Jesse Solis
Law on Administrative
Agencies and Election Law
Subject Head
Dianne Uy
Sam Loyola
Law on Local Governments
Subject Heads
Cha De Vera
Public International Law
Subject Head
POLITICAL LAW CONSTITUTIONAL LAW 2
IX. IMMUNITY OF PUBLIC OFFFICERS .………………101 IV. JUDICIAL RECOUSE AND REVIEW………….118
A. Judicial Review of Administrative Decisions….118
X. DE FACTO OFFICERS B. Requisites of Judicial Review of Administrative
A. Officer de Jure vs. Officer de Facto……………… 102 Decisions…………………………………………..118
C. Doctrine of Exhaustion of Administrative
XI. TERMINATION OF OFFICAL RELATION Remedies…………………………………………..119
A. Expiration of the Term or Tenure of Office…. 104 D. Doctrine of Primary Jurisdiction…………..……119
B. Reaching the Age Limit………………………… 104 E. Doctrine of Exhaustion of
C. Death or Permanent Disability………………… 104 Administrative Remedies vs.
D. Resignation………………………………………. 104 Doctrine of Primary Jurisdiction………...……...119
E. Acceptance of an Incompatible Office……….... 105
F. Abandonment of Office………………………… 105
G. Prescription of Right to Office…………………. 105 Election Law
H. Removal………………………………………….. 105
I. Abolition…………………………………………. 106
J. Conviction of a Crime…………………….…….. 106 I. SUFFRAGE ……………………………………………120
K. Non-User……………………………………..……106 A. Definition………………………………………... 120
L. Recall…………………………………………..…..106 B. Scope of Suffrage……………………………...... 120
M. Filing of a Certificate of Candidacy by an C. Kinds of Election………………………..………. 120
Appointive Official……….…………………..…..106
II. QUALIFICATION AND DISQUALIFICATION OF
XII. THE CIVIL SERVICE VOTERS…………………………………………………120
A. Scope……………………………………………… 106 A. Qualification of Voters……………………….… 120
B. Jurisdiction of the Civil Service Commission….106 B. Disqualification of Voters……………………… 121
C. Appointments to the Civil Service………………107
D. Personnel Action...………………………………..108 III. REGISTRATION OF VOTERS………………………..
A. Registration, Definition……………………….. 121
XIII. ACCOUNTABILITY OF PUBLIC OFFICERS………..108 B. Registered Voter………………………………. 121
A. Impeachment………………………...……………108 C. Effect of Transfer of Residence……………….. 121
B. Ombudsman……………………………………... 109 D. Period of Registration…………………………. 121
C. Sandiganbayan………………………………..… 110 E. Manner of Registration…………………………121
D. Ill-Gotten Wealth………………………………… 110 F. Change of Residence or Address…………….. 121
G. Remedy in Case of Approval/Disapproval of
XIV. TERM LIMITS………………………………….……… 111 Application for Registration...……….………... 122
H. Deactivation of Registration…………………...122
I. Grounds of Deactivation……………………….122
Administrative Law J. Reactivation of Registration…………………... 122
a. Period…………………………………….. 122
K. Overseas Absentee Voter…………………….... 122
I. GENERAL PRINCIPLES…………………………113 L. Coverage of the Right to Vote……………….... 122
A. Sources of Administrative Law…………………113
B. Scope of Administrative Law…………………...113 IV. INCLUSION AND EXCLUSION PROCEEDINGS…122
C. Classifications of Administrative Law…………113 A. Period for Filing the Petition for Inclusion or
Exclusion Proceeding…………………………...122
II. ADMINISTRATIVE AGENCIES………………..113 B. Court with Jurisdiction over Inclusion and
A. Definition………………………………………….113 Exclusion Proceeding………………….………. 122
B. Creation of Administrative Agencies…………..114 C. Common Rules………………………………… 123
C. Different Ways of Creating Public Office……...114
D. Faithful-Execution Clause……………………….114 V. POLITICAL PARTIES…………………………………123
E. Administrative Agencies Directly Created by the A. Political Party, Definition…………………….. 123
1987 Constitution…………………………….….. 114 B. Kinds of Political Party……………………….. 123
F. How the President’s Ordinance Power is C. Party-list System………………………………. 123
Exercised……………………………………….….114 D. Sectoral Organization……………….………... 123
G. Extent of President’s Powers……………….…....114 E. Coalition……………………………………….. 123
H. Kinds of Administrative Agencies………….…..114 F. Jurisdiction of COMELEC over Political
Parties………………………………………….. 123
III. POWERS OF ADMINISTRATIVE AGENCIES..115 G. Purpose of Registration………………………. 124
A. Express and Implied Powers……………………115 H. Grounds for Refusal/Cancellation of
B. Doctrine of Necessary Implication…………….. 115 Registration…………………………………… 124
C. Powers of Administrative Agencies……………115 I. Effect of Change of Party-list Affiliation…… 124
D. Quasi-Legislative Powers………………………..115 J. Seat Allocation………………………………... 124
E. Quasi-Judicial Powers……………………………116 K. Rules on the Computation of the Seats…….. 124
F. Investigatory Powers…………………………….118
VI. CANDIDACY………………………………………….124
A. Candidacy, Definition………………………....124
B. Qualification of Candidates…………………..124
C. Substitution in Case of Death, Withdrawal, and Local Government Code
Disqualifications………………………………..125
D. Ministerial Duty of COMELEC to Receive
Certificate………………………………………..125 I. PUBLIC CORPORATIONS……………………..147
E. Nuiscance Candidate…………………………..125
F. Ground for Denying and Cancelling a II. MUNICIPAL CORPORATIONS……………….148
Certificate of Candidacy...……………………..126 A. De Jure Municipal Corporations ….….…........150
G. Filing of Petition for Denial and
Cancellation of Certificate of Candidacy...…..126 B. Municipal Corporations by Prescription ……..150
H. Disqualifications of Candidates………………126 C. De Facto Municipal Corporations.…………...150
I. Effects of Disqualification…………………….126
J. Withdrawal of Candidacy…………………….126 III. PRINCIPLES OF LOCAL AUTONOMY……... 154
K. Effect of Withdrawal…………………………..126 A. Decentralization of Administration……….....155
B. Decentralization of Power………………….....155
VII. CAMPAIGN…………………………………………..126 C. Devolution…………………..……………….…155
A. Premature Campaign…………………………126 D. Deconcentration……………………..…..…......155
B. Prohibited Contributions……………………. 126 E. Debureaucratization…………………..…..…...155
C. Prohibited Donations………………………… 127
D. Lawful Election Propaganda………………... 127 IV. POWERS OF LOCAL GOVERNMENT
E. Unlawful Election Propaganda………………128 UNITS…………………………………………..….156
F. Limitations on Expenses………………………128 A. Police Power……………………………...………156
G. Statement of Contributions………………….. 128 B. Eminent Domain…………………………………157
H. Effect of Failure to File………………………...128 C. Legislative Power………………………………..159
D. Corporate Powers………………………………...160
VIII. BOARD OF ELECTION INSPECTORS AND BOARD E. Liabilities of LGUs……………………………….161
OF CANVASSERS……………………………………...129 F. Settlement of Boundary Disputes………………162
A. Composition of Election Inspectors…………...129
B. Qualifications…………………………………….129 V. LOCAL OFFICIALS………………………………163
C. Disqualifications………………………………....129 A. Succession on Local Officials…………………. 164
D. Powers of Board of Election Inspectors….……129 B. Discipline of Local Officials……….………...…166
E. Board of Canvassers……………………………..129
F. Jurisdiction of the COMELEC over Board of
Canvassers……………………………………..…130
G. Duties of the Board of Canvassers…………..…130
H. Ministerial Duties of the Board of Canvassers..130
Public International Law
I. Quasi-judicial Duties of the Board of
Canvassers…………………………..…………...130 VI. CONCEPTS ............................................................ 170
J. Period to Complete Canvass………..………….130 A. Obligations erga omnes ............................................ 170
B. Jus cogens................................................................... 170
IX. REMEDIES AND JURISDICTION IN ELECTION C. Concept of ex aequo et bono...................................... 170
LAW……………………………………………………..130
A. Petition Not to Give Due Course to Cancel a
I. RELATIONSHIP OF INTERNATIONAL AND
Certificate of Candidacy………...…………….130
NATIONAL LAW .......................................................... 171
B. Disqualification Cases…………………………131
A. Theories on the Relationship between International
C. Failure of Election………………...……………131
Law and Municipal Law ........................................ 171
D. Pre-Proclamation Controversy….....…………132
B. Theories as to Adoption of International Law and
E. Election Protest………………..……………….134
Domestic Law .......................................................... 171
F. Quo Warranto……………….…………………136
C. Conflict between International law and Municipal
Law ........................................................................... 171
X. PROSECUTION OF ELECTION OFFENSES………136
A. Election Offenses………………………………136
II. SOURCES ........................................................................ 171
B. Other Election Offenses under RA 6646…….137
A. The Sources of International Law .................. 171
C. Prescription…………………………………….137
B. Classification of Sources ................................. 171
D. Jurisdiction……………………………………. 137
C. Sources of International Law under the Statute
E. The Policy of Non-Interference………………137
of the International Court of Justice .............. 171
D. Treaties & Agreements ................................... 172
XI. OMNIBUS ELECTION CODE OF THE PHILIPPINES
E. Customary International Law ........................ 172
(B.P. Blg. 881, as amended)……………………...…..139
F. General Principles of Law .............................. 172
G. Judicial Decisions and Teachings of the Most
XII. ELECTION AUTOMATION LAW (R.A. No. 8436, as
Highly Qualified Publicists ............................ 173
amended by R.A. No. 9369)………………………....139
III. SUBJECTS ....................................................................... 173 X. International Human Rights Law ................................ 183
A. States ....................................................................... 173 A. Universal Declaration of Human Rights ........... 183
a. Elements/Qualifications of Statehood: ...... 173 B. International Covenant on Civil and Political
B. International organizations .................................. 174 Rights .................................................................... 183
1. Belligerent community .............................. 174 a. Substantive Rights under ICCPR ............ 183
2. International Administrative Bodies ....... 174 b. Non-derogable Rights under ICCPR ...... 183
C. Individuals.............................................................. 174 c. Optional Protocols to the International
Covenant on Civil and Political Rights ... 183
IV. BASIC PRINCIPLES OF DIPLOMATIC AND C. International Covenant on Economic, Social and
CONSULAR LAW .......................................................... 174 Cultural Rights ..................................................... 183
A. Vienna Convention on Diplomatic Relations ... 174 b. Three Generations of Human Rights ...... 183
B. Bilateral and Multilateral Diplomacy ................ 174
C. Elements of Diplomatic and Consular Law ...... 175
XI. BASIC PRINCIPLES OF INTERNATIONAL
D. Sources of Diplomatic and Consular Law ......... 175
HUMANITARIAN LAW AND NEUTRALITY.......... 184
E. Classes of Heads of Consular Posts ................... 177
A. Categories of armed conflicts ............................. 184
F. General Provisions ............................................... 177
a. International armed conflicts (IAC) ............... 184
A. Persona Non Grata ............................................... 177
b. Internal or non-international armed conflict
(NIAC)................................................................... 184
V. GENERAL PRINCIPLES OF TREATY LAW .............. 178 c. War of national liberation ............................... 184
A. Treaty ...................................................................... 178 B. Core international obligations of states in
B. Types of Treaties .................................................... 178 International Humanitarian Law ....................... 184
C. Treaty-Making Process.......................................... 178 a. Civilian ....................................................... 185
D. Principles ................................................................ 179 b. Civilian population ................................... 185
E. Amendment and Modification of a Treaty ......... 179 C. Principles of International Humanitarian Law 185
a. Prisoners of war ......................................... 185
D. Law on neutrality................................................. 185
VI. NATIONALITY AND STATELESSNESS .................... 180
a. Rights and Duties of Neutral States ........ 185
A. Nationality..................................................................... 180
b. Rights and Duties of Belligerent States ... 185
A. Multiple Nationality ........................................... 180
E. RA No. 9851 .......................................................... 186
B. Doctrine of Indelible Allegiance ......................... 180
C. Statelessness.......................................................... 180
XII. LAW OF THE SEA ......................................................... 188
VII. STATE RESPONSIBILITY AND TREATMENT OF A. Baselines................................................................ 188
ALIENS ............................................................................ 180 a. Two Ways of Drawing the Baseline ........ 188
A. Doctrine of State Responsibility ......................... 180 B. Archipelagic states .............................................. 188
a. Elements of State Responsibility .............. 180 a. Straight archipelagic baselines................. 188
b. Elements of An Internationally Wrongful b. Archipelagic waters .................................. 188
Act ............................................................... 180 c. Archipelagic sea lanes passage ................ 188
B. Treatment and Protection of Aliens ................... 180 C. Internal waters ..................................................... 188
a. Standard of Protection of Aliens ............. 181 D. Territorial sea ....................................................... 188
C. Right of Diplomatic Protection ........................... 181 E. Exclusive economic zone .................................... 188
a. Methods to Avoid Liability ...................... 181 F. Continental shelf .................................................. 188
a. Extended continental shelf ....................... 188
VIII. JURISDICTION OF STATES ......................................... 181 G. International Tribunal for the Law of the Sea .. 188
A. Territoriality principle ........................................... 181
B. Nationality principle and statelessness ............... 181
XIII. INTERNATIONAL ENVIRONMENTAL LAW ......... 189
a. Nationality .................................................. 181
b. Statelessness ............................................... 181
C. Protective Principle................................................ 181
D. Universality Principle............................................ 182
E. Passive personality principle................................ 182
F. Conflicts of jurisdiction ......................................... 182
a. Three Modes for Resolving Conflicts ...... 182
b. The Balancing Test ..................................... 182
c. International Comity ................................. 182
d. Forum non conveniens.............................. 182
Constitution defined,
Body of rules and maxims in accordance with
which the power of sovereignty is habitually
CONSTITUTIONAL exercised.
LAW I
Written instrument enacted by direct action of the
people by which the fundamental powers of the
government are established, limited and defined,
and by which those powers are distributed among
the several departments for their safe and useful
exercise
ii. Purpose
To prescribe permanent framework of a
system of government
To assign to several departments their
respective powers and duties.
To establish certain first principles on
which the government is founded.
To shape and fix the limits of
governmental activity.
iii. Classification
a. Written – precepts are embodied in one
document or set of documents
c. Enacted (conventional) – formally struck off at a civil and political rights of the citizens and imposes
definite time and place through a deliberate limitations on the powers of the government as a
effort taken by a constituent body or ruler. means of securing the enjoyment of those rights.
e.g. Bill of Rights
d. Evolved (cumulative) – result of a political
evolution, changing by accretion rather than (2). Constitution of Government - outlines the
systematic method. organization of the government, enumerates its
powers, lays down certain rules relative to its
e. Rigid – amended only by a formal and usually administration and defines the electorate. (Arts. VI,
difficult process. VII, VIII, IX)
b. Ratio legis et anima – the words of the constitution ii. Legal Tests
should be interpreted in accordance with the
intent of the framers. (1). Quantitative test- The court examines
the number of provisions affected and does not
c. Ut magis valeat quam pereat — the Constitution consider the degree of change;
has to be interpreted as a whole. (Francisco vs.
HR, G.R. No. 160261, November 10, 2003) (2). Qualitative test- The court inquires into
the qualitative effects of the proposed change in the
d. Construction of doubtful provisions Constitution. The main inquiry is whether the change
will “accomplish such far-reaching changes in the
Examined in light of the history of the times nature of our basic governmental plan as to amount to
and the conditions and circumstances under a revision” ((Lambino v. COMELEC, G.R. No. 174153.
which the constitution was framed. (Civil October 25, 2006))
Liberties Union vs. Executive Secretary, 194
SCRA 317) iii. Procedure
Construed as self-executory and mandatory
rather than directory; prospective rather than (1). Proposal – adoption of the suggested
retroactive. change in the Constitution
a. Congress (as a Constituent Assembly) – vote
of ¾ of ALL its members
B. PARTS b. Constitutional Convention – called into
existence by (1) 2/3 of ALL members of
(1). Constitution of Liberty - sets forth the fundamental
Congress OR (2) the electorate, in a referendum
called for by the majority of the members of (1). Statements of general principles such as those in Art
Congress (CONST., Art. XVII, Sec. 3) II are usually not self-executing ((Id.))
c. People (through a People’s initiative) – a (2). Constitutional provisions of personal dignity,
petition of at least 12% of the total number of sanctity of family life, vital role of the youth in nation-
registered voters, and every legislative district building, values of education, social justice and
must be represented by at least 3% of the human rights, promotion of general welfare,
registered voters therein. promotion of total human liberation and
No Amendment in this manner shall development are merely guidelines for legislation
be authorized within 5 years ((Id.))
following the ratification of the 1987
Const. nor more often than once Exception to the Exception: The right to a balanced
every 5 years thereafter and healthful ecology (Oposa v. Factoran. G.R. No.
Constitutional provision on 101083, July 10, 1993). The promotion and
amendments via People’s Initiative protection of health is self-executory. (Imbong v.
not self-executory (Defensor- Ochoa, G.R. No. 204819, April 8, 2014)
Santiago v. COMELEC, 270 SCRA
170 (1997) E. GENERAL PROVISIONS
Two essential elements must be
present: Philippine Flag
i. The people must author and () Shall be red, white and blue, with a sun and three stars.
sign the entire proposal; no Design of the flag may be changed only by constitutional
agent or representative can amendment. (Sec. 1, Article XVI)()
sign in their behalf;
ii. As an initiative upon a Name of Country, etc.
petition, the proposal must Name of the country, national anthem, and national seal()
be embodied in the petition. may be changed by Congress by law. Such law will only take
(Lambino, supra.) effect upon ratification by the qualified electorate in a national
referendum. (Sec. 2, Article XVI)
(2). Ratification – proposed amendment shall be
submitted to the people and shall be deemed Armed Forces
ratified by the majority of votes cast in a a. Composition - The armed forces of the Philippines
plebiscite, held not earlier than 60 days nor shall be composed of a citizen armed force which
later than 90 days after: shall undergo military training and serve as may be
a. Congress of by the ConCon; or provided by law. It shall keep a regular force
b. Certification by the COMELEC of the necessary for the security of the State (Sec. 4, Art.
sufficiency of the petition of the people XVI).
Doctrine of Proper Submission b. Tour of duty of the Chief of Staff - The tour of duty of
A plebiscite may be held on the same day as a the Chief of Staff of the Armed Forces shall not
regular election (Gonzales v. COMELEC, 21 SCRA exceed three years.
774). No “piecemeal submission” is allowed. Exception: In times of war or other
(Lambino, supra.) The entire Constitution must be national emergency declared by the
submitted for ratification at one plebiscite only. The Congress, the President may extend such
people must have a proper “frame of reference tour of duty (Sec. 5(7), Art. XVI).
(Tolentino v. COMELEC, 41 SCRA 702)
c. Partisan political activity - No member of the military
Justiciability shall engage directly or indirectly in any partisan
()Although the question of whether a Constitution political activity, except to vote (Sec. 5(3), Art. XVI).
was validly ratified is a justiciable question, the
question of whether a Constitution has come into d. Appointment to other positions - No member of the
force and effect is a political question which is armed forces in active service shall, at any time, be
beyond the competence of the Court to decide. appointed or designated in any capacity to a
((Javellana v. Executive Secretary. 50 SCRA 30, (1973)) civilian position in the government including
) government-owned or controlled corporation or in
any of their subsidiaries (Sec. 5(4), Art. XVI).
D. SELF-EXECUTING AND NON-SELF-
EXECUTING PROVISIONS Police Force
One police force; National in scope; Civilian in Character
General Presumption: Unless the contrary is clearly
intended, all provisions of the Constitution should be Mass media and advertising industry
considered self-executing. (Manila Prince Hotel v. GSIS et al. a. State policy on the ownership of mass media - The
G.R. No. 122156, February 3, 1997) ownership and management of mass media shall be
limited to citizens of the Philippines, or to
Exceptions:
corporations, cooperatives or associations, wholly their breadth and dimensions, form part of the internal
owned and managed by such citizens. waters of the Philippines
Congress shall regulate or prohibit
monopolies in commercial mass media The Archipelagic Doctrine
when the public interest so requires. A body of water studded with islands, or the islands
No combinations in restraint of trade or surrounded with water, is viewed as a unity of islands and
unfair competition therein shall be waters together forming one integrated unit ((N.B. Embodied
allowed (Sec. 11 (1), Art. XVI). in Art. II specifically by the mention of “Philippine Archipelago”
plus the specification on internal waters))
b. State policy on the advertising industry - The
advertising industry is impressed with public Straight baseline method
interest, and shall be regulated by law for the Consists of drawing straight lines connecting appropriate
protection of consumers and the promotion of the points on the coast without departing to any appreciable
general welfare. extent from the general direction of the coast, in order to
Only Filipino citizens or corporations or delineate the internal waters from the territorial waters of an
association at least 70% of the capital of archipelago. ((Republic Act 9522; Amended R.A. No. 3046
which is owned by such citizens shall be entitled “An Act to Define the Baseliens of the Territorial Sea
allowed to engage in the advertising of the Philippines))
industry.
