automated elections is not
incompatible with the decision to subcontract
services that may be better performed by those
who are well-equipped to handle complex
technological matters with respect to the
implementation of the AES. The subcontractor
cannot act independently of the COMELEC. (Roque
v. COMELEC, GR No. 188456)
It is a national party when its constituency is spread
over the geographical territory of at least a majority
of the regions. It is a regional party when its
constituency is spread over the geographical
territory of at least a majority of the cities and
provinces comprising the region. ((R.A. No. 7941, §
3(c))
Sectoral Party
An organized group of citizens belonging to labor,
peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth,
veterans, overseas workers, and professionals,
whose principal advocacy pertains to the special
interest and concerns of their sector. (R.A. No.
7941, § 3(d))
Sectoral Organization
A group of citizens or a coalition of groups of citizens
who share similar physical attributes or
characteristics, employment, interests or concerns.
(R.A. No. 7941, § 3(e))
C. POLITICAL PARTIES AND THE
PARTY-LIST SYSTEM OF
REPRESENTATION
Coalition
An aggrupation of duly registered national, regional,
sectoral parties or organizations for political and/or
election purposes. (R.A. No. 7941, § 3(f))
Party-List System
Operates as a mechanism of proportional
representation, allowing for the election of
representatives from national, regional, and sectoral
parties or organizations. (R.A. No. 7941, § 3(a))
Manifestation to Participate in the Party-List
System.
Any party, organization, or coalition already
registered with the Commission need not register
anew.
The party-list representatives shall constitute twenty
per centum of the total number of representatives
including those under the party list. For three
consecutive terms after the ratification of this
Constitution, one-half of the seats allocated to partylist representatives shall be filled, as provided by
law, by selection or election from the labor, peasant,
urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be
provided by law, except the religious sector. (Phil
Const., art. VI, § 5(2))
However, such party, organization, or coalition shall
file with the Commission, not later than ninety (90)
days before the election, a manifestation of its
desire to participate in the party-list system. (R.A.
No. 7941, art. VI, § 3(e))
Political Party
An organized group of citizens advocating an
ideology or platform, principles and policies for the
general conduct of government and which, as the
most immediate means of securing their adoption,
regularly nominates and supports certain of its
leaders and members as candidates for public
office.
1. Registration
Any organized group of persons may register as a
party, organization or coalition for purposes of the
party-list system by filing with the COMELEC not
later than ninety (90) days before the election a
petition verified by its president or secretary stating
its desire to participate in the party-list system as a
national, regional or sectoral party or organization or
a coalition of such parties or organizations.
It must attach thereto its constitution, by-laws,
platform or program of government, list of officers,
coalition agreement and other relevant information
as the COMELEC may require. (R.A. No. 7941, § 5)
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Publication
COMELEC shall publish the petition in at least two
(2) national newspapers of general circulation.
The COMELEC shall, after due notice and hearing,
resolve the petition within fifteen (15) days from the
date it was submitted for decision but in no case not
later than sixty (60) days before election.
2. Grounds for Refusal or
Cancellation of Registration
COMELEC may, motu proprio or upon verified
complaint of any interested party, refuse or cancel,
after due notice and hearing, the registration of any
national, regional or sectoral party, organization or
coalition. (R.A. No. 7941, § 6)
Grounds for Refusal of Cancellation of
Registration
(1) It is a religious sect or denomination,
organization or association, organized for
Religious purposes;
(2) It advocates Violence or unlawful means to
seek its goal;
(3) It is a Foreign party or organization;
(4) It is 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) It Violates or fails to comply with laws, rules or
regulations relating to elections;
(6) It declares Untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year;
or
(8) It Fails to participate in the last two (2)
preceding elections or fails to obtain at least two
per centum (2%) of the votes cast under the
party-list system in the two (2) preceding
elections for the constituency in which it has
registered.
Certified List of Registered Parties
COMELEC shall, not later than sixty (60) days
before election, prepare a certified list of national,
regional, or sectoral parties, organizations or
coalitions which have applied or who have
manifested their desire to participate under the
party-list system and distribute copies thereof to all
precincts for posting in the polling places on election
day. (R.A. No. 7941, § 7)
NOTE: The names of the party-list nominees shall
not be shown on the certified list.
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D. CANDIDACY
1. Certificate of Candidacy
A statement of a person seeking to run for a public
office certifying that he announces his candidacy 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 stated.
(Sinaca v. Mula, G.R. No. 135691)
No person shall be eligible for any elective public
office unless he files a sworn certificate of candidacy
within the period fixed herein. (OEC, §73)
The COC shall be filed by the candidate personally
or by his duly authorized representative. No COC
shall be accepted if filed by mail telegram or
facsimile.
Upon filing, an individual becomes a candidate.
Thus, he is already covered by rules, restrictions,
and processes involving candidates.
There is no law or case law stating that a COC will
be cancelled even if it failed to specify the position
sought if the information omitted is supplied in the
certificate of nomination and amended COC. Only
those enumerated in Section 74 of the Omnibus
Election Code such as material misrepresentation
can be a ground for cancellation. (Engle v.
Commission on Elections, G.R. No. 215995)
Prohibition against multiple candidacies
No person shall be eligible for more than one office.
If he files more than 1 position, he shall not be
eligible for all unless he cancels all and retains one.
(OEC, §73)
Qualifications
IN GENERAL: The 1987 Philippine Constitution
prescribes the qualifications (i.e., age, citizenship,
residency, voter registration and literacy) for the
following positions: President, Vice-President,
Senators and Representatives (District and Party List) while statutes set the qualifications of local
officials:
(1) Residence — to be understood as domicile that
is, the place where a party actually or
constructively has his permanent home, where
he/ she, no matter where he/she may be found
at any given time, eventually intends to return
and remain (Japson v. COMELEC, G.R. No.
180088)
(2) Registered Voter
(3) Citizenship
• For national elective positions, the
candidate must be a natural – born
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citizen. For local elective positions, the
candidate may be naturalized citizen.
•
Natural – born citizens of the Philippines
who have lost their Philippine citizenship
by reason of their naturalization as citizens
of a foreign country can seek elective
office provided they acquire Philippine
citizenship by taking the oath of allegiance
to the Republic prescribed under the
Citizenship Retention and Re – acquisition
Act of 2003, and make a personal and
sworn renunciation of any and all foreign
citizenship before any public officer
authorized to administer an oath.
Use of Foreign Passport: The use of a
foreign passport amounts to repudiation or
recantation of the oath of renunciation.
Matters dealing with qualifications for public
elective office must be strictly complied with.
A candidate cannot simply be allowed to
correct the deficiency in his qualification by
submitting another oath of renunciation.
(Arnado v. COMELEC, G.R. No. 210164)
• Dual Citizens: Dual citizens are disqualified
from running for any elective local position.
They cannot successfully run and assume
office because their ineligibility is inherent in
them, existing prior to the filing of their
certificates of candidacy. Their certificates of
candidacy are void ab initio, and votes cast
for them will be disregarded. Consequently,
whoever garners the next highest number of
votes among the eligible candidates is the
person legally entitled to the position (Arlene
Llena Empaynado v. COMELEC, G.R. No.
216607)
• Foundlings: As a matter of law, foundlings
are as a class, natural-born citizens (PoeLlamanzares v. COMELEC, G.R. No.
221697). When the names of the parents of
a foundling cannot be discovered despite a
diligent search, but sufficient evidence is
presented to sustain a reasonable inference
that satisfies the quantum of proof required
to conclude that at least one or both of his or
her parents is Filipino, then this should be
sufficient to establish that he or she is a
natural-born citizen. (David v. Senate
Electoral Tribunal, G.R. No. 221538)
Under Republic Act 11767, or the Foundling
Recognition and Protection Act, an
abandoned child found in the Philippines or
in Philippine embassies, consulates and
territories abroad are presumed naturalborn citizens of the Philippines and
therefore, are accorded the same rights as
Filipino citizens from the moment of their
birth.
NOTE: Congress may not add to the qualifications
for elective officials provided in the Constitution.
However, they may do so for elective officials not
provided in the Constitution. (Pimentel, Jr. v.
COMELEC, G.R. No. 161658)
SPECIFICALLY:
(1) PRESIDENT & VICE PRESIDENT(Secs. 2 & 3,
Art. VII, 1987 Constitution)
No person may be elected President unless he is a
natural-born citizen of the Philippines, a registered
voter, able to read and write, at least forty years of
age on the day of the election, and a resident of the
Philippines for at least ten years immediately
preceding such election.
There shall be a Vice-President who shall have the
same qualifications and term of office and be
elected with and in the same manner as the
President. He may be removed from office in the
same manner as the President.
(2) SENATOR AND HOR MEMBER (Secs. 3 & 6,
Art. VI, 1987 Constitution)
No person shall be a Senator unless he is a naturalborn citizen of the Philippines, and, on the day of
the election, is at least thirty-five years of age, able
to read and write, a registered voter, and a resident
of the Philippines for not less than two years
immediately preceding the day of the election.
No person shall be a Member of the House of
Representatives unless he is a natural-born citizen
of the Philippines and, on the day of the election, is
at least twenty-five years of age, able to read and
write, and, except the party-list representatives, a
registered voter in the district in which he shall be
elected, and a resident thereof for a period of not
less than one year immediately preceding the day of
the election.
(3)
PARTY-LIST
REPRESENTATIVES
NOMINATION & QUALIFICATIONS
Nomination of Party-List Representatives. —
Each registered party, organization or coalition shall
submit to the COMELEC not later than forty-five (45)
days before the election a list of names, not less
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than five (5), from which party-list representatives
shall be chosen in case it obtains the required
number of votes.
A person may be nominated in one (1) list only. Only
persons who have given their consent in writing may
be named in the list. The list shall not include any
candidate for any elective office or a person who
has lost his bid for elective office in the
immediately preceding election. No change of
names or alteration of the order of nominees shall
be allowed after the same shall have been
submitted to the COMELEC except in cases where
the nominee dies, or withdraws in writing his
nomination, becomes incapacitated in which case
the name of the substitute nominee shall be placed
last in the list. Incumbent sectoral representatives in
the House of Representatives who are nominated in
the party-list system shall not be considered
resigned. (Sec. 8, RA 7941)
Qualification of Party-List Nominees. – No
person shall be nominated as party-list
representative unless he is a natural born citizen
of the Philippines, a registered voter, a resident
of the Philippines for a period of not less than
one (1) year immediately preceding the day of
the election, able to read and write, bona fide
member of the party or organization which he
seeks to represent for at least ninety (90) days
preceding the day of the election, and is at least
twenty-five (25) years of age on the day of the
election.
In case of a nominee of the youth sector, he must
at least be twenty-five (25) but not more than
thirty (30) years of age on the day of the election.
Any youth sectoral representative who attains the
age of thirty during his term shall be allowed to
continue until the expiration of his term. (Sec. 9, RA
7941)
NOTE: In Albano v. COMELEC (2023), on the "a
person who has lost his bid for elective office in the
immediately preceding election" under Section 8
of Republic Act No. 7941, the Supreme Court
recognized the power of Congress to establish
the mechanics of the party-list system including
the qualifications of the of the party-list
representatives and the conduct of their
nominations, but nonetheless declared the said
portion of Section 8 as unconstitutional for
being in violation of the Equal Protection Clause
applying the Rational Basis Test (i.e. there is
legitimate governmental interest, but the
classification would not rational further such
interest). The Court ruled as follows:
Nothing appears to be constitutionally
repugnant with R.A. No. 7941, insofar as it
embodies
the
objective
of
the Constitution to
accord
Congress imprimatur to sculpt legislation
establishing the mechanics of the party-list
system, and with it, the qualifications of
party-list representatives and the conduct
for their nominations. In line with this and to
ensure genuine representation, R.A. No.
7941 even requires, as a qualification for partylist nominees, that [they] be bona fide members
of the party or organization which [they] seek to
represent for at least 90 days preceding the day
of the election. To be sure, this Court has since
acknowledged R.A.
No.
7941 as
the
"controlling law" in all matters pertaining to the
elections of party-list representatives. After all,
the opportunity to run for public office is a
privilege that may be subject to limitations as
imposed by law. XXX
It bears repeating then that while plenary power
is vested in Congress, it may not wield such
power arbitrarily. As meticulously explained by
this Court, the phrase in the assailed provisions
fail to surmount the rational basis. The
qualifiers "lost" and "immediately preceding
election" do not have any rational basis that
would bolster the objective of the party-list
law. There is no showing that allowing those
who lost as compared to those who won, or
even those who did not participate in the
immediately preceding election, will have a
deleterious effect on the party-list system.
Moreover, using as a reference the
immediately preceding election, and
separating it from the other previous
elections does not in any way present a
convincing basis that would promote the
objective of the party-list system for a
genuine representation. It would thus follow
that the right to substantive due process was
not afforded in the instant case. The prohibition
is, in effect, an arbitrary and whimsical intrusion
of the right of losing candidates in the
immediately preceding elections, by needlessly
restraining them from participating in the
present elections. XXX
As propounded by Associate Justice Mario
V. Lopez during the deliberations of this
case, no clear connection appears to exist
between the weakness of the candidate in
the previous elections and the probability
that their participation would frustrate the
policy enshrined in R.A. No. 7941. (Albano v.
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Permanent residents in foreign
country or those who have the
right to reside abroad and
continue to avail of it (Caasi v.
Court of Appeals, G.R. No.
88831)
The insane or feeble - minded
(Local Government Code, §40)
Disqualifications
(1) Local Government Code (RA 7160)
The following persons are disqualified from running
for any elective local position:
(a) Those 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) Those removed from office as a result of an
administrative case;
(c) Those convicted by final judgment for
violating the oath of allegiance to the
Republic;
(d) Those 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 this Code; and
(g) The insane or feeble-minded. [Sec. 40,
LGC]
(2) Omnibus Election Code
(a) Sec. 12. Disqualifications. - Any person who
has been declared by competent authority
insane or incompetent, or has been sentenced
by final judgment for subversion, insurrection,
rebellion or for any offense for which he has
been sentenced to a penalty of more than
eighteen months or for a crime involving moral
turpitude, shall be disqualified to be a candidate
and to hold any office, unless he has been given
plenary pardon or granted amnesty.
This disqualifications to be a candidate herein
provided shall be deemed removed upon the
declaration by competent authority that said
insanity or incompetence had been removed or
after the expiration of a period of five years from
his service of sentence, unless within the same
period he again becomes disqualified.
(b) Sec. 68. Disqualifications. — 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
having (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 (e.g. Ejercito v. COMELEC); (d)
solicited, received or made any contribution
prohibited
under
Sections
89
(i.e.
transportation, food, drinks), 95 (prohibited
contributions), 96 (foreign sources), 97
(prohibited fund raising) and 104 (prohibited
donations); or (e) violated any of Sections 80
(outside campaign period BUT not anymore
because of RA 9369 and Penera), 83
(destroying lawful election propaganda), 85
(prohibited election propaganda subject to
RA 9006), 86 (mass media subject to RA
9006) and 261, paragraphs d (coercion of
subordinates), e (terrorism, etc.), k (unlawful
electioneering), v (public funds), and cc, subparagraph 6 (unlawful electioneering –
candidacy and campaign), shall be
disqualified from continuing as a candidate, or if
he has been elected, from holding the office.
Any person who is a permanent resident of or
an immigrant to a foreign country shall not be
qualified to run for any elective office under this
Code, 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.
(c) Sec.
69. 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
certificate of candidacy has been filed and thus
prevent a faithful determination of the true will
of the electorate. NOTE: Not considered as a
candidate at all because of the COC
cancellation.
(d) Sec. 78. Petition to deny due course to or
cancel a certificate of candidacy. - A verified
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petition seeking to deny due course or to cancel
a certificate of candidacy may be filed by the
person exclusively on the ground that any
material representation contained therein as
required under Section 74 (i.e. on eligibility
and qualifications) hereof is false. The
petition may be filed at any time not later than
twenty-five days from the time of the filing of the
certificate of candidacy and shall be decided,
after due notice and hearing, not later than
fifteen days before the election. NOTE: Not
considered as a candidate at all because of
the COC cancellation.
(e) Disqualification in Special Elections
In addition to the disqualifications mentioned in
Sections 12 and 68 of the Omnibus Election
Code and Section 40 of Republic Act 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)
(ii)
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
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.
NOTE: Per Sec. 5, RA 8295, this also constitutes as
an election offense that shall be prosecuted and
penalized under Sec. 264 of the OEC. [Sec. 4, RA
8295]
2. Ministerial Duty of Comelec to
Receive Certificates of
Candidacy
The COMELEC, provincial election supervisor,
election registrar or officer designated by the
Commission or the board of election inspectors shall
have the ministerial duty to receive and
acknowledge receipt of the certificate of candidacy.
(OEC, § 76)
While the COMELEC may look into patent defects
in the Certificate of Candidacy, it may not go into
matters not appearing on their face. The question of
eligibility or ineligibility of a candidate is thus beyond
the usual and proper cognizance of the COMELEC
(Cerafica v. COMELEC, G.R. No. 205136)
3. Effect of Filing of Certificate of
Candidacy
Effect of Filing COC
Any person who files his certificate of candidacy
within this period shall only be considered as a
candidate at the start of the campaign period for
which he filed his certificate of candidacy:
Provided, That, unlawful acts or omissions
applicable to a candidate shall take effect only
upon the start of the aforesaid campaign period:
Provided, finally, That any person holding a public
appointive office or position, including active
members of the armed forces, and officers and
employees in government-owned or -controlled
corporations, shall be considered ipso facto
resigned from his/her office and must vacate the
same at the start of the day of the filing of his/her
certificate of candidacy. (R.A. 9369, §13,
(amending R.A. 8436, §11)
On Public APPOINTIVE Officials. Candidates
holding appointive office or positions. - Any person
holding a public appointive office or position,
including active members of the Armed Forces of
the Philippines, and officers and employees in
government-owned or controlled corporations, shall
be considered ipso facto resigned from his office
upon the filing of his certificate of candidacy. (OEC,
§ 66)
Any person holding a public appointive office or
position, including active members of the armed
forces, and officers and employees in governmentowned or - controlled corporations are considered
ipso facto resigned from his/her office and must
vacate the same at the start of the day of the filing
of his/her certificate of candidacy. Said appointed
officials would have unfair advantage over their
rivals because they might use their office resources
for their campaign. (Quinto v. COMELEC, G.R. No.
189698)
On Public ELECTIVE Officials. Elective officials
continue to hold office, whether they run for the
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same or different position. (Fariñas v. Executive
Secretary, GR No. 147387)
Unlawful Acts as Candidates Take Effect Only
Upon Start of the Campaign Period.
It is a basic principle of law that any act is lawful
unless expressly declared unlawful by law. This is
especially true to expression or speech, which
Congress cannot outlaw except on very narrow
grounds involving clear, present and imminent
danger to the State. The mere fact that the law does
not declare an act unlawful ipso facto means that the
act is lawful. Thus, there is no need for Congress to
declare in Section 15 of RA 8436, as amended by
RA 9369, that political partisan activities before the
start of the campaign period are lawful. It is sufficient
for Congress to state that "any unlawful act or
omission applicable to a candidate shall take effect
only upon the start of the campaign period." The
only inescapable and logical result is that the same
acts, if done before the start of the campaign period,
are lawful. In layman’s language, this means that a
candidate is liable for an election offense only for
acts done during the campaign period, not before.
The law is clear as daylight — any election offense
that may be committed by a candidate under any
election law cannot be committed before the start of
the campaign period. (Peñera vs. COMELEC, G.R.
No. 181613)
Who is a candidate?
A “candidate” refers to any person aspiring for or
seeking an elective public office, who has filed a
certificate of candidacy by himself (herself) or
through an accredited political party, aggroupment,
or coalition of parties. (OEC, §79(a))
A candidate is “any person who files his certificate
of candidacy within this period shall only be
considered as a candidate at the start of the
campaign period for which he filed his certificate of
candidacy.” Thus, under the law, a person only
becomes a candidate when he/ she has filed a
certificate of candidacy and when the campaign
period has commenced. One is not a candidate,
despite having filed a certificate of candidacy,
before the start of the campaign period. The law
added, “unlawful acts or omissions applicable
to a candidate shall take effect only upon the
start of the aforesaid campaign period.” (R.A.
No. 9369, §15)
If the certificate of candidacy is void ab initio, the
candidate is not considered a candidate from the
very beginning even if his certificate of candidacy
was cancelled after the elections. (H. Sohria Pasagi
Diambrang v. COMELEC, G.R. No. 201809)
Independent Candidates:
(1) Not a member of a registered political party.
(2) Member of an unregistered political party.
(3) Member of a registered political party but not
officially nominated as candidate by said party.
(4) Nominated by a person who is not the duly
authorized representative of a registered
political party.
(5) Nominated by a registered political party but
such was not submitted to the COMELEC or
where such nomination was submitted after the
last day of filing of the certificate of candidacy.
(6) Nominated by a party that nominated in excess
of the number of persons to be voted for an
election position.
(7) Accepted nominations from more than one
registered political party.
4. Eligibility and Material
Representation
Contents of certificate of candidacy
The certificate of candidacy shall state that the
person filing it is announcing his candidacy for the
office stated therein and that he is eligible for said
office.
• Name;
• If for Member of the Batasang Pambansa, the
province, including its component cities, highly
urbanized city or district or sector which he
seeks to represent;
• Political party to which he belongs
• Civil status
• Date of Birth
• Residence
• Post office address for all election purposes
• Profession or occupation
• That he will support and defend the Constitution
of the Philippines and will maintain true faith and
allegiance thereto;
• That he will obey the laws, legal orders, and
decrees promulgated by the duly constituted
authorities;
• That he is not a permanent resident or
immigrant to a foreign country;
• That the obligation imposed by his oath is
assumed voluntarily, without mental reservation
or purpose of evasion; and
• That the facts stated in the certificate of
candidacy are true to the best of his knowledge.
(OEC, § 74)
Name
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Use the name he was baptized with or the name
registered with the civil registrar, unless he legally
changed it. If a Muslim, he can use his Hadji name
after pilgrimage.
If there are candidates with the same name, they
must add paternal and maternal surnames, except
the incumbent. He can keep using the name he was
elected with and add a nickname or stage name.
(OEC, § 74)
Petition to deny due course to or cancel a
certificate of candidacy
A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by the
person exclusively on the ground that any
material representation contained therein false.
The petition may be filed at any time not later than
twenty-five (25) days from the time of the filing of the
certificate of candidacy and shall be decided, after
due notice and hearing, not later than fifteen (15)
days before the election. (OEC, § 78)
Material Misrepresentation
(1) Must be false.
(2) Must be material (goes into the qualifications).
(3) Must be deliberate and there is an intention to
defraud the electorate.
5. Withdrawal of Certificates 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. (OEC, § 73)
Nothing in Section 73 of B.P. No. 881 mandates that
the affidavit of withdrawal must be filed with the
same office where the certificate of candidacy to be
withdrawn was filed. Thus, it can be filed directly
with the main office of the COMELEC, the office of
the regional election director concerned, the office
of the provincial election supervisor of the province
to which the municipality involved belongs, or the
office of the municipal election officer of the said
municipality (Go v. COMELEC, G.R. No. 147741)
The filing or withdrawal of a certificate of candidacy
shall not affect whatever civil, criminal or
administrative liabilities which a candidate may have
incurred. (OEC, § 73)
No person who has withdrawn his candidacy for a
position shall be eligible as a substitute candidate
for any other position.
6. Effects of Denial and
Cancellation of Certificate of
Candidacy due to Material
Misrepresentation
Duty of COMELEC to decide cases on Denial or
Cancellation of Certificate of Candidacy
What to file: Petition to deny or cancel certificates
of candidacy
Who can file: Any Party
How: Petition to deny due course or Cancel
certificate of candidacy under oath
When: Any time not later than 25 days from filing of
certificate of candidacy
Where: COMELEC must decide the case not later
than 15 days before election (period is not
mandatory however)
Exclusive Ground: Material Misrepresentation
The COMELEC must determine whether or not the
candidate deliberately attempted to mislead,
misinform or hide a fact about his or her residency
that would otherwise render him or her ineligible for
the position sought. The COMELEC gravely abused
its discretion in this case when, in considering the
residency issue, it based its decision solely on very
personal and subjective assessment standards,
such as the nature or design and furnishings of the
dwelling place in relation to the stature of the
candidate. (Mitra v. COMELEC, G.R. No. 191938,
Jul. 19, 2010)
Misrepresentation of nickname is not a material
misrepresentation because the use of nickname
is not a qualification of public office. Nickname
does not affect eligibility; hence, not a material
representation. To be material, such must refer
to an eligibility or qualification for the elective
office the candidate seeks to hold. Here,
respondent’s nickname is not a qualification for a
public office which affects his eligibility. The proper
recourse is to file an election protest and pray that
votes be declared as stray votes (Villafuerte v.
COMELEC, G.R. No. 206698)
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Material representation contemplated by
Section 78 refers to qualifications for elective
office, such as the requisite residency, age,
citizenship or any other legal qualification
necessary to run for a local elective office as
provided for in the Local Government Code.
Furthermore, aside from the requirement of
materiality, the misrepresentation must consist of a
deliberate attempt to mislead, misinform, or hide a
fact, which would otherwise render a candidate
ineligible (Caballero v. COMELEC, G.R. No.
209835)
Failure to comply with RA 9225 requirements
despite statement in COC is material
representation. Aside from the bare allegation that
she is a natural-born citizen, however, petitioner
submitted no proof to support such contention.
Neither did she submit any proof as to the
inapplicability of R.A. No. 9225 to her. xxx Such
being the case, the COMELEC did not err when it
inquired into the compliance by petitioner of
Sections 3 and 5 of RA 9225 to determine if she
reacquired her status as a natural-born Filipino
citizen. It simply applied the constitutional provision
and nothing more. (Reyes v. COMELEC)
If a candidate cannot be disqualified without a prior
finding that she or he is suffering from a
disqualification “provided by law or the Constitution,”
neither can the certificate of candidacy be cancelled
or denied due course on grounds of false
misrepresentation regarding his or her qualification,
without a prior authoritative finding that he or she is
not qualified. (Poe-Llamanzares v. COMELEC, G.R.
No. 221697)
The COMELEC cannot, in the same cancellation
case based on the ground of false material
representation, decide the qualification or lack
thereof of the candidate. (Poe-Llamanzares v.
COMELEC, G.R. No. 221697)
A COC may be cancelled on the ground that the
“candidate” misrepresented his eligibility in his COC
because he knew that he had been convicted by
final judgment for libel, a crime involving moral
turpitude regardless of the fact that he was merely
the publisher of the libelous articles, and that his
penalty was merely a fine. (Ty-Delgado v. HRET,
G.R. No. 219603)
If the certificate of candidacy is void ab initio, the
candidate is not considered a candidate from the
very beginning even if his certificate of candidacy
was cancelled after the elections. (H. Sohria Pasagi
Diambrang vs. COMELEC, G.R. No. 201809)
The summary nature of proceedings under Section
78 only allows it to rule on patent material
misrepresentations of facts, not to make
conclusions of law that are even contrary to
jurisprudence. (Dano vs. COMELEC, G.R. No.
210200)
Material Misrepresentation:
When Applicable
• When a candidate uses the name of her longtime live-in partner or states a false profession.
• When the candidate is actually qualified even if
the entries in the CoC as filled up by the
candidate will show that he is not
• When the candidate, supported by a
preponderance of evidence, believed that he
was qualified since there was no intention to
deceive the electorate as to one’s qualifications
for public office.
•
7. Substitution of Candidates
Grounds for Substitution of Candidates:
(1) Death
(2) Withdrawal
(3) Disqualification (OEC, §77)
Substitution and COC Cancellation
(1) Talaga v. COMELEC (2012). COMELEC
cance ed COC because of 3-term m t.–
subst tut on NOT a owed. Considering that a
cancelled CoC does not g ve r se to a va d
cand dacy, there can be no va d subst tut on of
the cand date under Sec. 77 of the OEC. It shou d
be c ear, too, that a cand date who does not f e a
va d CoC may not be va d y subst tuted, because
a person w thout a va d CoC s not cons dered a
cand date n much the same way as any person
who has not f ed a CoC s not at a a cand date.
(2) Tagolino v. HRET (2013). Cance at on of COC
for Ine g b ty – No subst tut on. It carr es w th t
the den a of due course to and/or cance at on of
[R chard Gomez s] CoC pursuant to Sect on 78
(hence, Lucy Torres not a owed to subst tute)
because of ne g b ty due to ack of res dency.
(3) Cerafica v. COMELEC (2014). Va d w thdrawa
even f ne g b e because of ack of age –
subst tut on a owed. REMEMBER: a) M n ster a
Rece pt of COC. In Cipriano v. Comelec, we
ru ed that the Comelec has no discretion to
give or not to give due course to COCs
(COMELEC cannot cance on ts own). We
emphas zed that the duty of the Come ec to g ve
due course to COCs f ed n due form s m n ster a
n character, and that wh e the Come ec may ook
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nto patent defects n the COCs, t may not go nto
matters not appear ng on the r face. The quest on
of e g b ty or ne g b ty of a cand date s thus
beyond the usua and proper cogn zance of the
Come ec. b) Va d W thdrawa f W th n A owed
Per od and No Cance at on. If the death,
withdrawal or disqualification should occur
between the day before the election and midday of election day, said certificate may be
filed with any board of election inspectors in
the political subdivision where he is candidate
or, in case of candidates to be voted for by the
entire electorate of the country, with the
Commission. Under the express prov s on of
Sec. 77 of B. P. B g. 881, not just any person, but
only "an official candidate of a registered or
accredited
political
party"
may
be
substituted. In the case at bar, K mber y was an
off c a nom nee of the L bera Party; thus, she
can be validly substituted. xxx xxx F rst, there
was a va d w thdrawa of K mber y s COC after
the ast day for the f ng of COCs; second, O v a
be ongs to and s cert f ed to by the same po t ca
party to wh ch K mber y be ongs; and th rd, O v a
f ed her COC not ater than m d-day of e ect on
day. In Luna v. Comelec, where the candidate,
who was also under age, withdrew his COC
before election day and was substituted by a
qualified candidate, we declared that such
substitution was valid.
Substitution is not allowed when the original
candidate was disqualified based on:
• Ground of material misrepresentation (Fermin
v. COMELEC G.R. No. 179695)
• When the certificate was cancelled because he
was running for the fourth consecutive term
(Miranda v. Abaya, G.R. No. 136351)
• Failure to meet one-year residency requirement
(Tagolino v. HRET, G.R. No. 202202)
NOTE: In the case of Tagolino v. HRET (G.R. No.
202202), the COMELEC first ruled that substitution
is allowed because it held that a candidate’s failure
to meet the qualifications is a ground for
disqualification. This was adopted by the HRET.
However, the Supreme Court ruled that it is actually
a cancellation of the certificate of candidacy. Thus,
no substitution is allowed.
General Rule: No substitution is allowed for an
independent candidate. Only candidates who are
members of and are nominated by a party can be
substituted.
Exception: A candidate for a barangay elective
office notwithstanding the policy that barangay
elections are non- partisan can be substituted by
his/her spouse. (Rulloda v. COMELEC, G.R. No.
154198)
Rules on Substitution:
(1) Any candidate may withdraw his candidacy any
time before election day.
(2) A person without a valid certificate of candidacy
cannot be considered a candidate and therefore
cannot be substituted.
(3) Substitute candidate may file his certificate of
candidacy no later than mid-day of election day.
(4) No person who has withdrawn his candidacy for
a position shall be eligible as a substitute
candidate for any other position.
(5) The substitute candidate must be qualified to
hold office and must be a member of and
nominated by the same political party.
(6) A public office is personal to the public officer
and not a property transmissible to the heirs
upon death. The Court has allowed substitution
and intervention but only by a real party in
interest. The Protestant’s widow is not a real
party in interest to the election protest. (Poe v.
Arroyo, PET Case No. 002, 2005)
(7) The filing of the withdrawal shall not affect the
civil, criminal or administrative liabilities the
substituted candidate may have already
incurred.
(8) A candidate who is disqualified under Section
68 of the Omnibus Election Code can be validly
substituted pursuant to Section 77 because he
remains a candidate until disqualified; but a
person whose certificate of candidacy has been
denied due course to and/or cancelled under
Section 78 cannot be substituted because he is
not considered a candidate. (Tagolino v. HRET,
G.R. No. 202202)
8. Nuisance Candidates and
Effects of Declaration of
Nuisance Candidacy
Factors to Consider:
(1) Capability to wage nationwide campaign
(2) Running under a slate
(3) Organization and machinery
(4) Performance in previous elections
(5) Platform of government
(6) Political party affiliation and support
(7) Popularity
(8) Properties
(9) Political exposure
(10) Intention to run for office
(11) Profession
(12) Educational attainment
(13) Similarity in name causes confusion
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(14) Income
(15) Qualifications and disqualifications
COMELEC cannot motu proprio deny due course to
or cancel an alleged nuisance candidate’s certificate
of candidacy without providing the candidate his
opportunity to be heard. (Timbol vs. COMELEC,
G.R. No. 206004)
Pamatong v. COMELEC (2014). COMELEC must
DETERMINE through factual determination and
NOT JUST DECLARE a nuisance candidate. It
deserves not a cursory treatment but a hearing
which conforms to the requirements of due process.
Dela Cruz v. COMELEC (2012). Votes cast for a
nuisance candidate declared as such by final
judgment before the elections should not be
considered as stray votes, but should be counted in
favor of legitimate and bona fide candidate with the
same surname.
capacity to meet the allowable expense limits
would constitute ground to declare one
a nuisance candidate.
(4) A candidate's financial capacity to sustain
the rigors of waging a nationwide campaign
does not necessarily equate to a bona
fide intention to run for public office.
The COMELEC's burden is thus to show a
reasonable correlation between proof of a bona
fide intention to run, on the one hand, and proof
of financial capacity to wage a nationwide
campaign on the other. This is the import of the
U.S. Supreme Court ruling in Bullock v. Carter.
De Alban v. COMELEC (2022). The Court upheld
the constitutionality of Section 69 of the OEC and
expounded on the COMELEC's power to refuse to
give due course to or cancel the CoCs of nuisance
candidates, but declared that the COMELEC
committed grave abuse of discretion in declaring a
candidate as nuisance, viz.:
NOTE: A petition to cancel or deny a COC under
Section 69 of the OEC (for Nuisance Candidates)
should be distinguished from a petition to disqualify
under Section 68 (DQ for election offenses). 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.
Marquez v. COMELEC (2019). The COMELEC
committed grave abuse of discretion in
declaring Marquez a nuisance candidate on the
ground of failure to prove financial capacity to
sustain the financial rigors of waging a nationwide
campaign. Additionally, the Court cited the following
reasons:
(1) Already declared in Maquera v. Borra that the
right to vote and to be voted for shall not be
made to depend upon the wealth of the
candidate.
(2) A cursory examination of the text of Section 69
and
Section
1,
Rule
24
of COMELEC Resolution No. 9523 would,
however, show that both are silent as to the
requirement of proof of financial capacity before
an aspirant may be allowed to run in the
national elections.
(3) Section 13 of RA 7166 merely sets the current
allowable limit on expenses of candidates and
political parties for election campaign. It does
not (whether by intention or operation) require a
financial requirement for those seeking to run
for public office, such that failure to prove
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Court upholds the constitutionality of
COMELEC's authority to motu proprio refuse to
give due course to or cancel the CoC of a
nuisance candidate under Section 69 of
the OEC. However, the Court ascribes grave
abuse of discretion on the part of the
COMELEC in cancelling De Alban's CoC
pursuant to an erroneous interpretation of the
law and for lack of supporting substantial
evidence. The Court reminds the COMELEC
that the candidate's bona fide intention to
run for public office is neither subject to any
property qualifications nor dependent upon
membership in a political party, popularity,
or degree of success in the elections.
Uy v. COMELEC (2023). The Court again declared
that the COMELEC committed grave abuse of
discretion in declaring a candidate as nuisance
because he has no bona fide intention to run for
public office and his surname and nickname can
cause confusion among voters.
The Court
pertinently ruled as follows:
a.
On the No Bona Fide Intention (i.e. Political
Party and Lack of Political Experience)
Indeed, Frederico enjoyed NUP's full logistical,
financial, and organizational support in his
candidacy. Frederico's lack of political
experience also does not undermine his
seriousness in running for public office. Absent
contrary evidence, Frederico's candidacy can
hardly be considered a sham since bad faith is
a factual issue that is never presumed. 96 In
any case, the Court had ruled that the
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candidate's bona fide intention to run for public
office is neither subject to any property
qualifications nor dependent upon membership
in a political party, popularity, or degree of
success in the elections.
b. On the Voter Confusion.
Thus,
the
voters
would
readily
recognize "Romeo" as referring to "Jalosjos,
Romeo Jr." and not to "Jalosjos, Kuya
Jan." Further, the filing of CoCs is an integral
process in the elections that permits the placing
of the names of the candidates before the
electorates. The CoC is an authorized badge
that the voters could scrutinize details relating
to the candidates before casting their ballots. In
this case, the voters are deemed able to
distinguish
between "Romeo" and "Kuya
Jan" with the filing of their CoCs. It is more
prudent to conclude that the voters know
whom they are voting for before casting
their ballots. To hold otherwise absent proof
is to speculate. Moreover, a campaign
precedes the elections where the candidates
can promote themselves and remove any
bemusement with other contenders because of
perceived similarity in their first names,
nicknames, or surnames.
9. Disqualification of Candidates;
Effects
Effects of Disqualification
Any candidate who has been declared by final
judgment to be disqualified shall not be voted for.
One who is disqualified under Section 68 is still
technically considered to have been a candidate,
albeit proscribed to continue as such only because
of supervening infractions which do not, however,
deny his or her statutory eligibility (Tagolino v.
HRET, G.R. No. 202202)
When a person who is not qualified is voted for and
eventually garners the highest number of votes,
even the will of the electorate expressed through the
ballot cannot cure the defect in the qualifications of
the candidate. To rule otherwise is to trample upon
and rent asunder the very law that sets forth the
qualifications and disqualifications of candidates.
When there are participants who turn out to be
ineligible, their victory is voided and the laurel is
awarded to the next in rank who does not possess
any of the disqualifications nor lacks any of the
qualifications set in the rules to be eligible as
candidates. 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
(Maquiling v. Commission on Elections, G.R. No.
195649)
A person whose COC was cancelled due to
ineligibility for failure to prove Filipino citizenship and
the one-year residence requirement could not have
been a valid candidate, and could not have been
validly proclaimed. Thus, she could not have validly
assumed her position. (Velasco v. Belmonte, G.R.
No. 211140)
The purpose of a disqualification proceeding is to
prevent the candidate from running or, if elected,
from serving, or to prosecute him for violation of the
election laws. A petition to disqualify a candidate
may be filed pursuant to Section 68 of the Omnibus
Election Code. Offenses that are punished in laws
other than in the Omnibus Election Code cannot be
a ground for a Section 68 petition. (Ejercito v.
COMELEC, G.R. No. 212398)
Effect of Re-Election on Administrative Liability
Abandonment of the Condonation Doctrine. The
concept of public office is a public trust and the
corollary requirement of accountability to the people
at all times, as mandated under the 1987
Constitution, is plainly inconsistent with the idea that
an elective local official’s administrative liability for a
misconduct committed during a prior term can be
wiped off by the fact that he was elected to a second
term of office, or even another elective post. Election
is not a mode of condoning an administrative
offense, and there is simply no constitutional or
statutory basis in our jurisdiction to support the
notion that an official elected for a different term is
fully absolved of any administrative liability arising
from an offense done during a prior term. (CarpioMorales v. Binay, G.R. No. 217126-27)
NOTE: Abandonment of the Condonation Doctrine
was applied 12 April 2016 onwards when CapioMorales v. CA, Binay became final and executory.
(Crebello v. Ombudsman, G.R. No. 232325, 2019)
The COMELEC may suspend the proclamation of a
candidate who gets the majority votes, if he has
been disqualified before the election but the
decision has not yet become final. He will not be
proclaimed except where the judgment of
disqualification is finally reversed.
Exception to non-proclamation of candidate
with 2nd highest number of votes:
(1) The one who obtained the highest number of
votes is disqualified; and
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(2) The electorate is fully aware in fact and in law
of a candidate’s disqualification so as to bring
such awareness within the realm of notoriety
but would nonetheless cast their votes in favor
of the ineligible candidate (Grego v. COMELEC,
G.R. No. 125955)
Distinction between Disqualification and
Cancellation of COC:
(1) A petition for cancellation of a certificate of
candidacy is not based on lack of qualification
but on false representation, which may relate to
lack of qualification, such as residence. A
petition for disqualification refers to commission
of prohibited acts and possession of permanent
resident status in a foreign country.
(2) A candidate whose certificate of candidacy was
cancelled is not treated as a candidate. A
candidate who is disqualified cannot continue
as a candidate.
(3) A candidate whose certificate of candidacy was
cancelled or denied due course under Sec. 78
for false material representation could not be
substituted. (Talaga v. COMELEC, G.R. No.
196804) On the other hand, a candidate who is
disqualified under Sec. 68 of the OEC can be
substituted as he is only prohibited from being
a candidate but his COC remains to be valid.
(4) A petition to deny due course or to cancel a
certificate of candidacy must be filed within 25
days from the time of filing of the COC, as
provided under Section 78 of the OEC (Albania
v. COMELEC, G.R. No. 226792)
(5) A petition for disqualification of a nuisance
candidate should be filed within 5 days from the
last day for filing certificate of candidacy
(Fermin v. COMELEC, G.R. No. 179695)
Rules on Lone Candidate in a Special Election
(1) PROCLAMATION OF LONE CANDIDATE.
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. (R.A. 8295, §2)
(2) ASSUMPTION OF OFFICE. 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 Sections 69 and
78 of Batas Pambansa Bilang 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. Certificates of candidacy filed in
violation hereof shall not be given due course. For
this purpose, the Commission shall decide petitions
for disqualifications not later than election day;
otherwise, such petitions shall be deemed
dismissed. (R.A. 8295, §3)
(3) DISQUALIFICATIONS. In addition to the
disqualifications mentioned in Sections 12 and 68 of
the Omnibus Election Code and Section 40 of
Republic Act 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:
(a) 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
(b) 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. (NOTE: Per Sec. 5, RA 8295,
this also constitutes as an election offense
that shall be prosecuted and penalized
under OEC, §264.) (Sec. 4, R.A. 8295, §4)
Rules on Retention and Reacquisition of
Philippine Citizenship and Running for Public
Elective Office (R.A. 9225)
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:
(1) Those intending to exercise their right of
suffrage must meet the requirements under
Section 1, Article V of the Constitution,
Republic Act No. 9189, otherwise known as
"The Overseas Absentee Voting Act of
2003" and other existing laws;
(2) Those seeking elective public office in
the Philippines shall meet the
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qualification for holding such public
office as required by the Constitution
and existing laws and, 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;
NOTE: This is the legal basis that requires dual
citizens to renounce their foreign citizenship through
an affidavit of renunciation if they are seeking
elective office. Presently, this is now an eligibility
declaration requirement in COCs that can be a
ground for false material representation if the person
fails to renounce at the time of COC filing.
(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;
(4) Those intending to practice their profession
in the Philippines shall apply with the proper
authority for a license or permit to engage
in such practice; and
(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 non-commissioned officers in the
armed forces of the country which they
are naturalized citizens. (R.A. 9225, §5)
E. CAMPAIGN
Premature Campaign
It shall be unlawful for any person, whether or not a
voter or candidate, or for any party, or association of
persons, to engage in an election campaign or
partisan political activity except during the campaign
period: Provided, That political parties may hold
political conventions or meetings to nominate their
official candidates within thirty days before the
commencement of the campaign period and fortyfive days for Presidential and Vice-Presidential
election. (OEC, §80)
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General Rule: No person may engage in an
election campaign or partisan political activity before
the campaign period.
Exception: Political parties may hold political
conventions or meetings to nominate their official
candidates within 30 days before campaign period
and 45 days for Presidential and Vice-Presidential
election.
Only after said person officially becomes a
candidate, at the beginning of the campaign period,
can said acts be given effect as premature
campaigning under Section 80 of the Omnibus
Election Code. Only after said person officially
becomes a candidate, at the start of the campaign
period, can his/her disqualification be sought for
acts
constituting
premature
campaigning.
(Rosalinda Penera v. COMELEC, GR No. 205728)
NOTE: The deadline for the filing of certificate of
candidacy/petition for registration/manifestation to
participate in the election shall not be later than one
hundred twenty (120) days before the elections
(R.A. 8436, §11)
a. Limitations on Expenses and
Prohibited Contributions
LIMITATIONS ON EXPENSES
Authorized Expenses
The agreement amount that a candidate or
registered political party may spend for election
campaign shall be as follows:
(c) For candidates. – Ten pesos (P10.00)
for President and Vice-President; and
for other candidates Three Pesos
(P3.00) for every voter currently
registered in the constituency where he
filed his certificate of candidacy:
Provided, That a candidate without any
political party and without support from
any political party may be allowed to
spend Five Pesos (P5.00) for every
such voter; and
NOTE: The law is clear — the candidate must both
be without a political party and without support from
any political party for the P5.00 cap to apply. In the
absence of one, the exception does not apply
(hence, the P3.00 cap will apply). (Salvador v.
COMELEC, GR No. 204357)
(b) For political parties. – Five pesos (P5.00) for
every voter currently registered in the constituency
or constituencies where it has official candidates.
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Any provision of law to the contrary notwithstanding
any contribution in cash or in kind to any candidate
or political party or coalition of parties for campaign
purposes, duly reported to the Commission shall not
be subject to the payment of any gift tax. (R.A. 7166,
§13 (amending Secs. 100-101, OEC))
3rd Party Donations Included in the Allowable
Expenditure Limit
In tracing the legislative history of Sections 100,
101, and 103 of the OEC, it can be said, therefore,
that the intent of our lawmakers has been consistent
through the years: to regulate not just the election
expenses of the candidate but also of his or her
contributor/supporter/donor as well as by including
in the aggregate limit of the former’s election
expenses those incurred by the latter. The phrase
“those incurred or caused to be incurred by the
candidate” is sufficiently adequate to cover those
expenses which are contributed or donated in the
candidate’s behalf. By virtue of the legal
requirement that a contribution or donation should
bear the written conformity of the candidate, a
contributor/supporter/donor certainly qualifies as
“any person authorized by such candidate or
treasurer.” Ubi lex non distinguit, nec nos
distinguere debemus. (Where the law does not
distinguish, neither should We.) There should be no
distinction in the application of a law where none is
indicated. (Ejercito v. COMELEC, GR No. 212398)
Summary of Rules on Authorized Expenses
Multiplied by the total number of registered voters:
(1) P10 – President and Vice President
(2) P3 – Other candidates (with political party OR
with political support)
(3) P5 – Independent candidates (without
political party AND without political support)
(4) P5 – Political parties
Lawful Expenditures
No candidate or treasurer of a party shall, directly or
indirectly, make any expenditure except for the
following purposes:
a) For traveling expenses of the candidates and
campaign personnel in the course of the
campaign and for personal expenses incident
thereto;
b) For compensation of campaigners, clerks,
stenographers, messengers, and other persons
actually employed in the campaign;
c) For telegraph and telephone tolls, internet
access, postages, freight and express delivery
charges;
d) For stationery, printing and distribution of
printed materials relative to the candidacy;
e) For employment of watchers at the polls;
f)
g)
h)
)
j)
k)
For rent, maintenance and furnishing of
campaign headquarters, office or place of
meetings;
For political meetings and rallies and the use of
sound systems, lights and decorations during
said meetings and rallies;
For newspaper, radio, television and other
advertisements for purposes of promoting the
candidacy, including website or internet ad
placements, subject to existing rules and
regulations on the broadcast advertising.
For employment of counsel;
For copying and classifying lists of voters,
investigating and challenging the right to
vote of persons registered in the lists; and
For printing sample ballots in such color,
size and maximum number as may be
authorized by the Commission.
NOTE: The expenditures for items (i – i.e.
employment of counsel), (j – i.e. copying and
classifying lists of voters), and (k – i.e. printing
sample ballots), shall not be taken into account
in determining whether the expenditure limit has
been breached by the candidate or party in the
conduct of campaign activities. (OEC, §102)
Failure to comply with this Section constitutes an
election offense under Section 102 in relation to
Section 262 of the Omnibus Election Code.
(COMELEC Resolution No. 9476 s.2012, §3 Rule 4,
citing OEC, §102)
Summary of Rules on Lawful Expenditures
(1) Traveling expenses
(2) Compensation
of
campaigners,
clerks,
stenographers, messengers and other persons
actually employed in the campaign
(3) Telegraph and telephone tolls, postage, freight
and express delivery charges
(4) Stationary, printing and distribution of printed
matters relative to candidacy
(5) Employment of watchers at the polls
(6) Rent, maintenance and furnishing of campaign
HQ, office, or place of meetings
(7) Political meetings and rallies
(8) Advertisements
(9) Employment of counsel
(10) Printing sample ballots
(11) Copying and classifying list of voters,
investigating and challenging the right to
vote of persons registered in the lists
NOTE: The expenses for (9), (10), (11) are not
charged against the allowable expenditure
limits.
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The phrase “those incurred or caused to be
incurred
by the candidate” is sufficiently
adequate to cover those expenses which are
contributed or donated in the candidate’s
behalf. By virtue of the legal requirement that a
contribution or donation should bear the written
conformity of the candidate, a contributor/ supporter/
donor certainly qualifies as any person authorized
by such candidate or treasurer. (Ejercito v.
COMELEC, G.R. No. 212398)
of its divisions, subdivisions or instrumentalities
including government-owned or controlled
corporations;
(6) Educational institutions which have received
grants of public funds amounting to no less than
P100,000.00;
(7) Officials or employees in the Civil Service, or
members of the Armed Forces of the
Philippines; and
(8) Foreigners and foreign corporations.
PROHIBITED CONTRIBUTIONS
It shall be unlawful for any person to solicit or receive
any contribution from any of the persons or entities
enumerated herein. (OEC, §95)
Electoral Contributions
The term “contribution” includes a gift, donation,
subscription, loan, advance or deposit of money or
anything of value, or a contract, promise or
agreement to contribute, whether or not legally
enforceable, made for the purpose of influencing the
results of the elections but shall not include services
rendered without compensation by individuals
volunteering a portion or all of their time in behalf of
a candidate or political party. It shall also include 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. (OEC, §94(a))
Prohibited Contributions (POV of DONOR)
No contribution for purposes of partisan political
activity shall be made directly or indirectly by any of
the following:
(1) Public or private financial institutions: Provided,
however, That nothing herein shall prevent the
making of any loan to a candidate or political
party by any such public or private financial
institutions legally in the business of lending
money, and that the loan is made in accordance
with laws and regulations and in the ordinary
course of business;
(2) Natural and juridical persons operating a public
utility or in possession of or exploiting any
natural resources of the nation;
(3) Natural and juridical persons who hold
contracts or sub-contracts to supply the
government or any of its divisions, subdivisions
or instrumentalities, with goods or services or to
perform construction or other works;
(4) Natural and juridical persons who have been
granted franchises, incentives, exemptions,
allocations or similar privileges or concessions
by the government or any of its divisions,
subdivisions or instrumentalities, including
government-owned or controlled corporations;
(5) Natural and juridical persons who, within one
year prior to the date of the election, have been
granted loans or other accommodations in
excess of P100,000 by the government or any
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NOTE: Under the old Corporation Code, domestic
and foreign corporations are prohibited from making
electoral contributions.