The participation of foreign investors in
the governing body or entities in such Components of Territory
industry shall be limited to their
proportionate share in the capital thereof
All the executive and managing officers (1). The Philippine archipelago with all the islands and
of such entities must be citizens of the waters embraced therein
Philippines (Sec. 11 (2), Art. XVI) Internal waters - waters around, between, and
connecting the islands of the archipelago,
Preamble regardless of breadth and dimension;
The Preamble is not a source of power or right for any
department of government. It sets down the origin, scope, (2). All other territories over which the Philippines has
and purpose of the Constitution. It bears witness to the fact sovereignty or jurisdiction.
that the Constitution is the manifestation of the sovereign will
of the Filipino people. The Philippine Archipelago
The Philippine Archipelago is that body of water studded
Social Contract Theory with islands which is delineated in the Treaty of Paris of
The identification of the Filipino people as the author of the December 10, 1988, as modified by the Treaty of
Constitution calls attention to an important principle -- that Washington of November 17, 1900 and the Treaty with
the document is not just the work of representatives of the Great Britain of January 2, 1930.
people but of the people themselves, who put their mark
approval by ratifying it in a plebiscite. Other territories over which the Philippines exercises
Does not confer rights nor impose duties; jurisdiction
Includes any territory which presently belongs or might in
Indicates authorship of the Constitution;
the future belong to the Philippine through any of the
Enumerates the primary aims and aspirations of
internationally accepted modes of acquiring territory.
the framers; and
Serves as an aid in the construction of the
R.A. N0. 9522 specified that baselines of
Constitution.
Kalayaan Group of Islands, and Bajo de
Masinloc (Scarborough Shoal) shall be
determined as “Regime of Islands” under the
GENERAL CONSIDERATIONS Republic of the Philippines, consistent with
the UNCLOS.
R.A. No. 9522 is not unconstitutional. It is a
statutory tool to demarcate the maritime zone
A. NATIONAL TERRITORY and continental shelf of the Philippines under
UNCLOS III and does not alter the national
ART. 1 (SEC. 1) 1987 CONSTITUTION territory.The law does not abandon the
country’s claim to Sabah, as it does not
The national territory comprises the Philippine expressly repeal the entirety of R.A. No. 5446
archipelago, with all the islands and waters embraced (Magallona v. Ermita, G.R. No. 187167, 16 July
therein, and all other territories over which the Philippines 2011)
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
submarines areas. The waters around, between and
B. STATE IMMUNITY
connecting the islands of the archipelago, regardless of
C. GENERAL PRINCIPLES AND STATE Requires that an international law be transformed into a
POLICIES domestic law through a constitutional mechanism such as
local legislation (Joaquin G. Bernas, S.J., Constitutional
Structure and Powers of Government (Notes and Cases) Part
(1). Sec. 2, Article II
I ( 2005))
Three parts:
(2).Civilian Supremacy Clause) – Sec. 3, Article II
(1) Renunciation of war - the power to wage a defensive
war is of the very essence of sovereignty;
Installation of the President as the highest civilian authority,
limited to only renouncing an aggressive war
as the commander-in-chief of the AFP— an external
because of its membership in the United Nations
manifestation that civilian authority is supreme over the
whose charter renounces war as an instrument of
military. (Sec. 18, Art. VII, in relation to Sec. 3, Article II)
national policies of its member states.
Civilian authority is not defeated in a joint task force between
(2) Adoption of the principles of international law;
the PNP and Marines for the enforcement of law and order in
nothing more than a formal acceptance of a
metro Manila as long as control is left to the PNP (IBP v.
principle to which all civilized nations must
Zamora (2000))
conform.
The State should not use its money and coercive power to (12) Vital Role of the Youth in Nation Building – Sec.
establish religion. It should not support a particular religion. 13, Article II
The State is prohibited from interfering with purely
ecclesiastical affairs. But it does not mean that there is (13) Equality of Women and Men – Sec. 14, Article II
total or absolute separation. The better rule is symbiotic
relations between the church and State. , The policy of not accepting or considering as
disqualified from work any woman worker who
Allowing religion to flourish is not contrary to the principle contracts marriage, runs afoul of the test of, and
of separation of Church and State. In fact, these two principles the right against, discrimination, which is
are in perfect harmony with each other. x x To successfully guaranteed all women workers under the
invoke compelling state interest, it must be demonstrated that Constitution. While a requirement that a woman
the masses in the QC Hall of Justice unduly disrupt the employee must remain unmarried may be justified
delivery of public services or affect the judges and employees as a “bona fide occupational qualification” where
in the performance of their official functions. (Re: Letter of the particular requirements of the job would
Tony Q. Valenciano, Holding of Religious Rituals at the Hall demand the same, discrimination against married
of Justice Building in Quezon City, A.M. No. 10-4-19-SC, women cannot be adopted by the employer as a
March 7, 2017) general principle. (PT&T Co. vs. NLRC, G.R. No.
118978, May 23, 1997)
(6) Independent Foreign Policy – Sec. 7, Article II
Towards this end, the State shall exert efforts
(7) Policy of Freedom from Nuclear Weapons – Sec. 8, to address violence committed against women and
Article II children in keeping with the fundamental freedoms
guaranteed under the Constitution and the
The ban is on nuclear arms - that is, the use and stockpiling provisions of the Universal Declaration of Human
of nuclear weapons, devices, and parts thereof. Includes: Rights, the Convention on the Elimination of All
possessing, controlling and manufacturing nuclear Forms of Discrimination Against Women,
weapons, Convention on the Rights of the Child and other
nuclear test in our territory, international human rights instruments of which
use of our territory as dumping ground for the Philippines is a party. (Garcia v. Drilon, 699
radioactive waste. SCRA 352 (2013), )
However: provision not a ban on the peaceful uses of nuclear (14) Right to Health – Sec. 15, Article II
energy. Nor is it a ban on all “nuclear-capable vessels.” For
a vessel to be banned, it is not enough that it is capable of (15) Right to a Balanced and Healthful Ecology –
carrying nuclear arms; it must actually carry nuclear arms. Sec. 16, Article II
(The 1987 Constitution of the Republic of the Philippines: A
Commentary (2009), Bernas) The minors who filed an action for themselves as
representing “their generation as well as
generations yet unborn,” had a valid cause of
(8) Just and Dynamic Social Order – Sec. 9, Article II action in questioning the grant of Timber
Licensing Agreements (TLAs) for commercial
(9) Social Justice – Sec. 10, Article II logging purposes on the ground of the right to a
balanced and healthful ecology and the correlative
Social Justice duty to refrain from impairing the environment.
Equalization of economic, political and social opportunities This is based on the concept of intergenerational
with special emphasis on duty of the state to tilt balance of responsibility.
social forces by favoring the disadvantaged.
Such a right considers the “rhythm and harmony
(10) Personal Dignity and Human Rights – Sec. 11, of nature” which indispensably include, inter alia,
Article II the judicious disposition, utilization,
management, renewal and conservation of the
(11) The Family as Basic Social Institution – Sec. 12, country’s forest, mineral, land, waters, fisheries,
Article II wildlife, offshore areas and other natural
resources to the end that their exploration,
The declaration of family autonomy accepts that the family is development, and utilization be equitably
anterior to the State and is not a creature of the State. It accessible to the present as well as the future
protects the family from instrumentalization by the State. generations. (Oposa vs. Factoran, Jr., 224 SCRA
792).
When necessary to save the life of the mother, the life of the
unborn may be sacrificed; but not when the purpose is merely Sections 15 and 16, however, impose on the
to save the mother from emotion suffering, for which other state a positive duty to "promote and protect" the
remedies must be sought, or to spare the child rom a life of right to health and to "promote and advance" the
poverty, which can be attended to by welfare institutions. right of "the people to a balanced and healthful
ecology." With respect to health and ecology,
therefore, the state is constitutionally mandated to the SC held that the Magna Carta for
provide affirmative protection. The mandate is in Disabled Persons mandates that qualified
the nature of an active duty rather than a passive disabled persons be granted the same terms and
prohibition. (International Service for the conditions of employment as qualified able- bodied
Acquisition of Agri-Biotech Applications, Inc. v. employees; thus, once they have attained the status
Greenpeace Philippines etc. al., G.R. Nos. 209271 of regular workers, they should be accorded all the
etc., December 8, 2015,) benefits granted by law, notwithstanding writer or
verbal contracts to the contrary. This treatment is
Precautionary Principle rooted not merely in charity or accommodation, but
When there is a lack of full scientific certainty in establishing in justice for all. (Bernardo vs. NLRC, G.R. No.
a causal link between human activity and environmental 122917, July 12, 1999,)
effect, the court shall apply the precautionary principle in
resolving the case before it. (18) Sec. 19, Article II
office. The privilege may be subjected to (3). Power of the Judiciary to resolve cases involving the
limitations. One such valid limitation is the constitutionality of a treaty, international or executive
provision of the Omnibus Election Code on agreement or law. (Article VIII, Sec. 4 (2))
nuisance candidates. (Pamatong vs. COMELEC,
G.R. No. 161872, April 13, 2004,)
Test in determining whether a given power has been validly
D. SEPARATION OF POWERS exercised by a particular department:
Congress may delegate legislative powers to (2) Statutes involving emergency measures, the
the President in times of war or in other enactment of which is specifically vested in
national emergency (Art. VI Sec. 23) Congress by the Constitution, cannot be subject to
referendum until 90 days after effectivity (Sec. 10,
(2) Regional/Local Legislative Power RA 6735)
A regional assembly exists for the ARMM
Limitations on Referendum
Senate House of Representatives
The following cannot be the subject of an initiative or
Qualifications: Qualifications:
referendum petition:
a. Natural-born a. Natural-born citizen
(1) No petition embracing more than one subject shall
citizen of of the
be submitted to the electorate;
the Philippines; b. Philippines;
b. At least thirty-five c. At least 25 years of age advantage of the creation of new political districts by
(35) years of age on on the day of the suddenly transplanting themselves in such new districts,
the day of the election; prejudicing their genuine residents in the process of taking
election; d. Able to read and write; advantage of existing conditions in these areas(Aquino v.
c. Able to read and e. Registered voter in the COMELEC
write; district in which he
d. Registered voter; shall be elected except iii. Term of Office; Limitation
e. e. Resident of the party-list
the Philippines representatives; Senate House of
for not less than 2 f. Resident of the district Representatives
years immediately for a period of not less Term of Office: Term of Office:
preceding the day of than 1 year immediately 6 years - shall commence, 3 years – shall
the election. preceding the day of the unless otherwise provided by commence, unless
election law, at noon on the 30th day otherwise provided by
of June next following their law, at noon on the 30th
Additional requirements for election. (Art. VI, Sec. 4) day of June next
party-list representatives: following their election.
Limitations: (Art. VI, Sec. 6)
g. A bona fide member of
the party or Limitations:
a. Term Limit: 2
organization which he
consecutive terms.
seeks to represent for at
Voluntary renunciation a. Term Limit: 3
least ninety (90) days
of the office for any consecutive terms.
preceding the day of the
length of time shall not be b. One who has been
election
considered as an declared by competent
interruption in the authority as insane or
If Congress cannot require a candidate for senator continuity of his service incompetent
to meet such additional qualification, the for the full term for which
COMELEC, to be sure, is also without such he was elected. (Section 4, c. One who has been
power. (Social Justice Society v. Dangerous Drugs Article VI) sentenced by final
Board, G.R. No. 157870) judgment for:
b. b. One who has Subversion, Insurrection,
Repatriation results in the recovery of the original Rebellion, Any offense
been declared by
nationality. This means that a naturalized Filipino for which he has been
competent
who lost his citizenship will be restored to his prior sentenced to a penalty of
authority as insane
status as a naturalized Filipino citizen. On the other not more than 18
or incompetent
hand, if he was originally a natural-born citizen months; or A crime
before he lost his Philippine citizenship, he will be involving moral
c. c. One who has
restored to his former status as a natural-born turpitude, unless given
been sentenced by
Filipino. (Bengzon III v. HRET (2001)) plenary pardon or
final judgment for:
Subversion, granted amnesty
The term "residence" as used in the election law is (Section 12, BP 881—
Insurrection,
synonymous with "domicile" which imports not only Omnibus Election Code)
Rebellion, Any
intention to reside in a fixed place but also personal
offense for which
presence in that place, coupled with conduct indicative of
he has been
such intention (Nuval vs. Guray, 52 Phil., 645).
sentenced to a
penalty of not more
In order to acquire a domicile by choice, there must concur
than 18 months; or
(1) residence or bodily presence in the new locality, (2) an
A crime involving
intention to remain there, and (3) an intention to abandon
moral turpitude,
the old domicile. In other words, there must be an animus
unless given
non revertendi and an animus manendi. The purpose to
plenary pardon or
remain in or at the domicile of choice must be for an
granted amnesty
indefinite period of time. (Gallego v. Verra, 1941)
(Section 12, BP
881— Omnibus
Finally, petitioner's submission that it would be legally
Election Code)
impossible to impose the one year residency requirement in
a newly created political district is specious and lacks basis
in logic. A new political district is not created out of thin air.
It is carved out from part of a real and existing geographic
iv. Removal
area, in this case the old Municipality of Makati. That
people actually lived or were domiciled in the area
encompassed by the new Second District cannot be denied. Senate House of Representatives
Modern-day carpetbaggers cannot be allowed take
Rules on Apportionment of Legislative Districts 1. Three different groups may participate in the party-list
(1) Apportionment of legislative districts must be system: (1) national parties or organizations, (2) regional
through a law: parties or organizations, and (3) sectoral parties or
i. General Appropriation Law; organizations.
ii. Special Laws (i.e. laws that create new
provinces)
(2) Proportional representation based on number of 2. National parties or organizations and regional parties or
inhabitants organizations do not need to organize along sectoral lines and
i. Each city with a population of at least do not need to represent any “marginalized and
250,000 shall have at least 1 underrepresented” sector.
representative
ii. Each province, irrespective of the
3. Political parties can participate in party-list elections
number of inhabitants, shall have at
provided:
least 1 representative
(3) Each legislative district shall comprise, as far as
(a) they register under the party-list system, and
practicable, contiguous, compact, and adjacent
territory.
(b) do not field candidates in legislative district
(4) Re-apportionment by Congress within 3 years after
elections.
the return of each census
i. A political party, whether major or not, that
fields candidates in legislative district elections
The use by the subject provision of a comma to
can participate in partylist elections only
separate the phrase "each city with a population of
through its sectoral wing
at least two hundred fifty thousand" from the
phrase "or each province" point to no other
ii. The sectoral wing is by itself an independent
conclusion than that the 250,000 minimum
sectoral party, and is linked to a political party
population is only required for a city, but not for a
through a coalition.
province. (Aquino III and Robredo v. COMELEC)
4. Purely Sectoral parties or organizations may either be (a)
For Congress to delegate validly the power to
“marginalized and underrepresented” or (b) lacking in “well-
create a province or city, it must also validly
defined political constituencies.”
delegate at the same time the power to create a
legislative district. The threshold issue then is, can
Congress validly delegate to the ARMM Regional 5. A majority of the members of sectoral parties or
Assembly the power to create legislative districts organizations” must (a) belong to the “marginalized and
for the House of Representatives? The answer is in underrepresented” sector they represent, or (b) must have a
the negative. (Sema v. COMELEC) track record of advocacy for their respective sectors. The
nominees of national and regional parties or organizations
Legislative apportionment is defined by Black's Law must be bona-fide members of such parties or organizations.
Dictionary as the determination of the number of
representatives which a State, county or other subdivision
may send to a legislative body. It is the allocation of seats in a 6. National, regional, and sectoral parties or organizations
legislative body in proportion to the population; the drawing shall not be disqualified if some of their nominees are
of voting district lines so as to equalize population and voting disqualified, provided that they have at least one nominee who
power among the districts. Reapportionment, on the other remains qualified.
hand, is the realignment or change in legislative districts
brought about by changes in population and mandated by the Rationale: “The framers intended the sectoral parties to
constitutional requirement of equality of representation. constitute a part, but not the entirety, of the party-list
(Bagabuyo v. COMELEC) system… In fact, the framers voted down , 19-22, a proposal
to reserve the party-list system exclusively to sectoral
Gerrymandering parties.”
The formation of a legislative district out of separate
territories so as to favor a particular candidate or party “There can be no doubt whatsoever that the framers of the
(Bernas, pg. 625) 1987 Constitution expressly rejected the proposal to make the
party-list system exclusively for sectoral parties only, and
that they clearly intended the party-list system to include both Section 10, Article VI—The salaries of Senators and Members
sectoral and non-sectoral parties,” (G.R. No. 203766, April 3, of the House of Representatives shall be determined by law.
2013) No increase in said compensation shall take effect until after
the expiration of the full term of all the Members of the Senate
and the House of Representatives approving such increase.
In the absence of election contest, and before Senga, G.R. No. 170165)
proclamation, jurisdiction remains with People are merely called as resource persons
COMELEC. (Lazatin v. COMELEC (1988)) and cannot be criminally liable
Once a proclamation has been made, COMELEC’s The right of persons appearing in or affected by
jurisdiction is already lost and HRET’s own such inquiries shall be respected.
jurisdiction begins. This only applies in the context
of a candidate who has not only been proclaimed and
Remedy: invoke the Right against Self Incrimination
sworn in, but has also assumed office.
QUESTION HOUR
Independence
To be able to exercise exclusive jurisdiction, the House
Electoral Tribunal must be independent. Its jurisdiction to Section 21 Section 22 (Question
hear and decide congressional election contests is not to be (Legislative Hour)
shared by it with the Legislature nor with the courts. (Bondoc Investigation)
v. Pineda) 1. Any Person may 1. Only department
appear heads may appear
G. POWERS OF CONGRESS 2. Committee 2. The entire body will
conducts the conduct the
i. LEGISLATIVE POWERS investigation investigation
3. The subject matter 3. Subject matters are
a. LEGISLATIVE INQUIRIES AND THE is any matter for the matters related to the
OVERSIGHT FUNCTION purpose of legislation department only
4. Appearance is 4. Appearance is
mandatory discretionary
Power to conduct inquiries in aid of
legislation/ Investigatory Power - not
absolute; subject to judicial review in view of
c. BICAMERAL CONFERENCE COMMITTEE
the expanded power of the court to determine
whether there has been grave abuse of
Bills are passed:
discretion amounting to lack or excess of
(1) Jointly- in a joint session; required by the
jurisdiction.
Constitution in special cases
(2) Separately- each house takes up the bill on
b. LIMITATIONS
their own
Bill is transmitted to
the other house and
Referred to the appropriate
undergoes through 3
committee for study
readings
Bicameral Conference
(1) Exercise of general powers of the state- Bill of FOR SPECIAL APPROPRIATION BILLS
Rights
(2) Limitations on the power of taxation (1) Shall specify the purpose for which it is intended
(3) Requisites to pass an appropriation bill (2) Shall be supported by funds
(4) Limitation on the appellate jurisdiction of the SC a. Actually available as certified by the
(5) No law granting title of royalty or nobility shall be National Treasurer; or
passed b. To be raised by corresponding revenue
proposal therein
LIMITATIONS ON REVENUE, APPROPRIATIONS,
AND TARIFF MEASURES LIMITATIONS ON THE USE OF PUBLIC FUND
Exception: If the religious teacher or dignitary (1). Power to tax should be exercised only for a public
is assigned to the Armed Forces, any penal purpose.
institution, government orphanage or (2). Taxes to be imposed must be uniform and equitable.
leprosarium a. Power to tax must operate with the same
force and effect in every place where the
Note: Government is not prohibited from subject of it is found.
appropriating money for a valid secular b. Classification for the purpose of taxation
purpose, even if it incidentally benefits a is not prohibited per se, but it must
religion comply with the Test of Valid
Classification
SPECIFIC LIMITATIONS
CONSTITUTIONAL TAX EXEMPTIONS
(1) Congress may not increase the appropriations
recommended by the President for the operation of (1) Religious, charitable, educational institutions and
the Government specified by the President for the their properties
operation of the Government as specified in the (2) All revenues and assets of non-stock, non-profit
budget educational institutions are exempt from taxes and
(2) Form, content and manner of preparation of the duties provided that such revenues and assets are
budget shall be prescribed by law. actually, directly and exclusively used for
(3) No provision or enactment shall be embraced in the educational purposes (Art. XIV, Sec. 4(3))
general appropriations bill unless it relates (3) Grants, endowments, donations or contributions
specifically to some particular appropriation used actually, directly and exclusively for
therein. educational purposes shall be exempt from tax,
(4) Procedure in approving appropriations for the subject to conditions prescribed by law (Art. XIV,
congress shall strictly follow the procedure for Sec. 4(4))
approving appropriations for other departments
and agencies.
(5) No law shall be passed authorizing any transfer of GOVERNMENT BUDGETING PROCESS (Guingona v.
appropriations. Carague)
Exception: the following may, by law, be
authorized to augment any item in the general (1) Budget Preparation
appropriations law for their respective offices
Covers the estimation of government revenues, (3) Inaction - the bill automatically becomes a law
the determination of budgetary priorities and within 30 days upon receipt of the bill from
activities within the constraints imposed Congress.
by available revenues and by borrowing
limits, and the translation of desired priorities and WHEN POCKET VETO OCCURS
activities into expenditure levels.
Starts with the Budget Call from DBM, where a. The President fails to act on the bill;
all agencies are required to submit their b. The reason he does not return the bill to the
proposals Congress is that Congress is not in session.
Illegal Acts under the Disbursement Acceleration A provision that is constitutionally inappropriate
Program for an appropriation bill may be singled out for veto
Creation of savings prior to the end of the even if it is not an appropriation or revenue item.
fiscal year and withdrawal of these funds
for implementing agencies 2. EXECUTIVE IMPOUNDMENT
Cross-border transfers of the savings
from one branch of government to Refusal of the President to spend funds already
another allocated by Congress for specific purpose. It is the
failure to spend or obligate budget authority of any
Allotment of funds for projects, activities,
type. This power is derived from Section 38 of the
and programs not outlined in the
Administrative Code of 1987 on suspension.