Under the Revised
Corporation Code, only foreign corporations are
prohibited. Thus, domestic corporations can
now make reasonable contributions.
(R.A.
11232, §35 in relation to §95)
Summary of Prohibited Contributions
(1) Public utilities or those exploiting natural
resources of the nation
(2) Public or private financial institutions, except
loans to a candidate or political party
(3) Foreigners and foreign corporations
(4) Grantees of franchises, incentives, exemptions,
allocations or similar privileges or concessions
by the government
(5) Persons who, within 1 year prior to the date of
the election, have been granted loans or other
accommodations in excess of P100,000 by the
government
(6) Members of the armed forces of the Philippines
(7) Officials or employees in the Civil service
(8) Persons with contracts to supply the
government with goods or services or to
perform construction or other works
(9) Educational institutions which have received
grants of public funds not less than p100,000 by
the government
Prohibited
Contributions
(Receipt
and
Solicitation)
It shall be unlawful for any person, including a
political party or public or private entity to solicit or
receive, directly or indirectly, any aid or contribution
of whatever form or nature from any foreign national,
government or entity for the purposes of influencing
the results of the election. (OEC, §96)
Prohibited Ways of Raising Electoral Campaign
Funds. It shall be unlawful for any person to hold
dances, lotteries, cockfights, games, boxing bouts,
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bingo, beauty contests, entertainments, or
cinematographic, theatrical or other performances
for the purpose of raising funds for an election
campaign or for the support of any candidate from
the commencement of the election period up to and
including election day; or for any person or
organization, whether civic or religious, directly or
indirectly, to solicit and/or accept from any candidate
for public office, or from his campaign manager,
agent or representative, or any person acting in their
behalf, any gift, food, transportation, contribution or
donation in cash or in kind from the commencement
of the election period up to and including election
day; Provided, That normal and customary religious
stipends, tithes, or collections on Sundays and/or
other designated collection days, are excluded from
this prohibition. (OEC, §96)
school contributions habitually made before the
campaign period. (OEC, §104)
Prohibited Means of Raising Funds:
(1) Cinematographic,
theatrical,
or
other
performances
(2) Cockfights
(3) Lotteries
(4) Boxing bouts
(5) Bingo
(6) Beauty contests
(7) Entertainment and games
(8) Dances (OEC, §97)
Electoral Contribution Not Subject to Gift Tax.
Any contribution in cash or in kind to any candidate
or political party or coalition of parties for campaign
purposes, duly reported to the Commission, shall
not be subject to the payment of any gift tax. (R.A.
7166, §13)
Lawful election propaganda shall include:
(1) Pamphlets, leaflets, cards, decals, stickers or
other written or printed materials the size of
which does not exceed 8.5 inches in width
and14 inches in length (8.5 in. x 14 in.);
(2) Handwritten or printed letters urging voters to
vote for or against any particular political party
or candidate for public office;
(3) Cloth, paper or cardboard posters whether
framed, or posted, with an area not exceeding
two (2) feet by three (3) feet, except that, at the
site and on the occasion of a public meeting or
rally, or in announcing the holding of said
meeting or rally, streamers not exceeding three
(3) feet by eight (8) feet in size, shall be allowed:
Provided, That said streamers may be
displayed five (5) days before the date of the
meeting or rally and shall be removed within
twenty-four (24) hours after said meeting or
rally;
(4) Paid advertisements in print or broadcast
media: Provided, That the advertisements shall
follow the requirements set forth in Section 4 of
this Act (R.A. 9006); (R.A. 9006, §3) and
(5) All other forms of election propaganda not
prohibited by this Code as the Commission may
authorize after due notice to all interested
parties and hearing where all the interested
parties were given an equal opportunity to be
heard: Provided, That the Commission’s
authorization shall be published in two
newspapers of general circulation throughout
the nation for at least twice within one week
after the authorization has been granted. (OEC,
§82(d)).
Unspent Contribution Subject to Income Tax.
Any unexpended balance from any contribution to
candidate or party shall be subject to income tax.
(COMELEC Resolution No. 9476 s.2012 citing BIR
Revenue Regulation No. 7-2011)
General Rule: It shall be unlawful for any person or
organization to solicit and/ or accept any gift,
contribution, food, transportation or donation in cash
or in kind from the commencement of the election
period up to and including election day.
Exception: Normal and customary
stipends, tithes or collections.
religious
Prohibited Donations
It is prohibited for any candidate, his spouse, relative
within second degree of consanguinity or affinity, a
representative to make any contribution for any
structure for public use or for use of any religious or
civic organization, except the normal religious dues
and payments for scholarships established and
b. Lawful Election Propaganda
Election Propaganda
Election propaganda whether on television, cable
television, radio, newspapers or any other medium
is hereby allowed for all registered political parties,
national, regional, sectoral parties or organizations
participating under the party-list elections and for all
bona fide candidates seeking national and local
elective positions subject to the limitation on
authorized expenses of candidates and political
parties, observance of truth in advertising and
to the supervision and regulation by the
COMELEC.
Summary Rules on Election Propaganda:
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All registered parties and bona fide candidates
shall have the right to reply to charges
published against them.
No movie, cinematograph, documentary
portraying the life or biography of a candidate
shall be publicly exhibited in a theatre, TV
station, or any public forum during the campaign
period.
No movie, cinematograph, documentary
portrayed by an actor or media personality who
is himself a candidate shall be publicly exhibited
in a theatre, TV station or any public form during
the campaign period.
All mass media entities shall furnish the
COMELEC with copies 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.
Any media personality who is a candidate or is
a campaign volunteer for or employed or
retained in any capacity by any candidate or
political party shall be deemed resigned, if so
required by their employer, or shall take a LOA
from his work as such during the campaign
period.
streamers, sample list of candidates or any
published or printed political matter and any
broadcast of election propaganda by television or
radio for or against a candidate or group of
candidates to any public office shall bear and be
identified by the reasonably legible or audible words
“political advertisement paid for,” followed by the
true and correct name and address of the candidate
or party for whose benefit the election propaganda
was printed or aired.
Rules on Published or Printed and Broadcast
Election Propaganda (Paid Advertisements)
(1) PRINT
• ¼ page in broadsheet, 3x a week
• ½ page in tabloid, 3x a week
(2) RADIO (per STATION)
• 180 mins. For National candidates
• 90 mins. For Local candidates
(3) TV (per STATION)
• 120 mins. For National candidates
• 60 mins. For Local candidates
Public Rallies:
(1) The candidate or party must notify election
registrar that they intend to organize and hold
within the city/municipality
(2) Submit to election registrar a statement of
expenses in connection therewith. (OEC, §88)
•
•
•
•
The Fair Election Act does not justify a conclusion
that the maximum allowable airtime should be
based on the totality of possible broadcast in all
television or 35 radio stations, and the COMELEC
has no authority to provide for rules beyond what
was contemplated by the law it is supposed to
implement. (GMA Network, Inc. v. COMELEC, G.R.
No. 205357)
NOTE: As it stands now, the limits of 120 minutes
for TV and 180 minutes for radio is PER
STATION – not aggregate or not per network.
Thus, there are separate airtime limits for the
regional TV and radio stations of networks.
Any newspaper, newsletter, newsweekly, gazette or
magazine advertising, posters, pamphlets, comic
books, circulars, handbills, bumper stickers,
If the broadcast is given free of charge by the radio
or television station, it shall be identified by the
words “airtime for this broadcast was provided free
of charge by” followed by the true and correct name
and address of the broadcast entity.
Print, broadcast or outdoor advertisements donated
to the candidate or political party shall not be
printed, published, broadcast, or exhibited without
the written acceptance by the said candidate or
political party. Such written acceptance shall be
attached to the advertising contract and shall be
submitted to the COMELEC as provided in
Subsection 6.3. hereof. (R.A. 9006, §4)
COMELEC Space and Airtime
Pursuant to Sections 90 and 92 of the Omnibus
Election Code (Batas Pambansa Bldg. 881), the
COMELEC shall procure the print space upon
payment of just compensation from at least three (3)
national newspapers of general circulation wherein
candidates for national office can announce their
candidacies. Such space shall be allocated free of
charge equally and impartially among all the
candidates for national office on three (3) different
calendar days: the first day within the first week of
the campaign period; the second day within the fifth
week of the campaign period; and the third day
within the tenth week of the campaign period.
The COMELEC shall also procure free airtime
from at least three (3) national television
networks and three(3) national radio networks,
which shall also be allocated free of charge
equally and impartially among all candidates for
national office. Such free time shall be allocated on
three (3) different calendar days; the first day within
the first week of the campaign period; the second
day within the fifth week of the campaign period; and
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the third day within the tenth weeks of the campaign
period.
The COMELEC may require national television
and radio networks to sponsor at least three (3)
national debates among presidential candidates
and at least one (1) national debate among vice
presidential candidates. The debates among
presidential candidates shall be scheduled on three
(3) different calendar days; the first debate shall be
scheduled within the first and second week of the
campaign period; the second debate within the fifth
and sixth week of the campaign period; and the third
debate shall be scheduled within the tenth and
eleventh week of the campaign period.
The sponsoring television or radio network may sell
air-time for commercials and advertisements to
interested advertisers and sponsors. The
COMELEC shall promulgate rules and regulations
for the holding of such debates. (R.A. 9006, §7)
The COMELEC shall procure shall in at least one (1)
newspaper of general circulation and air time in at
least one (1) major broadcasting station or entity in
every province or city: Provided, however, That in
the absence of said newspaper, publication shall be
done in any other magazine or periodical in said
province or city, which shall be known as
“COMELEC Space”: Provided, further, That in the
absence of said broadcasting station or entity,
broadcasting shall be done in any radio or television
station in said province or city, which shall be known
as “COMELEC Time”. Said time shall be allocated
to the COMELEC free of charge, while said space
shall be allocated to the COMELEC upon payment
of just compensation. The COMELEC time and
space shall be utilized exclusively by the COMELEC
for public information dissemination on electionrelated concerns. (R.A. 9006, §8)
Thus:
(1) SPACE (PUBLISHED OR PRINTED)
(a) 3 National newspapers – National
candidates
(b) 1 National newspaper – Local candidates
(2) AIRTIME (BROADCAST)
(a) 3 National TV and Radio Networks –
National candidates
(b) 1 Major Broadcasting station – Local
candidates
There shall be equal allocation for all candidates for
3 calendar days.
COMELEC does not have the authority to
regulate the enjoyment of the preferred right to
freedom of expression exercised by a noncandidate. Regulation of speech in the context of
electoral campaigns made by persons who are not
candidates or who do not speak as members of a
political party which are, taken as a whole,
principally advocacies of a social issue that the
public must consider during elections is
unconstitutional. Such regulation is inconsistent with
the guarantee of according the fullest possible range
of opinions coming from the electorate including
those that can catalyze candid, uninhibited, and
robust debate in the criteria for the choice of a
candidate. (Diocese of Bacolod v. COMELEC, G.R.
No. 205728)
However, 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 object. 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.
For this purpose, it will not matter whether the
speech is made with or on private property.
(Diocese of Bacolod v. COMELEC, G.R. No.
205728, obiter dictum)
Posting of Campaign Materials
The COMELEC may authorize political parties and
party-list groups to erect common poster areas for
their candidates in not more than ten (1) public
places such as plazas, markets, barangay centers
and the like, wherein candidates can post, display or
exhibit election propaganda: Provided, That the size
of the poster areas shall not exceed twelve (12) by
sixteen (16) feet or its equivalent.
Independent candidates with no political parties
may likewise be authorized to erect common poster
areas in not more than ten (10) public places, the
size of which shall not exceed four (4) by six (6) feet
or its equivalent.
Candidates may post any lawful propaganda
material in private places with the consent of the
owner thereof, and in public places or property
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which shall be allocated equitably and impartially
among the candidates. (R.A. 9006, §9)
Right to Reply
All registered parties and bona fide candidates shall
be 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, RA 9006]
Prescribed Rates for Political Propaganda
During the election period, media outlets shall give
registered political parties and bona fide candidates
a discount of fifty percent (50%) for television, forty
percent (40%) for radio and ten percent (10%) for
print, from the average of the published rates
charged in the last three calendar years prior to the
election.
Nothing in this provision prohibits a media outlet
from giving higher discounts: Provided, That the
discount it gives one candidate shall be the same
discount it gives to other candidates for the same
position.
In no case shall rates charged to registered political
parties and bona fide candidates be higher than
rates charged to non-political advertisers. (R.A.
9006, §10 (as amended by R.A. 11207))
Election Surveys
Election surveys refer to 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. (R.A. 9006, §5.1)
The prohibition (on election surv’ys) may be for a
limited time, but the curtailment of the right of
expression is direct, absolute, and substantial. It
constitutes a total suppression of a category of
speech and is not made less so because it is only
for a period of fifteen (15) days immediately before
a national election and seven (7) days immediately
before a local election. Sec. 5.4 (of RA 9006)
(which sought to prohibit publication of election
surveys 15 days before a national election and 7
days before a local election) is invalid because
(1) it imposes a prior restraint on the freedom of
expression, (2) it is a direct and total
suppression of a category of expression even
though such suppression is only for a limited
period, and (3) the governmental interest sought
to be promoted can be achieved by means other
than suppression of freedom of expression.
(SWS v. COMELEC, GR No. 147571)
The names of those who commission or pay for
election surveys, including subscribers of survey
firms, must be disclosed pursuant to Section 5.2(a)
of the Fair Election Act. This requirement is a valid
regulation in the exercise of police power and effects
the constitutional policy of “guaranteeing equal
access to opportunities for public service.”, and
neither curtails petitioners’ free speech rights nor
violates the constitutional proscription against the
impairment of contracts. (Social Weather Stations,
Inc. et al v. COMELEC, G.R. No. 208062)
When published, the tendency of election surveys to
shape voter preferences comes into play. In this
respect, published election surveys partake of the
nature of election propaganda. It is then declarative
speech in the context of an electoral campaign
properly subject to regulation. (Social Weather
Stations, Inc. et al v. COMELEC, G.R. No. 208062)
While Resolution No. 9674 does regulate
expression (i.e., petitioners’ publication of election
surveys), it does not go so far as to suppress desired
expression. There is neither prohibition nor
censorship specifically aimed at election surveys.
The freedom to publish election surveys remains. All
Resolution No. 9674 does is articulate a regulation
as regards the manner of publication, that is, that the
disclosure of those who commissioned and/or paid
for, including those subscribed to, published
election surveys must be made. (Social Weather
Stations, Inc. et al v. COMELEC, G.R. No. 208062)
Exit Polls
Exit polls may only be taken subject to the following
requirements:
(1) Pollsters shall not conduct their surveys within
fifty (50) meters from the polling place, whether
said survey is taken in a home, dwelling place
and other places;
(2) Pollsters shall wear distinctive clothing;
(3) Pollsters shall inform the voters that they may
refuse to answer; and
(4) 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. (R.A. 9006, §5.5)
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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. Quite the contrary,
exit polls — properly conducted and publicized —
can be vital tools in eliminating the evils of electionfixing and fraud. Narrowly tailored countermeasures
may be prescribed by the Comelec so as to
minimize or suppress the incidental problems in the
conduct of exit polls, without transgressing in any
manner the fundamental rights of our people. (ABSCBN v. COMELEC, GR No. 133486)
c. Statement of Contributions and
Expenses
Reporting of Contributions and Expenditures
Statement of Contributions and Expenditures
(SOCE). Not later than thirty (30) days after the day
of election, every candidate shall file in triplicate with
the offices of the Commission where he filed his
certificate of candidacy except for national positions
which should be filed with the Campaign Finance
Unit, a full, true and itemized statement of all
contributions and expenditures in connection with
the38lectionns. (Also R.A. 7166, §14)
Within the same period, the treasurer of every
party that participated in the elections shall file
with the Campaign Finance Unit of the
COMELEC the party’s statement of election
contributions and expenditures. If the statement
is sent by mail, it shall be by registered mail, and the
date on which it was registered with the post office
may be considered as the filing date thereof if
confirmed on the same date by telegram or
radiogram addressed to the office or official with
whom the statement should be filed, which telegram
or radiogram shall indicate the registry receipt
number of such registered mail.
The Regional Election Director of the National
Capital Region, Provincial Election Supervisors and
Election Officers concerned shall, not later than
fifteen (15) days after the last day for the filing of the
Statements of Contributions and Expenditures,
send to the Campaign Finance Unit, Commission on
Elections, Manila, duplicate copies of all statements
filed with them. (COMELEC Resolution No. 9476
s.2012 , §2 Rule 8, citing OEC, §108)
Obligation to file SOCE. Section 14 of R.A. No.
7166 states that “every candidate” has the obligation
to file his statement of contributions and
expenditures. The law makes no distinction or
qualification as to whether the candidate pursued
his candidacy or withdrew the same, 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, GR No. 115245)
Consequences for the Non-Filing of SOCE. No
person elected to any public offices shall enter upon
the duties of his office until he has filed the
statement of contributions and expenditures herein
required.
The same prohibition shall apply if the political party
which nominated the winning candidate fails to file
the statement required herein within the period
prescribed by this Act.
Except candidates for elective barangay office,
failure to file the statements or reports in
connection with electoral contributions and
expenditures are required herein shall
constitute an administrative offense for which
the offenders shall be liable to pay an
administrative fine ranging from One thousand
pesos (P1,000.00) to Thirty thousand pesos
(P30,000.00), in the discretion of the
Commission.
The fine shall be paid within thirty (30) days from
receipt of notice of such failure; otherwise, it shall be
enforceable by a writ of execution issued by the
Commission against the properties of the offender.
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. (Resolution No.
9476 s.2012, §1, Rule 8)
For the commission of a second or subsequent
offense under this section, the administrative
fine shall be from Two thousand pesos
(P2,000.00)
to
Sixty
thousand
pesos
(P60,000.00), in the discretion of the
Commission. In addition, the offender shall be
subject to perpetual disqualification to hold
public office. (R.A. 7166, §14)
Moreover, that Congress has deemed fit to impose
the penalty of perpetual disqualification on
candidates who repeatedly failed to file their SOCEs
cannot be the subject of judicial inquiry. Congress
has the absolute discretion to penalize by law with
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perpetual disqualification from holding public office
in addition to administrative fines the seekers of
public office who fail more than once to file their
SOCEs. Such penalty is intended to underscore the
need to file the SOCE as another means of ensuring
the sanctity of the electoral process. (Maturan v.
COMELEC, GR No. 227155)
F. REMEDIES
1. Pre-election
a.
Petition for Disqualification
Disqualification Petitions
NOTE: Reproducing here for easy reference the
section on Disqualifications discussed previously.
(1) Local Government Code (RA 7160)
The following persons are disqualified from running
for any elective local position:
(a) Those 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) Those removed from office as a result of an
administrative case;
(c) Those convicted by final judgment for
violating the oath of allegiance to the
Republic;
(d) Those 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 this Code; and
(g) The insane or feeble-minded. [Sec. 40,
LGC]
Disqualifications under the LGC:
(1) Sentenced by final judgment for an offense
involving Moral turpitude or for an offense
punishable by 1 year or more of imprisonment
within 2 years after serving sentence.
(2) Removed from office as a result of an
Administrative case.
(3) Convicted by final judgment for violating the
Oath of allegiance to the Republic.
(4) Fugitives from justice in criminal or non-political
cases here or abroad.
(5) Dual allegiance.
(6) Permanent residents in a foreign country or
those who have acquired the right to reside
abroad and continue to avail of the same right.
A candidate is ineligible if he is disqualified to be
elected to office, and he is disqualified if he lacks
any of the qualifications for elective office. Even if
the COMELEC made no finding that the petitioner
had deliberately attempted to mislead or to
misinform as to warrant the cancellation of his CoC,
the COMELEC could still declare him disqualified for
not meeting the requisite eligibility under the Local
Government Code. (Agustin v. COMELEC, G.R. No.
207105)
(2) Omnibus Election Code
(a) Sec. 12. Disqualifications. - Any person who has
been declared by competent authority insane or
incompetent, or has been sentenced by final
judgment for subversion, insurrection, rebellion or
for any offense for which he has been sentenced to
a penalty of more than eighteen months or for a
crime involving moral turpitude, shall be disqualified
to be a candidate and to hold any office, unless he
has been given plenary pardon or granted amnesty.
This disqualifications to be a candidate herein
provided shall be deemed removed upon the
declaration by competent authority that said insanity
or incompetence had been removed or after the
expiration of a period of five years from his service
of sentence, unless within the same period he again
becomes disqualified.
(b) Sec. 68. Disqualifications. — 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 having (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 (e.g. Ejercito v. COMELEC);
(d) solicited, received or made any contribution
prohibited under Sections 89 (i.e. transportation,
food, drinks), 95 (prohibited contributions), 96
(foreign sources), 97 (prohibited fund raising)
and 104 (prohibited donations); or (e) violated any
of Sections 80 (outside campaign period BUT not
anymore because of RA 9369 and Penera), 83
(destroying lawful election propaganda), 85
(prohibited election propaganda subject to RA
9006), 86 (mass media subject to RA 9006) and
261, paragraphs d (coercion of subordinates), e
(terrorism, etc.), k (unlawful electioneering), v
(public funds), and cc, sub-paragraph 6 (unlawful
electioneering – candidacy and campaign), shall
be disqualified from continuing as a candidate, or if
he has been elected, from holding the office. Any
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person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified
to run for any elective office under this Code, 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.
evidence. An erring candidate may be
disqualified even without prior determination of
probable
cause
in
a
preliminary
investigation. The electoral aspect may proceed
independently of the criminal aspect, and viceversa.” (Francisco v. COMELEC citing Lanot v.
COMELEC).
Grounds for Disqualification:
(1) Lacking qualifications.
(2) Filing a CoC for more than 1 office
(3) False and material representation in the CoC.
(4) Disqualifications under the LGC.
(5) Nuisance candidate.
(6) Election offenses enumerated under Section 68
of the Omnibus Election Code
(7) Declared insane or incompetent by competent
authority.
(8) Sentenced by final judgment for subversion,
insurrection, rebellion or an offense which he
has been sentenced to a penalty of more than
18 months, or a crime involving moral turpitude,
unless given plenary pardon/ amnesty.
Criminal Aspect
Whether or not there is probable cause to
charge a candidate for an election offense:
The prosecutor is the COMELEC, through its Law
Department, which determines whether or not
probable cause exists.
The use of a foreign passport amounts to
repudiation or recantation of the oath of
renunciation. Matters dealing with qualifications for
public elective office must be strictly complied with.
A candidate cannot simply be allowed to correct the
deficiency in his qualification by submitting another
oath of renunciation. (Arnado v. COMELEC, G.R.
No. 210164)
The petitioner's continued exercise of his rights as a
citizen of the USA through using his USA passport
after the renunciation of his USA citizenship
reverted him to his earlier status as a dual citizen.
Such reversion disqualified him from being elected
to public office. (Agustin v. COMELEC, G.R. No.
207105)
Aspects of Disqualification Cases
Electoral Aspect
Primary issue in the electoral aspect is whether or
not the offender should be disqualified from being a
candidate or from holding office. Neither a prior
conviction nor even a determination of probable
cause is then a requirement before a Petition for
Disqualification can be lodged. (Francisco v.
COMELEC).
”The electoral aspect of a disqualification case
determines whether the offender should be
disqualified from being a candidate or from holding
office. Proceedings are summary in character
and require only clear preponderance of
If there is probable cause:
The COMELEC’s Law Department files the criminal
information before the proper court.
Proceedings before the proper court demand a full
blown hearing and require proof beyond reasonable
doubt to convict.
A criminal conviction shall result in the
disqualification of the offender, which may even
include disqualification from holding a future public
office.
The Declared Winner When Winning Candidate
is Disqualified or Fails to Qualify
The law expressly declares that a candidate
disqualified by final judgment before an election
cannot be voted for, and votes cast for him shall not
be counted. This is a mandatory provision of law.
Section 6 of Republic Act No. 6646, The Electoral
Reforms Law of 1987, states: Sec. 6. Effect of
Disqualification Case.— “Any candidate who has
been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate
is not declared by final judgment before an election
to be disqualified and he is voted for and receives
the winning number of votes in such election, the
Court or Commission shall continue with the trial
and hearing of the action, inquiry, or protest and,
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.”
Section 6 of the Electoral Reforms Law of 1987
covers two situations. The first is when the
disqualification becomes final before the elections,
which is the situation covered in the first sentence of
Section 6. The second is when the disqualification
becomes final after the elections, which is the
situation covered in the second sentence of Section
6. (Talaga v. COMELEC, GR No. 196804)
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NOTE: Thus, in Talaga v. COMELEC, IT DEPENDS
on when the disqualification became final:
(1) If NOT FINAL BEFORE election = hence, still a
candidate = second-placer is not the winner
(Doctrine of Rejection of Second-Placer);
succession rules will apply.
(2) If FINAL BEFORE election = hence, not a
candidate = second-placer wins because
he/she gets next highest votes among the
qualified candidates.