General Appropriations Act (Araullo v.
Aquino)
3. LEGISLATIVE VETO
Binamira vs. Garrucho, 188 SCRA 154, when a person is (1) Congress not in (1) Made any time when
merely designated and not appointed, the implication is that session there is vacancy,
he shall hold office in a temporary capacity and may be (2) Requires whether or not Congress
replaced at will of the appointing authority. In this sense, a confirmation of CA is in session
designation is considered only an acting or temporary (3) Permanent in (2) Does not require CA
appointment which does not confer security of tenure on the nature confirmation
person named. (4) Appointee enjoys (3) Temporary in nature; no
security of tenure security of tenure
(4) Receipt of the appointment paper and acceptance of the upon citizen except for purposes of defense of the State
appointment by the appointee who possesses all the under Section 4, Article II of the Constitution, as an
qualifications and none of the disqualifications. exception to the rule against involuntary servitude.
WHO MAY BE APPOINTED? (4) The judiciary may annul an appointment made by the
President if the appointee is not qualified or has not
Not all appointments made by the President need CA been validly confirmed by the Commission on
confirmation. Only those enumerated in paragraph 1 of Appointments.
Section 16, Article VII need confirmation of the
Commission on Appointments. (Sarmiento v. Mison, (5) Midnight Appointments
156 SCRA 549).
Two months immediately before the next presidential
Officers to be appointed by the President that require the elections and up to the end of his term, a President or
confirmation of Commission on Appointments: (the list Acting President shall not make appointments (Section
is exclusive) 15, Article VII)
a. Heads of the executive department Exception: temporary appointments to executive
Except: Vice-President—may be appointed as a positions when continued vacancies therein will
Member of the Cabinet. Such appointment prejudice public service or endanger public safety.
requires no confirmation. (Section 3, Article
VII) The prohibition against midnight appointments applies
b. Ambassadors, other public ministers and only to positions in the executive department. (De
consuls Castro v. JBC, G.R. No. 191002, Mar. 17, 2010)
c. Officers of the armed forces from the rank of
colonel or naval captain The following elements should always concur in the making
d. Other officers whose appointments are vested in of a valid (which should be understood as both complete and
him in the Constitution. Example: JBC, effective) appointment:
Constitutional Commissions (1) authority to appoint and evidence of the exercise of the
e. All other officers of the government whose authority;
appointments are not otherwise provided by (2) transmittal of the appointment paper and evidence of the
law transmittal;
f. Those whom he may be authorized by law to (3) a vacant position at the time of appointment; and
appoint. (4) receipt of the appointment paper and acceptance of the
appointment by the appointee who possesses all the
qualifications and none of the disqualifications. (Velicaria-
PROCEDURE for APPOINTMENTS: Garafil v. Office of the President, G.R. No. 203372, 16 June
2015):
The concurrence of all these elements should always
(1) Nomination by the President; apply, regardless of when the appointment is made,
(2) Confirmation by the Commission on Appointments; whether outside, just before, or during the appointment
(3) Issuance of commission; and ban. These steps in the appointment process should
(4) Acceptance by appointee. always concur and operate as a single process. There is no
Deemed complete upon acceptance. Pending such valid appointment if the process lacks even one step.
acceptance, which is optional to the appointee, the
appointment may still be validly withdrawn.
Appointment to a public office cannot be forced
will be recommitted to prison to serve the Saguisag v. Ochoa, Jr., G.R. Nos. 212426 and 212444, 12
unexpired portion of the sentence or an January 2016): EDCA is not a treaty but only an Executive
additional one. Agreement.
The grant of absolute pardon restores the person to his full Senate ratification is not necessary: The Senate ratification of
civil and political rights. (Risos-Vidal v. Commission on the Mutual Defense Treaty (“MDT”) complies with the
Elections, 747 SCRA 210). requirement of Section 25, Article XVIIP9 of the 1987
Constitution that any agreement allowing foreign military
Effect of Absolute Pardon: A close scrutiny of the text of the facilities in the Philippines, like the prepositioning of U.S.
pardon extended to former President Estrada shows that war materials, must be embodied in a treaty and ratified by
both the principal penalty of reclusion perpetua and its two-thirds vote of the Senate. The treaty which covers the
accessory penalties are included in the pardon. The terms and conditions under EDCA is the MDT which the
sentence,which states that "(h) e is hereby restored to his civil Philippine Senate ratified by two-thirds vote on 12 May 1952
and political rights," expressly remitted the accessory and which the U.S. Senate earlier ratified on 20 March 1952.
penalties that attached to the principal penalty of reclusion (Saguisag v. Ochoa, Jr., G.R. Nos. 212426 and 212444, 12
perpetua. January 2016)
A conditional pardon has no force until accepted by the To hold that the EDCA cannot take effect without Senate
condemned. The reason is obvious. The condition may be ratification is to render the MDT, the sole mutual self-defense
less acceptable to him than the original punishment, and treaty, totally inutile to meet the grave, even existentialist,
may in fact be more onerous (Cabantag v. Wolfe, G.R. No. national security threat. (Carpio, J., concurring opinion)
3080 (1906)
Residual powers are implied from the grant of executive 13. Other Powers:
power necessary for the President to comply with the
Constitutional duties such as to safeguard and protect
general welfare. (Marcos v. Manglapus (1988)) (a) Borrowing power
The President may contract or guarantee foreign loans
President’s guiding principles in the exercise of executive on behalf of the Republic with the concurrence of the
power: Monetary Board, subject to such limitation as may be
1. Protection of the people provided by law The Monetary Board shall submit to the
2. Promotion of welfare Congress report on loans within 30 days from end of
3. Advancing national interest every quarter. (Section 20, Article VII)
expenditures and sources of financing, including his disability, the Speaker of the House of
receipts from existing and proposed revenue measures. Representatives, shall act as President until a
President or a VP shall have been chosen and
The Congress may not increase the appropriation qualified.
recommended by the President. However, its form, - In the event of inability of the officials
content, manner of preparation of the budget shall be mentioned, Congress shall, by law, provide
prescribed by Congress. (Section 22, Article VII) for the manner in which one who is to act as
President shall be selected until a President
(c) Informing power—State of the Nation Address or VP shall have qualified.
(Section 23, Article VII & Sec. 15, Art VI)
5. Vacancy in the Office of the No law shall be passed reorganizing the Judiciary
Vice-president when it undermines the security of tenure of its
Members
Must be definite, concrete, bearing upon the legal relations of Real Party in Interest – Party who stands to be
parties who are pitted against each other due to their benefited or injured by the judgment in the suit or the
adverse legal interests, and susceptible of judicial party entitled to the avails of the suit
determination.
When will a citizen be allowed to raise constitutional
question:
(a) He has personally suffered some actual or
threatened injury as a result of the allegedly illegal
conduct of the government – Direct Injury Test –
interest means “material interest”
(b) Injury is fairly traceable to the challenged Court cannot recognize question of constitutionality if the
action case can be dispensed of on some other grounds, such as
(c) Injury is likely to be redressed by a favorable application of a statute or a general law.
action.
Every law has in its favor the presumption of constitutionality
Liberal attitude of the SC to standing based on the ff
requirements:
(a) Case involves constitutional issues
(b) Taxpayers – there must be a claim of illegal Effects of Declaration of
disbursement of public funds or tax measure is Unconstitutionality
unconstitutional
(c) Voters – there must be a showing of obvious
interest in the validity of election law in (1) Orthodox view – unconstitutional act is not a law,
question. confers no act, imposes no duty, affords no
(d) Concerned Citizens – issues raised are of protection, creates no office and inoperative as if it
transcendental importance which must be had not been passed.
settled early
(e) Legislators – claim that the official action (2) Modern view – courts simply refuse to recognize
complained of infringes their prerogatives as the law and determine the rights of the parties as if
legislators the statute prior to its declaration of
unconstitutionality may be recognized
General rule: A party can question the validity of a
statute only if, as applied to him, it is unconstitutional.
(11) The SC alone may initiate Rules of Court; 4. Impossibility of a court’s undertaking
(12) The SC alone may order temporary detail of judges; independent resolution without expressing lack of the
(13) The SC can appoint all officials and employees of the respect due coordinate branches of government;
Judiciary.
(14) The judiciary shall enjoy fiscal autonomy. 5. An unusual need for unquestioning adherence to
a political decision already made; and
Judicial and Bar Council a majority of the actual membership of the court en
banc; and
(h) All other cases as the court en banc by a majority of
Composition its actual membership may deem of sufficient
importance to merit its attention.
1. Ex-Officio Chairman—Chief Justice of the Supreme Court
2. Ex-Officio Members —Secretary of Justice
3. Secretary de Officio—Clerk of the Supreme Court
2. Jurisdiction of the Supreme Court
Appointment
The President shall appoint regular members for a 4-year
term with the consent of the Commission on Appointments a. Original Jurisdiction of the Supreme Court:
1. Cases affecting ambassadors, other public ministers
and consuls;
Powers and FUNCTIONS: 2. Petition for certiorari
3. Petition for prohibition
1. Recommend appointees to the Judiciary;
4. Petition for mandamus
2. Recommend appointees to the Office of the Ombudsman
5. Petition for quo warranto
and his 5 Deputies;
6. Petition for habeas corpus
3. May exercise such other functions as may be assigned by
the Supreme Court.
Original Jurisdiction (Art. VIII, Sec. 5(2)) – on appeal or
certiorari (as the Rules of Court provide), SC may review,
revise, reverse, modify, or affirm final judgments and
orders of lower courts in:
E. Supreme Court Cases involving the constitutionality or validity of
any treaty, international or executive agreement,
Composition: Chief Justice and 14 Associates Justices law, presidential decree, proclamation, order,
instruction, ordinance, or regulation
May sit: Cases involving the legality of any tax, impost,
En Banc; or assessment, or toll, or any penalty imposed in
In its discretion, in divisions of 3, 5, or 7 members relation thereto
Cases in which the jurisdiction of any lower court
Any vacancy shall be filled within 90 days from occurrence is in issue
thereof. Criminal cases where the penalty imposed is
reclusion perpetua or higher.
Cases where only a question of law is involved.
1. Cases to be heard by the SC En Banc:
(a) Cases in which the constitutionality or validity of
any treaty, international or executive agreement,
Period for Deciding Cases
law, executive order, or presidential decree,
proclamation, order, instruction, ordinance, or (Art. VIII, Sec. 15(1))
regulation is in question;
(b) Cases raising novel questions of law;
Supreme Lower Collegiate Other Lower
(c) Cases affecting ambassadors, other public ministers
Court Courts Courts
and consuls;
(d) Cases involving decisions, resolutions or orders of 3 months, unless
12 months, unless
the Civil Service Commission, Commission on 24 months reduced by the
reduced by the SC
Election, and Commission on Audit; SC
(e) Cases where the penalty to be imposed is the
dismissal of a judge, officer or employee of the Note: The Sandiganbayan has 3 months to decide on
judiciary, disbarment of a lawyer, or either the its cases because it is considered as a trial court.
suspension of any of them for a period of more than
one (1) year or a fine exceeding ten thousand pesos
(P10,000.00) or both; Original Jurisdiction
(f) Cases where a doctrine or principle laid down by
the court en banc or in division may be modified or (a) Over cases affecting ambassadors, other public
reversed; ministers and consuls;
(g) Cases assigned to a division which in the opinion of (b) Over petition for Certiorari, Prohibition,
at least three (3) members thereof merit the mandamus, Quo Warranto, and Habeas Corpus
attention of the court en banc and are acceptable to
(c) Review of factual basis for the declaration of b. Temporary assignment of judges of lower courts
martial law or suspension of the privilege of writ to other stations as public interest may require
of habeas corpus
Not to exceed 6 months without the consent of the
judge concerned.
b. Appellate Jurisdiction
Over final judgments and orders of lower courts in: c. Order change of venue or place of trial, to avoid
(a) All cases in which constitutionality or validity of miscarriage of justice
any treaty international or executive agreement,
law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question;
(b) All cases involving the legality of any tax impost, d.. Power of Appointment
assessment, or toll, or any penalty imposed in SC appoints all officials and employees of the
relation thereto; Judiciary in accordance with Civil Service law.
(c) All cases in which the jurisdiction of any lower
courts is in issue;
(d) All criminal cases in which the penalty imposed
e. Yearly Report
is reclusion perpetua or higher; and
(e) All cases in which only a question of law is Within 30 days from the opening of each regular
involved. session of Congress, SC shall submit to the President
and Congress an annual report on the operation and
activities of the Judiciary. (Section 16, Art. VIII)
(9) Each commission may promulgate its own procedural (a) Entrance based on merit and fitness to be determined by
rules; competitive examination or based on highly technical
(10) Chairmen and members are subject to certain qualification;
disqualifications calculated to strengthen their integrity; (b) Opportunity for advancement; and
and (c) Security of tenure.
(11) Commissions may appoint their own officials and
employees in accordance with Civil Service Law. Kinds of Career Service:
Open Career Positions—prior qualification via
examination; Closed Career Positions—those
highly technical position;
B. Prohibited offices and interests Career Executive Service—Undersecretaries,
Bureau Directors;
No member of a Constitutional Commission shall, during his Career Officers—those appointed by the President
tenure: like those in the Foreign Service;
Hold any other office or employment; Commissioned Officers and enlisted men of the
Engage in the practice of any profession; AFP—governed by separate merit system;
Engage in the active management and control of Personnel of GOCCs — whether performing
any business which in any way may be affected by governmental or proprietary functions, with
the functions of his office; and original charters; and
Be financially interested, directly or indirectly, in Permanent laborers—whether skilled, semi-
other contract with, or in any franchise or privilege skilled, or unskilled.
granted by the government, any of its subdivision,
agencies or instrumentalities, including GOCCs or
their subsidiaries. (Sec. 2, Art. IX) II. on-Career Service
characterized by:
(a) Entrance on bases other than those of the usual tests of
C. Powers, JURISDICTION, and functions of merits and fitness utilized for the career service; and
(b) Tenure which is limited to a period specified by law,
each commission which is co-terminus with that of the appointing
authority or subject to his pleasure, or which is limited
to the duration of a particular project for which purpose
employment was made.
Kinds of Non-Career:
Civil Service Commission Elective official and their personal or confidential staff;
Department heads and other officials of Cabinet rank
(1) Chairman; who hold positions at the pleasure of the President
Composition and their personal or confidential staff;
(2) Commissioners
(1) Natural-born citizen; Chairmen and members of commissions and boards
(2) At least 35 years of age at the time with fixed terms of office and their personal or
of appointment; confidential staff;
(3) With proven capacity for public Contractual personnel or those whose employment in
Qualifications the government is in accordance with a special contract
administration; and
(4) Not a candidate for any elective to undertake a specific work or job; and
position in the election Emergency and seasonal personnel.
immediately preceding
Exceptions to the Requirement of Competitive
Term 7 years, without reappointment
Examinations
(1) Policy-determining Position — one charged with
laying down of principal or fundamental guidelines or
rules;
Scope of the Civil Service
(2) Primary Confidential Position — one denoting not
Embraces all branches, subdivisions, instrumentalities and only confidence in the aptitude of the appointee for
agencies of the Government, including government-owned the duties of the office but primarily close intimacy
and controlled corporations with original charters (Section which ensures freedom of intercourse without
2(1), Article IX-B) embarrassment or freedom from misgiving or betrayals
of personal trust on confidential matters of state, or
one declared to be so by the President upon
Classes of Service recommendation of the Civil Service Commission.
(3) Highly Technical Position — requires the appointee to
possess technical skill or training in the supreme or
i. Career Service superior degree.
characterized by:
But these rules shall not diminish, As a matter of law, foundlings are as a class, natural-born
increase, or modify substantive rights. citizens. While the 1935 Constitution's enumeration is silent
as to foundlings, there is no restrictive language which
would definitely exclude foundlings either. No such intent
or language permits discrimination against foundlings. On
the contrary, all three Constitutions (1935, 1973, and 1987)
guarantee the basic right to equal protection of the laws. All
exhort the State to render social justice. (Poe-Llamanzares v.
COMELEC, G.R. No. 221697 (2016))
1. By Birth
Jus soli
“Right of soil”; person’s nationality is based on the
place of birth
shows petitioner’s wanton disregard for truth, In dual citizenship, such is not an automatic disqualification.
hence, lack of good moral character disabling him Filing of the Certificate of Candidacy is sufficient to
from acquiring Philippine citizenship. (Tak Ng v. renounce foreign citizenship to the effect that one declares
Republic, G.R. L-13017, December 23, 1959) under oath of maintenance, true faith and allegiance to the
The commission of a crime involving moral turpitude is a Constitution of the Philippines (Valles v. COMELEC (2000)).
bar for naturalization "Moral turpitude" has been defined as
an act of baseness, vileness, or depravity in the private and
social duties which a man owes his fellow men, or to society
in general, contrary to the accepted and customary rule of
right and duty between man and man (Traders & General
Ins. Co. v. Russell, Tex. Civ. App., 99 S.W. (2d) 1079) or E. Loss and Reacquisition of Citizenship
conduct contrary to justice, honesty, modesty, or good
morals (Marah v. State Bar of California, 210 Cal. 303, 291 P.
Art. IV, Sec. 3, Sec. 2 – GROUNDS:
583).
(1) Naturalization in a foreign country;
(2) Express renunciation or expatriation
Profiteering is an offense which involves moral turpitude
(3) Taking an oath of allegiance to another country upon
inasmuch as it affects the prices of prime commodities and
reaching the age of majority;
goes to the life of the citizens, especially those who are poor
(4) Marriage by a Filipino woman to an alien, if by the laws
and with hardly the means to sustain themselves. Hence,
of her husband’s country, she becomes a citizen thereof
conviction of said crime disqualifies a petitioner from
(5) Accepting a commission and serving in the armed forces
naturalization as a Filipino citizen.
of another country, unless there is an offensive/
defensive pact with the country, or it maintains armed
forces in RP with RP’s consent;
(6) Denaturalization;
D. Dual Citizenship AND DUAL (7) Being found by final judgment to be a deserter of the
AFP
ALLEGIANCE:
Reacquisition
R. A. No. 9189 – Overseas Voting Law
:=, There is no provision in the dual citizenship law - R.A. 9225 1. Naturalization
- requiring "duals" to actually establish residence and 2. 21 years of age
physically stay in the Philippines first before they can exercise 3. Be a resident for 6 months
their right to vote. On the contrary, R.A. 9225, in implicit 4. Have good moral character
acknowledgment that "duals" are most likely non-residents, 5. No disqualification
grants under its Section 5(1) the same right of suffrage as that 6. Repatriation- results in the recovery of the original
granted an absentee voter under R.A. 9189. It cannot be nationality
overemphasized that R.A. 9189 aims, in essence, to 7. Legislative Act
enfranchise as much as possible all overseas Filipinos who,
save for the residency requirements exacted of an ordinary
voter under ordinary conditions, are qualified to vote.”(
Nicolas- Lewis v. COMELEC 497 SCRA 649)
NATIONAL ECONOMY AND
DUAL ALLEGIANCE (Sec. 5, Art IV) PATRIMONY
Where a person simultaneously owes, by some positive act,
loyalty to 2 or more states;
Not equivalent to dual citizenship;
Examples The term “patrimony” pertains to heritage, and given the
- Aliens who are naturalized as Filipinos but history of the Manila Hotel, it has become a part of our
remain loyal to their country of origin; national economy and patrimony. Thus, the Filipino First
- Public officers who, while serving the policy provision of the Constitution is applicable. Such
government, seek citizenship in another provision is per se enforceable, and requires no further
country guidelines or implementing rules or laws for its operation.
Such are disqualified from running for any (Manila Prince Hotel v. GSIS, (1990)
elective local position (Sec. 40d, Local Government
Goals:
Code)
More equitable distribution of opportunities,
income, and wealth
DUAL CITIZENSHIP IN RE. DUAL ALLEGIANCE Sustained increase in amount of goods and services
Once a candidate files his candidacy, he is deemed to have produced by the nation for the benefit of the people
renounced his foreign citizenship (Mercado v. Manzano Expanding production as the key to raising the
(1999)) quality of life for all, especially the
underprivileged.
comprising the capital of the corporation. (e.g. 60% Qualifications of the Governors:
of common stock, 60% of preferred voting stock, (1) Natural-born Filipino;
and 60% of preferred non-voting stock.) (Gamboa v. (2) Known probity, integrity and patriotism;
Teves, G.R. No. 176579, October 9, 2012) (3) Majority shall come from the private sector
State polices on monopolies and restraint of trade. The State ORGANIZATION AND REGULATION OF
shall regulate or prohibit monopolies when the public interest CORPORATIONS, PRIVATE AND PUBLIC
so requires. No combinations in restraint of trade or unfair
competition shall be allowed (sec. 19, Art. XII). Art. XII, Sec. 6. The use of property bears a social function,
and all economic agents shall contribute to the common
State policy on the ownership of educational institutions. good.
Educational institutions, other than those established by
religious groups and mission boards, shall be owned solely Individuals and private groups, including corporations,
by citizens of the Philippines or corporations or associations cooperatives, and similar collective organizations, shall
at least sixty per centum of the capital of which is owned by have the right to own, establish, and operate economic
such citizens. The Congress may, however, require increased enterprises, subject to the duty of the State to promote
Filipino equity participation in all educational institutions. distributive justice and to intervene when the common
The control and administration of educational institutions good so demands.
shall be vested in citizens of the Philippines (Sec. 4(2), Art.