(3) However, the SC in Maquiling v. COMELEC
(2013) declared the second-placer as winner
even if the disqualified candidate continued to
be a candidate (no final disqualification) and
was even proclaimed as the winner, to wit: the
votes cast in favor of the ineligible candidate are
not considered at all in determining the winner
of an election. Even when the votes for the
ineligible candidate are disregarded, the will of
the electorate is still respected, and even more
so. The votes cast in favor of an ineligible
candidate do not constitute the sole and total
expression of the sovereign voice. The votes
cast in favor of eligible and legitimate
candidates form part of that voice and must also
be respected. As in any contest, elections are
governed by rules that determine the
qualifications and disqualifications of those who
are allowed to participate as players. When
there are participants who turn out to be
ineligible, their victory is voided and the laurel is
awarded to the next in rank who does not
possess any of the disqualifications nor lacks
any of the qualifications set in the rules to be
eligible as candidates.
(4) In Halili v. COMELEC (2019), the SC ruled that
in case of vacancies caused by those
with void ab initio COCs, the person legally
entitled to the vacant position would be the
candidate who garnered the next highest
number of votes among those eligible. Citing
Jalosjos, Jr. v. Commission on Elections
(2012), the SC explained: “Decisions of this
Court holding that the second-placer 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 void certificate
of candidacy was never a candidate in the
elections at any time. All votes for such noncandidate are stray votes and should not be
counted. Thus, such non-candidate can never
be a first-placer in the elections. If a certificate
of candidacy void ab initio is cancelled on
the day, or before the day, of the election,
prevailing jurisprudence holds that all votes
for that candidate are stray votes. If a
certificate of candidacy void ab initio is
cancelled one day or more after the
elections, all votes for such candidate
should also be stray votes because the
certificate of candidacy is void from the very
beginning. This is the more equitable and
logical approach on the effect of the
cancellation of a certificate of candidacy that is
void ab initio.”
A COMELEC resolution declaring a candidate
disqualified for the said position is not yet final
if a motion for reconsideration has been timely
filed. At that point, he still remains qualified and
his proclamation thereafter is valid. As a result,
COMELEC's jurisdiction to contest his citizenship
ends, and the HRET's own jurisdiction begins.
(Gonzales v. COMELEC, G.R. No. 192856)
A party aggrieved by an interlocutory order
issued by a Division of the COMELEC in an
election protest may not directly assail the order
in this Court through a special civil action for
certiorari. The remedy is to seek the review of the
interlocutory order during the appeal of the decision
of the Division in due course. The court may have
the power to review any decision, order or ruling of
the COMELEC, limits such power to a final decision
or resolution of the COMELEC en banc, and does
not extend to an interlocutory order issued by a
Division of the COMELEC. Otherwise stated, the
Court has no power to review on certiorari an
interlocutory order or even a final resolution
issued by a Division of the COMELEC. Where the
Commission in division committed grave abuse of
discretion or acted without or in excess of
jurisdiction in issuing interlocutory orders relative to
an action pending before it and the controversy did
not fall under any of the instances mentioned in
Section 2, Rule 3 of the COMELEC Rules of
Procedure, the remedy of the aggrieved party is not
to refer the controversy to the Commission en banc
as this is not permissible under its present rules but
to elevate it to this Court via a petition for certiorari
under Rule 65 of the Rules of Court. (Cagas v.
COMELEC, G.R. No. 194139)
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Removal of Disqualification Plenary Pardon
The phrase in the presidential pardon which
declares that the person "is hereby restored to
his civil and political rights" substantially
complies with the requirement of express
restoration of his right to hold public office, or
the right of suffrage. Articles 36 and 41 of the
Revised Penal Code should be construed in a way
that will give full effect to the executive clemency
granted by the President, instead of indulging in an
overly strict interpretation that may serve to impair
or diminish the import of the pardon which emanated
from the Office of the President and duly signed by
the Chief Executive himself/herself. The said codal
provisions must be construed to harmonize the
power of Congress to define crimes and prescribe
the penalties for such crimes and the power of the
President to grant executive clemency. All that the
said provisions impart is that the pardon of the
principal penalty does not carry with it the remission
of the accessory penalties unless the President
expressly includes said accessory penalties in the
pardon. It still recognizes the Presidential
prerogative to grant executive clemency and,
specifically, to decide to pardon the principal penalty
while excluding its accessory penalties or to pardon
both. Thus, Articles 36 and 41 only clarify the effect
of the pardon so decided upon by the President on
the penalties imposed in accordance with law.
(Risos-Vidal v. COMELEC, G.R. No. 206666)
A whereas clause in a pardon which states that
the person “publicly committed to no longer
seek any elective position or office” does not
make the pardon conditional. Whereas clauses
do not form part of a statute because, strictly
speaking, they are not part of the operative
language of the statute. The whereas clause is not
an integral part of the decree of the pardon, and
therefore, does not by itself alone operate to make
the pardon conditional or to make its effectivity
contingent
upon
the
fulfillment
of
the
aforementioned commitment nor to limit the scope
of the pardon. (Risos-Vidal v. COMELEC, G.R. No.
206666)
Former President Estrada was granted an
absolute pardon that fully restored all his civil
and political rights, which naturally includes the
right to seek public elective office. The wording
of the pardon extended to him is complete,
unambiguous, and unqualified. The fact that the
pardon did not specify the specific rights restored
does not mean that GMA did not intend to restore
his right to suffrage. (Risos-Vidal v. COMELEC,
G.R. No. 206666)
The disqualification from running for public office
due to libel shall be removed after service of the fiveyear sentence, which is counted from the date the
fine is paid. (Ty-Delgado v. HRET, G.R. No. 219603)
To resolve the tie, there shall be drawing of lots.
Whenever it shall appear from the canvass that two
or more candidates have received an equal and
highest number of votes, or in cases where two or
more candidates are to be elected for the same
position and two or more candidates received the
same number of votes for the last place in the
number to be elected, the board of canvassers, after
recording this fact in its minutes, shall by resolution,
upon five days’ notice to all the tied candidates, hold
a special public meeting at which the board of
canvassers shall proceed to the drawing of lots of
the candidates who have tied and shall proclaim as
elected the candidates who may favored by luck,
and the candidates so proclaimed shall have the
right to assume office in the same manner as if he
had been elected by plurality of votes. The board of
canvassers shall forthwith make a certificate stating
the name of the candidate who had been favored by
luck and his proclamation on the basis thereof.
Nothing in this section shall be construed as
depriving a candidate of his right to contest the
election. (OEC, §240.; Tugade v. COMELEC, G.R.
No. 171063)
b. Petition Not to Give Due Course
or Cancel Certificates of
Candidacy
(1) For False Material Representation. A verified
petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by the person
exclusively on the ground that any material
representation contained therein as required
under Section 74 hereof is false. The petition may
be filed at any time not later than twenty-five days
from the time of the filing of the certificate of
candidacy and shall be decided, after due notice
and hearing, not later than fifteen days before the
election. (OEC, §78)
A petition to deny due course to or cancel a CoC can
only be grounded on a statement of a material
representation in the said certificate that is false.
(Talaga v. COMELEC, GR No. 196804)
The person whose certificate is cancelled or denied
due course under Sec. 78 is not treated as a
candidate at all, as if he/she never filed a CoC.
(Talaga v. COMELEC, GR No. 196804)
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2. During election
a.
Petition to Postpone Elections
When COMELEC Can Postpone an Election.
When for any serious cause such as violence,
terrorism, loss or destruction of election
paraphernalia or records, force majeure, and
other analogous causes of such a nature that
the holding of a free, orderly and honest election
should become impossible in any political
subdivision, the Commission, motu proprio or upon
a verified petition by any interested party, and after
due notice and hearing, whereby all interested
parties are afforded equal opportunity to be heard,
shall postpone the election therein to a date which
should be reasonably close to the date of the
election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the
cessation of the cause for such postponement or
suspension of the election or failure to elect. (OEC,
§5)
b. Petition to Declare Failure of
Elections
When COMELEC Can Declare a Failure of
Election. If, on account of force majeure,
violence, terrorism, fraud, or other analogous
causes the election in any polling place has not
been held on the date fixed, or had been
suspended before the hour fixed by law for the
closing of the voting, or after the voting and during
the preparation and the transmission of the election
returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of
such cases the failure or suspension of election
would affect the result of the election, the
Commission shall, on the basis of a verified petition
by any interested party and after due notice and
hearing, call for the holding or continuation of the
election not held, suspended or which resulted in a
failure to elect on a date reasonably close to the
date of the election not held, suspended or which
resulted in a failure to elect but not later than thirty
days after the cessation of the cause of such
postponement or suspension of the election or
failure to elect. (OEC, §6)
Thus: There is a failure to elect when nobody can be
declared as a winner because the will of the majority
has been defiled and cannot be ascertained.
When Failure of Elections (In Any Polling Place)
May Be Declared:
(1) Election was suspended before the hour fixed
by law for the closing of the voting
(2) Election in any polling place was not held on the
date fixed
(3) Elections results in a failure to elect (after the
voting and during the preparation and
transmission of the election returns or in the
custody or canvass thereof). (Carlos v.
Angeles, G.R. No. 142907)
Grounds:
Force majeure
Fraud
Violence
Terrorism
Analogous circumstances (Carlos v. Angeles,
G.R. No. 142907)
(1)
(2)
(3)
(4)
(5)
CALL FOR SPECIAL ELECTION
Under Section 6 of the OEC, the two (2)
requirements for the holding of a special election
are:
(1) That there is a failure of elections and
(2) That such failure would affect the results of the
election.
This “result of the election” means the net result of
the election in the rest of the precincts in a given
constituency, such that if the margin of a leading
candidate over that of his/her closest rival in the
latter precincts is less that the total number of votes
in the precinct where there was a failure of election,
then such failure would certainly affect “the result of
the election.” (Lucero v. COMELEC and Ong, G.R.
No. 113107)
Fixing the date for Special Election:
(a) it should not be later than 30 days after the
cessation of the cause of the postponement or
suspension of the election or the failure to elect;
and
(b) it should be reasonably close to the date of the
election not held, suspended or which resulted in the
failure to elect.
The first involves a question of fact. The second
must be determined in the light of the peculiar
circumstances of a case. (Pangandaman v.
COMELEC, G.R. No. 134340, 1999)
Thus: the holding of elections within the next few
months from the cessation of the cause of the
postponement, suspension or failure to elect may
still be considered "reasonably close to the date of
the election not held."
3. Pre-Proclamation Controversy
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Definition of a Pre-Proclamation Controversy
(1) A pre-proclamation controversy refers to any
question pertaining to or affecting the
proceedings of the board of canvassers
which may be raised by any candidate or by any
registered political party or coalition of political
parties before the board or directly with the
Commission, or any matter raised under
Sections 233 (Election Returns are delayed,
lost, and destroyed), 234 (Material Defects in
the Election Returns), 235 (Election Returns
appear to be falsified or tampered) and 236
(Discrepancies in Election Returns) in
relation to the preparation, transmission,
receipt, custody and appreciation of the election
returns. (OEC, §241)
(2) Under Republic Act No. 7166, providing for
synchronized national and local elections, preproclamation controversies refer to matters
relating to the preparation, transmission,
receipt, custody and appearance of election
returns and certificates of canvass.
(3) Any question pertaining to or affecting the
proceedings of the Board of Canvassers which
may be raised by any candidate or registered
political party, or coalition. (Macabago v.
COMELEC, G.R. No. 152163)
Pre-Proclamation Issues
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;
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 9369 shall be
included as among those whose lack of
qualifications may be questioned. (COMELEC
Resolution No. 8804, March 22, 2010, §1)
Illegal Proceedings of the Board of
Canvassers. — There is illegal proceedings of
the BOC when the canvassing is a sham or
mere ceremony, the results of which are predetermined 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
BOC's;
d) Improper venue. (COMELEC
Resolution No. 8804, March 22, 2010, §2)
(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 (Election
Returns
are
delayed,
lost,
and
destroyed), 234 (Material Defects in the
Election Returns), 235 (Election Returns
appear to be falsified or tampered) and 236
(Discrepancies in Election Returns) 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. (OEC, §243)
COMELEC Action
COMELEC may motu proprio or upon written
petition, and after due notice and hearing, order the
partial or total suspension of the proclamation of any
candidate-elect or annul partially or totally any
proclamation, if one has been made. (OEC, §242)
All pre-proclamation controversies shall be heard
summarily by the Commission after due notice and
hearing, and its decisions shall be executory after
the lapse of five days from receipt by the losing party
of the decision of the Commission, unless restrained
by the Supreme Court. (OEC, §246)
Election Return
A document in electronic and printed form directly
produced by the counting or voting machine,
showing the date of the election, the province,
municipality and the precinct in which it is held and
the votes in figures for each candidate in a precinct
in areas where AES is utilized. (R.A. 8436, § 2(4),
(as amended by R.A. 9369))
NOTE: This is the report on the votes PER
PRECINCT that is transmitted to the board of
canvassers for tabulation.
Certificate of Canvass
A document in electronic and printed form
containing the total votes in figures obtained by each
candidate in a city / municipality / district / province
as the case may be. The electronic certificates of
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canvass shall be the official canvass results in the
aforementioned jurisdictions. (R.A. 8436, §2(6), (as
amended by R.A. 9369)
NOTE: This is the report on the votes per city /
municipality / district / province based on the
Election Returns that is canvassed or tabulated at
the local and national level.
Statement of Votes
A document containing the votes obtained by
candidates in each precinct in a city/municipality.
(R.A. 8436, §2(5), (as amended by R.A. 9369))
NOTE: This is another report generated at the
canvassing stage containing the votes breakdown
per precinct for national (e.g. party-list) and local
(e.g. mayor) races. It supports the Certificate of
Canvass that serves as the basis for proclamation.
Although not specifically included in OEC, §243 the
SC in Ramirez v. COMELEC, GR No. 122013, 26
March 1997 recognized that petition for the
correction of entries in a Statement of Votes is a preproclamation controversy and can be filed directly
with the COMELEC en banc, to wit: "By now it is
settled that election cases which include preproclamation controversies must first be heard and
decided by a division of the Commission — and a
petition for correction of manifest error in the
Statement of Votes, like SPC No. 95-198 is a preproclamation controversy — in none of the cases
cited to support this proposition was the issue the
correction of a manifest error in the Statement of
Votes under 231 of the Omnibus Election Code
(B.P. Blg. 881) or §15 of R.A. No. 7166. On the other
hand, Rule 27, §5 of the 1993 Rules of the
COMELEC
expressly
provides
that
preproclamation controversies involving, inter alia,
manifest errors in the tabulation or tallying of the
results may be filed directly with the COMELEC en
banc.”
Grounds for Pre-Proclamation Controversies:
(1) Illegal composition or proceedings of the
board of canvassers
(a) Filed with the BOC or with
COMELEC
(b) Within 3 days from a ruling (if
based on illegal proceedings), or
as soon as the Board begins to
act.
(2) Irregularities in relation to the preparation,
transmission, receipt, custody, and
appreciation of election returns and
certificates of canvass:
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(a) ERs are delayed, lost or
destroyed
(b) Material defects in the ERs
(c) ERs appear to be tampered with
or falsified
(d) Discrepancies in the ERs
(3) Canvassed returns are incomplete, contain
material defects
(a) ERs are delayed, lost, destroyed
(i)
In this case, the Board can
use any of the authentic
copies
(ii)
Or terminate canvass if the
missing returns will not
affect the results anyway
(b) Missing requisites
(i)
Board calls for members of
the BEI to complete or
correct the return. DO NOT
EXCLUDE, if correctable
(c) ERs are tampered, falsified,
altered after these left the hands
of BEI, not authentic, prepared
under duress, force, intimidation,
etc.
(i)
Resort to other ERs
(ii)
If all are tampered, can
have ballot boxes reopened
and counted
(d) Discrepancies in other authentic
copies of the returns or
discrepancies in the votes of any
candidate in words/figures – and
these would affect results of the
election
(i)
Order opening of ballot
boxes for recount
(4) ERs prepared under duress, threats,
coercion,
intimidation,
obviously
manufactured
(a) “Obviously manufactured” According to the Court, when it
follows the doctrine of statistical
improbabilities or “Statistically
improbable data”.
(5) Substitute or fraudulent returns in
controverted polling places are canvassed,
and the results materially affect the
standing of candidates. (OEC, §243)
NOTE: Grounds for pre-proclamation controversies
are exclusive.
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NOTE: While these provisions are still in the
Omnibus Election Code, they are deemed to have
been superseded already by the Automated
Election Law since any recount is no longer possible
with the electronic transmission, counting, and
consolidation of votes. It is submitted that the better
answer is to file this as an Election Protest before
the proper court or body. (ET Kaw)
In regular election contests, the general averment of
fraud or irregularities in the counting of votes
justifies the examination of the ballots and
recounting of votes. This process of examination is
the revision of the ballots pursuant to Section 6,
Rule 20 of the 1993 COMELEC Rules of Procedure.
The protests involved herein assailed the
authenticity of the election returns and the veracity
of the counting of the ballots. In that regard, the
ballots themselves are the best evidence. The only
means to overcome the presumption of legitimacy
of the election returns is to examine and determine
first whether the ballot boxes have been
substantially preserved in the manner mandated by
law. Hence, the necessity to issue the order of
revision.
NOTE: The COMELEC did not commit grave abuse
of discretion when it ordered the revision of 44
ballots with the Senate Electoral Tribunal without
first resolving whether 16 of those 44 ballots should
be included in the revision. (Tolentino v. COMELEC,
G.R. No. 187958)
Statistically Improbable Data
(1) Uniformity of tally in favor of candidates
belonging to 1 party.
(2) Systematic blanking out of candidates
belonging to another party.
Pre-Proclamation Controversies for National
Elective Offices. As a general rule, there are no
pre-proclamation issues for national elective offices,
BUT there are now recognized exceptions under RA
9369 amending RA 7166 as applied and ruled by the
Supreme Court in Pimentel III v. COMELEC (GR
No. 178413, 13 March 2008), to wit:
“Indeed, this Court recognizes that by virtue of
the amendments introduced by Republic Act
No. 9369 to Sections 15 and 30 of Republic Act
No. 7166, pre-proclamation cases involving the
authenticity and due execution of certificates of
canvass are now allowed in elections for
President, Vice-President, and Senators. The
intention of Congress to treat a case falling
under Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369, as a preproclamation case is apparent in the fourth
paragraph of the said provision which adopts
and applies to such a case the same procedure
provided under Sections 17, 18, 19 and 20 of
Republic Act No. 7166 on pre-proclamation
controversies. In sum, in elections for
President, Vice-President, Senators and
Members of the House of Representatives,
the general rule still is that pre-proclamation
cases on matters relating to the preparation,
transmission,
receipt,
custody
and
appreciation of election returns or
certificates of canvass are still prohibited.
As with other general rules, there are
recognized exceptions to the prohibition,
namely: (1) correction of manifest errors; (2)
questions affecting the composition or
proceedings of the board of canvassers; and
(3) determination of the authenticity and due
execution of certificates of canvass as
provided in Section 30 of Republic Act No.
7166, as amended by Republic Act No. 9369.”
Manifest Errors — Matters regarding the
preparation, transmission, receipt, custody, and
appreciation election returns shall be brought, in the
first instance, before the boards of canvassers, not
the COMELEC. (Fernandez vs. COMELEC, G.R.
No. 171821)
Thus, to summarize:
General Rule: Pre-proclamation cases are NOT
allowed in elections for the President, Vice
President, Senator and members of the House of
Representatives.
Exceptions:
(1) Manifest Errors in the ERs or COCs may be
corrected motu proprio or upon written
complaint of any interested person.
(2) 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 §19. (R.A. No.
7166)
Manifest Errors:
(1) Mistake in adding
(2) Mistake in copying of figures from ER or
Statement of Votes
(3) ERs from non-existent precinct canvassed
(4) Copy of ER tabulated more than twice
(5) 2 or more copies of ER and COC in 1 precinct
counted separately
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The grounds for manifest errors are inclusive. The
allowable margin of error is 60%. It suspends the
running of the period within which to file an election
protest or quo warranto proceeding.
Notwithstanding the pendency of any preproclamation controversy, the Commission may
summarily order the proclamation of other winning
candidates whose election will not be affected by the
outcome of the controversy.
An aggrieved party may file a petition for certiorari
with the COMELEC whenever a judge hearing an
election case has acted without or in excess of his
jurisdiction or with grave abuse of discretion and
there is no appeal, nor any plain, speedy, and
adequate remedy in the ordinary course of law.
(Bulilis v. Nuez, G.R. No. 195953)
COMELEC Partial Proclamation
Notwithstanding the pendency of any preproclamation controversy, the Commission may,
motu proprio or upon the filing of a verified
petition and after due notice and hearing, order
the proclamation of other winning candidates
whose election will not be affected by the
outcome of the controversy. (OEC, §247)
4. Post-Proclamation
a.
Election Contest
Election Contests
Election Contests refer to Election Protests or
Petitions for Quo Warranto. [Sec. 3(c), AM. No. 074-15-SC]
Kinds Of Election Contests:
(1) Election Protest
(2) Quo Warranto
Withdrawal of nomination and substitution by
another nominee is neither an election protest nor
an action for quo warranto. Petitioner correctly
brought before the Supreme Court this special civil
action for certiorari under Section 7 of Article IX-A of
the 1987 Constitution, notwithstanding the
proclamation of, and assumption of office by, the
substitute nominee. (Lokin, Jr. v. COMELEC G.R.
No. 179431-32/180443)
i. Election Protest
Election Protests
(1) For provincial, regional, and city elective
officials.
A petition contesting the elections or returns
of an elective regional, provincial, or city official
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shall be filed with the Commission by any
candidate who was voted for in the same office
and who received the second of third highest
number of votes or, in a multi-slot position, was
among the next four candidates following the
last ranked winner duly proclaimed, as
reflected in the official results of the election
contained in the Statement of Votes. The party
filing the protest shall be designated as the
protestant; the adverse party shall be known as
the protestee. (COMELEC Resolution N0.
8804, §1, Rule 6)
(2) For municipal elective officials.
Election protest refers to an election contest
involving the election and returns of municipal
elective officials, grounded on fraud or
irregularities committed in the conduct of the
elections, i.e., in the casting and the counting of
the ballots, in the consolidation of votes and in
the canvassing of returns, not otherwise classified
as a pre-proclamation controversy cognizable by the
COMELEC. The issue is who obtained the
plurality of valid votes cast. (2010 Rules of
Procedure in Election Contests Before the Courts
Involving Elective Municipal Officials, A.M. No. 104-1-SC, April 27, 2010, §3 (u), Rule 1)
A petition contesting the election or returns for an
elective municipal office shall be filed with the
proper Regional Trial Court by an candidate who
was voted for the same office and who received the
second or third-highest number of votes or, in a
multi-slot position, was among the next four
candidates following the last-ranked winner duly
proclaimed, as reflected in the official results of the
election contained in the Statement of Votes by
Precinct. The party filing the protest shall be
designated as the protestant; the adverse party shall
be known as the protestee. (2010 Rules of
Procedure in Election Contests Before the Courts
Involving Elective Municipal Officials, A.M. No. 104-1-SC, April 27, 2010, §4, Rule 1)
(3) For barangay elective officials.
Election Protest refers to an election contest relating
to the election and returns of elective officials,
grounded on frauds or irregularities in the conduct
of the elections, the casting and counting of the
ballots and the preparation and canvassing of
returns. The issue is who obtained the plurality of
valid votes cast. (AM. No. 07-4-15-SC §3(d))
NOTE: The failure or omission of protestant to raise
the question of identical handwriting or of impugning
the validity of the ballots on that ground, resulting in
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organizations. Although party list organizations are
voted for in the elections, still it is not the
organizations which sit and become members of the
House of Representatives but their nominees.
Subsequently, Section 17, Article VI of the
Constitution provides that the HRET shall be the
sole judge of all contests relating, among others, to
the qualifications of the members of the House.
Thus, since party list nominees are considered as
“elected members” of the House, the HRET has
jurisdiction to hear and pass upon their
qualifications. (Abayon v. HRET, G.R. No. 189466)
General Rule: Ballots are the best and most
conclusive evidence in an election contest where
the correctness of the number of votes of each
candidate is involved. (Delos Reyes v. COMELEC,
G.R. No. 170070)
Exception: Election returns are the best evidence
when the ballots are lost, destroyed, tampered or
fake.
Execution Pending Appeal:
(1) Public interest is involved or will of the
electorate
(2) Length of time that the election contest has
been pending
(3) Shortness of the remaining portion of the term
of the contested office. (Pecson v. COMELEC,
G.R. No. 182865)
NOTE: A combination of 2 or more will suffice to
allow execution pending appeal, but shortness of
the remaining period alone is not a ground for
execution pending appeal. (Laubati v. Commission
on Elections, G.R. No. 128473)
General Rule: The COMELEC cannot proclaim as
winner the candidate who obtains the 2nd highest
number of votes in case the winning candidate is
ineligible or disqualified. When a winner is declared
ineligible, the candidate who finished 2nd cannot
assume the position. (Quizon v. COMELEC, G.R.
No. 177927)
Exceptions:
(1) The one who obtained the highest number of
votes is disqualified, and
(2) The electorate is fully aware in fact and in law
of a candidate’s disqualification so as to bring
such awareness within the realm of notoriety
but would nonetheless cast their votes in favor
of the ineligible candidate. (Pundaodaya v.
COMELEC, G.R. No. 179313)
A candidate who was elected but was later
disqualified for failing to meet the residency
requirement was never a valid candidate from
the very beginning, and was merely a de facto
officer. The eligible candidate who garnered the
highest number of votes must assume the office.
The rule on succession in the Local Government
Code does not apply. (Jalosjos v. COMELEC, G.R.
No. 193314; Ty-Delgado v. HRET, G.R. No.
219603)
Abandonment — A protestant who runs for another
office is deemed to have abandoned his protest.
This is especially true in a case where the protestant
pending the election protest, ran, won, assumed the
post and discharged the duties as such. (Idulza v.
COMELEC, G.R. No. 160130)
Mere filing and allegations of a pre-proclamation
controversy will not suffice. The grounds that
must support a pre-proclamation controversy
are limited by the Omnibus Election Code (under
Sec. 243). The enumeration is restrictive and
exclusive. Thus, in the absence of any clear
showing or proof that the election returns canvassed
are incomplete or contain material defects; appear
to have been tampered with, falsified or prepared
under duress; and/or contain discrepancies in the
votes credited to any candidate, which would affect
the result of the election, a petition cannot be
properly considered as a pre-proclamation
controversy. If the petition does not qualify as a
pre-proclamation controversy, it could not have
suspended the ten-day statutory period for the filing
of an election protest. (Abayon v. COMELEC)
Disposition of Election Protests
(1) Allegations in election protests must be
specific. The results of an election may be
challenged through different legal vehicles: first,
failure of election cases; second, pre-proclamation
petitions; and third, election contests. These have
substantive and procedural differences, with varying
remedies, but what remains consistent across all
modalities is the requirement of specificity.
Particularity on one’s allegations, grounds, and
bases cuts across all mechanisms for challenging
election outcomes and must be present in all
actions, regardless of the mode.
The Court stressed in Corvera v.Savillo that a
protest lacking in detail as to the “acts or omissions
complained of showing the electoral frauds,
anomalies, or irregularities” should be struck down
for being insufficient in form and substance. Bare
claims of “glitches,” strange voting patterns, and
discrepancies in the audit, without more, were found
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Finding Team. It is, therefore, not only the power
but the duty of both the Comelec and the DOJ to
perform any act necessary to ensure the prompt and
fair investigation and prosecution of election
offenses. Pursuant to the above constitutional and
statutory provisions, and as will be explained further
below, we find no impediment for the Comelec and
the DOJ to create the Joint Committee and FactFinding Team for the purpose of conducting a
thorough investigation of the alleged massive
electoral fraud and the manipulation of election
results in the 2004 and 2007 national elections
relating in particular to the presidential and
senatorial elections.
or constitute gross abuse of discretion, this Court
should not interfere. Thus, Comelec Resolution
No. 9266, approving the creation of the Joint
Committee and Fact-Finding Team, should be
viewed
not
as
an
abdication of the
constitutional body's independence but as a
means to fulfill its duty of ensuring the prompt
investigation
and
prosecution of election
offenses
as
an
adjunct of its
mandate of ensuring a free, orderly, honest,
peaceful and credible elections. (Arroyo v.
Department of Justice, G.R. Nos. 199082, 199085
& 199118, [September 18, 2012], 695 PHIL 302429)
(2) No EPC Violation. Unlike the matter addressed
by the Court's ruling in Biraogo v. Philippine Truth
Commission of 2010, Joint Order No. 001-2011
cannot be nullified on the ground that it singles out
the
officials of the Arroyo Administration
and,
therefore, it infringes the equal protection clause.
The Philippine Truth Commission of 2010 was
expressly created for the purpose of investigating
alleged
graft
and
corruption
during
the Arroyo Administration since Executive Order
No. 1 77 specifically referred to the "previous
administration"; while the Joint Committee was
created
for
the
purpose of conducting
preliminary investigation of election offenses
during the 2004 and 2007 elections.
————- end of topic ————
(3)
No
Abdication
by
COMELEC
of
Constitutional Mandate to Prosecute Election
Offenses.
While the composition of the Joint
Committee and Fact-Finding Team is dominated by
DOJ officials, it does not necessarily follow that the
Comelec is inferior. Under the Joint Order,
resolutions of the Joint Committee finding
probable cause for election offenses shall still
be approved by the Comelec in accordance with
the Comelec Rules of Procedure. This shows
that the Comelec, though it acts jointly with the
DOJ, remains in control of the proceedings. In
no way can we say that the Comelec has thereby
abdicated
its
independence
to
the
executive department. The text and intent of the
constitutional provision granting the Comelec the
authority to investigate and prosecute election
offenses is to give the Comelec all the necessary
and incidental powers for it to achieve the
objective of holding free, orderly, honest,
peaceful, and credible elections. The Comelec
should be allowed considerable latitude in devising
means and methods that will insure the
accomplishment of the great objective for which it
was created. We may not agree fully with its
choice of means, but unless these are clearly illegal
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LOCAL GOVERNMENT
TOPIC OUTLINE UNDER THE SYLLABUS
A. PRINCIPLES OF LOCAL AUTONOMY
B. LOCAL GOVERNMENT UNITS
1. Powers of Local Government Units
a. Police Power and General Welfare
Clause
b. Eminent Domain and Taxation
c. Requisites of a Valid Ordinance;
Local Initiative and Referendum
d. Corporate Powers
2. Local Elective and Appointive Officials
3. Rules of Succession
4. Term Limitations and Recall
A. PRINCIPLES OF LOCAL
AUTONOMY
1.
CONSTITUTIONAL RULES
AND PRINCIPLES
(a) The State shall ensure the autonomy of
local governments. (Section 25, Article II,
1987 Constitution)
(b) The territorial and political subdivisions
shall enjoy local autonomy. (Section 2,
Article X, 1987 Constitution)
(c) The Congress shall enact a Local
Government Code which shall provide for a
more responsive and accountable local
government structure instituted through a
system of decentralization. (Section 3,
Article X, 1987 Constitution)
(d) The President of the Philippines shall
exercise general supervision over local
governments. (Section 4, Article X, 1987
Constitution)
(e) Each local government unit shall have the
power to create its own sources of
revenues and to levy taxes, fees, and
charges subject to such guidelines and
limitations as the Congress may provide,
consistent with the basic policy of local
autonomy. Such taxes, fees, and charges
shall accrue exclusively to the local
governments. (Section 5, Article X, 1987
Constitution)
(f) Local government units shall have a just
share, as determined by law, in the national
taxes which shall be automatically released
to them. (Section 6, Article X, 1987
Constitution)
(g) Local governments shall be entitled to an
equitable share in the proceeds of the
utilization and development of the national
wealth within their respective areas, in the
manner provided by law, including sharing
the same with the inhabitants by way of
direct benefits. (Section 7, Article X, 1987
Constitution)
2.
DECLARATION OF
POLICIES
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The territorial and political subdivisions of the State
shall enjoy genuine and meaningful local autonomy
to enable them to attain their fullest development as
self-reliant communities and make them more
effective partners in the attainment of national goals.
The State shall provide for a more responsive and
accountable local government structure instituted
through a system of decentralization whereby local
government units shall be given more powers,
authority, responsibilities, and resources.
The State shall ensure the accountability of local
government units through the institution of effective
mechanisms of recall, initiative and referendum.
All national agencies and offices are required to
conduct periodic consultations with the appropriate
LGUs, NGOs, people’s organizations and other
concerned sectors of the community before any
project or program is implemented in their
respective jurisdictions. (Sec. 2, 1991 LGC)
Unitary Form of Government
Ours is still a unitary form of government, not a
federal state. Being so, any form of autonomy
granted to local governments will necessarily be
limited and confined within the extent allowed
by the central authority. Besides, the principle of
local autonomy under the 1987 Constitution simply
means “decentralization.” (Lina, Jr. v. Paño, G.R.
No. 129093, 2001, citing Basco v. PAGCOR, G.R.
No. 91649, 1991)
Thus, the principle of local autonomy under the
Constitution simply means ‘decentralization’. It does
not make the local government sovereign within a
State or an imperium in imperio. (Basco v.
PAGCOR, G.R. No. 91649, 1991)
Section 2, Art. X of the Constitution provides that
LGUS “shall enjoy local autonomy.” This is
decentralization of administration and not
decentralization of power. (Limbona v. Conte
Mangelin, G.R. No. 80391, 1989)
The guarantee of autonomy under Section 2, Article
X of the Constitution does not deprive the COA of its
authority to audit the government and all of its
subdivisions under Section 2(1), Article IX-D of the
Constitution. Local government units, through
granted autonomy, remain within the audit
jurisdiction of COA. (Dominguez v. COA, G.R. No.
256285, 2021)
Thus,
notwithstanding
autonomy,
local
appropriations and expenditures are still under the
supervision of the President, through the DBM, as
well as the authority of the COA under its plenary
auditing power, to ensure compliance with laws and
regulations. Concomitant to the COA's auditing
power is the authority to disallow disbursements of
government funds, which contravenes established
laws as in this case. (Abella v. COA, G.R. No.
238940, 2022)
3.
THREE FACETS OF LOCAL
AUTONOMY
Local autonomy means a more responsive and
accountable
local
government
structure
instituted through a system of decentralization.
(Villafuerte, Jr. v. Robredo, G.R. No. 195390, 2014
citing Ganzon v. Court of Appeals, G.R. No. 93252,
1991)
a. Fiscal Autonomy
Fiscal autonomy means that local governments
have the power to create their own sources of
revenue in addition to their equitable share in
the national taxes released by the National
Government, as well as the power to allocate
their resources in accordance with their own
priorities. Such autonomy is as indispensable to
the viability of the policy of decentralization as the
other. (Mandanas v. Ochoa, Jr., G.R. Nos. 199802
& 208488, 2018 citing Pimentel v. Aguirre, G.R. No.
132988, 2000)
It extends to the preparation of their budgets, and
local officials in turn have to work within the
constraints thereof. (Villafuerte, Jr. v. Robredo, G.R.
No. 195390, 2014 citing Pimentel v. Aguirre, G.R.
No. 132988, 2000)
b. Administrative Autonomy
The constitutional guarantee of local autonomy
in the Constitution Art. X, Sec. 2 refers to the
administrative autonomy of local government
units or, cast in more technical language, the
decentralization of government authority. It
does not make local governments sovereign
within the State. Administrative autonomy may
involve devolution of powers, but subject to
limitations like following national policies or
standards, and those provided by the Local
Government Code, as the structuring of local
governments and the allocation of powers,
responsibilities, and resources among the different
local government units and local officials have been
placed by the Constitution in the hands of Congress
under Section 3, Article X of the Constitution.
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(League of Provinces of the Philippines vs. DENR,
G.R. No. 175368, 2013)
c.
Political Autonomy
In Cordillera Broad Coalition v. Commission on
Audit, the Court, with the same composition, ruled
without any dissent that the creation of
autonomous regions contemplates the grant of
political autonomy — an autonomy which is
greater than the administrative autonomy
granted to local government units. It held that
"the constitutional guarantee of local autonomy in
the Constitution (Art. X, Sec. 2) refers to
administrative autonomy of local government units
or, cast in more technical language, the
decentralization of government authority. . . . On the
other hand, the creation of autonomous regions in
Muslim Mindanao and the Cordilleras, which is
peculiar to the 1987 Constitution, contemplates the
grant of political autonomy and not just
administrative autonomy to these regions."
(Disomangcop v. Datumanong, G.R. No. 149848,
2004, citing Cordillera Broad Coalition v. COA, G.R.
No. 79956, 1990)
Self-Reliant Communities
The commitment of the Constitution to the policy of
local autonomy which is intended to provide the
needed impetus and encouragement to the
development of our local political subdivisions as
"self-reliant communities." In the words of Jefferson,
"Municipal corporations are the small republics from
which the great one derives its strength." (Philippine
Gamefowl Commission v. Intermediate Appellate
Court, G.R. Nos. 72969-70, 1986)
Interdependence with the National Government
Autonomy is not meant to end the relation of
partnership and interdependence between the
central administration and LGUs, or otherwise, to
usher in a regime of federalism. (Ganzon vs. Court
of Appeals, G.R. No. 93252,1991)
National Government Intervention Consistent
with National Goals
Local autonomy does not rule out any manner of
national government intervention by way of
supervision, in order to ensure that local programs,
fiscal and otherwise, are consistent with national
goals. (Villafuerte, Jr. v. Robredo, G.R. No. 195390,
December 10, 2014 citing Pimentel v. Aguirre, G.R.
No. 132988, 2000)
No Undue Interference
Government
by
the
National
The objective of "self-reliant communities” through
local autonomy could be blunted by undue
interference by the national government in purely
local affairs which are best resolved by the officials
and inhabitants of such political units. (Belgica v.
Ochoa, G.R. No. 208566, 2013 citing Philippine
Gamefowl Commission v. IAC, G.R. No. 72969-70,
1986)
NOTE: Thus, the 2013 PDAF Article, as well as all
other similar forms of Congressional Pork Barrel, is
deemed unconstitutional insofar as individual
legislators (as national officials) are authorized to
intervene (by overriding or duplicating local
programs, policies, and resolutions) in purely local
matters and thereby subvert genuine local
autonomy. (Belgica, et..al., v. Ochoa, et. al., G.R.
No. 208566, 2013)
Power to Streamline and Organize
Local autonomy also grants local governments the
power to streamline and reorganize. This power is
inferred from Section 76 of the Local Government
Code on organizational structure and staffing
pattern, and Section 16 otherwise known as the
general welfare clause. (City of General Santos vs.
COA, G.R. No. 199439, 2014)
NOTE: There shall be a continuing mechanism to
enhance local autonomy not only by legislative
enabling acts but also by administrative and
organizational reforms. (Section 3(h), 1991 LGC)
Statutory Right of LGUs
Executive agencies like the DBM cannot disregard
statutory right of LGUs to nominate local officials for
appointment.
(San Juan vs. Civil Service
Commission, G.R. No. 92299, 1991)
National Priority Programs.
Under Sec. 17 of the LGC is that, unless an
LGU is particularly designated as the
implementing agency, it has no power over
a program for which funding has been
provided by the national government under
the annual general appropriations act, even
if the program involves the delivery of basic
services within the jurisdiction of the LGU.
A complete relinquishment of central
government powers on the matter of providing
basic facilities and services cannot be implied
as the Local Government Code itself weighs
against it. xxx Local autonomy is not
absolute. The national government still has
the say when it comes to national priority
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decentralization further
relieves the central
government of the
burden of managing
local affairs so that it
can concentrate on
national
concerns.
(Mandanas v. Ochoa,
Jr., G.R. Nos. 199802
& 208488, 2018)
Decentralization through 2 LGU Groups:
(1) The decentralization of power has been given to
the regional units (namely, the Autonomous Region
for Muslim Mindanao (ARMM) and the
constitutionally-mandated Cordillera Autonomous
Region (CAR).
The regional autonomy of the ARMM and the CAR
aims to permit determinate groups with common
traditions and shared social-cultural characteristics
to freely develop their ways of life and heritage, to
exercise their rights, and to be in charge of their own
affairs through the establishment of a special
governance
regime
for
certain
member
communities who choose their own authorities from
within themselves, and exercise the jurisdictional
authority legally accorded to them to decide their
internal community affairs.
It is to be underscored, however, that the
decentralization of power in favor of the regional
units is not unlimited but involves only the powers
enumerated by Section 20, Article X of the 1987
Constitution and by the acts of Congress. For, with
various powers being devolved to the regional units,
the grant and exercise of such powers should
always be consistent with and limited by the 1987
Constitution and the national laws. In other words,
the powers are guardedly, not absolutely, abdicated
by the National Government.
NOTE: Sec. 20, Art. X of the 1987 Constitution
provides: Within its territorial jurisdiction and subject
to the provisions of this Constitution and national
laws, the organic act of autonomous regions shall
provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional
urban
and
rural
planning
development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural
heritage; and
(9) Such other matters as may be authorized by law
for the promotion of the general welfare of the
people of the region.
Illustrative of the limitation is Sema v. Commission
on Elections, where the Court struck down Section
19, Article VI of R.A. No. 9054 (An Act to Strengthen
and Expand the Organic Act for the Autonomous
Region in Muslim Mindanao, Amending for the
Purpose Republic Act No. 6734, entitled "An Act
Providing for the Autonomous Region in Muslim
Mindanao," as Amended) insofar as the provision
granted to the ARMM the power to create provinces
and cities, and consequently declared as void
Muslim Mindanao Autonomy Act No. 201 creating
the Province of Shariff Kabunsuan for being contrary
to Section 5, Article VI and Section 20, Article X of
the 1987 Constitution, as well as Section 3 of the
Ordinance appended to the 1987 Constitution. The
Court clarified therein that only Congress could
create provinces and cities. This was because the
creation of provinces and cities necessarily entailed
the creation of legislative districts, a power that only
Congress could exercise pursuant to Section 5,
Article VI of the 1987 Constitution and Section 3 of
the Ordinance appended to the Constitution; as
such, the ARMM would be thereby usurping the
power of Congress to create legislative districts and
national offices. (Mandanas v. Ochoa, Jr., G.R. Nos.
199802 & 208488, 2018)
(2) The other group of LGUs (i.e., provinces, cities,
municipalities
and
barangays)
enjoy
the
decentralization of administration.
The provinces, cities, municipalities and barangays
are given decentralized administration to make
governance at the local levels more directly
responsive and effective. In turn, the economic,
political and social developments of the smaller
political units are expected to propel social and
economic growth and development. (Mandanas v.
Ochoa, Jr., G.R. Nos. 199802 & 208488, 2018)
b. Four
Categories
Decentralization
of
As a system of transferring authority and power from
the National Government to the LGUs,
decentralization in the Philippines may be
categorized into four, namely:
(1) Political Decentralization or Devolution
Political decentralization or devolution occurs
when there is a transfer of powers,
responsibilities, and resources from the central
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government unit shall have the power to
create its own sources of revenues and to
levy taxes, fees, and charges subject to
such guidelines and limitations as the
Congress may provide, consistent with the
basic policy of local autonomy. Such taxes,
fees, and charges shall accrue exclusively
to the local governments.
(3) Determine the just share in the national
taxes of local governments. (Section 6,
Article X, 1987 Constitution) Local
government units shall have a just share,
as determined by law, in the national taxes
which shall be automatically released to
them.
(4) Provide the manner by which local
governments receive their equitable
share in the proceeds of the utilization
and development of the national wealth
within their respective areas. (Section 7,
Article X, 1987 Constitution) Local
governments shall be entitled to an
equitable share in the proceeds of the
utilization and development of the national
wealth within their respective areas, in the
manner provided by law, including sharing
the same with the inhabitants by way of
direct benefits.
(5) Set the term limits of barangay officials.
(Section 8, Article X, 1987 Constitution)
Under R.A. No. 9164, the current term of
office of elective barangay officials is three
years. 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.
(6) Prescribe the manner by which sectoral
representatives shall be installed in
local legislative bodies (Section 9, Article
X, 1987 Constitution). Legislative bodies of
local governments shall have sectoral
representation as may be prescribed by
law.
(7) Define the criteria for the creation,
division,
merger,
abolition
and
substantial alteration of boundaries of
local governments. (Section 10, Article X,
1987 Constitution)
(8) Establish special metropolitan political
subdivisions. (Section 11, Article X, 1987
Constitution) The Congress may, by law,
create special metropolitan political
subdivisions, subject to a plebiscite as set
forth in Section 10 hereof. The component
cities and municipalities shall retain their
basic autonomy and shall be entitled to
their own local executives and legislative
assemblies. The jurisdiction of the
metropolitan authority that will hereby be
created shall be limited to basic services
requiring coordination.
(9) Pass the organic act of the autonomous
regions. (Section 18, Article X, 1987
Constitution)
(10) Provide for exemption to devolution
such as nationally-funded projects,
facilities, programs and services since the
power of Congress to legislate on all
matters of common interest is plenary.
(Imbong v. Ochoa, G.R. No. 204819, 2014)
Congress Control over LGU Properties
LGUs are still very much subject to the laws passed
by Congress, including the public properties within
their territorial jurisdiction save for those which were
acquired in their private or corporate capacity.
Thus:
(1) The territorial jurisdiction of LGUs are limited to
the land area and physical metes and bounds
as defined in their charters and does not extend
to the continental shelf for purposes of
determining the equitable share. (Republic v.
Provincial Government of Palawan, G.R. Nos.
170867 & 185941, 2018)
However, the Court further clarified that it is
inaccurate to declare that a local
government unit's territory, and by
extension, its territorial jurisdiction, can
only be over land that is contiguous. When
the territory consists of one (1) or more islands,
territorial jurisdiction can also be exercised over
all waters found inland, or in any area that is
part of its seabed, subsoil, or continental
margin, "in the manner provided by law(.)"
(Republic v. Provincial Government of Palawan,
G.R. Nos. 170867 & 185941 (Resolution),
January 21, 2020)
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Unfortunately for the Province of Palawan, it
was still not entitled to the equitable share. The
Court resolved that none of the parties have
presented
maps
or
statutes
that
conclusively prove that the CamagoMalampaya reservoirs are within the
Province of Palawan. Thus, the Court was
constrained to uphold the ruling that the
area
remains
under
the
territorial
jurisdiction
of
the Republic,
unless
otherwise provided by law. (Republic v.
Provincial Government of Palawan, G.R. Nos.
170867 & 185941 (Resolution), 2020)
(2) The Court reaffirmed the established general
rule that "regardless of the source or
classification of land in the possession of a
municipality, excepting those acquired with
its own funds in its private or corporate
capacity, such property is held in trust for
the State for the benefit of its inhabitants,
whether it be for governmental or
proprietary purposes. It holds such lands
subject to the paramount power of the
legislature to dispose of the same, for after all it
owes its creation to it as an agent for the
performance of a part of its public work, the
municipality being but a subdivision or
instrumentality thereof for purposes of local
administration. (Sangguniang Panlalawigan of
Bataan v. Garcia, Jr., G.R. No. 174964, 2016)
(3) Article 424 of the Civil Code lays down the basic
principles that properties of the public
dominion devoted to public use and made
available to the public in general are outside
the commerce of men (persons) and cannot be
disposed of or leased by the LGU to private
persons. (Macasiano vs. Diokno, G.R. no.
97764, August 10, 1992)
(4) Pursuant to the Regalian doctrine, any land
that has never been acquired through
purchase, grant or any other mode of
acquisition remains part of the public domain
and is owned by the State. LGUs cannot
appropriate to themselves public lands without
prior grant from the government (Rural Bank of
Anda vs. Roman Catholic Archbishop of
Lingayen-Dagupan, G.R. No. 155051, May 21,
2007)
(5) A lot comprising the public plaza is property
of public dominion; hence, not susceptible to
private ownership by the church or by the
municipality. (Roman Catholic Bishop of Kalibo,
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Aklan vs. Municipality of Buruanga, Aklan, G.R.
No. 149145, 2006)
(6) The conversion of the public plaza into a
commercial
center
is
beyond
the
municipality’s jurisdiction considering the
property’s nature as one for public use and
thereby, forming part of the public dominion.
Accordingly, it cannot be the object of
appropriation either by the State or by private
persons. Nor can it be the subject of lease or
any other contractual undertaking. (Land Bank
of the Philippines v. Cacayuran, G.R. No.
191667, 2013; In an Amended Decision dated
April 22, 2015, the Second Division set aside
the decision and remanded the case)
(7) A city can validly reconvey a portion of its
street that has been closed or withdrawn
from public use where Congress has
specifically delegated to such political
subdivision, through its charter, the
authority to regulate its streets. Such
property withdrawn from public servitude to be
used or conveyed for any purpose for which
other property belonging to the city may be
lawfully used or conveyed. (Figuracion vs. Libi,
G.R. No. 155688, 2007)
B. LOCAL GOVERNMENT UNIT
1.
Powers of Local
Government Units, In
General
Sources of the powers of LGUs
(1) Constitution;
(2) Statute;
(3) Those applicable to all municipal
corporations or to the class to which it
belongs;
(4) Special acts of the legislature; and
(5) Charter.
Four Categories of Powers Exercised by LGUs
(1) Powers expressly granted
(2) Powers necessarily implied therefrom
(3) Powers
necessary,
appropriate,
or
incidental for efficient and effective
governance
(4) Powers essential to the promotion of the
general welfare. (Sec. 16, 1991 LGC)
REMEMBER: Any provision on a power of a local
government unit shall be liberally interpreted in its
favor, and in case of doubt, any question thereon
shall be resolved in favor of devolution of powers
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and of the lower local government unit. Any fair and
reasonable doubt as to the existence of the power
shall be interpreted in favor of the local government
unit concerned. (Sec. 5(a), 1991 LGC)
to prohibit all that is hurtful to the comfort,
safety, and welfare of society." (Ermita-Malate
Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila, G.R. No. L-24693, 1967)
Within their respective territorial jurisdictions,
LGUs shall ensure and support:
(a) Preservation and enrichment of culture
(b) Promotion of health and safety
(c) Enhancement of the right of the people to a
balanced ecology
(d) Development of self-reliant scientific and
technological capabilities
(e) Improvement of public morals
(f) Enhancement of economic prosperity and
social justice
(g) Promotion of full employment among
residents
(h) Maintenance of peace and order
(i) Preservation
of
the
comfort
and
convenience of its inhabitants.