XIV) Article XIII, Sec. 6. The state shall apply the principles of
agrarian reform or stewardship, whenever applicable in
accordance with law, in the disposition or utilization of
other natural resources including lands of the public
domain under lease or concession suitable to agriculture,
C. Practice of Profession subject to prior rights, homestead rights of small settlers,
and the rights of indigenous communities to their ancestral
The practice of all professions in the Philippines shall be lands.
limited to Filipino citizens, save in cases prescribed by law.
(Art. XII, Sec. 14)
Monopolies
Although the Constitution enshrines free enterprise as a
policy, it nevertheless reserves to the Government the power
to intervene whenever necessary for the promotion of the A. Concept
general welfare (Philippine Coconut Desiccators v. PCA
(1998))
Social justice is “neither communism, nor despotism, nor
b. Not per se prohibited by the Constitution but may atomism, nor anarchy,” but the humanization of laws and
be permitted to exist to aid the government in the equalization of social and economic forces by the State so
carrying on an enterprise or to aid in the that justice in its rational and objectively secular conception
performance of various services and functions in may at least be approximated. (Calalang v. Williams)
the interest of the public. Nonetheless, a
determination must first be made as to whether
public interest requires a monopoly. (Agan, Jr. v.
PIATCO (2003)) B. Commission on Human Rights - Powers and
Functions
(1) Investigate, o its own or on complaint by any party, all
Central Monetary Authority forms of human rights violations involving civil and
political rights;
Functions: (2) Adopt its operational guidelines and rules and rules of
(1) Provide policy directions in the areas of money, banking procedure, and cite for contempt for violations thereof in
and credit; accordance with the Rules of Court;
(2) Supervise the operation of banks; (3) Provide appropriate legal measures for the protection of
(3) Exercise such regulatory powers as may be provided by human rights of all persons within the Philippines, as
law over the operations of finance companies and other well as Filipinos residing abroad, and provide for
institutions performing similar functions preventive measures and legal aid services to the under-
POLICE POWER
LAW II
penalties or without, not repugnant to the Constitution, as
they shall judge to be for the good and welfare of the
commonwealth, and of the subjects of the same.” (Bernas, S.J.
(2009). The 1987 Constitution of the Republic of the Philippines: A
commentary. Rex Printing Compnay, Inc.)
“It is [also] the most pervasive, the lease limitable and the
most demanding of the three powers. It is the most essential,
insistent and least limitable, extending as it does “to all the
great public needs”. Hence, it may be exercised as long as it
has some relevant to the public welfare.
Scope
a. General
“The most essential, insistent and the least limitable of
powers, extending as it does to all the great public needs.”
(Ichong v. Hernandez, 101 Phil. 1155, 1957)
• Police power rests upon public necessity and upon the • Through the “general welfare clause”, the lawmaking
right of the State and of the public to self-protection. For bodies on all municipal levels, including the barangay,
this reason, its scope expands and contracts with exercise police power. (Cruz)
changing needs. (Churchill v. Rafferty, 32 Phil. 580, 1915)
“The rigidity of the theory of separation of
b. Particular aspects
governmental powers has, to a large extent, been
The pervasive reach of police power has been used to justify
measures: (H-M-S-W) relaxed by permitting the delegation of greater
powers by the legislative and vesting a larger
(1) Public Health
(2) Public Morals amount of discretion in administrative and
(3) Public Safety
executive officials, not only in the executions of
(4) Public Welfare
laws, but also in the promulgation of certain rules
and regulations calculated to promote public
Limitations
interest.”. (Calalang v. Williams, 70 Phil. 726, 1940)
a. General
b. Due process
Basis: “no person shall be deprived of life, liberty or
property without due process of law” (Sec.1, Art III, EMINENT DOMAIN
CONST.)
c. Equal protection
Basis: “xxx Nor shall any person be denied of equal Eminent domain, defined
protection of law”
It is the power of the state to take or condemn private
property for public use upon payment of just compensation.
(Bernas)
Requisites for valid exercise
TWO STAGES OF EMINENT DOMAIN CASES
(1) Lawful subject or purpose 1. The determination of the authority of the plaintiff
The interests of the public generally, as to exercise the power of eminent domain and the
distinguished from those of a particular class, propriety of its exercise in the context of the facts
require the exercise of the police power involved in the suit
2. The determination by the court of the just
(2) Lawful means compensation for the property sought to be taken.
The means are reasonably necessary for the (Republic vs. Lim, GR no. 161656, June 29, 2005)
accomplishment of the purpose, and not unduly
oppressive upon individuals. (US v. Toribio, 15 Phil.
85, 1910)
Who may exercise the power of eminent domain?
[It] is lodged primarily in the national legislature, but its
Who may exercise police power? exercise may be validly delegated to other governmental
entities and, in fact, even to private corporations: (Bernas)
(1) Legislature
The police power is lodged primarily in the (1) Congress
national legislature. (2) President of the Philippines
(3) Municipal governments and other government
(2) Executive entities
By virtue of a valid delegation of legislative (4) Certain public corporations (i.e. NHA)
power; it may also be exercised by the President (5) Quasi-public corporations operating public utilities
and administrative boards.
• In the hands of Congress the scope of the power is
GENERAL RULE: Police power primarily lodged in the plenary. It is as broad as the scope of police power itself.
Legislative It can reach every form of property which the State
might need for public use.
EXCEPTION: Valid delegation to the President and
Administrative Bodies as well as the lawmaking bodies of • The delegated power of eminent domain of local
Municipal Corporation or LGUs. Once delegated, the agents governments is strictly speaking not a power of eminent
can exercise only such legislative powers as are conferred on but of inferior domain – a share merely in eminent
them by the lawmaking body. ( MMDA vs. Bel-Air Village domain. It is only as broad as the eminent authority
Association, GR no. 135962, March 27, 2000) would allow it to be.
Requisites for the exercise of the power of eminent domain Public Use
Means public usefulness, utility, or advantage, or what is
1. Taking of private property
productive of general benefit (Bernas).
2. Said taking must be for public use
3. Payment of just compensation
• As long as public has right of use, whether exercised by
one or many members of the public, a public advantage
Private property
or public benefit accrues sufficient to constitute a public
use (Black’s Law Dictionary, as cited in Mañosca v. CA, 252
General rule: Anything that can come under the dominion of
SCRA 412, 1997).
man is subject to expropriation, i.e.:
1. Real and personal properties
• If the genuine public necessity disappears, then there is
2. Tangible and intangible properties
no more cogent point for the government’s retention of
the expropriated land (Vda de Ouano vs. Republic, GR No.
Exceptions:
168770, February 9, 2011).
1. Money
Would be futile because of the requirement of just
• When exercised by the Congress, the question of genuine
compensation, which is usually in money.
necessity is a political question which the courts cannot
resolve. When it is delegated, the grant of such special
2. Cause of action
authority for special purpose is still a political question.
“A personal right not reduced into possession but
Hence, it is a justifiable question that can be resolved by
recoverable by a suit at law; a right to receive, demand,
the courts (City of Manila vs. Chinese Community of Manila,
or recover a debt, demand or damages on a cause of
GR no. L-14355, October 31, 1919).
action ex contractu or for a tort or omission of duty”
Taking
Just Compensation
In law, it has a broader connotation. It may include trespass
The just and complete equivalent of the loss which the owner
without actual eviction of the owner, material impairment of
of the thing expropriated has to suffer by reason of the
the value of the property or prevention of the ordinary uses
expropriation (Bernas).
for which the property was intended (Cruz).
Expressed differently, the compensation given to the owner is
just if he receives for his property a sum equivalent to its
Requisites of “Taking for Purposes of Eminent Domain” (Republic “market value.” While market value may be one of the bases
v. Castellvi, 58 SCRA 336, 1974) in determining just compensation, the same cannot be
1. The expropriator must enter a private property. arbitrarily arrived at without considering the factors to be
2. The entrance into private property must be for appreciated in arriving at the fair market value of the
more than a momentary period. property. e.g. cost of acquisition, the current value of like
3. The entry into the property should be under properties, size, shape, location, tax declaration (Landbank v.
warrant or color of legal authority. Wycoco, GR No. 140160, January 13, 2004).
4. The property must be devoted to public use or
otherwise informally appropriated or injuriously FAIR MARKET VALUE
affected. The price that may be agreed upon by the parties who are
5. The utilization of the property for public use must willing but are not compelled to enter into a contract of sale.
be in such a way as to oust the owner and deprive Otherwise stated, it is the price prepared to be paid by a party
him of beneficial enjoyment of the property. who is willing, but not compelled to purchase the property,
and the price by which the seller is willing to par with, but not
MEANING OF TAKING (AD-MI-C-O) compelled, to sell the property (National Power Corporation vs.
1. The owner is actually deprived or disposed of the Dela Cruz, GR no. 16093, February 2, 2007).
property.
2. There is practical destruction or material
impairment of the value of his property Point of reference for assessing the value of a piece of
3. The owner is deprived of jurisdiction, supervision property
and control of his property
4. The owner is deprived of the ordinary use of his General Rule: The value of the property sought to be taken at
property (Republic vs. Sandiganbayan, GR no 157847, the time of the filing of the complaint for expropriation which
August 25, 2005). generally coincides with the taking shall be the basis for just
compensation;
WHEN IS THERE CONSTRUCTIVE TAKING?
When there is destruction, restriction, diminution or But:
interruption of the rights of the ownership or of the common 1. When filing of the case comes later than the
and necessary and enjoyment of the property in a lawful taking and the value of the property has
manner, lessening or destroying its value (National Power increased because of the use which the
Corporation vs. Heirs of Macabangkil Sangkay, GR no. 1655828, expropriator has put it, the value is that of the
August 24, 2011). time of the earlier taking.
The power of eminent domain could be used as an • The power of eminent domain as exercised by the
implementation of the police power LGUS is not strictly speaking, a power of eminent
domain. It is merely a power of inferior domain
• Where the owner is unwilling to sell, the power of which means that local government units can only
eminent domain will come into play to assert the exercise such power which is delegated to it
paramount authority of the State. Private rights must (Suarez).
yield to the demand of public interest on the time
honored justification, as in the case of police power, that • The power of the eminent domain may be
the welfare of the people is the supreme law (Association exercised by LGUs for urban and reform purposes
of Small Landowners v. Sec. of Agrarian Reform, 175 SCRA but expropriation of privately owned lands must
343). be resorted to only after all other lands has been
exhausted (Sec 10, RA 7279).
vivos, the imposition of which a property used Regulates liberty Affects only property rights
exclusively for religions purpose does not constitution and property
impairment of the constitution (Lladoc vs. Commissioner Power exercised by whom
of Internal Revenue, GR No. L-19201, June 16, 1965) Exercised only by the Maybe exercised
government by private
2. All revenues and assets of non-stock, non-profit entities if
educational institution used actually, directly and conferred by law
exclusively for educational purposes shall be exempt Nature of the property taken
from taxes and duties (Sec 4(3), Par 1, Article XIV, Property is Property is wholesome
CONST). noxious or
intended for a
3. Proprietary educational institution including those noxious purpose
cooperatively owned may likewise be entitled to such Compensation
exception subject to the limitation provided by the law
None, the None, the Just
(Sec 4(3), Aritcle XIV, CONST)
altruistic feeling protection Compensation.
that one has given and Full and fair
4. All grants endowments donation or contributions
contributed to the public equivalent of the
used actually, directly and exclusively for educational
public good. improvements property taken.
purpose shall be exempt from tax subject to conditions
instituted by
prescribed by law (Sec 4(4), Aritcle XIV, CONST).
the state
because of
e.g, RA 9304 which exempts minimum wage earners from
taxes.
paying income tax , increases tax exemption for all earners
Delegation
and allows additional exemptions for all earners and allows
GENERAL RULE: GENERAL [It] is lodged
additional exemptions for individuals with
Police power RULE: primarily in the
dependents/children.
primarily lodged Taxing power national
in the Legislative is non- legislature, but
delegable. its exercise may
FUNDAMENTAL POWERS OF THE STATE REQUISITES EXCEPTION: be validly
FOR VALID EXERCISE Valid delegation to EXCEPTION: delegated to
the President and (a) delegation other
Administrative to the governmental
POLICE EMINENT President of
TAXATION Bodies as well as entities and, in
POWER DOMAIN some tariff
the lawmaking fact, even to
(1) Lawful (1) Private Taxes should be: bodies of powers, and private
subject or property. (1) Uniform Municipal (b) Local corporations:
purpose (2) Genuine (same Corporation or government (Bernas)
Necessity. person/ LGUs. Once unit’s fiscal
(2) Lawful (3) For public class taxed delegated, the autonomy for
means use. at same agents can exercise their self
(4) Payment of rate) only such serving needs.
Just (2) Equitable legislative powers
Compensa- as are conferred on
tion. them by the
(5) Due Process lawmaking body. (
MMDA vs. Bel-Air
Village Association,
GR no. 135962,
SIMILARTITIES AND DIFFERENCES March 27, 2000)
Imposed regardless of Imposed because of an The Bill of Rights guarantee governs the relationship between
public improvements increase in value of land the individual and the State. Its concern is not the relation
benefited by public between private individuals. What it does is to declare some
improvement. forbidden zones in the private sphere inaccessible to any
power holder (People v. Marti, G.R. No. 81561, Jan. 18, 1991).
Contribution of a Contribution of a person for
taxpayer for the support the construction of a public Article III contains the chief protection for human rights but
of the government improvement the body of the Constitution guarantees other rights as well.
(1) Civil rights – rights that belong to an individual
Has general application Exceptional both as to time by virtue of his citizenship in a state or community
both as to place and and locality (e.g. rights to property, marriage, freedom to
time contract, equal protection, etc.)
If unpaid, the business or activity does not become (2) Political rights – rights that pertain to an
illegal. individual’s citizenship vis-à-vis the management
of the government (e.g. right of suffrage, right to
petition government for redress, right to hold
Taxes, as distinguished from license fees public office, etc.)
DUE PROCESS
• The quantum of proof in administrative proceedings in • The rule on publication of laws prior to their effectivity
substantial evidence: applies to:
DUE PROCESS IN DEPORTATION PROCEEDINGS Human rights favored over property rights
When the Bill of Rights also protects property rights, the
Although deportation proceedings are not criminal in nature, primacy of human rights over property rights is recognized.
the consequences can be as serious as those of a criminal Because these freedoms are “delicate and vulnerable, as well
prosecution. The provisions of the Rules of Court for as supremely precious in our society” and the “threat of
criminal cases are applicable (Lao Gi v. CA, GR. No. 81789, sanctions may deter their exercise almost as potently as the
Dec. 29, 1989.). actual application of sanctions,” they “need breathing space
to survive,” permitting government regulation only “with
INSTANCES WHEN HEARINGS ARE NOT NECESSARY narrow specificity.” (Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc., 1973)
(1) When administrative agencies are exercising their
quasi-legislative functions Running through various provisions of the Constitution are
(2) Abatement of nuisance per se various provisions to protect property—but always with the
(3) Granting by courts of provisional remedies explicit or implicit reminder that property has a social
(4) Cases of preventive suspension dimension and that the right to property is weighted with a
(5) Removal of temporary employees in the government social obligation.
service
(6) Issuance of warrants of distraint and/or levy by the BIR 5. JUDICIAL STANDARDS OF REVIEW
Commissioner
(7) Cancellation of the passport of a person charged with a RATIONAL BASIS TEST
crime Government need only show that the challenged
(8) Suspension of a bank’s operations by the Monetary classification is rationally related to serving a legitimate state
Board upon a prima facie finding of liquidity problems interest.
in such bank
STRICT SCRUTINY TEST
Notice Requires the government to show that the challenged
• Due process, which is a rule of fairness, requires that classification serves a compelling state interest and that the
those who must obey a command must first know the classification is necessary to serve that interest.
command.
There is compelling state interest when:
(1) The state have a compelling reason/interest to
reach into such legislation infringing into the It does not demand absolute equality; it merely requires that
private domain; and all persons shall be treated alike, under like circumstances
(2) There is no other alternative and conditions both as to privileges conferred and liabilities
enforced (Ichong v. Hernandez, 101 Phil 1155). It is an
Strict scrutiny was applied in determining whether the established principle of constitutional law that the guaranty
requirements of substantive due process were met in an of the equal protection of the laws is not violated by a
ordinance challenged in as unconstitutional in White Light. legislation based on reasonable classification. (People v.
The requirements of due process that must concur (as held in Cayat, 68 Phil 12)
the case) are:
(1) Interest of the public generally, as opposed to a
class; 2. REQUISITES FOR VALID CLASSIFICATION
(2) Means must be reasonably necessary for the (S-G-L-E)
accomplishment of the purpose and not unduly (1) Rest on substantial distinctions;
oppressive of private rights (2) Germane to the purpose of the law;
(3) No other alternative less intrusive of private rights (3) Not limited to existing conditions only;
(4) Reasonable relation must exist between the (4) Apply equally to all members of the same class (People
purposes of the measure and the means employed v. Cayat, supra).
for its accomplishment. (White Light Corporation v.
City of Manila, 2009)
perjury the person giving it if it will be found later that and his witnesses in the form of searching questions and
his declarations are false. (Mata v. Bayona, 128 SCRA 388) answers, for the determination of whether probable
cause exists and whether it is necessary to arrest the
• It is axiomatic that the examination must be probing and accused in order not to frustrate the ends of justice, is left
exhaustive, not merely routinary or pro-forma, if the to his sound judgment or discretion. (Samulde v. Salvani,
claimed probable cause is to be established. (Roan v. Jr., supra.)
Gonzales, 145 SCRA 687)
• The evidence offered by the complainant and his
witnesses should be based on their own personal
Particular description of the things to be seized knowledge and not on mere information or belief.
Hearsay is not allowed. (Cruz, p.148)
A search warrant may be said to particularly describe the
things to be seized:
(1) when the description therein is as specific as the Personal knowledge
circumstances will ordinarily allow;
(2) when the description expresses a conclusion of fact (1) The person to be arrested must execute an overt act
not of law by which the warrant officer may be indicating that he had just committed, is actually
guided in making the search and seizure; or committing, or is attempting to commit a crime;
(3) when the things described are limited to those and
which bear direct relation to the offense for which (2) Such overt act is done in the presence or within the
the warrant is being issued. (Bache & Co. v. Ruiz, 37 view of the arresting officer.
SCRA 823)
RTC judges need not personally examine complainant
It does not necessarily mean that the Constitution now
Warrant must be specific in terms of description requires the judge to personally examine the complainant and
A general warrant infringes on the constitutional mandate his witnesses in his determination of probable cause of the
requiring particular description of the things to be seized. It issuance of the warrants. What the Constitution underscores
considered null and void. (Nolasco v. Paño, 139 SCRA 152) is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In
Sufficiency of description satisfying himself of the existence of probable cause for the
A description of the place to be searched is sufficient if the issuance of a warrant of arrest, the judge is not required to
officer serving the warrant can, with reasonable effort personally examine the complainant and his
ascertain and identify the place intended and distinguish it witnesses.(Soliven v. Makasiar, 167 SCRA 393)
from other places in the community. A designation or
description that points out the place to be searched to the Requisites for proper evaluation of an RTC judge
exclusion of all others, and on inquiry unerringly leads the (1) The judge shall personally evaluate the report and
police officers to it, satisfies the constitutional requirement of the supporting documents submitted by the fiscal
definiteness (People v. Tee, 395 SCRA 419). regarding the existence of probable cause and, on
the basis thereof, issue a warrant of arrest; or
John Doe warrant
A “John Doe warrant” satisfies the requirement of (2) If on the basis thereof he finds no probable cause,
particularity of description when it contains a descriptio may disregard the fiscal’s report and require the
personae such as will enable the officer to identify the accused. submission of supporting affidavits of witnesses to
(People v. Veloso, 48 Phil. 169) aid him in arriving at a conclusion on the existence
of probable cause.
Waiver of Right
Exceptions to the warrant requirement: The right to be secure from unreasonable search may, like
(1) Search incident to a lawful arrest every right, be waived and such waiver may be made either
(2) Search of moving vehicles expressly or impliedly. However, the person must know of
(3) Seizure of evidence in plain view such right an knowingly decide not to invoke it (Bernas).
(4) Customs searches
(5) Where there is a waiver of right • No waiver is to be presumed where the person merely
(6) Stop and frisk situations submits to the arresting officer in manifestation of his
(7) Exigent and emergency circumstances respect for authority or where he allows entry into his
home as a sign of hospitality and politeness.
Incident to a Lawful Arrest
It is a general rule that, as an incident of an arrest, the place or • Where implied acquiescence was not more than passive
premises where the arrest was made can also be searched conformity given under intimidating or coercive
without a search warrant. (Nolasco v. Paño, supra.) circumstances, no consent to the illegal search or seizure
can be implied (Cruz).
• A lawful arrest must precede the search of a person and
his belongings. (People v. Chua, 396 SCRA 657)
“Stop-and-frisk”
• A warrantless search incidental to a lawful arrest may be The act of a police officer to stop a citizen on the street,
made only within the permissible area of search, or the interrogate him, and pat him for weapon(s) or contraband.
place within the immediate control of the person being (People v. Chua, supra.)
arrested.
When an officer is justified in believing that the individual
Search of Moving Vehicles whose suspicious behavior he is investigating at close range
The rules governing search and seizure have over the years is presently dangerous to him or to others, he may conduct a
been steadily liberalized whenever a moving vehicle is the limited protective search for concealed weapons. (Terry v.
object of the search on the basis of practicality. (Caballes v. CA, Ohio, supra.)