(Sec. 16, 1991 LGC)
Police power is inherent in the state but not in
municipal corporations (Balacuit v. CFI of Agusan
del Norte, 163 SCRA 182). Before a municipal
corporation may exercise such power, there
must be a valid delegation of such power by the
legislature which is the repository of the
inherent powers of the State. A valid delegation
of police power may arise from express delegation,
or be inferred from the mere fact of the creation of
the municipal corporation; and as a general rule,
municipal corporations may exercise police powers
within the fair intent and purpose of their creation
which are reasonably proper to give effect to the
powers expressly granted, and statutes conferring
powers on public corporations have been construed
as empowering them to do the things essential to
the enjoyment of life and desirable for the safety of
the people. (Binay v. Domingo, G.R. No. 92389,
1991)
a. Police Power
Welfare Clause
and
General
Police Power, Definition
The police power is a governmental function, an
inherent attribute of sovereignty, which was born
with civilized government. It is founded largely on
the maxims, “Sic utere tuo et alienum non laedas”
and “Salus populi est suprema lex.” Its fundamental
purpose is securing the general welfare, comfort
and convenience of the people. Police power is the
power to prescribe regulations to promote the
health, morals, peace, education, good order or
safety and general welfare of the people. It is the
most essential, insistent, and illimitable of powers.
In a sense it is the greatest and most powerful
attribute of the government. It is elastic and must be
responsive to various social conditions. (Sangalang,
et al. vs. IAC, 176 SCRA 719). On it depends the
security of social order, the life and health of the
citizen, the comfort of an existence in a thickly
populated community, the enjoyment of private and
social life, and the beneficial use of property, and it
has been said to be the very foundation on which
our social system rests. (16 C.J.S., p. 896)
However, it is not confined within narrow
circumstances of precedents resting on past
conditions; it must follow the legal progress of a
democratic way of life. (Sangalang, et al. vs.
LAC, supra). (Binay v. Domingo, G.R. No. 92389,
1991)
Negatively put, police power is "that inherent
and plenary power in the State which enables it
Thus, that valid statutory delegation of police power
is now the General Welfare Clause in Sec. 16 of the
Local Government Code: “Every local government
unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which
are essential to the promotion of the general
welfare.
Within
their
respective
territorial
jurisdictions, local government units shall ensure
and support, among other things, the preservation
and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced
ecology, encourage and support the development of
appropriate and self-reliant scientific and
technological capabilities, improve public morals,
enhance economic prosperity and social justice,
promote full employment among their residents,
maintain peace and order, and preserve the comfort
and convenience of their inhabitants.”
Two Branches of the General Welfare Clause
(1) General legislative power
Authorizes municipal councils to enact ordinances
and make regulations not repugnant to law and may
be necessary to carry into effect and discharge the
powers and duties conferred upon the municipal
council by law. (Fernando v. St. Scholastica’s
College, G.R. No. 161107, 2013 citing Rural Bank
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of Makati v. Municipality of Makati, G.R. No. 150763,
2004)
Examples of General Legislative Power:
(a) The ordinances imposing licenses and
requiring permits for any business
establishment, for purposes of regulation
enacted by the municipal council, fall within
the purview of the first branch of the general
welfare clause. Moreover, the ordinance of
the municipality imposing the annual
business tax is part of the power of taxation
vested upon local governments. Hence,
the closure of a business establishment for
non-payment of local business taxes is a
valid exercise of police power. (Rural Bank
of Makati v. Municipality of Makati, G.R. No.
150763, 2004)
(b) LGU may properly order the removal and
closure (including demolition) of illegally
constructed establishments for failure to
secure the necessary permits. This is
because, in the exercise of police power
and the general welfare clause, property
rights of individuals may be subjected to
restraints and burdens in order to fulfil the
objectives of the government. (Aquino v.
Municipality of Malay, G.R. No. 211356,
2014)
(c) In ordering the closure of bingo operations,
LGU was exercising their duty to implement
laws and ordinances which include the
local government's authority to issue
licenses and permits for business
operations in the city. This authority is
granted to them as a delegated exercise of
the police power of the State. (City of
Bacolod v. Phuture Visions, G.R. No.
190289, 2018)
(2) Police Power Proper
Authorizes the municipality to enact ordinances as
may be proper and necessary for the health and
safety, prosperity, morals, peace, good order,
comfort and convenience of the municipality and its
inhabitant, and for the protection of their property.
(Fernando v. St. Scholastica’s College, G.R. No.
161107, 2013 citing Rural Bank of Makati v.
Municipality of Makati, G.R. No. 150763, 2004)
Examples of Police Power:
(a) Ordinance regulating operation of massage
clinics, but not to regulate the practice of
massage, to prevent the commission of
immorality and the practice of
prostitution.
(Physical
Therapy
v.
Municipal Board of the City of Manila, G.R.
No. L-10448, 1957)
(b) Ordinance requiring registration before
entry to motels to safeguard public morals.
(Ermita-Malate Hotel v. City Mayor of
Manila, G.R. No. L-24693, 1976)
NOTE: Ordinance also prohibited renting
rooms more than twice every 24 hours,
which was previously held to be valid in
Ermita-Malate Hotel, BUT which has been
rendered unconstitutional in White Light
Corporation v. City of Manila, G.R. No.
122846, 2009.
(c) Ordinance reclassifying land from industrial
to commercial that consequently prohibited
the operation of an oil depot to safeguard
the rights to life, security, and safety of the
inhabitants of Manila. (SJS v. Atienza, GR
No. 156052, 2008; SJS v. Lim, G.R. No.
187836, 2014)
(d) An ordinance extending burial assistance
of P500 to a bereaved family whose gross
income does not exceed P2,000 a month,
has been upheld by the as a valid exercise
of police power. (Binay v. Domingo, G.R.
No. 92389, 1991)
(e) Ordinances regulating waste removal carry
a strong presumption of validity.
Necessarily,
LGUs
are
statutorily
sanctioned to impose and collect such
reasonable fees and charges for services
rendered. (Ferrer v. Bautista, G.R. No.
210551, 2015)
A person is the real party-in-interest to assail the
constitutionality and legality of the ordinances
because he is a registered co-owner of a residential
property in the city and that he paid property tax
which already included the SHT and the garbage
fee. He has substantial right to seek a refund of the
payments he made and to stop future imposition.
While he is a lone petitioner, his cause of action to
declare the validity of the subject ordinances is
substantial and of paramount interest to similarly
situated property owners in the city. (Ferrer v.
Bautista, G.R. No. 210551, 2015)
Requisites for Valid Exercise of Police Power
As with the State, the local government may be
considered as having properly exercised its police
power only if the following requisites are met:
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(1) The interests of the public generally, as
distinguished from those of a particular
class, require the interference of the State
(LAWFUL SUBJECT); and
(2) The means employed are reasonably
necessary for the attainment of the object
sought to be accomplished and not unduly
oppressive upon individuals (LAWFUL
METHOD).
Otherwise stated, there must be a concurrence
of a lawful subject and lawful method. (Lucena
Grand Central Terminal Inc. v. JAC Liner Inc., G.R.
No. 148339, 2005; also SJS v. Lim, G.R. No.
187836, 2014 and Fernando v. St. Scholastica’s
College, G.R. No. 161107, 2013)
Two-Pronged Test to Consider an Ordinance as
a Valid Police Power Measure
To be considered as a valid police power measure,
an ordinance must pass a two-pronged test:
(1) FORMAL (i.e. whether the ordinance is
enacted within the corporate powers of the
LGU, and whether it is passed in
accordance with the procedure prescribed
by law); and
(2) SUBSTANTIVE (i.e., involving inherent
merit, like the conformity of the ordinance
with the limitations under the Constitution
and the statutes, as well as with the
requirements of fairness and reason, and
its consistency with public policy).
(Mosqueda v. Pilipino Growers, G.R. No.
189185, 2016)
For an ordinance to be valid, it must not only be
within the corporate powers of the LGU to enact and
be passed according to the procedure prescribed by
law, it must also conform to the following substantive
requirements:
(1) must not contravene the Constitution or any
statute;
(2) must not be unfair or oppressive;
(3) must not be partial or discriminatory;
(4) must not prohibit but may regulate trade;
(5) must be general and consistent with public
policy and
(6) must not be unreasonable. (SJS v. Atienza,
G.R. No. 156052, 2008)
Tests to Determine Constitutionality of an
Ordinance
To successfully invoke the exercise of police power
as the rationale for the enactment of an ordinance
and to free it from the imputation of constitutional
infirmity, two tests have been used by the Court —
the rational relationship test and the strict scrutiny
test (and also the intermediate scrutiny test):
(1) Rational Basis or Relationship Test
Often applied mainly in analysis of equal protection
challenges. Using the rational basis examination,
laws or ordinances are upheld if they rationally
further a legitimate governmental interest. Under
intermediate review, governmental interest is
extensively examined and the availability of less
restrictive measures is considered.
Under the rational relationship test, an ordinance
must pass the following requisites as discussed
in Social Justice Society (SJS) v. Atienza, Jr.: As
with the State, local governments may be
considered as having properly exercised their
police power only if the following requisites are
met: (1) the interests of the public generally, as
distinguished from those of a particular class,
require its exercise and (2) the means employed
are
reasonably
necessary
for
the
accomplishment of the purpose and not unduly
oppressive upon individuals. In short, there must
be a concurrence of a lawful subject and lawful
method. (Fernando v. St. Scholastica's College,
G.R. No. 161107, 2013)
(2) Strict Scrutiny Test
Applying strict scrutiny, the focus is on the presence
of compelling, rather than substantial, governmental
interest and on the absence of less restrictive
means for achieving that interest. (Fernando v. St.
Scholastica’s College, G.R. No. 161107, 2013)
The strict scrutiny test applies when a classification
either (i) interferes with the exercise of fundamental
rights, including the basic liberties guaranteed under
the
Constitution,
or (ii) burdens
suspect
classes. XXX Thus, the government has the burden
of proving that the classification is: (i) Necessary to
achieve a compelling State interest, and (ii) The
least restrictive means to protect such interest or the
means chosen is narrowly tailored (or narrowly
drawn) to accomplish the interest. (SPARK v.
Quezon City, G.R. No. 225442, 2017 citing Disini v.
Secretary of Justice, G.R. No. 203335, 2014)
Thus, in the curfew ordinances imposed by the City
of Manila, Navotas City, and Quezon City on minors,
there is compelling state interest in attempting to
substantiate legitimate concerns on public welfare,
especially with respect to minors. As compared to
the Manila and Navotas ordinances, the list of
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exceptions under the Quezon City Ordinance is
more narrowly drawn to sufficiently protect the
minors’ rights of association, free exercise of
religion, travel, to peaceably assemble, and of
free expression. (SPARK v. Quezon City, G.R. No.
225442, 2017
(3) Intermediate Scrutiny Test
There is also the intermediate scrutiny test when a
classification does not involve suspect classes or
fundamental rights, but requires heightened
scrutiny, such as in classifications based on gender
and legitimacy. (SPARK v. Quezon City, G.R. No.
225442, 2017)
This test has also been applied to regulations or
restrictions affecting the freedom of speech and
expression in relation to determining if it is a contentneutral regulation.
Being a content-neutral
regulation, the same is measured against the
intermediate test, viz.: (1) the regulation is within the
constitutional power of the government; (2) it
furthers an important or substantial governmental
interest; (3) such governmental interest is unrelated
to the suppression of the free expression; and (4)
the incidental restriction on the alleged freedom of
expression is no greater than what is essential to the
furtherance of the governmental interest. (NicolasLewis v. Commission on Elections, G.R. No.
223705, 2019)
Barangay Police Power
(1) The punong barangay, as the chief
executive of the barangay government,
shall exercise such powers and perform
such duties and functions for efficient,
effective and economical governance, the
purpose of which is the general welfare of
the barangay and its inhabitants pursuant
to Section 16 of the LGC. (Sec. 389, 1991
LGC)
(2) The Barangay Assembly cannot exercise
any police power. Under Section 398 of the
LGC, it can only recommend to the
Sangguniang Barangay the adoption of
measures for the welfare of the barangay
and decide on the adoption of an initiative.
(Sec. 398, 1991 LGC)
(3) Also, the Liga ng mga Barangay cannot
exercise legislative powers. It is not a local
government unit and its primary purpose is
to determine representation of the liga in
the sanggunians, to ventilate, articulate and
crystallize issues affecting barangay
government administration, and to secure
solutions for them through proper and legal
means. (Onon v. Fernandez, G.R. No.
139813, 2001)
b. Eminent Domain and Taxation
Eminent Domain, Definition
The power of eminent domain has been defined as
the right of a government to take and appropriate
private property to public use, whenever the public
exigency requires it, which can be done only on
condition of providing a reasonable compensation
therefor. It has also been described as the power of
the State or its instrumentalities to take private
property for public use and is inseparable from
sovereignty and inherent in government. (Masikip v.
City of Pasig, G.R. No. 136349, 2006)
REMEMBER: Private property shall not be taken for
public use without just compensation. (Sec. 9, Art.
III, 1987 Constitution) Otherwise stated, private
property can be taken provided:
(1) For public use;
(2) With just compensation.
Nature of Power of LGU
The power of eminent domain is lodged in the
legislative branch of the government. It delegates
the exercise thereof to local government units, other
public entities and public utility corporations, subject
only to Constitutional limitations. As such, local
governments have no inherent power of eminent
domain and may exercise it only when expressly
authorized by statute. Section 19 of the Local
Government Code of 1991 (Republic Act No. 7160)
prescribes the delegation by Congress of the power
of eminent domain to local government units and
lays down the parameters for its exercise. (Masikip
v. City of Pasig, G.R. No. 136349, 2006)
Thus, strictly speaking, the power of eminent
domain delegated to an LGU is in reality not eminent
but "inferior" since it must conform to the limits
imposed by the delegation and thus partakes only of
a share in eminent domain. The national legislature
is still the principal of the LGUs and the latter cannot
go against the principal's will or modify the same.
(Beluso v. Municipality of Panay, G.R. No. 153974,
2006)
Requisites of Eminent Domain
(1) Expropriation should be for a Public use or
purpose or for the welfare of the poor or
landless.
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(2) Ordinance authorizing the local chief
executive to subject a certain property to
expropriation
(3) Payment of Just compensation
(4) Valid and definite Offer previously made to
owner which was not accepted.
(5) Exercised by the LGU through its Chief
executive. (Sec. 19, 1991 LGC)
Jurisdiction
An expropriation suit falls under the jurisdiction of
the RTCs. The subject of an expropriation suit is the
government’s exercise of eminent domain, a matter
that is incapable of pecuniary estimation. (Barangay
San Roque v. Heirs of Pastor, G.R. No. 138896,
2000)
Due Process Requirements
The property owner must be afforded a reasonable
opportunity to be heard on the issues of public use
and just compensation and to present objections to
and claims on them.
It is settled that taking of property for a private use
or without just compensation is a deprivation of
property without due process of law. Moreover, it
has to be emphasized that taking of private property
without filing any complaint before a court of law
under Rule 67 of the Rules of Court or existing laws
is
patently
felonious,
confiscatory,
and
unconstitutional.
Judicial notice can be taken of some instances
wherein some government agencies or corporations
peremptorily took possession of private properties
and usurped the owner's real rights for their
immediate use without first instituting the required
court action. Running roughshod over the property
rights of individuals is a clear and gross breach of
the constitutional guarantee of due process, which
should not be countenanced in a society where the
rule of law holds sway. (Barangay Sindalan v. CA,
GR No. 150640, 2007)
Judicial Review
Judicial review of the exercise of eminent domain is
limited to the following areas of concern:
(a) the adequacy of the compensation,
(b) the necessity of the taking, and
(c) the public use character of the purpose of
the taking. (Masikip v. City of Pasig, GR No.
136349, 2006)
Just Compensation
(1) The determination of “just compensation” in
eminent domain cases is a judicial function.
Hence, a statutory provision on a fixed
formula in the computation of just
compensation in cases of acquisition of
easements of right of way is not binding
upon the Court. (National Power Corp. v.
Ileto, G.R. No. 169957, 2012)
(2) The determination of just compensation is
a judicial function and any valuation for just
compensation laid down in the statutes
may serve only as a guiding principle. It
may not substitute the court’s own
judgment as to what amount should be
awarded and how to arrive at such amount.
(Vergara v. Grecia, G.R. 185638, 2016)
(3) The amount to be paid for the expropriated
property (i.e. just compensation) shall be
determined by the proper court, based on
the fair market value at the time of the
taking of the property. (Sec. 19, 1991 LGC)
(4) Under the Rules of Court, however, the
court may issue an order of expropriation
declaring that the plaintiff has a lawful right
to take the property sought to be
expropriated, for the public use or purpose
described in the complaint, upon the
payment of just compensation to be
determined as of the date of the taking of
the property or the filing of the complaint,
whichever came first. (Sec. 4, Rule 67,
ROC)
NOTE: Which should prevail? 1) Sec. 19, LGC is
substantive law; 2) Sec. 4, Rule 67, ROC is
procedural law. Given that the determination of just
compensation is a judicial function, it is submitted
that the ROC should prevail in view of the rulemaking authority of the Supreme Court under the
Constitution on all matters relating to pleadings,
practice, and procedure.
Requisites for the Immediate Possession by
LGU
The LGU may immediately take possession of the
property:
(1) Upon the filing of the expropriation
proceedings; and
(2) Upon making a deposit with the proper
court of at least fifteen percent (15%) of the
fair market value of the property based on
the current tax declaration of the property
to be expropriated. (Sec. 19, 1991 LGC)
Upon compliance with these requirements, the
issuance by the RTC of a writ of possession
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becomes ministerial. (Iloilo City v. Legaspi, G.R. No.
154614, 2004)
enhanced. (Camarines Sur v. CA, G.R. No. 103125,
1993)
Genuine Necessity of the Taking
The right to take private property for public purposes
necessarily originates from "the necessity" and the
taking must be limited to such necessity.
Rules on Urban Land Reform and Socialized
Housing
If the expropriation is pursuant to an urban land
reform and housing program, LGUs are also
mandated to follow the conditions and standards
prescribed by RA 7279 (Urban Development and
Housing Act of 1992), the law governing the
expropriation of property for urban land reform and
housing, as follows:
In City of Manila v. Chinese Community of Manila,
the Court held that the very foundation of the right to
exercise eminent domain is genuine necessity and
that necessity must be of a public character.
Moreover, the ascertainment of the necessity must
precede or accompany and not follow, the taking of
the land. In City of Manila v. Arellano Law College,
the SC ruled that "necessity within the rule that the
particular property to be expropriated must be
necessary, does not mean an absolute but only a
reasonable or practical necessity, such as
would combine the greatest benefit to the public
with the least inconvenience and expense to the
condemning party and the property owner
consistent with such benefit." (Masikip v. City of
Pasig, G.R. No. 136349, 2006)
Examples of No Genuine Necessity (Hence,
Constitutes as Unlawful Taking):
(1) Taking of portions of a Chinese cemetery
for a public improvement since its already
for public use and there are adjoining and
adjacent lands offered free of charge. (City
of Manila v. Chinese Community, G.R. No.
L-14355, 1919)
(2) Taking of a land currently used by Arellano
Law College for homesite purposes since
only few families will benefit, which is
insignificant compared to preparing young
men and women for useful citizenship and
service to the government and community.
(City of Manila v. Arellano Law Colleges,
G.R. No. L-2929, 1950)
(3) Taking of a private property for sports
development and recreational activities of a
neighborhood association since it’s not
categorically for public purpose and there is
an alternative facility in the area. (Masikip
v. City of Pasig, G.R. No. 136349, 2006)
Example: Establishment of a pilot development
center that would inure to the direct benefit and
advantage of the people of the Province of
Camarines Sur. Once operational, the center would
make available to the community invaluable
information and technology on agriculture, fishery
and the cottage industry. Ultimately, the livelihood of
the farmers, fishermen and craftsmen would be
(1) Prioritize Other Lands
Lands for socialized housing shall be
acquired in the following order:
(a) Those owned by the Government or any of
its subdivisions, instrumentalities, or
agencies, including government-owned or controlled
corporations
and
their
subsidiaries;
(b) Alienable lands of the public domain;
(c) Unregistered or abandoned and idle lands;
(d) Those within the declared Areas of Priority
Development, Zonal Improvement sites,
and Slum Improvement and Resettlement
Program sites which have not yet been
acquired;
(e) Bagong Lipunan Improvement sites and
Services or BLISS sites which have not yet
been acquired; and
(f) Privately-owned lands.
Where on-site development is found more
practicable and advantageous to the beneficiaries,
the priorities mentioned in this section shall not
apply (thus, privately-owned lands may be acquired
first). The local government units shall give
budgetary priority to on-site development of
government lands. (Sec. 9, RA 7279)
(2) Prioritize Other Modes of Acquisition
The modes of acquiring lands for purposes
of this Act shall include, among others,
community mortgage, land swapping, land
assembly or consolidation, land banking,
donation to the Government, joint venture
agreement, negotiated purchase, and
expropriation: Provided, however, That
expropriation shall be resorted to only when
other modes of acquisition have been
exhausted. (Sec. 10, RA 7279)
Section 10 of R.A. 7279 also prefers the
acquisition of private property by
"negotiated sale" over the filing of an
expropriation suit. It provides that such suit
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may be resorted to only when the other
modes of acquisitions have been
exhausted. Indeed, the Court has held that
when the property owner rejects the offer
but hints for a better price, the government
should renegotiate by calling the property
owner to a conference. The government
must exhaust all reasonable efforts to
obtain by agreement the land it desires. Its
failure to comply will warrant the dismissal
of the complaint. (City of Manila v. Alegar,
G.R. No. 187604, 2012)
Failure to prove strict compliance with the
requirements of Sections 9 and 10 of RA
7279 is a fatal infirmity in the LGU’s
exercise of the power of eminent domain.
Hence, its complaint for expropriation must
necessarily fail. (Estate of JBL Reyes v.
City of Manila, G.R. No. 132431, 2004)
(3) Small Property Owners are Exempted
Where expropriation is resorted to, parcels
of land owned by small property owners
shall be exempted for purposes of this Act.
(Sec. 10, RA 7279) “Small- property
owners” are defined by two elements: (a)
They are owners of real property which
consists of residential lands with an area of
not more than 300 sq. meters in highly
urbanized cities, and 800 sq. meters in
other urban cities; and (b) They do not own
real property other than the same. (Sec.
3(q), RA 7279)
Public Use/Public Purpose/Public Character
(1) Use by the Public or Public Employment
There is no precise meaning of "public use"
and the term is susceptible of myriad
meanings depending on diverse situations.
The limited meaning attached to "public
use" is "use by the public" or "public
employment," that "a duty must devolve on
the person or corporation holding property
appropriated by right of eminent domain to
furnish the public with the use intended,
and that there must be a right on the part of
the public, or some portion of it, or some
public or quasi-public agency on behalf of
the public, to use the property after it is
condemned." The more generally accepted
view sees "public use" as "public
advantage, convenience, or benefit, and
that anything which tends to enlarge the
resources, increase the industrial energies,
and promote the productive power of any
considerable number of the inhabitants of a
section of the state, or which leads to the
growth of towns and the creation of new
resources for the employment of capital
and labor, (which) contributes to the
general welfare and the prosperity of the
whole community." In this jurisdiction,
"public use" is defined as "whatever is
beneficially employed for the community."
(Barangay Sindalan v. Court of Appeals,
G.R. No. 150640, 2007)
(2) Cannot Depend on Numerical Count
It is settled that the public nature of the
prospective exercise of expropriation
cannot depend on the "numerical count of
those to be served or the smallness or
largeness of the community to be
benefited." The number of people is not
determinative of whether or not it
constitutes public use, provided the use is
exercisable in common and is not limited to
particular individuals.
Thus, the first
essential requirement for a valid exercise of
eminent domain is for the expropriator to
prove that the expropriation is for a public
use. (Barangay Sindalan v. Court of
Appeals, G.R. No. 150640, 2007)
(3) Contributes to the General Welfare
Modernly, there has been a shift from the
literal to a broader interpretation of "public
purpose" or "public use" for which the
power of eminent domain may be
exercised. The old concept was that the
condemned property must actually be used
by the general public (e.g. roads, bridges,
public plazas, etc.) before the taking
thereof could satisfy the constitutional
requirement of "public use." 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. (Camarines Sur v. CA, G.R. No.
103125, May 17, 1993 citing Heirs of
Juancho Ardano v. Reyes, 125 SCRA 220
(1983); Sumulong v. Guerrero, 154 SCRA
461 (1987))
Returning the Property
When private land is expropriated for a particular
public use and that purpose is abandoned, there is
no “implied contract” that the properties will be used
only for the public purpose for which they were
acquired. Property is to be returned only when it is
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the same with the inhabitants by way of
direct benefits. (Sec. 7, Article X, 1987
Constitution)
Power of Taxation is Not Inherent in LGUs
The power to tax "is an attribute of sovereignty," and
as such, inheres in the State. Such, however, is not
true for provinces, cities, municipalities and
barangays as they are not the sovereign; rather,
they are mere "territorial and political subdivisions of
the Republic of the Philippines."
The rule governing the taxing power of provinces,
cities, municipalities and barangays is summarized
in Icard v. City Council of Baguio: It is settled that a
municipal corporation unlike a sovereign state is
clothed with no inherent power of taxation. The
charter or statute must plainly show an intent to
confer that power or the municipality, cannot
assume it. And the power when granted is to be
construed in strictissimi juris. Any doubt or ambiguity
arising out of the term used in granting that power
must be resolved against the municipality.
Inferences, implications, deductions — all these —
have no place in the interpretation of the taxing
power of a municipal corporation.
Therefore, the power of a province to tax is limited
to the extent that such power is delegated to it either
by the Constitution or by statute.
Per Section 5, Article X of the 1987 Constitution,
"the power to tax is no longer vested exclusively on
Congress; local legislative bodies are now given
direct authority to levy taxes, fees and other
charges." Nevertheless, such authority is "subject to
such guidelines and limitations as the Congress
may provide.” (Pelizloy Realty v. Benguet, G.R. No.