373 SCRA 221)
Probable cause not required, but there must be a genuine
Justification: reason
It is not practicable to secure a warrant because the vehicle can While probable cause is not required to conduct a “stop and
be quickly moved out of the locality or jurisdiction in which frisk,” it nevertheless holds that mere suspicion or a hunch
the warrant must be sought. will not validate a “stop and frisk” (Malacat v. CA, GR No.
132595). A genuine reason must exist, in light of the police
Limitations: officer’s experience and surrounding conditions, to warrant
Mere mobility of vehicles, however, does not give the police the belief that the person detained has weapons concealed
officers unlimited discretion to conduct indiscriminate about him (Bernas).
searches without warrants if made within the interior of the
territory and in the absence of probable cause. Still and all,
the important thing is that there was probable cause to Purpose: To allow the officer to pursue his investigation
conduct the warrantless search, which must still be present in without the risk of violence.
such a case. (Caballes v. CA, supra.)
The petitioners were not “caught in the act” does not make
the arrest illegal. Petitioners were found with young boys in Sec. 4, Rule 126 of the New Rules of Criminal Procedure
their respective rooms, in some cases naked. Under the The judge must, before issuing the warrant, personally
circumstances, the CID agents had reasonable ground to examine in the form of searching questions and answers,
believe that the petitioners had committed pedophilia. in writing and under oath the complainant and the
(Harvey v. Defensor-Santiago) witnesses he may produce on facts personally known to
them and attach to the record their sworn statements
When the person to be arrested is a prisoner who together with any affidavits submitted.
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 Probable cause across issuances
while being transferred from one confinement to
another. The existence of such facts and circumstances as would excite
the belief, in a reasonable mind, acting on the facts within the
FRUIT OF A POISONOUS TREE DOCTRINE knowledge of the prosecutor, that the person charged was
If the arrest without a warrant is unlawful at the time it was guilty of the crime for which he was prosecuted (Buchanan v.
made, generally nothing that happened or was discovered Vda. de Esteban, 32 Phil 363, 1915).
afterwards can make it lawful. The fruit of the poisonous tree
is necessarily also tainted. The Constitution itself mandates Probable cause for an arrest or for the issuance of a warrant
that any evidence obtained in violation of the right is of arrest (Bernas)
inadmissible in evidence. Consequently, testimonies of the Such facts and circumstances which would lead a reasonably
arresting officers as to the admission made by the appellant discreet and prudent man to believe that an offense has been
cannot be used against him. (People v. Burgos) committed by the person sought to be arrested.
NOTE: Illegality of arrest may be cured when accused Probable cause for a search warrant (Bernas)
voluntarily submitted to the jurisdiction of the court by Such facts and circumstances which would lead a reasonably
pleading not guilty without questioning the illegality of the discreet and prudent man to believe that an offense has been
arrest. (People v Escordial) committed and that the objects sought in connection with the
offense are in the place sought to be searched.
Petitioners effectively waived the inadmissibility of evidence
illegally obtained when he failed to raise the issue during trial. Power of Municipal Trial Judge
Issues not raised during trial cannot be pleaded for the first “The issuance of a warrant is not a mere ministerial function;
time on appeal. (Manalili v. CA) it calls for the exercise of judicial discretion on the part of the
issuing magistrate. x x x The judge must satisfy himself of the
EFFECT OF BAIL existence of probably cause before issuing a warrant or order
If one posts bail, one is estopped from questioning defects of of arrest.” (Placer v. Villanueva, 126 SCRA 463)
one’s arrest. (Velasco v CA)
The use of telephone extension is not a violation of RA 4200 NOTE: It bears reiteration that like the writ of amparo, habeas
(Anti-WireTapping Law). The use of a telephone extension to data was conceived as a response,
overhear a private conversation is neither among those
devices, nor considered as a similar device, prohibited under Who May File a petition for the writ of habeas data
the law (Gaanan v. IAC, G.R. No.L-69809 Oct. 16, 1986). Any person whose right to privacy in life, liberty or security
is violated or threatened by an unlawful act or omission of a
NOTE: Anti-Wiretapping Act only protects letters, messages, public official or employee, or of a private individual or entity
telephone calls, telegrams and the like. engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and
3. WRIT OF HABEAS DATA correspondence of the aggrieved party (Sec. 1, The Rule on the
Writ of Habeas Data, A. M. No. 08-1-16-SC, Jan. 22, 2008).
Scope Of Writ
The Writ of Habeas Data is a remedy available to any person However, in cases of extralegal killings and enforced
whose right to privacy in life, liberty, or security is violated or disappearances, the petition may be filed by:
threatened by an unlawful act or omission of a public official (1) Any member of the immediate family of the
or employee, or of a private individual or entity engaged in aggrieved party, namely: the spouse, children and
the gathering or storing of data or information regarding the parents; or
person, family, home, and correspondence of the aggrieved (2) Any ascendant, descendant or collateral relative of
party. (Section 1) the aggrieved party within the fourth civil degree
of consanguinity or affinity, in default of those
Who May File mentioned in the preceding paragraph (Sec. 2, The
The petition may be filed by: Rule on the Writ of Habeas Data, A. M. No. 08-1-16-
(1) Any aggrieved party SC, Jan. 22, 2008).
(2) In cases of extralegal killings and enforced
disappearances, by: The writ of habeas data is not confined only to extralegal
a. Any member of the immediate family of killings and enforced disappearances
the aggrieved party, namely: the spouse,
children and parents; or Habeas data, to stress, was designed “to safeguard individual
b. Any ascendant, descendant or collateral freedom from abuse in the information age.” As such, it is
relative of the aggrieved party within the erroneous to limit its applicability to extralegal killings and
fourth civil degree of consanguinity or enforced disappearances only.
affinity, in default of those mentioned in
the preceding paragraph; The writ of habeas data, however, can be availed of as an
independent remedy to enforce one’s right to privacy, more
Effects Of Filing A Criminal Action specifically the right to informational privacy. The remedies
(1) No separate petition for the writ shall be filed. The against the violation of such right can include the updating,
relief under the writ shall be available to an rectification, suppression or destruction of the database or
aggrieved party by motion in the criminal case. information or files in possession or in control of respondents.
(2) But the disposition of the reliefs available under the
writ of habeas data is governed by this rule.
FREEDOM OF EXPRESSION
Institution Of Separate Action
The filing of a petition for the writ of habeas data does not
SCOPE
preclude the filing of separate criminal, civil or administrative
actions.
Freedom of speech
Reliefs available in the petition for issuance of writ of Freedom of the press
habeas data Freedom of assembly
(1) Updating, rectification, suppression or destruction Freedom of petition
of the database or information or files kept by the Freedom of religion
respondent; Right of association
(2) In case of threats of the unlawful act, the relief may Right to access to information on matters of public
include a prayer for an order enjoining the act concern
complained of. Right not to be detained solely by reason of one’s
(3) A general prayer for other reliefs that are just and political beliefs and aspirations
equitable under the circumstances is also allowed.
A. FREEDOM OF SPEECH AND PRESS
When Writ of Habeas Data is not applicable Speech, expression, and press include every form of
A writ of habeas data may not be issued to protect purely expression whether oral, written, tape or disc recorded. It also
property and commercial concerns nor when the grounds includes movies as well as what is referred to as symbolic
invoked in support of the petitions therefore are vague or speech such as the wearing of an armband as a symbol of
doubtful. protest. Peaceful picket has also been included within the
meaning of speech.
PRESUMPTION OF INVALIDITY
Any system of prior restraints of expression bears a heavy CONTENT NETURAL CONTENT BASED
presumption against its constitutional validity. The REGULATION RESTRAINT
Government thus carries the burden of showing justification
for the enforcement of such restraint. (NY Times v. US) Merely concerned with the The restriction is based on
incidents of the speech, or the subject matter of the
LIMITATIONS UPON THE IMMUNITY FROM one that merely controls the utterance or speech. The
PREVIOUS RESTRAINT OF THE PRESS time, place or manner, and cast of the restriction
(W-O-I) under well-defined determines the test by
(1) When a nation is at war standards. which the challenged act is
(2) Obscene publications assailed with.
(3) Incitements to acts of violence and the overthrow
of force of orderly government (Near v. Minnesota, No presumption of There is presumption of
283 U.S. 697) unconstitutionality unconstitutionality
(1) Prior restraint on speech, including religious speech, NOTE: The burden of proof
cannot be justified by hypothetical fears but only by the to overcome the
showing of a substantive and imminent evil which has presumption of
taken the life of a reality already on ground. (INC v. CA, unconstitutionality is with
259 SCRA 529) the government
(2) Any system of prior restraints of expression come to the Test to be used: Clear and Present Danger
Court bearing a heavy presumption against its Intermediate Approach
constitutional validity. (New York Times v. United States,
403 U.S. 713) If unpaid, the business or If unpaid, the business or
activity does not become activity itself can become
SUBSEQUENT PUNISHMENT illegal. illegal
• Basis: Freedom of speech includes freedom after the INTERMEDIATE APPROACH TEST
speech (Cruz).
Used when the speech restraints take the form of a content-
• Tests neutral regulation, only a substantial governmental interest is
(1) Dangerous Tendency – when it creates a required for its validity. Because regulations of this type are
denagerous tendency, which the state has the right not designed to suppress any particular message, they are not
to prevent. There must be rational connection subject to the strictest form of judicial scrutiny but an
between the speech and evil apprehended. Ex. intermediate approach—somewhere between the mere
People v. Perez (inciting to sedition) rationality that is required of any other law and the
(2) Clear and Present Danger – In determining WON compelling interest standard applied to content-based
a circumstance constitute clear and present danger, restrictions. The test is called intermediate because the Court
the court must inquire WON in each case the will not merely rubberstamp the validity of a law but also
gravity of the evil, discounted by its improbability, require that the restrictions be narrowly-tailored to promote
justifies an invasion of free speech to avoid the an important or significant governmental interest that is
danger. unrelated to the suppression of expression (Chavez v.
(3) Balancing of Interests – It is the courts function to Gonzales, G.R. No. 168338, Feb. 15, 2008).
balance public interest and the freedoms affected
by it, and to arrive at a judgment where the greater NOTE: A law is narrowly-tailored if it is for the advancement
weight shall be placed. of state’s interest, if it does not restrict a significant amount of
speech that does not implicate the government interest and if
it is the least restrictive alternative available to serve such
CONTENT NEUTRAL AND CONTENT BASED interest (Eugene Volokh, Freedom of Speech, Permissible
REGULATION Tailoring and Transcending Strict Scrutiny, 144 U.
Pennsylvania L. Rev. 2417, 1997).
• If the words uttered create a dangerous tendency which • Publicity means “making the defamatory matter, after it
the State has a right to prevent, then such words are has been written, known to someone other than the
punishable. (Cabansag v. Fernandez, 102 Phil. 152) person to whom it has been written.” (Bernas).
• It is not necessary to create the evil; a mere tendency
towards the evil was enough (Cruz). • The evil which the law on libel seeks to punish is its
tendency to injure the person defamed, regardless of its
CLEAR AND PRESENT DANGER RULE effect upon the public. (People v. del Rosario, 86 Phil.
163)
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 • The constitutional guarantees require a rule that
clear and present danger that they will bring about the prohibits a public official from recovering damages for a
substantive evils that the State has a right to prevent. It is a defamatory falsehood relating to his official conduct
question of proximity and degree. (Schenk v. United States, 249 unless he proves that the statement was must with
U.S. 97) actual malice - that is, with knowledge that it was false
or with reckless disregard of whether it was false or not.
Requisites in determining clear and present danger (NY Times v. Sullivan, 376 US 254)
(1) Means that the evil consequence of the comment or
utterance must be extremely serious and the degree
of imminence extremely high before the utterance OBSCENITY
can be punished. (Cabansag v. Fernandez, supra.) Obscenity is not within the area of protected speech or press.
(2) The danger must not only be clear but also present. Obscene material is material which deals with sex in a manner
(Gonzalez v. COMELEC, G.R. No. L-27833) appealing to prurient interest. (Roth v. United States, 354 US
476)
Clear
A causal connection with the danger of the substantially evil
arising from the utterance questioned. TEST FOR OBSCENITY, AS ESTABLISHED IN MILLER
V. CALIFORNIA (413 US 15)
Present (PI-SD-LV)
Refers to a time element; the danger must not only be (1) Whether “the average person, applying contemporary
probable but very likely inevitable (used to be identified with community standards” would find that the work, taken
imminent and immediate danger). as a whole appeals to the prurient interest;
(2) Whether the work depicts or describes, in a patently
BALANCING OF INTERESTS TEST offensive way, sexual conduct specifically defined by
the applicable state law; and
When particular conduct is regulated in the interest of public (3) Whether the work, taken as a whole, lacks serious
order, and the regulation results in an indirect, conditional, literary, artistic, political, or scientific value.
partial abridgment of speech, the duty of the courts is to
determine which of the two conflicting interests demands the • “Community standards” x x x does not mean that there
greater protection under the particular circumstances are, or should or can be, fixed uniform national
presented. (American Communications Assocation v. Douds, 339 standards of precisely what appeals to the “prurient
U.S. 282) interest” or is “patently offensive. These are essentially
questions of fact. (Miller v. California, supra.)
UNPROTECTED SPEECH
Both historically and doctrinally, freedom of expression has FACIAL CHALLENGES AND OVERBREADTH
never been understood to be an absolute right (Bernas). DOCTRINE
Facial Challenge
There are certain and narrowly limited classes of speech, the Facial challenge is a challenge to a statute in court, in which
prevention and punishment of which have never been the plaintiff alleges that the legislation is always, and under
thought to raise any Constitutional problem. These include the all circumstances, unconstitutional, and therefore void.
lewd and obscene, the profane, the libelous, and the insulting or
“fighting” words - those which, by their very utterance, inflict Overbreadth
injury or tend to incite an immediate breach of the peace. A governmental purpose may not be achieved by means
(Chaplinsky v. New Hampshire, 315 US 568) which sweep unnecessarily broadly and thereby invade the
area of protected freedoms. Ordinances that go beyond what
LIBEL is reasonably necessary to solve the problems. (Lucena Grand
• “A libel is a public and malicious imputation of a crime, Central v JAC Liner, 452 SCRA 174
or of a vice or a defect, real or imaginary, or any act,
omission, condition, status, or circumstance tending to NOTE: Facial challenge to a statute is allowed only when it
cause the dishonor, discredit, or contempt of a natural or operates in the area of freedom of expression. Invalidation of
juridical person, or to blacken the memory of one who is the statute on its face, rather than as applied, is permitted in
dead.” (Art. 353, RPC) the interest of preventing a chilling effect on freedom of
expression. (Separate opinion of Justice Mendoza in Cruz v.
Secretary of Environment and Natural Resources, GR. 135385, RULES ON ASSEMBLY AND PETITION
Dec. 6, 2000) (1) Inform the licensing authority of the date, the public
place where and the time it will take place (private place-
only consent of owner required)
STATE REGULATION OF DIFFERENT TYPES OF MASS (2) Application – filed ahead of time to enable public
MEDIA officials concerned to appraise WON there may be valid
objections.
Live Media Coverage of Court Proceedings (3) (Indispensable condition to refusal or modification that
The propriety of granting or denying permission to the media the CPD test be standard for the decision reached)
to broadcast, record, or photograph court proceedings (4) If public authority believes that there is an imminent and
involves weighing the constitutional guarantees of freedom grave danger of substantial evil, applicants must be
of the press, the right of the public to information and the heard on the matter. Decision must be transmitted at the
right to public trial, on the one hand, and on the other hand, earliest opportunity (Reyes v. Bagatsing, G.R. No. L-
the due process rights of the defendant and the inherent and 65366).
constitutional power of the courts to control their proceedings
in order to permit the fair and impartial administration of • The applicants for a permit to hold an assembly should
justice. Collaterally, it also raises issues in the nature of media, inform the licensing authority of the date, the public
particularly television and its role in society, and of the impact place where and the time when it will take place.
of new technologies on law.
• Application should filed well ahead in time to enable the
An accused has a right to a public trial but it is a right that public official concerned to appraise whether there may
belongs to him, more than anyone else, where his life or be valid objections to the grant of the permit or to its
liberty can be held critically in balance. A public trial aims to grant but at another public place. It is an indispensable
ensure that he is fairly dealt with and would not be unjustly condition to such refusal or modification that the clear
condemned and that his rights are not compromised in secret and present danger test be the standard for the decision
conclaves of long ago. A public trial is not synonymous with reached.
publicized trial; it only implies that the court doors must be
open to those who wish to come, sit in the available seats, • The decision of the public official, whether favorable or
conduct themselves with proper decorum and observe the adverse, must be transmitted to the applicants at the
trial process. (Secretary of Justice v. Estrada, A.M. No. 01-4-03- earliest opportunity.
SC, Sept. 13, 2001)
(2) Its principal or primary effect must be one that neither discriminate invidiously between the religions, is
advances nor inhibits religion; invalid, even though the burden may be
(3) The statute must not foster an excessive government characterized as being only indirect. (Victoriano v.
entanglement with religion. (Lemon v. Kurtzman, 403 U.S. Elizalde Rope Workers Union, 49 SCRA 54)
601)
d. But if the state regulates conduct by enacting,
• The Government should not be within its power, a general law which has for its
embarrassed in its activities simply because of purpose and effect to advance the State’s secular
incidental results, more or less religious in goals, the statute is valid despite its indirect burden
character, if the purpose had in view is one which on religious observance, unless the state can
could legitimately be undertaken by appropriate accomplish its purpose without imposing such
legislation. (Aglipay v. Ruiz, 64 Phil 201) burden. (Victoriano v. Elizalde Rope Workers Union,
supra.)
• Not every governmental activity which
involves the expenditure of public funds and which NOTE:
has some religious tint is violative of the Every violation of the free exercise clause involves
constitutional provisions regarding separation of compulsion.
church and state, freedom of worship and banning
the use of public money or property. (Garces v. TESTS
Estenzo, 104 SCRA 510) BENEVOLENT NEUTRALITY APPROACH
achieving its legitimate State objective is the least The liberty of abode may be impaired only upon lawful
intrusive means, or it has chosen a way to achieve its of the court, and the court is to be guided by the limits
legitimate State end that imposes as little as possible prescribed by law (Bernas).
intrusion on religious beliefs.
The liberty of travel may be impaired even without court
NOTE: The Compelling State Interest test is used in cases order BUT limits may be imposed only on the basis of
involving purely conduct based on religious belief. “national security, public safety, or public health” and
“as may be provided by law (Bernas).
CONSCIENTIOUS OBJECTOR TEST
The city mayor or chief of police has no right to force
CONSCIENTIOUS OBJECTOR citizens of the Philippines to change their domicile from
one city to another locality. Philippine penal law
An "individual who has claimed the right to refuse to specifically punishes any public officer who, not being
perform military service on the grounds of freedom of expressly authorized by law or regulation, compels any
thought, conscience, and/or religion (International Covenant person to change his residence. (Villavicencio v. Lukban,
on Civil and Political Rights, Art. 18). 39 Phil. 778)
REQUISITES FOR ONE TO BE CONSIDERED A The right to return to one’s country is not among the
CONSCIENTIOUS OBJECTOR rights specifically guaranteed in the Bill of Rights,
which treats only of the liberty of abode and the right to
(1) The person is opposed to war in any form travel. (Marcos v. Manglapus, 177 SCRA 668)
(2) He must show that this opposition is based upon
religious training and belief
(3) And he must show that this objection is sincere WATCH-LIST ORDER (WLO)
(Clay v. United States, 403 U.S.698, 1971). Order issued to prevent an individual from travelling. It may
be issued by the Secretary of Justice motu proprio or upon
request, under any of the following circumstances:
LIBERTY OF ABODE AND FREEDOM OF
MOVEMENT (1) Against the accused, irrespective of nationality, in
criminal cases pending trial before the RTCs or
before courts below the RTCs.
(1) A right granted to citizens of the Philippines.
(2) Against the respondent, irrespective of nationality,
(2) While the right to travel of citizens covers both exit
in criminal cases pending preliminary
and entry into the country, aliens cannot claim the
investigation, petition for review, or motion for
same right.
reconsideration before the DOJ or any of its
provincial or city prosecution offices.
LIMITATIONS
The Secretary of Justice may likewise issue a WLO against any
Freedom of movement includes two rights:
person, either on his own, or upon the request of any
government agency, including commissions, task forces or
similar entities created by the Office of the President,
1. LIBERTY OF ABODE
pursuant to the "Anti-Trafficking in Persons Act of 2003" (R.A.
a. It may be impaired only upon lawful order of the court No. 9208) and/or in connection with any investigation being
b. The court itself is to be guided by the limits prescribed conducted by it, or in the interest of national security, public
by law safety or public health (Sec. 2, DOJ Circ. 41, s.2010).
Example: A condition imposed by the court in connection NOTE: A WLO is good for 60 days (Sec. 4, DOJ Circ. 41, and
s.2010).
with the grant of bail.
The Watch List Order may be lifted or cancelled under any
2. LIBERTY OF TRAVEL
of the following grounds:
(1) When the validity period of the WLO has already
(1) May be impaired even without a lawful order of the
expired;
court
(2) When the accused subject of the WLO has been
(2) But the appropriate executive officer (who may
allowed by the court to leave the country during the
impair this right) is not granted arbitrary discretion
pendency of the case, or has been acquitted of the
to impose limitations
charge;
(3) He can only do so on the basis of “national security,
(3) When the preliminary investigation is terminated,
public safety, or public health” and “as may be
or when the petition for review, or motion for
provided by law” (e.g. Human Security Act,
reconsideration has been denied and/or dismissed.
quarantine)
(4) Impairment of this liberty is subject to judicial
HOLD DEPARTURE ORDER (HDO)
review
An order issued to prevent an individual from travelling. It Note: A watch-list order doesn’t totally bar a person from
may be issued by the Secretary of Justice motu proprio or upon travelling. A person listed in the WLO must obtain a clearance
request, under any of the following circumstances: to be able to travel. In contrast, a hold-departure order totally
prevents a person from traveling
(1) Against the accused, irrespective of nationality, in
criminal cases falling within the jurisdiction of RETURN TO ONE’S COUNTRY
courts below the Regional Trial Courts (RTCs):
1. If the case against the accused is pending trial, the The right to return to one’s country is not among the rights
application under oath of an interested party must be specifically guaranteed in the Bill of Rights, which treats only
supported by (a) a certified true copy of the complaint or of the liberty of abode and the right to travel. Nevertheless,
information; and (b) a Certification from the Clerk of the right to return may be considered as a generally accepted
Court concerned that criminal case is still pending. principle of International law, and under the Constitution, is
2. If the accused has jumped bail or has become a fugitive part of the law of the land. However, it is distinct and separate
from justice, the application under oath of an interested from the right to travel and enjoys a different protection
party must be supported by (a) a certified true copy of under the Int’l Covenant of Civil and Political Rights (Marcos
the complaint or information; (b) a certified true copy of v. Manglapus, G.R. No. 88211, Sept. 15, 1989 & Oct. 27, 1989).
the warrant/order of arrest; and (c) a Certification from
the Clerk of Court concerned that the warrant/order of
arrest was returned unserved by the peace officer to
whom the same was delivered for service. RIGHT TO INFORMATION
The commissioners of the 1986 Constitutional Commission (3) The right to join a union includes the right to abstain
understood that the right to information "contemplates from joining any union. (Victoriano v Elizalde Rope
inclusion of negotiations leading to the consummation of the Workers Union, supra.)
transaction." Certainly, a consummated contract is not a
requirement for the exercise of the right to information. (4) There is no question that the Constitution recognizes the
Otherwise, the people can never exercise the right if no right of government employees to organize.
contract is consummated, and if one is consummated, it may Jurisprudence, however, provides that government
be too late for the public to expose its defects. employees do not have a constitutional right to strike.
(Manila Public School Teachers Association v. Sec. of
Matters of Public Concern Education, 200 SCRA 323)
Other matters of public concern decided in jurisprudence FREEDOM OF ASSOCIATION (2000 BAR)
The right to form associations shall not be impaired without
1. Loanable funds of GSIS (Valmonte v. Belmonte, 1989) due process of law. It is therefore an aspect of the general right
of liberty. More specifically, it is an aspect of freedom of
contract; and in so far as associations may have for their object
2. Civil service eligibility of sanitarian employees (Legaspi v. CSC, the advancement of beliefs and ideas, freedom of association
1987) is an aspect of freedom of expression and of belief.
Appointments made to public offices and the NOTE: Freedom of association includes the freedom not to
utilization of public property (Gonzales v. Narvasa, associate, or, if one is already a member, to disaffiliate from
2000) the association.
administrative agencies which dictate the terms and A. Anything that can come under the
conditions of their employment. The same is fixed by law and dominion of man is subject to
circulars and thus not subject to any collective bargaining expropriation.
agreement. B. It may be real, personal, tangible,
intangible. Except money and choses in
Pursuant to Sec. 4, Rule III of the Rules and Regulations to action (personal right not reduced into
Govern the Exercise of the Right of Government Employees possession but recoverable by a lawful
to Self-Organization, the terms and conditions of employment suit, a right to demand or recover a debt,
in the Government, including any of its instrumentalities, demand or damages on a cause of action
political subdivision and government owned and controlled ex contractu or for a tort or omission of
corporations with original charters, are governed by law and duty.
employees therein shall not strike for the purpose of securing C. May be franchise since this is a property
changes thereof (SSS Employees Association v. CA, GR. No. right and may therefore be expropriated.
85279, July 28, 1989). The only available remedy for them is to D. May be property already used for public
lobby for better terms of employment with Congress. The use provided it is done directly by the
right to unionize is an economic and labor right while the Legislature as specific grant by authority
right to association in general is a civil-political right. to the delegate.
(3) Taking
A. This imports a physical dispossession of
EMINENT DOMAIN the owner
B. A trespass without actual eviction of the
owner.
Corporation v. Sps. Florimon v. Lleto, et al., If the expropriator (government) does not use the
2012) property for a public purpose, the property reverts to the
owner in fee simple. (Heirs of Moreno v. Mactan-Cebu
c. Findings of court appointed International Airport, 2005)
commissioners regarding the
determination of just compensation are
not binding on courts. (Republic v. Santos,
141 SCRA 30; Republic (MECS) v. IAC, 185
SCRA 572) CONTRACT CLAUSE
(1) The court may substitute its own estimate of the value of
the property only for valid reasons: the commissioners
have applied illegal principles to the evidence submitted
Sec. 10, Art. III, 1987 Constitution
to them;
(2) They have disregarded a clear preponderance of No law impairing the obligation of contracts shall be
evidence; or passed.
(3) Where the amount allowed is either grossly inadequate
or excessive. (National Power Corporation v. De la Cruz,
G.R. No. 156093, February 2, 2007)
Purpose
When determined To safeguard the integrity of valid contractual agreements
General rule: At the time of the filing of the case against unwarranted interference by the State.
(2) There is neither public interest involved nor a law Even on the assumption that petitioner owns property, he
that supports the claim. may still be an indigent considering his sworn statement that
he had no income. Under the standard set forth in Acar v.
NOTE: It can only be invoked if it is against the government Rosal as well as the recent legislations heretofore adverted to,
or when the government intervenes in contract between the it is the income of a litigant that is the determinative factor.
parties (Pacific Wide Realty and Development Corp. v Puerto Azul For, really, property may have no income. It may even be a
Land, Inc., G.R. No. 180893, Nov. 25, 2009). financial burden (Enaje v. Ramos, G.R. No. L-22109, January 30,
1970).
Mutuality of contracts
LEGAL ASSITANCE AND FREE ACCESS These rights cannot be waived except in writing and in the
TO COURTS presence of counsel.
The law shall provide for penal and civil sanctions for B. Right to remain silent
violation of his section as well as compensation to and
A person under investigation has the right to refuse to answer
rehabilitation of victims of torture or similar practices, and
any question. His silence may not be used against him.
their families. (Section 12, Art. 3, CONST)
not applicable (People v. Tranca, 235 SCRA 455, freely and voluntarily telling the truth (People v. Andan, G.R.
1994). No. 116437, Mar. 3, 1997).
Hence, the accused has a right to complain if the judge It is that doubt engendered by an investigation of the whole
has a personal or pecuniary interest in the outcome of the proof and an inability after such investigation to let the mind
case. rest upon the certainty of guilt. Absolute certainty of guilt is
not demanded by the law to convict a criminal charge, but
• The rights enumerated in Sec. 14 (2), including the right moral certainty is required as to every proposition of proof
to impartiality, are protected only during the trial. requisite to constitute the offense (Mupas v. People, 172834,
2008).
• The presumption of innocence is overcome only by proof (1) Notify the prosecutor of the hearing of the application
beyond reasonable doubt. for bail or require him to submit his recommendation
(Section 18, Rule 114 of the Rules of Court as amended);
Reasonable doubt (2) Conduct a hearing of the application for bail
regardless of whether or not the prosecution refuses to
Hearing
(1) The constitutional right to bail necessarily includes the
right to a hearing. When bail is denied without a
hearing, a fundamental right is violated (Beltran v.
Diaz, 77 Phil. 484, 1946). The hearing 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 (Munoz v.
Rilloraza, 83 Phil. 609, 1949).
Excessive Bail
The right to bail can be rendered useless by a bail bond set at
an exorbitant amount. Hence, the Constitution prohibits
“EXCESSIVE BAIL.” (Bernas)
(3) [W]hen a defendant appears without attorney, the court is not possible for men of ordinary intelligence to
has four important duties to comply with: determine therefrom what acts or omissions are punished
a. It must inform the defendant that it is his right to have and hence, should be avoided. This is the void-for-
attorney before being arraigned; vagueness rule.
b. After giving him such information the court must ask
him if he desires the aid of an attorney; Variance doctrine
c. If he desires and is unable to employ attorney, the
court must assign counsel de oficio to defend him; In spite of the difference between the crime that was charged
d. If the accused desires to procure an attorney of his own and that which was eventually proved, the accused may still be
the court must grant him a reasonable time therefor. convicted of whatever offense that was proved even if not
specifically set out in the information provided it is necessarily
Where duly authorized members of the bar are not available, included in the crime charged (Teves v. Sandiganbayan, G.R. No.
the court may appoint any person resident of the province and 154182, Dec. 17, 2004).
of good repute for probity and ability.
6. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL
The right to compulsory process to compel the attendance of
witnesses in his behalf.
Requisites for properly informing the accused of the nature Section 16 Section 14
and cause of accusation Applies to all phases in all Applies only to trial phase in
judicial, quasi-judicial, criminal proceedings.
(1) Information must state the name of the accused administrative proceedings.
(2) Designation given to the offense by statute
(3) Statement of the acts or omission so complained of as
constituting the offense Speedy trial
(4) Name of the offended party One free from vexatious, capricious and oppressive delays And
(5) Approximate time and date of commission of the is intended to relieve the accused of needless anxieties and
offense inconveniences before sentence is pronounced upon him (Flores
(6) Place where offense was committed v. People, 61 SCRA 331).
(7) Every element of the offense must be alleged in the
complaint or information Factors may be considered in determining whether the accused
has been deprived of his right to speedy trial and disposition of
In order that this requirement may be satisfied, facts must case: (Corpuz v. Sandiganbayan)
be stated; not conclusions of law. Every crime is made up Length of delay;
of certain acts and intent; these must be set forth in the Reason for the delay;
complaint with reasonable particularity of time, place, Defendant’s assertion of his right; and
names (plaintiff and defendant), and circumstances. In Prejudice to the defendant.
short, the complaint must contain a specific allegation of
every fact and circumstance necessary to constitute the NOTE: The denial of the right to speedy trial is a ground for
crime charged. acquittal.
The defendant is entitled to know the nature and cause of Remedy for Violation: Dismissal through mandamus.
the accusation against him so he can adequately prepare
for his defense (Cruz, 2007 ed). The right to speedy trial [Sec. 14 (2)] particularly refers to
criminal prosecutions which are at the trial stage, while the right
The description and not the designation of the offense is to speedy disposition of cases (Sec. 16) applies to all cases before
controlling. judicial, quasi-judicial or administrative bodies.
The defendant is also denied the right to be informed of the Impartial trial
charge against him, and to due process as well, where the Accused is entitled to cold and neutrality of an impartial judge
statute itself is couched in such indefinite language that it
Public trial
General rule: A trial is public when anyone interested in Requirements for the exercise of the right to secure attendance
observing the manner a judge conducts the proceedings in his of witness
courtroom may do so. There is no ban on such attendance. His
being a stranger to the litigants is of no moment. No relationship (1) The witness is really material
to the parties need be shown (Garcia v. Domingo, L-30104, 1973). (2) The attendance of the witness was previously
obtained
Exception: The general public may be excluded when the (3) The witness will be available at the time desired
evidence to be presented in the proceeding may be (4) No similar evidence could be obtained
characterized as offensive to decency or public morals (Rule 119,
Sec. 13, ROC). NOTE: Right to cross-examine is demandable only during trials.
Thus, it cannot be availed of during preliminary investigations.
The issue was whether the trial held in the judge’s chambers
without, however, any evidence of an attempt to exclude the Principal exceptions to the right of confrontation
public was violative of the constitutional command.
(1) Admissibility of dying declarations and all exceptions
to the hearsay rule
(2) Trial in absentia under Sec.14 (2) of Art. III of the
RIGHT OF CONFRONTATION Constitution
(3) With respect to child testimony
Two- fold Purpose:
(1) To afford the accused an opportunity to test the
testimony of the witness by cross-examination, and TRIAL IN ABSENTIA
(2) To allow the judge to observe the deportment of the
witness (US v. Anastacio, 6 Phil. 413, 1906).
Requisites:
Right of confrontation is recognized during preliminary
investigation proper but not during preliminary examination. A (1) The accused has already been arraigned;
preliminary examination is generally a proceeding ex parte in (2) He has been duly notified of the trial; and
which the person charged has no right to participate or be (3) His failure to appear is unjustified (People v. Salas, 143
present (Marinas v. Siochi, 104 SCRA 423, 1981). SCRA 163).
Power to Suspend
The power to suspend the privilege of the writ is vested in
WRIT OF HABES CORPUS both the President and the Legislative.
Directed to the person detaining another, commanding him to The Court ruled that “what is suspended is not the writ,
produce the body of the prisoner at a designated time and place, but the privilege of the writ.”
with the day and cause of his caption and detention, to do,
submit to, and receive whatever the court or judge awarding the
writ shall consider in that behalf. Conditions for Validity
Functions as the most immediately available safeguard of (1) There is invasion, or rebellion; and
personal liberty. (2) That public safety requires the suspension.
(3) Person is judicially charged with rebellion or offenses
Object and Purpose connected directly or indirectly with invasion
(1) To achieve immediate determination of the legality of (4) Person detained, during suspension, be judicially
a detention. charged within 3 days. Otherwise, he will be arrested.
(2) “To inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person Two conditions must concur for the valid exercise of the
therefrom if such restraint is illegal.” authority to suspend the privilege to the writ (a) there
(3) “To provide a speedy and effectual remedy to relieve must be "invasion, insurrection, or rebellion" or "imminent
persons from unlawful restraint, danger thereof," and (b) "public safety" must require the
(4) “To set the individual at liberty” suspension of the privilege. President has three
(3) courses of action: (a) to call out the armed forces; (b) to
Habeas Corpus is not the proper mode to question suspend the privilege of the writ of habeas corpus; and (c)
conditions of confinement. to place the Philippines or any part thereof under martial
law. He had, already, called out the armed forces, proved
Personal Liberty inadequate. Of the two other alternatives, the suspension
Actual deprivation of personal liberty is a requisite to the of the privilege is the least harsh (Lansang vs Garcia, 1971).
availability of the writ.
A prime specification of an application for a writ of habeas Effect of Suspension
corpus is restraint of liberty. The essential object and Temporarily prevents the courts from enquiring into the
purpose of the writ of habeas corpus is to inquire into all legality of the detention.
manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such Power to Review Suspension
restraint is illegal. Any restraint which will preclude The Supreme Court, upon initiative of any citizen, may review
freedom of action is sufficient. (Villavicencio vs Lukban, the “sufficiency of the factual basis of the suspension” and
1919) must promulgate its decision within 30 days from the filing
(Art. VII, Sec. 18, CONST).
Because the privilege of the writ of habeas which shall, among other things, contain his defenses. A general
corpus remains suspended "with respect to persons at denial is not allowed. (Sec. 9)
present detained as well as other who may hereafter be
similarly detained for the crimes of insurrection or Hearing
rebellion, subversion, conspiracy or proposal to commit Summary or court may call for a preliminary conference; given
such crimes, and for all other crimes and offenses same priority as petition for habeas corpus. (Sec. 13)
committed by them in furtherance of or on the occasion Proof required: Substantial evidence
thereof, or incident thereto, or in connection therewith," Defense:
the natural consequence is that the right to bail for the (1) Private individual – ordinary diligence
commission of anyone of the said offenses is also (2) Public official – extraordinary diligence, no presumption of
suspended. To hold otherwise would defeat the very regularity of duties. (Sec. 17)
purpose of the suspension. Therefore, where the offense for
which the detainee was arrested is anyone of the said
offenses he has no right to bail even after the charges are WRIT OF HABEAS DATA
filed in court. (Moncupa vs Ponce Enrile, 1983)
The writ of habeas data is an independent and summary remedy
designed to protect the image, privacy, honor, information, and
freedom of information of an individual, and to provide a forum
C. REMEDIES to enforce one’s right to the truth and to informational privacy.
Suggested remedy to lack of entitlement to right to bail is There must be a nexus between right to privacy and right to life,
to have the executive file a formal charge against the liberty and security.
detainee. Because the moment a formal charge is filed, the
executive submits the legalities of the case to the Right To Informational Privacy v. Legitimate State Interest
jurisdiction of the courts, thus opening the case to inquiries
of the legality of the detention and waiving the effects of The determination of whether the privilege of the writ of habeas
executive suspension of the privilege (Bernas). data, being an extraordinary remedy, may be granted in this
case entails a delicate balancing of the alleged intrusion upon
Prior to 1987 the private life of Gamboa and the relevant state interest
1987 Constitution involved. (Gamboa v. P/Supt. Marlou C. Chan, et al., 2012)
Constitution
Vested in both
Power to Vested in the
executive and the
Suspend Executive WRIT OF KALIKASAN
President
Should be SC may review,
“within proper upon initiative of Remedy against violation or threat of violation of constitutional
bounds”; any citizen, right to a balanced and healthful ecology by an unlawful act or
Power of Judicial meaning by sufficiency of the omission of a public official or employee, or private individual
Review over the asking if the factual basis, and or entity, involving environmental damage of such magnitude
factual bases of Executive has determine as to prejudice the life, health or property of inhabitants in two
the suspension gone beyond the Executive or more cities or provinces
constitutional arbitrariness in
limits of its arriving at the Who may file: Natural or juridical persons, NGO or public
jurisdiction suspension interest groups in behalf of persons whose right is violated.
Invasion,
Conditions for Who has jurisdiction: Supreme Court or Court of Appeals.
insurrection, Invasion, or
validity of
rebellion, or rebellion
suspension
imminent danger
WRIT OF AMPARO
Sec. 1, The Rule on the Writ of Amparo. The petition for a writ
of amparo is a remedy available to any person whose right to life,
liberty and security is violated or threatened with violation by
an unlawful act or omission of a public official or employee, or
of a private individual or entity.
SELF-INCRIMINATION CLAUSE
Exception
Sec. 17, Art. III, 1987 Constitution Shapiro vs. United States
No person shall be compelled to be a witness against himself. 335 US 1, (1948)
Facts:
A prosecution arose from alleged violations of the
1. SCOPE AND COVERAGE Emergency Price Control Act of 1942. The defendant was
required by law to keep certain records. When these records
Purpose of the provision is to prohibit compulsory oral were ordered produced, he claimed protection under this
examination of prisoners before the trial, or upon trial to extort privilege.
unwilling confessions or declarations (Bernas).
Issue:
What is prohibited is the use of physical or moral torture to Is the defendant entitled to invoke the right?
extort information from the witness, not inclusion of his body
or substances from it, in evidence. Held:
No. The privilege which exists as to private papers cannot
Not prohibited: Physical Examination be maintained in relation to ‘records required by law to be
kept in order that there may be suitable information of
Us vs. Tan Teng transactions which are the appropriate subjects of
23 Phil 145, GR 7081, (1912) governmental regulations and the enforcement of
Facts: restrictions validly established.
The defendant was accused of raping his 7yr old neighbor.
She later contracted gonorrhea. The investigation revealed
him as the suspect after they examined substances from his Incriminating question
body and found he had gonorrhea. He alleged his right
against self-incrimination was violated because of the A question tends to incriminate when the answer of the accused
physical examination. or the witness would establish a fact which would be a
necessary link in a chain of evidence to prove the commission of
Issue: a crime by the accused or the witness.
Was the physical examination violating his right against self-
incrimination? NOTE: The privilege against self-incrimination is not self-
executing or automatically operational. It must be claimed. It
Held: follows that the right may be waived, expressly, or impliedly, as
No. The taking of a substance from his body was not a violation of by a failure to claim it at the appropriate time.
the said right. He was neither compelled to make any
admissions or to answer any questions. The substance was The privilege against self-incrimination can be claimed only
taken from his body without his objection and was examined when the specific question, incriminatory in character, is
by competent medical authority. actually addressed to the witness. It cannot be claimed at any
other time. It does not give a witness the right to disregard a
The prohibition of self-incrimination in the Bill of Rights is a subpoena, to decline to appear before the court at the time
prohibition of the use of physical or moral compulsion to appointed (Rosete v. Lim, G.R. No. 136051, June 8, 2006).
extort communications from him, and not an exclusion of his
body as evidence, when it may be material. It would be the
same as if the offender apprehended was a thief and the 2. APPLICATION
object stolen by him may be used as evidence against him.
To Persons
• Hand writing
• Since witnesses in a preliminary investigation (1) The right applies only to natural persons. The accused, a
are protected by the prohibition, they may not be witness, and a witness who is also an accused, may avail
compelled to take a dictation to compare their of this right.
handwriting with that found in a supposedly a. Accused may refuse to be a witness altogether.
falsified document (Beltran vs. Samson. 1929). b. Witness cannot refuse to take the stand. He may
invoke the right when an incriminating question is
• Mere denial of the witness that the documents asked.
were in her handwriting does not constitute a
waiver of the right because such denial discloses Incriminating Questions are those that tend to establish a fact
nothing (Bermudez vs. Castillo, 1937). necessary in linking the evidence to prove the commission of
crime by the accused or the witness.
• Documents and Records
• The right includes a right to refuse to testify to a fact • The provision on use immunity prohibits the use of the
which would be a necessary link in a chain of witness’ compelled testimony and its fruits in any manner
evidence to prove the commission of a crime by a connected with the criminal prosecution of the witness.
witness (Fernando vs. Maglanoc, 1954). The witness may still be prosecuted but his compelled
testimony is dispensed with.