183137, 2013)
Nature of LGUs Power to Tax
LGUs have no inherent power to tax except to the
extent that such power might be delegated to them
either by the basic law or by the statute. Under the
1987 Constitution, where there is neither a grant nor
a prohibition by statute, the tax power must be
deemed to exist although Congress may provide
statutory limitations and guidelines. The basic
rationale for the current rule is to safeguard the
viability and self-sufficiency of local government
units by directly granting them general and broad tax
powers. Nevertheless, the fundamental law did not
intend the delegation to be absolute and
unconditional; the constitutional objective obviously
is to ensure that, while the local government units
are being strengthened and made more
autonomous, the legislature must still see to it that
(a) the taxpayer will not be over-burdened or
saddled
with
multiple
and
unreasonable
impositions; (b) each local government unit will have
its fair share of available resources; (c) the
resources of the national government will not be
unduly disturbed; and (d) local taxation will be fair,
uniform, and just. (Ferrer v. Bautista, G.R. No.
210551, 2015)
Fiscal Autonomy
Fiscal autonomy means that local governments
have the power to create their own sources of
revenue in addition to their equitable share in the
national taxes released by the national government,
as well as the power to allocate their resources in
accordance with their own priorities.
Local fiscal autonomy does not, however, rule out
any manner of national government intervention by
way of supervision, in order to ensure that local
programs, fiscal and otherwise, are consistent with
national goals. Significantly, the President, by
constitutional fiat, is the head of the economic and
planning agency of the government, primarily
responsible for formulating and implementing
continuing, coordinated and integrated social and
economic policies, plans and programs for the entire
country. However, under the Constitution, the
formulation and the implementation of such policies
and programs are subject to "consultations with the
appropriate public agencies, various private sectors,
and local government units." The President cannot
do so unilaterally. (Pimentel v. Aguirre, G.R. No.
132988, 2015)
Thus, the directive to "identify and implement
measures…that will reduce total expenditures…by
at least 25% of authorized regular appropriation"
does not violate local or fiscal autonomy as it is
merely advisory in character, and does not
constitute a mandatory or binding order that
interferes with local autonomy. The language used,
while authoritative, does not amount to a command
that emanates from a boss to a subaltern. Rather,
the provision is merely an advisory to prevail upon
local executives to recognize the need for fiscal
restraint in a period of economic difficulty. Indeed,
all concerned would do well to heed the President's
call to unity, solidarity and teamwork to help alleviate
the crisis. It is understood, however, that no legal
sanction may be imposed upon LGUs and their
officials who do not follow such advice. (Pimentel v.
Aguirre, G.R. No. 132988, 2015)
Tax Ordinance Strictly Construed Against LGU
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In case of doubt, any tax ordinance or revenue
measure shall be construed strictly against the
local government unit enacting it, and liberally
in favor of the taxpayer. Any tax exemption,
incentive or relief granted by any local government
unit pursuant to the provisions of this Code shall be
construed strictly against the person claiming
it. (Sec. 5(b), 1991 LGC)
Scope of Power to Generate and Apply
Resources
Local government units shall have the power and
authority to:
(1) Establish an organization that shall be
responsible for the efficient and effective
implementation of their development plans,
program objectives and priorities;
(2) Create their own sources of revenues and
to levy taxes, fees, and charges which shall
accrue exclusively for their use and
disposition and which shall be retained by
them;
(3) Have a just share in national taxes which
shall be automatically and directly released
to them without need of any further action;
(4) Have an equitable share in the proceeds
from the utilization and development of the
national wealth and resources within their
respective territorial jurisdictions including
sharing the same with the inhabitants by
way of direct benefits;
(5) Acquire, develop, lease, encumber,
alienate, or otherwise dispose of real or
personal property held by them in their
proprietary capacity and to apply their
resources and assets for productive,
developmental, or welfare purposes, in the
exercise
or
furtherance
of
their
governmental or proprietary powers and
functions and thereby ensure their
development into self-reliant communities
and active participants in the attainment of
national goals. (Sec. 18, 1991 LGC)
Fundamental principles of Local Taxation
The following fundamental principles shall govern
the exercise of the taxing and other revenue-raising
powers of local government units:
(1) Taxation shall be uniform in each local
government unit;
(2) Taxes, fees, charges and other impositions
shall:
(a) be equitable and based as far as
practicable on the taxpayer's
ability to pay;
(b) be levied and collected only for
public purposes;
(c) not
be
unjust,
excessive,
oppressive, or confiscatory;
(d) not be contrary to law, public
policy, national economic policy, or
in the
restraint of trade;
(3) The collection of local taxes, fees, charges
and other impositions shall in no case be let
to any private person;
(4) The revenue collected pursuant to the
provisions of this Code shall inure solely to
the benefit of, and be subject to the
disposition by, the local government unit
levying the tax, fee, charge or other
imposition unless otherwise specifically
provided herein; and
(5) Each local government unit shall, as far as
practicable, evolve a progressive system
of taxation. (Sec. 130, 1991 LGC)
Sources of LGU Funds
(1) Taxes, fees, and charges which accrue
exclusively for their use and disposition
(2) Just share in national taxes which shall be
automatically and directly released to them
(3) Equitable share in the proceeds from
utilization and development of national
wealth and resources within their territorial
jurisdiction (Sec. 18, 1991 LGC)
Common Limitations to Taxing Power of LGUs
Unless otherwise provided herein, the exercise of
the taxing powers of provinces, cities,
municipalities, and barangays shall NOT extend
to the levy of the following:
(a) Income tax, except when levied on banks
and other financial institutions;
(b) Documentary stamp tax;
(c) Taxes on estates, inheritance, gifts,
legacies and other acquisitions mortis
causa, except as otherwise provided
herein;
(d) Customs duties, registration fees of vessel
and wharfage on wharves, tonnage dues,
and all other kinds of customs fees,
charges and dues except wharfage on
wharves constructed and maintained by the
local government unit concerned;
(e) Taxes, fees, and charges and other
impositions upon goods carried into or out
of, or passing through, the territorial
jurisdictions of local government units in the
guise of charges for wharfage, tolls for
bridges or otherwise, or other taxes, fees,
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or charges in any form whatsoever upon
such goods or merchandise;
(f) Taxes, fees or charges on agricultural and
aquatic products when sold by marginal
farmers or fishermen;
(g) Taxes on business enterprises certified to
by the Board of Investments as pioneer or
non-pioneer for a period of six (6) and four
(4) years, respectively from the date of
registration;
(h) Excise taxes on articles enumerated under
the national Internal Revenue Code, as
amended, and taxes, fees or charges on
petroleum products;
(i) Percentage or value-added tax (VAT) on
sales, barters or exchanges or similar
transactions on goods or services except
as otherwise provided herein;
(j) Taxes on the gross receipts of
transportation contractors and persons
engaged in the transportation of
passengers or freight by hire and common
carriers by air, land or water, except as
provided in this Code;
(k) Taxes on premiums paid by way or
reinsurance or retrocession;
(l) Taxes, fees or charges for the registration
of motor vehicles and for the issuance of all
kinds of licenses or permits for the driving
thereof, except tricycles;
(m) Taxes, fees, or other charges on Philippine
products actually exported, except as
otherwise provided herein;
(n) Taxes, fees, or charges, on Countryside
and Barangay Business Enterprises and
cooperatives duly registered under R.A.
No. 6810 and R.A. No. 6938 (Cooperative
Code, now RA 9520) respectively; and
(o) Taxes, fees or charges of any kind on the
National Government, its agencies and
instrumentalities, and local government
units. (Sec. 133, 1991 LGC)
Requisites of a Tax Ordinance
(1) Notice
(2) Actual conduct of public hearing
(3) Posting
(4) Publication (if with penal sanctions)
Constitutionality or Legality of Tax Ordinances
Any question on the constitutionality or legality of tax
ordinances or revenue measures may be raised on
appeal within thirty (30) days from the effectivity
thereof to the Secretary of Justice who shall render
a decision within sixty (60) days from the date of
receipt of the appeal: Provided, however, That such
appeal shall not have the effect of suspending the
effectivity of the ordinance and the accrual and
payment of the tax, fee, or charge levied therein:
Provided, finally, That within thirty (30) days after
receipt of the decision or the lapse of the sixty-day
period without the Secretary of Justice acting upon
the appeal, the aggrieved party may file appropriate
proceedings with a court of competent jurisdiction.
(Sec. 189, 1991 LGC)
Rules on LGU Business Taxes
(1) Manufacturers, assemblers, repackers,
brewers,
distillers,
rectifiers
and
compounders of liquor, distilled spirits and
wines, millers, producers, exporters,
wholesalers,
distributors,
dealers,
contractors, banks and other financial
institutions,
and
other
businesses,
maintaining or operating branch or sales
outlet elsewhere shall record the sale in the
branch or sales outlet making the sale or
transaction, and the tax thereon shall
accrue and shall be paid to the municipality
where such branch or sales outlet is
located. (Sec. 150(a), 1991 LGC)
(2) In cases where there is no such branch or
sales outlet in the city or municipality where
the sale or transaction is made, the sale
shall be duly recorded in the principal office
and the taxes due shall accrue and shall be
paid to such city or municipality. (Sec.
150(a), 1991 LGC)
(3) The following sales allocation shall apply to
manufacturers, assemblers, contractors,
producers, and exporters with factories,
project offices, plants, and plantations in
the pursuit of their business:
(a) Thirty percent (30%) of all sales
recorded in the principal office shall be
taxable by the city or municipality
where the principal office is located;
and
(b) Seventy percent (70%) of all sales
recorded in the principal office shall be
taxable by the city or municipality
where the factory, project office, plant,
or plantation is located. (Sec. 150(b),
1991 LGC)
(4) In case of a plantation located at a place
other than the place where the factory is
located, said seventy percent (70%)
mentioned above shall be divided as
follows:
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(a) Sixty percent (60%) to the city or
municipality where the factory is
located; and
(b) Forty percent (40%) to the city or
municipality where the plantation is
located. (Sec. 150(c), 1991 LGC)
(5) In cases where a manufacturer, assembler,
producer, exporter or contractor has two (2)
or more factories, project offices, plants, or
plantations located in different localities,
the seventy percent (70%) sales allocation
mentioned above shall be prorated among
the localities where the factories, project
offices, plants, and plantations are located
in proportion to their respective volumes of
production during the period for which the
tax is due. (Sec. 150(d), 1991 LGC)
Withdrawal of Local Tax Exemption Privileges
Unless otherwise provided in the LGC, tax
exemptions or incentives granted to, or enjoyed by
all persons, whether natural or juridical, including
government-owned or - controlled corporations
were withdrawn upon the effectivity of the LGC.
(Sec. 193, 1991 LGC)
Privileges Retained
Tax exemption privileges of the following were not
withdrawn by the LGC from the following:
(1) Local water districts;
(2) Cooperatives duly registered under R.A.
No. 6938; and
(3) Non-stock and non-profit hospitals and
educational institutions (Sec. 193,
LGC; Sec.
234, 1991 LGC)
Real Property Taxation
Annual ad valorem tax on real property may be
levied by:
(1) Province; or
(2) City; or
(3) Municipality within Metropolitan Manila
Area (i.e. Pateros is the only NCR
municipality) (Sec. 232, 1991 LGC)
Exemptions from Real Property Tax
The following are exempted from payment of the
real property tax:
(a) Real property owned by the Republic of the
Philippines or any of its political
subdivisions except when the beneficial
use thereof has been granted, for
consideration or otherwise, to a taxable
person;
(b) Charitable
institutions,
churches,
parsonages or convents appurtenant
thereto, mosques, non-profit or religious
cemeteries and all lands, buildings, and
improvements actually, directly, and
exclusively used for religious, charitable or
educational purposes;
(c) All machineries and equipment that are
actually, directly and exclusively used by
local water districts and government owned
or controlled corporations engaged in the
supply and distribution of water and/or
generation and transmission of electric
power;
(d) All real property owned by duly registered
cooperatives as provided for under R.A.
No. 6938; and
(e) Machinery and equipment used for
pollution control and environmental
protection. (Sec. 234, 1991 LGC)
EXCEPTION TO THE EXEMPTION: Except as
provided herein, any exemption from payment of
real property tax previously granted to, or
presently enjoyed by, all persons, whether
natural or juridical, including all governmentowned or controlled corporations are hereby
withdrawn upon the effectivity of this Code.
(Sec. 234, 1991 LGC)
NOTE: Withdrawal of exemption from RPT does not
apply to GICPs/GCEs/Instrumentalities of the
National Government; hence, they are not subject to
real property tax as instrumentalities of the National
Government or State are exempt from local taxation
under Sec. 133(o) of the LGC.
Being instrumentalities of the government,
GICPs/GCEs are not subject to real property tax
imposed by the LGUs except when beneficial use
of the real property is granted to a taxable entity,
which shall be liable for the same. Thus, the
following have been held by the SC as being exempt
from real property tax/local taxation:
(1) Philippine
Amusement
and
Gaming
Corporation (Basco v. PAGCOR, G.R. No.
91649, 1991)
(2) Manila International Airport Authority and
Mactan Cebu International Airport Authority are
instrumentalities of the government, not a
GOCC; thus, its properties actually, solely and
exclusively used for public purposes, consisting
of the airport terminal building, airfield, runway,
taxiway and the lots on which they are situated,
are not subject to real property tax and the city
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is not justified in collecting taxes from petitioner
over said properties. (MIAA v. Court of Appeals,
G.R. No. 155650, July 20, 2006; MIAA v. City of
Pasay, G.R. No. 163072, April 2, 2009) and
(MCIAA v. City of Lapu-Lapu, G.R. No. 181756,
2015)
the San Fernando Port Authority, the Local Water
Utilities Administration (LWUA) and the Asian
Productivity Organization (APO). (Section 3(n),
GOCC Governance Act of 2011, Republic Act No.
10149)
Other limitations on taxing powers of LGUs
NOTE: SC used definition of Instrumentality under
the Administrative Code of 1987.
(3) Light Rail Transit Authority (LRTA v. Quezon
City, G.R. No. 221626, 2019)
(4) Philippine Heart Center (Phil. Heart Center v.
QC, G.R. No. 225409, 2020)
NOTE: In the LRTA and Philippine Heart Center
Cases, the SC used the GICP/GCE definition under
RA 10149.
(5) MWSS is (a government instrument with
corporate powers or GICP) not liable to
the local government of Pasay City for real
property taxes. The tax exemption of its
properties, however, ceases when the
beneficial or actual use is alleged and proven to
have been extended to a taxable person. All the
assessments issued in the name of MWSS
should thus, be declared void. To be clear,
Pasay City is not precluded from availing of the
appropriate remedies under the law to assess
and collect real property taxes from the private
entities to whom MWSS may have granted the
beneficial use of its properties. (Metropolitan
Waterworks and Sewerage System v. Central
Board of Assessment Appeals, G.R. No.
215955, [January 13, 2021], M.V.Lopez, J.)
REMEMBER: Government Instrumentalities with
Corporate Powers (GICP)/Government Corporate
Entities (GCE) - refer to instrumentalities or
agencies of the government, which are neither
corporations nor agencies integrated within the
departmental framework, but vested by law with
special functions or jurisdiction, endowed with some
if not all corporate powers, administering special
funds, and enjoying operational autonomy usually
through a charter including, but not limited to, the
following: the Manila International Airport Authority
(MIAA), the Philippine Ports Authority (PPA), the
Philippine Deposit Insurance Corporation (PDIC),
the Metropolitan Waterworks and Sewerage System
(MWSS), the Laguna Lake Development Authority
(LLDA), the Philippine Fisheries Development
Authority (PFDA), the Bases Conversion and
Development Authority (BCDA), the Cebu Port
Authority (CPA), the Cagayan de Oro Port Authority,
Taxes
already
imposed
by
National
Government: Generally, LGUs cannot impose
taxes that are already imposed by the National
Government (e.g. income tax, documentary stamps,
estate taxes, customs duties, excise taxes under the
NIRC, VAT) (See generally, Sec. 133, 1991 LGC)
Persons exempted: LGUs cannot impose taxes,
fees, and charges on (a) countryside and barangay
business enterprises; (b) cooperatives duly
registered under the Cooperative Code; and
National
Government,
its
agencies
and
instrumentalities, and local government units. (Sec.
133(n)-(o), LGC)
• Hence, the MIAA, MCIAA, LRTA, PAGCOR,
and Philippine Heart Center, and other
GICPs/GCEs being such an instrumentalities of
the National Government, are exempt from
local taxation.
• However, all other GOCCs (which are neither
GICPs nor GCEs) are not exempt from local
taxation. (MIAA v. CA, 2006)
Doctrines:
(1) Local Taxpayer’s Remedy. The law requires
that a dissatisfied taxpayer who questions the
validity or legality of a tax ordinance must file its
appeal to the Secretary of Justice within 30
days from effectivity thereof. In case the
Secretary decides the appeal, a period of 30
days is allowed for an aggrieved party to go to
Court. But if the Secretary does not act after the
lapse of 30 days, a party could already proceed
to seek relief in Court. (Reyes et al v. CA, G.R.
No. 118233, 1999; Sec. 187, 1991 LGC)
(2) Power of Secretary of Justice to Review Tax
Ordinance.
Section 187 authorizes the
Secretary of Justice to review only the
constitutionality or legality of the tax ordinance
and, if warranted, to revoke it on either or both
of these grounds. When he alters or modifies or
sets aside a tax ordinance, he is not also
permitted to substitute his own judgment for the
judgment of the local government that enacted
the measure. Secretary Drilon did set aside the
Manila Revenue Code, but he did not replace it
with his own version of what the Code should
be. He did not pronounce the ordinance unwise
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or unreasonable as a basis for its annulment.
He did not say that in his judgment it was a bad
law. What he found only was that it was illegal.
All he did in reviewing the said measure was
determine if the petitioners were performing
their functions is accordance with law, that is,
with the prescribed procedure for the enactment
of tax ordinances and the grant of powers to the
city government under the Local Government
Code. As we see it, that was an act not of
control but of mere supervision. (Drilon v. Lim,
G.R. No. 112497, 1994)
The evaluation involves an exercise of quasi-judicial
power by the Secretary of Justice. In deciding
the same, the Secretary of Justice must
ascertain
the
existence
of
factual
circumstances specifically, whether the tax
ordinance was passed in accordance with the
procedure and the limitations set forth by the
LGC. And from there make a conclusion as to
the validity and applicability of the same to the
taxable persons. Thus, the Court of Appeals is
the
court
vested
with exclusive
original jurisdiction to entertain a petition
for certiorari under Rule 65 questioning the acts
of quasi-judicial agencies. (De Lima v. City of
Manila, G.R. No. 22286, 2018)
(3) Mayor Cannot Grant Local Tax Exemption.
A municipal mayor who is an executive officer
may not unilaterally withdraw such an
expression of a policy thru the enactment of a
tax." The waiver partakes of the nature of an
exemption. It is an ancient rule that exemptions
from taxation are construed in strictissimi
juris against the taxpayer and liberally in favor
of the taxing authority. (Esso Standard Eastern,
Inc. v. Acting Commissioner of Customs, 18
SCRA 488 (1966)). Tax exemptions are looked
upon with disfavor (Western Minolco Corp. v.
Commissioner of Internal Revenue, 124 SCRA
121 (1983)). Thus, in the absence of a clear and
express exemption from the payment of said
fees, the waiver cannot be recognized. As
already stated, it is the law-making body, and
not an executive like the mayor, who can make
an exemption. (Philippine Petroleum Corp. v.
Municipality of Pililla G.R. No. 90776, 1991)
Local government units may, through
ordinances duly approved,
grant
tax
exemptions, incentives or reliefs under such
terms and conditions as they may deem
necessary. (Sec. 192, 1991 LGC)
(4) Administrative Regulations or Executive
Issuances Cannot Limit LGU’s Power of
Taxation. The exercise by local governments
of the power to tax is ordained by the present
Constitution. To allow the continuous effectivity
of the prohibition set administrative regulation
(by the DOF) would be tantamount to restricting
the LGU’s power to tax by mere administrative
issuances. Under Section 5, Article X of the
1987 Constitution, only guidelines and
limitations that may be established by Congress
can define and limit such power of local
governments. (Philippine Petroleum Corp. v.
Municipality of Pililla G.R. No. 90776, 1991)
(5) The BIR has no authority to determine the
applicability of local ordinances. Besides,
even the Bureau itself states that the exemption
shall not apply if the sand and gravel were to be
disposed of commercially. An exemption from
the requirements of the provincial government
should have a clear basis, whether in law,
ordinance, or even from the contract itself.
(Lepanto Consolidated Mining Company v.
Ambanloc, G.R. 180639, 2010)
(6) COA Jurisdiction Despite Local Fiscal
Autonomy. The COA is endowed with enough
latitude to determine, prevent, and disallow
irregular, unnecessary, excessive, extravagant,
or unconscionable expenditures of government
funds. The Court had therefore previously
upheld the authority of COA to disapprove
payments which it finds excessive and
disadvantageous to the government; to
determine the meaning of “public bidding;” and
when there is failure in the bidding, to disallow
expenditures which it finds unnecessary
according to its rules even if disallowance will
mean discontinuance of foreign aid; to disallow
a contract even after it has been executed and
goods have been delivered. Thus, LGUs,
though granted local fiscal autonomy, are still
within the audit jurisdiction of the COA. It is only
when the COA has acted without or in excess
of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, that
this Court entertains a petition questioning its
rulings (Veloso v. COA, G.R. No. 193677, 2011)
(7) One Year Redemption Period Counted From
Date of Sale. Forfeiture of tax delinquent
properties transpires no later than the purchase
made by the city due to lack of a bidder from the
public. This happens on the date of the sale
(auction happened earlier in time), and not upon
the issuance of the declaration of forfeiture
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(annotation on the titles happened later in time).
(City of Davao v. Intestate Estate of Amado S.
Dalisay, G.R. No. 207791, 2015)
(8) Ministerial Duty of the Mayor. The mayor has
the ministerial duty to ensure that all taxes and
other revenues of the city are collected, and that
city funds are applied to the payment of
expenses and settlement of obligations of the
city, in accordance with law or ordinance. On
the other hand, under the LGC, all local taxes,
fees, and charges shall be collected by the
provincial, city, municipal, or barangay
treasurer, or their duly-authorized deputies,
while the assessor shall take charge, among
others, of ensuring that all laws and policies
governing the appraisal and assessment of real
properties for taxation purposes are properly
executed. Thus, a writ of prohibition may be
issued against them to desist from further
proceeding in the action or matter specified in
the petition. (Ferrer v. Bautista, G.R. No.
210551, 2015)
(9) Regulatory Fee vs. Cost of Regulation. To
pass judicial scrutiny, a regulatory fee must not
produce revenue in excess of the cost of the
regulation because such fee will be construed
as an illegal tax when the revenue generated by
the regulation exceeds the cost of the
regulation. (Ferrer v. Bautista, G.R. No.
210551, 2015)
(10) No Levy of Local Taxes on Petroleum
Products. While local government units are
authorized to burden all such other class of
goods with “taxes, fees and charges,” excepting
excise taxes, a specific prohibition is imposed
barring the levying of any other type of taxes
with respect to petroleum products. (Petron
Corporation v. Tiangco, G.R. No. 158881, 2008;
Batangas City v. Pilipinas Shell Petroleum
Corp., G.R. No. 187631, 2015)
(11) Fiscal Flexibility of LGU in Fixing Additional
Levy. Setting the rate of the additional levy for
the special education fund at less than 1% is
within the taxing power of local government
units. It is consistent with the guiding
constitutional principle of local autonomy. The
option given to a local government unit extends
not only to the matter of whether to collect but
also to the rate at which collection is to be
made. The limits on the level of additional levy
for the special education fund under Section
235 of the Local Government Code should be
read as granting fiscal flexibility to local
government units. (Demaala v. COA, G.R. No.
199752, 2015)
(12) Amusement Taxes. By operation of Sec. 151
of the LGC extending to cities the authority of
provinces and municipalities to levy certain
taxes, fees, and charges, cities may therefore
validly levy amusement taxes on cinemas
subject to the parameters set forth under the
law. (Film Development Council of the
Philippines v. City of Cebu et al, G.R. No.
204418, 2015)
However, resorts, swimming pools, bath houses, hot
springs and tourist spots are not proper subjects
of amusement taxes as they do not belong to
the same category or class as theaters,
cinemas, concert halls, circuses, and boxing
stadia. Amusement Places include theaters,
cinemas, concert halls, circuses and other
places of amusement where one seeks
admission to entertain oneself by seeing or
viewing
the
show
or
performances.
Accordingly, 'other places of amusement' must
be interpreted in light of the typifying
characteristic of being venues "where one
seeks admission to entertain oneself by seeing
or viewing the show or performances" or being
venues primarily used to stage spectacles or
hold public shows, exhibitions, performances,
and other events meant to be viewed by an
audience. (Pelizloy Realty v. Benguet, G.R, No.
183137, 2013)
(13) Taxes levied by LGUs shall accrue exclusively
to the LGU and to earmark, if not altogether
confiscate, the income to be received by the
LGU from the taxpayers in favor of and for
transmittal to the Film Development Council of
the Philippines, is repugnant to the power of
LGUs to apportion their resources in line with
their priorities. (Film Development Council of
the Philippines v. City of Cebu et al, G.R. No
204418, 2015)
(14) A certiorari petition questioning an interlocutory
order issued in a local tax case falls under the
jurisdiction of the CTA. (CE Casecnan Water
and Energy Company, Inc. v. The Province of
Nueva Ecija, G.R. No. 196278, 2015)
(15) The socialized housing tax charged by the city
is a tax which is within its power to impose.
Aside from the specific authority vested by
Section 43 of the UDHA, cities are allowed to
exercise such other powers and discharge such
other functions and responsibilities as are
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necessary, appropriate, or incidental to efficient
and effective provision of the basic services and
facilities which include, among others,
programs and projects for low-cost housing and
other mass dwellings. The collections made
accrue to its socialized housing programs and
projects. The tax is not a pure exercise of taxing
power or merely to raise revenue; it is levied
with a regulatory purpose. The levy is primarily
in the exercise of the police power for the
general welfare of the entire city. It is greatly
imbued with public interest. (Ferrer v. Bautista,
G.R. No. 210551, 2015)
(16) Regulation of Activity and Tax. The garbage
fee is a charge fixed for the regulation of an
activity. It is not a tax and cannot violate the rule
on double taxation. (Ferrer v. Bautista, G.R. No.
210551, 2015)
Just Share in the National Taxes (formerly
Internal Revenue Allotment (IRA) share of LGUs)
General Rule: The current sharing is 40% local,
60% national. LGUs shall have a 40% share in the
national taxes based on the collection of the third
fiscal year preceding the current fiscal year. (Sec.
284(c), 1991 LGC)
Exception:
That in the event that the national government
incurs an unmanageable public sector deficit, the
President of the Philippines is hereby authorized,
upon the recommendation of Secretary of Finance,
Secretary of Interior and Local Government and
Secretary of Budget and Management, and subject
to consultation with the presiding officers of both
Houses of Congress and the presidents of the "liga,"
to make the necessary adjustments in the allotment
of local government units but in no case shall the
allotment be less than thirty percent (30%) of the
collection of national taxes of the third fiscal year
preceding the current fiscal year. (Sec. 284, par. 2,
1991 LGC).
Requisites for Exception:
(1) Unmanageable public sector deficit;
(2) Recommendation of the Secretaries of (a)
Finance, (b) Internal and Local Gov’t, and (c)
Budget and Management; and
(3) Consultation with (a) heads of both houses of
Congress, and (b) presidents of the liga.
(4) Allotment shall not be lower than 30% of the
national taxes collection. (Sec. 284, par. 2,
1991 LGC)
NOTE:
(1) The SC in Mandanas v. Ochoa deleted all the
phrase “internal revenue” in the LGC for being
unconstitutional when referring to the just share
of LGUs, particularly in Secs. 284, 285, 287,
and 290. Thus, any mention of "Internal
Revenue Allotment" or "IRA" in Republic Act
No. 7160 (Local Government Code) and its
Implementing Rules and Regulations shall be
understood as pertaining to the allotment of the
Local Government Units derived from the
national taxes. (Mandanas v. Ochoa, Jr., G.R.
Nos. 199802 & 208488, July 3, 2018)
The Mandanas ruling will only apply starting
with the 2022 budget cycle since the 03 July
2018 decision became final and executory
on 10 June 2019. Inevitably, the 2019 Budget
can no longer include the changes brought
about by Our July 3, 2018 decision. The SC
said: “While the amounts and the national taxes
during the third fiscal year preceding or in 2016
can already be determined as of this time, it
would be too late to include the same in the
2019 budget since Congress had already
approved the 2019 General Appropriations Act
(GAA), and we are already in the last quarter of
the year. Neither can the same amounts be
considered in drawing up the 2020 and 2021
budget because their budget cycles have
already commenced. Notable that for the 2020
budget, Congress is already in the process of
conducting budget hearings to finalize the GAA.
Adding the amounts based on our ruling in the
2020 budget would only disrupt the proceedings
and impede the passing of the GAA. It would
also be imprudent for the Court to compel the
Executive to start from scratch and jettison all
existing plans and allotments to the detriment of
the 2020 and 2021 GAA.” (Mandanas v. Ochoa,
G.R. Nos. 199802 & 208488 (Notice), October
8, 2019)
Automatic Release of Just Share
(1) Section 6, Article X the 1987 Constitution
textually commands the automatic release of
the just share in the national taxes, viz.: Section
6. Local government units shall have a just
share, as determined by law, in the national
taxes which shall be automatically released to
them.
(2) The LGC implements this by providing that the
share of each LGU shall be released, without
need of any further action, directly to the
respective treasurer on a quarterly basis within
five (5) days after the end of each quarter, and
which shall not be subject to any lien or
holdback that may be imposed by the national
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government for whatever
286(a), 1991 LGC)
purpose.
(Sec.
Section 6 does not mention of appropriation as a
condition for the automatic release of the just share
to the LGUs. This is because Congress not only
already determined the just share through the
LGC's fixing the percentage of the collections of the
NIRTs to constitute such fair share subject to the
power of the President to adjust the same in order
to manage public sector deficits subject to
limitations on the adjustments, but also explicitly
authorized such just share to be "automatically
released" to the LGUs in the proportions and
regularity set under Section 285 of the LGC without
need of annual appropriation. To operationalize the
automatic release without need of appropriation,
Section 286 of the LGC clearly provides that the
automatic release of the just share directly to the
provincial, city, municipal or barangay treasurer, as
the case may be, shall be "without need of any
further action." (Mandanas v. Ochoa, Jr., G.R. Nos.
199802 & 208488, July 3, 2018)
Withholding 10 percent of the LGUs' IRA
"pending the assessment and evaluation by the
Development Budget Coordinating Committee
of the emerging fiscal situation" in the country
is unconstitutional and invalid. Such withholding
clearly contravenes the Constitution and the law.
Although temporary, it is equivalent to a holdbacks
which means "something held back or withheld,
often temporarily." Hence, the "temporary" nature
of the retention by the national government does
not matter. Any retention is prohibited. (Pimentel
v. Aguirre, G.R. No. 132988, 2015)
The National Taxes Included in Mandanas v.
Ochoa
The national taxes to be included in the base for
computing the just share the LGUs shall henceforth
be, but shall not be limited to, the following:
(1) The NIRTs enumerated in Section 21 of the
NIRC, as amended, to be inclusive of the VATs,
excise taxes, and DSTs collected by the BIR
and the BOC, and their deputized agents;
(2) Tariff and customs duties collected by the BOC;
(3) 50% of the VATs collected in the ARMM, and
30% of all other national taxes collected in the
ARMM; the remaining 50% of the VATs and
70% of the collections of the other national
taxes in the ARMM shall be the exclusive share
of the ARMM pursuant to Sections 9 and 15 of
R.A. No. 9054;
(4) 60% of the national taxes collected from the
exploitation and development of the national
wealth; the remaining 40% will exclusively
accrue to the host LGUs pursuant to Section
290 of the LGC;
(5) 85% of the excise taxes collected from locally
manufactured Virginia and other tobacco
products; the remaining 15% shall accrue to the
special purpose funds pursuant created in R.A.
No. 7171 and R.A. No. 7227;
(6) The entire 50% of the national taxes collected
under Section 106 (VAT on goods/properties),
Section 108 (VAT on services/lease) and
Section 116 (Tax on VAT exempt persons) of
the NIRC in excess of the increase in collections
for the immediately preceding year; and
(7) 5% of the franchise taxes in favor of the national
government paid by franchise holders in
accordance with Section 6 of R.A. No. 6631 and
Section 8 of R.A. No. 6632. (Mandanas v.
Ochoa, Jr., G.R. Nos. 199802 & 208488, July 3,
2018)
IRA/National Taxes Allotment
The share of local government units in the allotment
shall be collected in the following manner:
(a) Provinces - Twenty-three percent (23%);
(b) Cities - Twenty-three percent (23%);
(c) Municipalities - Thirty-four percent (34%);
and
(d) Barangays - Twenty percent (20%). (Sec.
285, 1991 LGC)
IRA/National Taxes Sharing Formula
(1) The share of each province, city, and
municipality shall be determined on the basis of
the following formula:
(a) Population - Fifty percent (50%);
(b) Land Area - Twenty-five percent (25%);
and
(c) Equal sharing - Twenty-five percent
(25%). (Sec. 285, 1991 LGC)
(2) The share of each barangay with a population
of not less than one hundred (100) inhabitants
shall not be less than Eighty thousand
(P80,000.00) per annum chargeable against
the twenty percent (20%) share of the barangay
from the allotment, and the balance to be
allocated on the basis of the following formula:
(a) Population - Sixty percent (60%); and
(b) Equal sharing - Forty percent (40%). (Sec.
285, 1991 LGC)
20% of National Allotment for Development
Projects
Each local government unit shall appropriate in its
annual budget no less than twenty percent (20%) of
its annual (internal revenue/national taxes)
allotment for development projects. Copies of the
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development plans of local government units shall
be furnished the Department of Interior and Local
Government. (Sec. 287, 1991 LGC)
Equitable Share of LGUs in the Utilization and
Development of National Wealth
(1) Local government units shall have an equitable
share in the proceeds derived from the
utilization and development of the national
wealth within their respective areas, including
sharing the same with the inhabitants by way of
direct benefits. (Sec. 289, 1991 LGC)
(2) Local government units shall, in addition to the
allotment, have a share of forty percent (40%)
of the gross collection derived by the national
government from the preceding fiscal year from
mining taxes, royalties, forestry and fishery
charges, and such other taxes, fees, or
charges,
including
related
surcharges,
interests, or fines, and from its share in any coproduction, joint venture or production sharing
agreement in the utilization and development of
the national wealth within their territorial
jurisdiction. (Sec. 290, 1991 LGC)
(3) Local government units shall have a share
based on the preceding fiscal year from the
proceeds derived by any government agency or
government-owned or controlled corporation
engaged in the utilization and development of
the national wealth based on the following
formula whichever will produce a higher share
for the local government unit:
(a) One percent (1%) of the gross sales or
receipts of the preceding calendar
year; or
(b) Forty percent (40%) of the mining
taxes, royalties, forestry and fishery
charges and such other taxes, fees or
charges, including related surcharges,
interests, or fines the government
agency or government owned or
controlled corporation would have paid
if it were not otherwise exempt. (Sec.
291, 1991 LGC)
(4) The share in the preceding Section (i.e. Sec.
291) shall be distributed in the following
manner:
(a) Where the natural resources are located in
the province:
(i)
Province - Twenty percent
(20%);
(ii)
Component
City/Municipality - Forty-five
percent (45%); and
(iii)
Barangay - Thirty-five percent
(35%)
Provided, however, That where the natural
resources are located in two (2) or more
provinces, or in two (2) or more component
cities or municipalities or in two (2) or more
barangays, their respective shares shall be
computed on the basis of:
(i)
Population - Seventy percent
(70%); and
(ii)
Land area - Thirty percent
(30%)
(b) Where the natural resources are located in a
highly urbanized or independent component
city:
(i)
City - Sixty-five percent
(65%); and
(ii)
Barangay - Thirty-five percent
(35%)
Provided, however, That where the natural
resources are located in such two (2) or
more cities, the allocation of shares shall be
based on the formula on population and
land area as specified in paragraph (a) of
this Section (i.e. Sec. 292). (Sec. 292, 1991
LGC)
(5) The share of local government units from
the utilization and development of national
wealth shall be remitted in accordance with
Section 286 of this Code (i.e. automatic
release similar to national taxes allotment):
Provided, however, That in the case of any
government agency or government-owned or
controlled corporation engaged in the utilization
and development of the national wealth, such
share shall be directly remitted to the provincial,
city, municipal or barangay treasurer concerned
within five (5) days after the end of each quarter.
(Sec. 293, 1991 LGC)
(6) The proceeds from the share of local
government units pursuant to this chapter shall
be appropriated by their respective sanggunian
to finance local government and livelihood
projects: Provided, however, That at least
eighty percent (80%) of the proceeds derived
from the development and utilization of
hydrothermal, geothermal, and other sources of
energy shall be applied solely to lower the cost
of electricity in the local government unit where
such a source of energy is located. (Sec. 294,
1991 LGC)
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(d) If no action has been taken by the
sangguniang panlalawigan within thirty (30)
days after submission of such an ordinance
or resolution, the same shall be presumed
consistent with law and therefore valid.
(Sec. 56 (d), 1991 LGC)
(2) For Barangay Ordinances
Approved ordinances shall be forwarded to
the sangguniang concerned for review if
consistent with law or city or municipal
ordinances.
PROCESS:
(a) Within ten (10) days after its
enactment, the sangguniang barangay
shall furnish copies of all barangay
ordinances to the sangguniang
panlungsod or sangguniang bayan
concerned for review as to whether the
ordinance is consistent with law and
city or municipal ordinances. (Sec.
57(a), 1991 LGC)
(b) If the sangguniang panlungsod or
sangguniang bayan, as the case may
be, fails to take action on barangay
ordinances within thirty (30) days from
receipt thereof, the same shall be
deemed approved. (Sec. 57(b), 1991
LGC)
ACTION:
(c) If the sangguniang panlungsod or
sangguniang bayan, as the case may
be, finds the barangay ordinances
inconsistent with law or city or
municipal ordinances, the sanggunian
concerned shall, within thirty (30) days
from receipt thereof, return the same
with
its
comments
and
recommendations to the sangguniang
barangay concerned for adjustment,
amendment, or modification; in which
case, the effectivity of the barangay
ordinance is suspended until such time
as the revision called for is effected.
(Sec. 57(c), 1991 LGC)
Effectivity of Ordinances
(1) For Provinces, Component Cities, and
Municipalities
Without Penal Sanctions
(a) Unless otherwise stated in the ordinance or
the resolution approving the local
development plan and public investment
program, the same shall take effect after
ten (10) days from the date a copy thereof
is posted in a bulletin board at the entrance
of the provincial capitol or city, municipal, or
barangay hall, as the case may be, and in
at least two (2) other conspicuous places in
the local government unit concerned. (Sec.
59(a), 1991 LGC)
(b) The secretary to the sanggunian concerned
shall cause the posting of an ordinance or
resolution in the bulletin board at the
entrance of the provincial capitol and the
city, municipal, or barangay hall in at least
two (2) conspicuous places in the local
government unit concerned not later than
five (5) days after approval thereof. The text
of the ordinance or resolution shall be
disseminated and posted in Filipino or
English and in the language understood by
the majority of the people in the local
government unit concerned, and the
secretary to the sanggunian shall record
such fact in a book kept for the purpose,
stating the dates of approval and posting.
(Sec. 59(b), 1991 LGC)
With Penal Sanctions
(a) The gist of all ordinances with penal
sanctions shall be published in a
newspaper of general circulation within the
province where the local legislative body
concerned belongs. In the absence of any
newspaper of general circulation within the
province, posting of such ordinances shall
be made in all municipalities and cities of
the province where the sanggunian of
origin is situated. (Sec. 59(c), 1991 LGC)
(b) Ordinances with penal sanctions shall be
posted at prominent places in the provincial
capitol, city, municipal or Barangay hall, as
the case may be, for a minimum period of
three (3) consecutive weeks. Such
ordinances shall also be published in a
newspaper of general circulation, where
available, within the territorial jurisdiction of
the local government unit concerned,
except in the case of Barangay ordinances.
Unless otherwise provided therein, said
ordinances shall take effect on the day
following its publication, or at the end of the
period of posting, whichever occurs later.
(Sec. 511(a), 1991 LGC) NOTE: This
should also apply to HUCs and ICCs.
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(2) For Highly Urbanized Cities
Independent Component Cities
POLITICAL LAW & PUBLIC INTERNATIONAL LAW
and
In the case of highly urbanized and independent
component cities, the main features of the ordinance
or resolution duly enacted or adopted shall, in
addition to being posted, be published once in a
local newspaper of general circulation within the
city: Provided, That in the absence thereof the
ordinance or resolution shall be published in any
newspaper of general circulation. (Sec. 59(d), 1991
LGC)
NOTE: This should apply to all ordinances of HUCs
and ICCs, with or without penal sanctions.
Doctrines:
(1) Notice and hearing not required for
typographical error. A municipal resolution
correcting an alleged typographical error in a
zoning ordinance does not have to comply with
the requirements of notice and hearing, which
are required for the validity and effectiveness of
zoning ordinances. (The Learning Child, Inc. v.
Ayala Alabang Village Association, G.R. Nos.
134269/134440/144518, 2010)
(2) An act which is outside of the municipality’s
jurisdiction is considered as a void ultra vires
act, while an act attended only by an irregularity
but remains within the municipality’s power is
considered as an ultra vires act subject to
ratification and/or validation. Case law states
that public officials can be held personally
accountable for acts claimed to have been
performed in connection with official duties
where they have acted ultra vires. (Land Bank
of the Philippines v. Cacayuran, G.R. No.
17165, 2013)
(3) Power of Sangguniang Panlalawigan to
declare an ordinance invalid. An ordinance
authorizing the expropriation of parcels of land
for the creation of a freedom park cannot be
struck down for the reason that the municipality
has an existing freedom park still suitable for the
purpose because under Section 56 (c) of the
LGC, the Sangguniang Panlalawigan can
declare the ordinance invalid only if it is beyond
the power of the Sangguniang Bayan. (Moday
v. CA, G.R. No. 107916, 1997)
(4) Unreasonable ordinance is invalid. An
ordinance penalizing any person or entity
engaged in the business of selling tickets to
movies or other public exhibitions, games or
performances which would charge children
between 7 and 12 years of the full price of
tickets instead of only one-half the amount is
void because it is unreasonable. It deprives
sellers of the tickets of their property without
due process. A ticket is a property right and may
be sold for such price as the owner of it can
obtain. There is nothing malicious in charging
children the same price as adults. (Balacuit v.
CFI of Agusan del Norte, G.R. No. L-38429,
1988)
(5) Liga ng Mga Barangay has no legislative
powers. The Liga ng mga Barangay cannot
exercise legislative powers because it is not a
local government unit and its primary purpose is
to determine representation of the liga in the
sanggunians to ventilate, articulate and
crystallize
issues
affecting
barangay
government administration, and to secure
solutions for them through proper and legal
means. IOnon v. Fernandez, G.R. No. 139813,
2001)
Local Initiative and Referendum
Local Initiative - The legal process whereby the
registered voters of a LGU may directly propose,
enact, or amend any ordinance. It may be exercised
by all registered voters of the provinces, cities,
municipalities, and barangays. (Secs. 120 and 121,
1991 LGC)
Initiative on local legislation which refers to a petition
proposing to enact a regional, provincial, city,
municipal, or barangay law, resolution or ordinance.
(Sec. 3(a1), RA 6735)
Thus, a resolution can also be the proper subject of
a local initiative. (SBMA v. COMELEC, G.R. No.
25416, 1996)
Local Referendum - The legal process whereby the
registered voters of the local government units may
approve, amend or reject any ordinance enacted by
the sanggunian.
The local referendum shall be held under the control
and direction of the COMELEC within sixty (60) days
in case of provinces and cities, forty-five (45) days
in case of municipalities and thirty (30) days in case
of
barangays.
The COMELEC shall certify and proclaim the results
of the said referendum. (Sec. 126, 1991 LGC)
Procedure for Local Initiative
(1) Number of voters who should file
petition with Sanggunian concerned:
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i. Provinces and cities - at
least 1000 registered voters
ii. Municipality - at least 100
registered voters
iii. Barangay - at least 50
registered voters
(2) Sanggunian concerned has 30 days to
act on the petition. If the Sanggunian
does not take any favorable action, the
proponents may invoke the power of
initiative, giving notice to Sanggunian.
(3) Proponents will have the following
number of days to collect required
number of signatures
i. Provinces and cities - 90
days
ii. Municipalities - 60 days
iii. Barangays -30 days
(4) Signing of petition
(5) Date for initiative set by COMELEC if
required number of signatures has
been obtained. (Sec. 122, 1991 LGC)
Limitations on Local Initiative
(a) The power of local initiative shall not be
exercised more than once a year.
(b) Initiative shall extend only to subjects or
matters which are within the legal powers
of the sanggunian to enact.
(c) If at any time before the initiative is held, the
sanggunian concerned adopts in toto the
proposition presented and the local chief
executive approves the same, the initiative
shall be cancelled. However, those against
such action may, if they so desire, apply for
initiative in the manner herein provided.
(Sec. 124, 1991 LGC)
Effectivity of Proposition
(a) If proposition is approved by a majority of
the votes cast, it will take effect 15 days
after certification by the COMELEC as if the
Sanggunian and the local chief executive
had taken affirmative action.
(b) If it fails to obtain required number of votes,
it is considered defeated. (Sec. 123, 1991
LGC)
Limitations on the Sanggunian
(1) The Sanggunian CANNOT repeal, modify or
amend any proposition or ordinance approved
through system of initiative/referendum within 6
months from the date of approval thereof.
(2) The Sanggunian can amend, modify or repeal
the proposition/ordinance within 3 years
thereafter by a vote of ¾ of all its members.
(3) For barangays, the applicable period is 18
months. (Sec. 125, 1991 LGC)
Grounds for Null and Void Proposition
The proper courts can still declare void any
proposition adopted pursuant to an initiative or
referendum on the following grounds:
(1) Violation of the Constitution
(2) Want of capacity of the Sanggunian concerned
to enact the measure (Sec. 127, 1991 LGC)
d. Corporate Powers
Corporate Powers:
(1) To have continuous succession in its corporate
name. [Sec. 22, LGC
(2) To sue and be sued. [Sec. 22, LGC]
(3) To have and use a corporate seal. [Sec. 22,
LGC]
(4) To acquire and convey real or personal
property. [Sec. 22, LGC]
(5) To enter into contracts. [Sec. 22, LGC]
(6) To negotiate and secure financial grants. [Sec.
23, LGC]
(7) To establish a responsible organization. Local
government units shall have the power and
authority to establish an organization that shall
be responsible for the efficient and effective
implementation of their development plans,
program objectives and priorities. [Sec. 18,
LGC]
(8) To enter into cooperative undertakings with
other LGUs. [Sec. 33, LGC]
(9) To enter into joint ventures and such other
cooperative arrangements with people's and
non-governmental organizations. [Sec. 35,
LGC]
(10) To create indebtedness and to enter into credit
and other financial transactions. [Secs. 295303, LGC]
(11) To issue bonds and other long-term securities.
[Sec. 299, LGC]
(12) To extend loans, grants, or subsidies to other
local government units. [Sec. 300, LGC]
(13) To enter into infrastructure contracts. [Sec. 303,
LGC]
(14) To exercise such other powers as are granted
to corporations, subject to limitations imposed
by the LGC and special laws. [Sec. 22, LGC]
Requisites of valid municipal contracts
(1) It must comply with Formal requirements
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(2) In case entered into by Local chief executive on
behalf of LGU, prior authorization by
Sanggunian concerned is needed.
(3) It must comply with Substantive requirements.
(4) LGU has express, implied, or Inherent power to
enter into a particular contract.
(5) It must be entered into by the proper
Department, board, committee, or agent.
The doctrine of separate personality of a corporation
finds no application in the Cooperative Development
Authority which was created by virtue of RA 6939,
since it is not a private entity but a government
agency. (Verzosa v. Carague, G.R. No. 157838,
2011).
For local government infrastructure projects,
Regional Trial Courts may issue provisional
injunctive reliefs against government infrastructure
projects only when:
(1) there are compelling and substantial
constitutional violations;
(2) there clearly exists a right in esse;
(3) there is a need to prevent grave and irreparable
injuries;
(4) there is a demonstrable urgency to the issuance
of the injunctive relief; and
(5) when there are public interest at stake in
restraining or enjoining the project while the
action is pending that far outweighs
(a) the inconvenience or costs to the party to
whom the project is awarded and
(b) the public benefits that will result from the
completion of the project. The time periods
for the validity of temporary restraining
orders issued by trial courts should be
strictly followed. No preliminary injunction
should issue unless the evidence to
support the injunctive relief is clear and
convincing. (Dynamic Builders and
Construction Co., Inc. v. Presbitero, G.R.
No. 174201, 2015)
A municipality is a real party-in-interest and an
indispensable party that stands to be directly
affected by any judicial resolution on the case
assailing the validity of the loan, considering that: (a)
the contracting parties to the loans are the bank and
the municipality; and (b) the municipality owns the
public plaza as well as the improvements
constructed thereon, and must therefore be
impleaded in the case. (Land Bank v. Cacayuran,
G.R. No. 191667, 2015)
Liabilities arising from construction contracts of
LGUs do not partake of loans or forbearance of
money but are in the nature of contracts of service.
Hence, the rate of legal interest imposable on the
liability to pay for the service is 6% per annum. (WT
Construction, Inc. v. The Province of Cebu, G.R. No.
208984, 2015)
To Sue and Be Sued
LGUs have the power to sue and be sued. (Local
Government Code, Sec. 22(a)(2). Because of the
statutory waiver, LGUs are not immune from suit.
The OSG may not be compelled to represent local
government units. The LGC vests exclusive
authority upon the LGU’s legal officers to be
counsels of local government units. Even the
employment of a special legal officer is expressly
allowed by the law only upon a strict condition that
the action or proceeding which involves the
component city or municipality is adverse to the
provincial government or to another component city
or municipalit. (OSG v. CA and Municipal
Government of Suguiran, G.R. No. 199027, 2014)
A municipality can be sued for damages arising from
injuries sustained by a pedestrian who was hit by a
glass pane that fell from a dilapidated window frame
of the municipal hall. Under Section 24 of the LGC
and Article 2189 of the Civil Code, the municipality
is liable for damages arising from injuries to persons
by reason of negligence of local government units
on the defective condition of the municipal hall,
which is under their control and supervision.
To Acquire and Sell Property
Properties of the public dominion devoted to public
use and made available to the public in general are
outside the commerce of persons and cannot be
d