To Proceedings • The provision grants the CHR the right to grant this
immunity to persons whose documents were compelled to
• The right may be invoked in criminal proceedings be submitted in evidence.
and administrative investigations in the nature of or
analogous to a criminal proceeding.
TRANSACTIONAL IMMUNITY
Pascual Jr. v. Board of Medical Examiner
GR L-25018 (1969)
Facts: RA 1379: An Act Providing for Forfeiture In Favor of the
The petitioner filed an action for prohibition and preliminary State any Property found to have been Unlawfully
injunction in a proceeding for his alleged malpractice. He Acquired by any Public Officer or Employee
claims the counsel for the respondent violated his right (8) Protection against self-incrimination. Neither the
against self-incrimination after he expressly stated he respondent nor any other person shall be excused from
refused to be a witness for them. This was in record. The attending and testifying or from producing books,
respondents said he would be called again to the witness papers, correspondence, memoranda and other records
stand unless he can obtain a restraining order. on the ground that the testimony or evidence,
documentary or otherwise, required of him may tend to
Issue: incriminate him or subject him to prosecution; but no
Was compelling the accused to be the respondent’s first individual shall be prosecuted criminally for or on
witness in violation of his right? account of any transaction, matter or thing concerning
which he is compelled, after having claimed his
Held: privilege against self-incrimination, to testify or
The Court found for the petitioner in accordance with the produce evidence, documentary or otherwise, except
well-settled principle that "the accused in a criminal that such individual so testifying shall not be exempt
case may refuse, not only to answer incriminatory from prosecution and conviction for perjury or false
questions, but, also, to take the witness stand." If petitioner testimony committed in so testifying or from
would be compelled to testify against himself, he could administrative proceedings.
suffer not the forfeiture of property but the revocation of
his license as a medical practitioner. The constitutional (9) Immunity. The Solicitor General may grant immunity
guarantee protects as well the right to silence: "The accused from criminal prosecution to any person who testifies
has a perfect right to remain silent and his silence cannot be to the unlawful manner in which the respondent has
used as a presumption of his guilt." It is the right of a acquired any of the property in question in cases where
defendant "to forego testimony, to remain silent, unless he such testimony is necessary to prove violations of this
chooses to take the witness stand — with undiluted, Act.
unfettered exercise of his own free genuine will."
• Such immunity is granted to the witness from prosecution
for an offense to which his compelled testimony relates to.
3. IMMUNITY STATUTES The witness cannot be prosecuted at all.
Use Immunity • The respondent cannot excuse himself from producing the
Transactional Immunity documentary evidence required by invoking the right
Exclusionary Rule against self-incrimination.
A. ILLEGAL DETENTION
Illegal detention
The provision on illegal detention is an added security to the
due process clause, and to the guarantee of freedom of speech,
press and expression in Section 4.
B. INVOLUNTARY SERVITUDE
Involuntary Servitude
A condition of enforced or compulsory service of one to another
(Rubi vs. Provincial Board, 39 Phil 660, 708, 1919) no matter
under what form such servitude may be disguised (Bailey vs.
Alabama, 219 U.S. 219, 1910).
Exceptions
• Punishment for a crime for which the party has been
duly convicted.
• Personal military or civil service in the interest of
national defense.
• In naval enlistment: a person who enlists in a
merchant ship may be compelled to remain in service
until the end of the voyage.
• Posse comitatus for the apprehension of criminals
• Return to work order issued by the DOLE Secretary
or the President.
• Minors under patria potestas are obliged to obey their
parents.
SECTION 19: Rights under Conviction and Death Penalty NOTE: Fr. Bernas says that the accused cannot be convicted of
the crime to which the punishment is attached if the court finds
that the punishment is cruel, degrading or inhuman. The reason
LIMITATIONS ON PENALTIES for this is without a valid penalty, the law is not a penal law.
(1) No excessive fines to be imposed
(2) No cruel, degrading, or inhuman punishment shall be Excessive Fines
inflicted. • A fine is excessive when it is disproportionate to the
offense or crime committed.
DEATH PENALTY
GENERAL RULE: Death penalty not allowed
EXCEPT: unless, for compelling reasons involving heinous
crimes DEATH PENALTY
Four Basic Principles for judging Severe Punishment CUSTODIAL CRUELTIES AND INADEQUATE PENAL
(J. Brennan, Furman vs. Georgia, 408 U.S. 238, 1972) FACILITIES
The punishment must not be so severe as to be
degrading to the dignity of human beings.
Unless facilities of the penitentiary are brought up to a level of
It must not be applied arbitrarily.
constitutional tolerability, they should not be used for the
It must not be unacceptable to contemporary society
confinement of prisoners at all (Bernas).
It must not be excessive, or it must serve a penal
purpose more effectively than a less severe
punishment would.
NON-IMPRISONMENT FOR DEBTS (2) The rule protects the accused not against the peril of
second punishment, but against being again tried for the
same offense. (People v. Ylagan, 58 Phil 851)
NON-IMPRISONMENT FOR DEBTS
Purpose:
Sec. 20, Art. III, 1987 Constitution To set the effects of the first prosecution forever at rest, assuring
No person shall be imprisoned for debt or non-payment of a the accused that he shall not thereafter be subjected to the
poll tax. dangers and anxiety of a second charge against him for the same
offense (Cruz).
Debt
Refers to any civil obligation arising from contract, expressed or
implied (Cruz, 2007 ed). REQUISITES:
• As long as the obligation to pay arises ex contractu, it is A first jeopardy must have attached prior to the
considered a private matter between the creditor and the
second;
debtor and the punitive arm of the State cannot be
He first jeopardy must have terminated;
employed in a criminal action to enforce the former’s right.
The second jeopardy must be for the same offense as
The remedy in this case is a civil action only for the
that in the first.
recovery of the unpaid debt.
• Where after the first prosecution a new fact supervenes for • Makes an action done before the passing of the law
which the defendant is responsible, which changes the and which was innocent when done criminal, and
character of the offense and, together with the facts punishes the action; or
existing at the time, constitutes a new and distinct offense, • Aggravates a crime or makes it greater than when it
the accused cannot be said to be in second jeopardy if was committed; or
indicted for the new offense. (People v. City Court of Manila, • Changes the punishment and inflicts a greater
Br. XI, 121 SCRA 637) punishment than the law annexed to the crime when
it was committed; or
Double jeopardy for the same act • Alters the legal rules of evidence and receives less or
The constitutional protection against double jeopardy is different testimony than the law required at the time
available only where an identity is shown to exist between the of the commission of the offense in order to convict
earlier the subsequent offense charged. the defendant.
• Assumes to regulate civil rights and remedies only
• The identity of offenses does not require on-to-one but in effect imposes a penalty or deprivation of a
correspondence between the facts and law involved in one right which when done was lawful;
offense is completely included in the other (Bernas). • Deprives a person accused of a crime of some lawful
protection to which he has become entitled, such as
• An offense penalized by municipal ordinance, is by the protection of a former conviction or acquittal, or a
definition, different from an offense under a statute. The proclamation of amnesty (Bernas).
two offenses would never constitute the same offense
having been promulgated by different rule-making NOTES:
authorities and the plea of double jeopardy would never • The ex-post facto clause only prohibits retrospective penal
lie. (People v. Relova, 148 SCRA 292) laws.
GENERAL PRINCIPLES
DEFINITION
LAW ON
functions of the government, to be exercised by him for the
benefit of the public. The individual so invested is a public
officer. (Laurel v. Desierto, 381 SCRA 48)
Public office can be characterized as follows: Exception: Public office is analogous to property in a limited
(1) It is a public trust; it is merely entrusted to the public context and due process may be invoked when the dispute
officer concerns one’s constitutional right to security of tenure.
(2) It is not a property; it is not protected or guaranteed [Lumiqued v. Exevea, G.R. No. 117565 (1997)]
by the due process clause
(3) It is not a heritable possession
(4) It is outside the commerce of man. It cannot be the CREATION OF PUBLIC OFFICE
subject of a valid contract; otherwise, the contract is
void (1) By the Constitution
(2) By statute or law
Public Office v. Public Employment (3) By a tribunal or body to which the power to create the
Public employment is broader than public office. All public office has been delegated
office is public employment, but not all public employment is a
public office. Public employment as a position lacks either one
or more of the foregoing elements of a public office. It is created HOW A PUBLIC OFFICE IS CREATED
by contract rather than by force of law. (De Leon)
General Rule: The creation of a public office is primarily a
Public Office v. Contract legislative function.
PUBLIC OFFICE CONTRACT
How Created Exception: Where the office is created by the Constitution itself.
Incident of sovereignty. Originates from will of
Sovereignty is contracting parties. The Sandiganbayan is not a constitutional court (or public
omnipresent. office) but a constitutionally-mandated court. It was created by
Object statute and not the Constitution, hence Congress may limit its
To carry out the sovereign Obligations imposed only powers and jurisdiction. [Garcia v. Sandiganbayan, G.R. No.
as well as governmental upon the persons who 114135 (1994)]
functions affecting even entered into the contract.
persons not bound by the
contract. WHO ARE PUBLIC OFFICERS
Subject Matter
A public office embraces Limited duration and Generally, one who holds a public office. (De Leon)
the idea of tenure, duration, specific in its object. Its terms
continuity, and the duties define and limit the rights RA 3019 (Anti- Public officer includes elective and
connected therewith are and obligations of the Graft and appointive officials and employees,
generally continuing and parties, and neither may Corrupt permanent or temporary, whether in
permanent. Practices Act) the classified or unclassified or exempt
service receiving compensation, even others better qualified who should have been preferred. (Luego
nominal, from the government. v. CSC, 143 SCRA 327)
Revised Penal Any person who, by direct provision of
Code the law, popular election or Requisites of a Valid Appointment
appointment by competent authority, (1) The position is vacant;
shall take part in the performance of (2) The appointing authority must be vested with the
public functions in the Government of power to appoint at the time appointment is made;
the Philippine Islands, of shall perform (3) The appointment has been approved by the CSC or
in said Government or in any of its confirmed by Commission on Appointments;
branches public duties as an employee, (4) The appointee should possess all the qualifications
agent or subordinate official, of any including appropriate civil service eligibility and
rank or class, shall be deemed to be a none of the disqualifications;
public officer. (5) The appointee accepts the appointment by taking the
Revised A person whose duties, not being of a oath and entering into discharge of duty
Administrative clerical or manual nature, involves the Scope of Discretion
Code of 1987 exercise of discretion in the The discretion of the appointing authority is not only in the
performance of the functions of the choice of the person who is to be appointed but also in the
government. When used with reference nature and character of the appointment intended.
to a person having authority to do a
particular act or perform a particular General Rule: Appointment is generally a political question
function in the exercise of involving considerations of wisdom which only the appointing
governmental power, “officer” includes authority can decide.
any government employee, agent or
body having authority to do the act or Exception: Appointments requiring confirmation by the
exercise that function. Commission on Appointments. In such cases, the Commission
on Appointments may review the wisdom of the appointment
and has the power to refuse to concur with it even if the
President’s choice possessed all the qualifications prescribed by
law. (Luego v. CSC, 143 SCRA 327)
MODES OF ACQUIRING TITLE TO
PUBLIC OFICE Power of CSC to recall appointments does not include control
of discretion.
The Civil Service Commission is not empowered to determine
the kind or nature of appointment extended by the appointing
Election
officer, its authority is limited to approving and reviewing the
The choice or selection of candidates to public office by popular
appointment in light of the requirements of the Civil Service
vote through the use of the ballot. [Rulloda v. COMELEC, G.R.
Law. This approval is more appropriately called attestation.
No. 154198 (2003)]
The Civil Service Commission’s authority to recall an
Appointment
appointment which has been initially approved when it is
The selection by the authority vested with the power of an
shown that the same was issued in disregard of pertinent laws,
individual who is to exercise the functions of a given office.
rules and regulations. However, it does not have the power to
(Binamira v. Garrucho, 188 SCRA 154)
recall an appointment on the ground that another person is
better qualified. (Luego v. CSC, 143 SCRA 327)
Succession by Operation of Law
When the office to which one succeeds is legally vacated.
The promotion of the “next-in-rank” is not mandatory.
While there is a preference for the next-in-rank in the Civil
Direct Provision of Law
Service Law [Sec. 21(1)-(6), Book V, Civil Service Law], it does
Such as when the office is validly held in an ex-officio capacity
not impose a “rigid or mechanistic formula” that requires the
by a public officer.
appointing power to select the more senior officer. Unless the
law speaks in the most mandatory and peremptory tone, there
should be full recognition of the wide scope of the discretionary
authority to appoint. [Reyes v. Abeleda, G.R. No. 25491 (1968)]
MODES AND KINDS OF
APPOINTMENT There is no requirement that vacancies must be filled by
promotion, transfer, reinstatement, reemployment or
certification, in that order. That would be to construe the
provision not merely as a legislative prescription of
NATURE AND CHARACTERISTICS qualifications but as a legislative appointment, repugnant to the
Constitution. What [the law] does purport to say is that as far as
Appointment, which is essentially within the discretionary practicable the person next in rank should be promoted,
power of whosoever it is vested, is subject only to the condition otherwise the vacancy may be filled by transfer, reinstatement,
that the appointee should possess the qualifications required by reemployment or certification, as the appointing power sees fit,
law. (Umoso v. CSC, 234 SCRA 617) If he does, then the provided the appointee is certified to be qualified and eligible.
appointment cannot be faulted on the ground that there are [Pineda v. Claudio, G.R. No. 29661 (1967)]
APPOINTMENT IS GENERALLY AN EXECUTIVE Where the person is merely designated and not appointed, the
FUNCTION implication is that he shall hold the office only in a temporary
capacity and may be replaced at will by the appointing
General Rule: Power to appoint is essentially executive in authority. (Binamira v. Garrucho, 188 SCRA 154)
nature and the legislature may not interfere with the exercise of
the executive powers. (Pimentel v. Ermita, 472 SCRA 587)
PERMANENT v. TEMPORARY
Exceptions:
(1) When the Constitution expressly allows it to interfere. PERMANENT TEMPORARY
(Pimentel v. Ermita, 472 SCRA 587) Includes (if appointment is by the President
(2) Congress may appoint its own officials and staff.
(1) Regular appointments Acting appointments
[Spinger v. Government (1928)]
(2) Ad interim
(3) When the Constitution vests the powers in another
appointments
branch of the State or an independent office.
Eligibility Requirements
Permanent appointees Generally, required.
The power of local chief executives to appoint local government
must be (1) eligible and (2) However, in the absence of
employees under the Local Government Code is separately
qualified. appropriate eligible, a
sanctioned in the power of Congress to “provide for the
person otherwise ineligible
qualifications, election, appointment and removal, term,
may be appointed to it
salaries, powers and functions and duties of local officials, and
merely in a temporary
all other matters relating to the organization and operation of
capacity.
the local units. (Sec. 3, Art. X, 1987 Constitution)
Subject to confirmation by the Commission on Appointments
Yes, if confirmation by the No, even when
Legislative Appointments
Legislative appointments are repugnant to the Constitution. CA is required for the confirmation by the CA is
[Pineda v. Claudio, G.R. No. 29661 (1967)] When Congress clothes office. required for the office.
the President with the power to appoint an officer, it cannot at Constitutional Protection
the same time limit the choice of the President to only on No officer or employee of Temporary employees of
candidate and effectively eliminate the discretion of the the civil service shall be the Government shall be
appointing power, i.e. when the qualifications prescribed by removed or suspended given such protection as
Congress can only be met by one individual. [Flores v. Drilon except for cause provided may be provided by law.
(1993)] by law.
Security of Tenure
Yes. No.
APPOINTMENT v. DESIGNATION Duration
Until lawful termination (1) Until a permanent
APPOINTMENT DESIGNATION appointment is issued
The selection by the Assignment of a public to the same or different
authority vested with the officer to perform certain person; or
power, of an individual functions different from (2) Until the appointee
who is to exercise the those of his position to removed by the
functions of a given office which he has been appointing power
appointed
Permanent Temporary Exception: Fixed-Period
Confers security of tenure Does not confer upon Temporary Appointments,
designee security of tenure which may be revoked
in the position which he
prior to the end of the term provides that “such (3) Ombudsman and his
only for valid cause appointments require deputies
no confirmation”)
Rationale for temporary appointments.
Such a temporary appointment is not made for the benefit of the The list of appointments requiring confirmation is exclusive.
appointee. Rather, an acting or temporary appointment seeks to Congress cannot, by law, require confirmation by the CA for a
prevent a hiatus in the discharge of official functions by public office created by statute. This would be unconstitutional
authorizing a person to discharge the same pending the as it expands the powers of the CA. [Calderon v. Carale, G.R. No.
selection of a permanent appointee. [CSC v. Daragina (2007)] 91636 (1992)]
When temporary appointments not allowed. The President does not have the prerogative to voluntarily
In no case shall any Member (or Chair) of the (1) Civil Service submit an appointment for confirmation by the CA. [Bautista v.
Commission, (2) Commission on Elections, or (3) Commission Salonga, G.R. No. 86439 (1989)]
on Audit be appointed or designated in a temporary or acting
capacity. [Sec. 1(2), Art. IX-B; Sec. 1(2), Art. IX-C; Sec. 1(2), Art.
IX-D, 1987 Constitution]
PRESIDENTIAL APPOINTMENTS
(Sec. 16, Art. VII, 1987 Constitution) REGULAR v. AD INTERIM
confirm an ad interim appointment is not disapproval. [Matibag (2) Transmittal of the appointment paper and evidence
v. Benipayo (2002)] of the transmittal;
(3) A vacant position at the time of appointment; and
Renewal of by-passed appointment (4) Receipt of the appointment paper and acceptance of
A by-passed appointment is one that has not been finally acted the appointment by the appointee who possesses all
upon on the merits by the CA at the close of the session of the qualifications and none of the disqualifications.
Congress. There is no final decision by the CA to give or
withhold its consent to the appointment as required by the The elements should always concur in the making of a valid
Constitution. Absent such decision, the President is free to appointment. The concurrence of all these elements should
renew the ad interim appointment of a by-passed appointee. always apply. These steps in the appointment process should
[Matibag v. Benipayo (2002)] always concur and operate as a single process. There is no valid
appointment if the process lacks even one step. [Velicaria-Garafil
Commission v. Office of the President, G.R. No. 203372 (2015)]
A document serving as the written evidence of the appointment.
It is the warrant for the exercise of the powers and duties of the Appointment is not final without transmittal.
office to which the officer is commissioned. (De Leon) It is not enough that the President signs the appointment paper.
There should be evidence that the President intended the
appointment paper to be issued. Release of the appointment
paper through the Malacañang Records Office is an unequivocal
act that signifies the President’s intent of its issuance. [Velicaria-
SPECIAL RULES AND DOCTRINES ON PRESIDENTIAL Garafil v. Office of the President, G.R. No. 203372 (2015)]
APPOINTMENTS
Rule on Acceptance
Prohibition on Midnight Appointments General Rule: A person cannot be compelled to accept a public
General Rule: 2 months immediately before the next office.
presidential elections up to end of the term of the President
Exception: When citizens are required, under conditions
Exception: All elements must concur: provided by law, to render personal military or civil service.
(1) Temporary appointments; (Sec. 4, Art. II, 1987 Constitution)
(2) To executive positions; and
(3) When continued vacancies will (a) prejudice public Irrevocability of a Valid, Effective, and Completed
service or (b) endanger public safety Appointment
General Rule: An appointment, once made, is irrevocable and
The outgoing President is prevented from continuing to rule the not subject to reconsideration.
country indirectly after the end of his term. [Velicaria-Garafil v.
Office of the President, G.R. No. 203372 (2015)] The appointee enjoys security of tenure and may only be
removed (1) for cause and (2) with due process.
Appointments are banned prior to the elections to ensure that
partisan loyalties will not be a factor in the appointment process, Exceptions:
and to prevent incumbents from gaining any undue advantage (1) The appointment is an absolute nullity
during the elections. The exception is when it will be shown that (2) There is fraud on the part of the appointee
the appointments have undergone the regular screening
process, that the appointee is qualified, that there is a need to fill
up the vacancy immediately, and that the appointments are not
in bulk. [Nazareno, et al. v. City of Dumaguete, G.R. No. 181559
(2009)] ELIGIBILITY AND QUALIFICATION
REQUIREMENTS
Inapplicability to the Judiciary
The midnight appointments ban in the Constitution does not
apply to the Judiciary. The applicable provisions on the periods DEFINITIONS
to fill up vacancies in the judiciary in Art. VIII will prevail over
the midnight appointments prohibition in Art. VII of the Eligibility
Constitution. [De Castro v. JBC, G.R. No. 191002 (2010)] The state or quality of being legally fitted or qualified to be
chosen. Eligibility to an office should be construed as of a
Limited Application to Presidential Appointments continuing nature and must exist at the commencement of the
The Constitutional prohibition on midnight appointments only term and during occupancy of the office. (Aguila v. Genato, G.R.
applies to the President. [De Rama v. CA, G.R. No. 131136 (2001)] No. L-55151 (1981)]
Eligibles
RULES ON ACCEPTANCE AND REVOCATION They are persons who obtain a passing grade in a civil service
examination and whose names are entered in the register of
Four Elements of a Valid, Effective, and Completed eligible from which appointments must be made.
Appointment
(1) Authority to appoint and evidence of the exercise of Qualification
the authority;
Endowment or act which a person must do before he can occupy RESTRICTIONS ON THE POWER OF CONGRESS TO
a public office. PRESCRIBE QUALIFICATIONS
- Endowment refers to the qualities or attributes which
make an individual eligible for public office. It must (1) Congress cannot exceed its constitutional powers
be possessed at the time of appointment or election (2) Congress cannot impose conditions of eligibility
and continuously for as long as the official inconsistent with constitutional provisions
relationship continues. (3) The qualifications must be germane to the position
- Act refers to the act of entering into the performance (“Reasonable Relation” Rule)
of the functions of the office. (4) Where the Constitution establishes specific eligibility
requirements for a particular constitutional office, the
Failure to perform an act required by law could affect the constitutional criteria are exclusive, and Congress
officer’s title to the given office. cannot add to them except if the Constitution
expressly or impliedly gives the power to set
An oath of office is a qualifying requirement for a public office. qualifications
Only when the public officer has satisfied this prerequisite can (5) Congress cannot prescribe qualifications so detailed
his right to enter into the position be considered plenary and as to practically amount to making a legislative
complete. Until then, he has none at all, and for as long as he has appointment: it is unconstitutional and therefore void
not qualified, the holdover officer is the rightful occupant. for being a usurpation of executive power
[Lecaroz v. Sandiganbayan, G.R. No. 130872 (1999)]
Once proclaimed and duly sworn in office, a public officer is TIME OF POSSESSION OF QUALIFICATIONS
entitled to assume office and to exercise the functions thereof.
The pendency of an election protest is not sufficient basis to (1) If law specifies: At the time specified by the
enjoin him from assuming office or from discharging his Constitution or law
functions. [Mendoza v. Laxina (2003)] (2) If law does not specify, there are two views:
(a) Qualification during commencement of term or
induction into office: the word “eligible” as used in
SCOPE OF QUALIFICATIONS constitutions and statutes, has reference to the
capacity not of being elected or appointed to office,
In general, to entitle a public officer to hold a public office, he but of holding office, and that, therefore, if qualified
must possess all the qualifications and none of the at the time of commencement of the term or induction
disqualifications prescribed by law for the position not only at into office, disqualification of the candidate or
the time of his election or appointment but also during his appointee at the time of election or appointment is
incumbency. immaterial
(b) Qualification or eligibility during election or
Qualification for Office appointment: conditions of eligibility must exist at
The possession of the qualities or circumstances which are the time of the election must exist at the time of the
inherently or legally necessary to render him eligible to fill an election or appointment, and that their existence only
office or to perform a public duty or function. (Black’s Law at the time of the commencement of the term of office
Dictionary) or induction of the candidate or appointee into office
is not sufficient to qualify him to office
Qualifications are continuing in nature and must exist at the
commencement of the term and during the occupancy of the Reconciliation of the Two Views
office, if, during the continuance of his incumbency he ceases to If the provision refers to “holding of office,” rather than to
be qualified, he forfeits his office. (Aguila v. Genato, 103 SCRA eligibility to office, in defining the qualifications, the courts are
380) inclined to hold that the qualifications are to be determined at
the time of the commencement of the term. (De Leon)
The question of eligibility of persons seeking public office must
exist to qualify him for the position is a matter of legislative This is consistent with the rule on liberal interpretation of eligibility
intent. requirements for public office.
The Local Government Code does not specify any particular (2) At least 40 years old
date or time when the candidate must possess the required (3) 15 years or more as a judge or engaged in law practice
citizenship, unlike for residence and age. The requirement is to (4) Of proven Competence, Integrity, Probity, and
ensure that no alien shall govern our people and country or a Independence
unit of territory thereof. An official begins to govern or
discharge his functions only upon proclamation and on start of For Members of the Constitutional Commissions
his term. This liberal interpretation gives spirit, life and
meaning to our law on qualifications consistent with its CSC COMELEC COA
purpose. [Frivaldo v. COMELEC (1996)] Citizenship
Natural-born citizen
Only natural-born Filipinos who owe total and undivided Age
allegiance to the Republic of the Philippines could run for and 35 years old at the time of appointment
hold elective public office. For those who avail themselves of RA Competence
9225 and intend to run for public office, Sec. 5(2) thereof With proven College (a) CPA with at
provides the additional requirement of making a personal and capacity for degree holder least 10 years
sworn renunciation of any and all foreign citizenships prior to public of auditing
or at the time of filing of their Certificate of Candidacy. [Arnado administration experience;
v. COMELEC, G.R. No. 210164 (2015)] OR
(b) Member of the
Bar engaged
in practice of
Presumption of Eligibility law for at least
Doubts as to the eligibility of a candidate are presumed in favor 10 years
of one who has been elected or appointed to public office. Composition Rules
None Chairman and At no time shall all
The right to public office should be strictly construed against majority Members of the
ineligibility. The right of a citizen to hold office is the general should be Commission
rule, ineligibility the exception, and therefore, a citizen may not members of belong to the same
be deprived of this right without proof of some disqualification the Bar who profession
specifically declared by law. (De Leon) have been
engaged in
the practice of
QUALIFICATIONS PRESCRIBED BY THE law for at least
CONSTITUTION 10 years
Legal Basis
For President and Vice President (Sec. 2-3, Art. VII)
Sec. 1(1), Art. IV Sec. 1(1), Art. Sec. 1(1), Art. IX-D
(1) Natural-born citizen
B IX-C
(2) Registered voter
(3) Able to read and write
Practice of Law
(4) 40 years old on day of election
Any activity, in or out of court, which requires the application
(5) Resident of the Philippines for at least 10 years
of law, legal procedure, knowledge, training and experience.
immediately preceding election day
Generally, to practice law is to give notice or render any kind of
service which requires the use in any degree of legal knowledge
For Senator (Sec. 3, Art. VI)
or skill. [Cayetano v. Monsod (1991)]
(1) Natural-born citizen
(2) 35 years old on election day
Residency
(3) Able to read and write In election law, refers to domicile, the place where a party
(4) Registered voter actually or constructively has his permanent home, where he
(5) Resident of the Philippines for at least 2 years intends to return. To successfully effect a change of domicile, the
immediately preceding election day candidate must prove an actual removal or an actual change of
domicile. (Aquino v. COMELEC)
For Members of the House of Representatives (Sec. 6, Art. VI)
(1) Natural-born citizen There is a presumption in favor of domicile of origin. Domicile
(2) 25 years old on election day requires the twin elements of actual habitual residence and
(3) Able to read and write animus manendi (intent to permanently remain). Domicile of
(4) Registered voter in district in which he shall be origin is not easily lost; it is deemed to continue absent a clear
elected and positive proof of a successful change of domicile.
(5) Resident therefor for not less than one year [Romualdez-Marcos v. COMELEC (1995)]
immediately preceding election day
Residency and registration in the district are not required
for partylist representatives.
DURATION OF QUALIFICATION
For Members of the Supreme Court and Lower Collegiate
Courts [Sec. 7(1), Art. VIII]
(1) Natural-born citizen
The Constitution or the statute usually fixes the time when the Traditional Rule
qualifications must be possessed by the appointee or elective General Rule: Pardon will not restore the right to hold public
candidate for office, either expressly or impliedly. office. (Art. 36, Revised Penal Code)
The reckoning point in determining the qualifications of an Exception: When the pardon’s terms expressly restores such.
appointee is the date of issuance of the appointment and not the (Art. 36, Revised Penal Code)
date of its approval by the CSC or the date of resolution of the
protest against it. (Civil Service Commission v. De la Cruz, 437 Pardon does not erase the fact of the commission for the crime
SCRA 403) and conviction. (Monsanto v. Factoran, 170 SCRA 190) When a
person is given pardon because he did not truly commit the
offense, the pardon relieves the party from all punitive
RELIGIOUS TEST OR QUALIFICATION IS NOT consequences of his criminal act, thereby restoring to him his
REQUIRED clean name, good reputation and unstained character prior to
the finding of guilt. (Garcia v. Commission on Audit, 226 SCRA
No religious test shall be required for the exercise of civil or 356)
political rights. (Sec. 5, Art. III, 1987 Constitution)
Under Risos-Vidal (2015), if the wording of the pardon is
“complete, unambiguous, and unqualified,” it includes the
QUALIFICATION STANDARDS AND REQUIREMENTS restoration of civil and political rights because it is “unfettered
UNDER THE CIVIL SERVICE LAW by Articles 36 and 41 of the Revised Penal Code.”
disqualification to hold any office under the Republic Members of the (1) Shall not hold any other office or
of the Philippines.” Constitutional employment [during the
Commission tenure]. (Art. IX-A, Sec. 2) (Art.
On the holding of multiple offices by high-ranking executive IX, Sec. 8); plus
department officials (2) Shall not be qualified to run for
The prohibition in Sec. 13, Art. VII is a special rule in relation to any office in the election
Sec. 7, Art. IX of the Constitution. immediately succeeding their
cessation from office. (Sec. 11,
Covered Officials Art. XI)
(1) President Ombudsman and (1) Same disqualifications and
(2) Vice President his Deputies prohibitions as members of the
(3) Members of the Cabinet, and their deputies and Constitutional Commission (Sec.
assistants 8, Art. XI); plus
(2) Shall not be qualified to run for
General Rule: The holding of any other office or employment is any office in the election
prohibited for the covered officials in Sec. 13, Art. VII. immediately succeeding their
cessation from office (Sec. 11,
Exceptions: Art. XI)
(1) Unless otherwise provided in the Constitution; or The President’s Shall not be appointed during
(2) Ex Officio positions spouse and President’s tenure as:
relatives by (1) Members of the Constitutional
Requirements for Valid Ex-Officio Holding consanguinity or Commissions, or
(1) The holding of the ex-officio office is provided by law; affinity within (2) Office of the Ombudsman, or
(2) The holding is required by the primary functions of the fourth civil (3) (a) Secretaries, (b)
their position; and degree Undersecretaries. (c) Chairmen
(3) The position is held without additional or Heads of Bureaus or Offices,
compensation. including Government-Owned-
or-Controlled Corporations (Sec.
13, Art. VII)
SPECIFIC CONSTITUTIONAL DISQUALIFICATIONS
PUBLIC DISQUALIFICATIONS
OFFICER OTHER DISQUALIFICATIONS AND PROHIBITIONS
The President, Shall not hold any other office or
Vice President, employment during their tenure, In General
the Members of unless otherwise provided in the (1) Mental or physical incapacity;
the Cabinet, and Constitution. (Art. VII, Sec. 13) (2) Misconduct or crime: Persons convicted of crimes
their Deputies or involving moral turpitude are usually disqualified
Assistants from holding public office;
Senator or (1) Incompatible Office (3) Removal or suspension from office: This
Member of the - May not hold during his term disqualification is not presumed, and cannot be
House of any other office or employment imposed when not provided in the Constitution or in
Representatives in the Government, or any statutes;
subdivision, agency or (4) Previous tenure of office: Prohibitions on
instrumentality thereof, reappointment for specific Constitutional offices;
including government-owned or (5) Consecutive term limit:
-controlled corporations or their A. Vice President: 2 consecutive terms
subsidiaries; B. Senator: 2 consecutive terms
(2) Prohibited Office C. Representative: 3 consecutive terms
- Shall also not be appointed to D. Elective local officials: 3 consecutive terms (Sec.
any office when such was 8, Art. X, Constitution)
created or its emoluments were (6) Holding more than one office: To prevent offices of
increased during his term. (Sec. public trust from accumulating in a single person,
13, Art. VI) and to prevent individuals from deriving, directly or
Members of the Shall not be designated to any agency indirectly, any pecuniary benefit by virtue of their
Supreme Court performing quasi-judicial or holding of dual positions.
and Other Courts administrative functions. (Sec. 12, Art.
Established by VIII)
Law
PROHIBITION ON HOLDING OFFICES IN THE PRIVATE
Rationale: Anathema to judicial SECTOR
independence, since this would
subject members of the judiciary to Sec. 7(b)(1) of RA 6713 considers unlawful for public officials and
the power of control of executive employees during their incumbency to own, control, manage,
officials. or accept employment as officer, employee, consultant, counsel,
broker, agent, trustee, or nominee in any private enterprise
regulated, supervised, or licensed by their office unless (3) Convicted by final judgment for violating the oath of
expressly allowed by law. allegiance to the Republic;
(4) Dual citizenship;
Private Practice of the Profession (5) Fugitive from justice in criminal or non-political cases
General Rule: Sec. 7, RA 6713 provides for the prohibited acts here or abroad;
and transactions of public officials and employees. Subsection (6) Permanent residents in a foreign country or those
(b)(2) prohibits them from engaging in the private practice of who have acquired the right to reside abroad and
their profession during their incumbency. continue to avail of the same right after the effectivity
of the Local Government Code; or
Exception: A public official or employee can engage in the (7) Insane or feeble-minded.
practice of his or her profession under the following conditions:
(1) The private practice is authorized by the Constitution Dual citizenship is different from dual allegiance.
or by the law; and Dual citizenship arises when, as a result of the concurrent
(2) The practice will not conflict, or tend to conflict, with application of the different laws of two or more states, a person
his or her official functions. is simultaneously considered a national by the said states.
Discretionary
DISQUALIFICATIONS IN THE LOCAL GOVERNMENT Acts which necessarily require the exercise of reason in the
CODE adaptation of means to an end, and discretion in determining
how or whether the act shall be done or the course pursued.
The following persons are disqualified from running from any When the law commits to any officer the duty of looking into
elective local position: facts and acting upon them, not in a way which it specifically
(1) Sentenced by final judgment for an offense involving directs, but after a discretion in its nature, the function is
moral turpitude or for an offense punishable by 1 year discretionary.
or more of imprisonment, within 2 years after serving
sentence; General Rule: A public officer cannot delegate his discretionary
(2) Removed from office as a result of an administrative duties to another.
case;
Exception: The power to substitute another in his place has been its functions. As such there is no presumption that they are
expressly granted by law. empowered to act. There must be a delegation of such authority,
either express or implied. [Villegas v. Subido (1969)]
Power of Supervision Obligations under the Code of Conduct and Ethical Standards
Supervisory power is the power of mere oversight over an for Public Officials and Employees
inferior body which does not include any restraining authority (1) Act promptly on letters and requests
over such body.
All public officials shall, within fifteen (15) working
A supervising officer merely sees to it that the rules are days from receipt, respond to letters, telegrams, or
followed, but he himself does not lay down such rules, nor does other means of communication sent by the public.
he have the discretion to modify or replace them. The reply must contain the answer taken on the
request.
Authority of public officers consists of those which are: All heads or other responsible officers of agencies of
(1) Expressly conferred by law; the government or of GOCCs shall, within forty-five
(2) Incidental to the exercise of the powers granted; and (45) working days from the end of the year, render a
(3) Necessarily implied full and complete report of performance and
accomplishments, as prescribed by existing rules and
Doctrine of Necessary Implication regulations of the agency, office, or corporation
All powers necessary for the effective exercise of the express concerned.
powers are deemed impliedly granted. (Nachura, 2015)
(3) Process documents and papers expeditiously
Authority can be exercised only during the term when the
public officer is, by law, invested with the rights and duties of All official papers and documents must be processed
the office. and completed within a reasonable time from the
preparation thereof and must contain, as far as
Source of Powers and Authority practicable, not more than three (3) signatories
The source of governmental authority is found in the People. therein.
Directly or indirectly through their chosen representatives, they
create such offices and agencies as they deem to be desirable for (4) Act immediately on the public’s personal transactions
the administration of the public functions and declare in what
manner and by what persons they shall be exercised. All public officials and employees must attend to
anyone who wants to avail himself of the services of
In the absence of a valid grant, public officials are devoid of their offices, and must, at all times, act promptly and
power. A public official exercises power, not rights. The expeditiously.
Government itself is merely an agency through which the will
of the State is expressed and enforced. Its officers therefore are (5) Make documents accessible to the public
likewise agents entrusted with the responsibility of discharging
All public documents must be made accessible to, and form of a fixed salary or wages, per diems, fees, commissions, or
readily available for inspection by, the public within prerequisites of whatsoever character.
reasonable working hours.
Distinguished from honorarium which is something given not
as a matter of obligation but in appreciation for services
rendered.
However, the law does not preclude the infusion of new blood,
younger dynamism, or necessary talents into the government RIGHT TO REINSTATEMENT AND BACK SALARY
service provided that the acts of the appointing power are
bonafide for the best interest of the public service and the person Reinstatement means the restoration to a state or condition
chosen has the needed qualifications. [Corazon Cabagnot v. Civil from which one had been removed or separated. One who is
Service Commission (1993)] reinstated assumes the position he had occupied prior to the
dismissal. Back salary or wages is a form of relief that restores
Personnel Actions the income that was lost by reason of unlawful dismissal.
Non-Applicability of the Doctrine of Command Employees are entitled to compensation for the period of their
Responsibility and the Principle of Respondeat Superior to suspension pending appeal if they are found innocent. It would
Public Officers be unjust to deprive him of his pay as a result of immediate
Neither the principle of command responsibility (in military or execution of the decision against him and continue to do so even
political structural dynamics) nor the Doctrine of respondeat after it is shown that he is innocent of the charges for which he
superior (in quasi delicts) applies in the law of public officers. was suspended.
The negligence of the subordinate cannot be ascribed to his
superior in the absence of evidence of the latter’s own PENDING PENDING APPEAL
negligence. [Reyes v. Rural Bank of San Miguel (2004)] INVESTIGATION
Not a penalty but only a Punitive in character
Exception: The President, being the commander-in-chief of all means of enabling the
armed forces, necessarily possesses control over the military disciplining authority to
that qualifies him as a superior within the purview of the conduct unhampered
command responsibility doctrine. [In the Matter of the Petition for investigation
Writ of Amparo and Habeas Data in favor of Noriel H. Rodriguez; No backwages due for the If exonerated – reinstated
Rodriguez v. Macapagal-Arroyo (2011)] period of suspension even with full pay for the period
if found innocent unless of suspension
suspension is unjustified
PREVENTIVE SUSPENSION AND BACK SALARIES If reprimanded – cannot
claim backwages. Penalty is
Preventive Suspension commuted.
It is a disciplinary measure which is intended to enable the
disciplinary authority to investigate charges against the
RULES ON PREVENTIVE SUSPENSION
respondent by preventing the latter from using his position or
office to influence witnesses, to intimidate them, or to tamper
ELECTIVE
with the records which may be vital in the prosecution of the APPOINTIVE OFFICIALS
OFFICIALS
case against him.
Not a
Presidential
Presidential
Preventive suspension of the accused is mandatory upon Appointee
Appointee
finding that the Information is valid. Court possesses no
President –
discretion to determine whether one is necessary. [Dela Cruz v.
elective
Sandiganbayan, G.R. No. 161929 (2009)]
official of a
province,
Kinds of Preventive Suspension
HUC, or ICC
(1) Preventive suspension pending investigation
- The proper disciplining authority may preventively
Governor –
suspend any subordinate officer under his authority The proper The proper
elective
pending an investigation, if the charge against such By disciplining disciplining
official of CC
officer involves dishonesty, oppression or grave authority authority
or
misconduct, or neglect in the performance of duty or
municipality
if there are reasons to believe that the respondent is
guilty of the charges which would warrant his
Mayor –
removal from service. (Sec. 51, Chapter 6, Subtitle A,
elective
Title I, Book V, Revised Administrative Code)
official of a
barangay
petitioner is ousted from his position. The claim for back salaries Official immunity serves as a protective aegis for public officials
and damages is also subject to the 1-year prescriptive period. from tort liability for damages arising from discretionary acts or
functions in the performance of their official duties.
NOTE: Prescription does not lie against the State. It is the
general rule that laches, acquiescence, or unreasonable delay in Presidential Immunity from Suit
the performance of duty on the part of the officers of the state, General Rule: The President shall be immune from suit during
is not imputable to the state when acting in its character as a his tenure.
sovereign. [Republic v. Sereno, G.R. No. 237428 (2018)]
Exception: Impeachment complaint
Exceptions:
(1) Where the public official is charged in his official
capacity for acts that are unlawful and injurious to the DE FACTO OFFICERS
rights of others
(2) Where the public official is clearly being sued not in
his official capacity but in his personal capacity,
although the acts complained of may have been
De Facto Doctrine
committed while he occupied a public position
It is the doctrine that a person who is admitted and sworn into
(3) Suit to compel performance of official duty or restrain
office by the proper authority is deemed to be rightfully in such
performance of an act
office until:
(1) He is ousted by judicial declaration in a proper
Rationale
proceeding; or
The Doctrine of Official Immunity promotes fearless, vigorous,
(2) His admission thereto is declared void.
and effective administration of policies of government. It is
generally recognized that public officers and employees would
Purpose: To ensure the orderly functioning of government. The
be unduly hampered, deterred, and intimidated in the
public cannot afford to check the validity of the officer’s title
discharge of their duties, if those who act improperly, or even
each time they transact with him.
exceed the authority given them, were not protected to some
reasonable degree by being relieved from private liability. The
De Facto Officer
threat of suit could also deter competent people from accepting
One who has the reputation of being the officer that he assumes
public office.
to be, and yet is not a good officer in point of law. [Torres v. Ribo
(1948)]
Acts of a public officer are protected by the presumption of good
faith. Even mistakes concededly committed by such a public
Elements of a De Facto Officership
officer in the discharge of his official duties are not actionable as
(1) A validly existing public office
long as it is not shown that they were motivated by malice or
(2) Actual physical possession of the office in good faith
gross negligence amounting to bad faith.
(3) Color of title to the office or general acquiescence by
the public
Other Public Policy Considerations
(1) Loss of valuable time cause by such actions
There is color of title to the office in ANY of the following
(2) Unfairness of subjecting officials to personal liability
circumstances:
for the acts of their subordinates
(1) There is no known appointment or election, but
(3) A feeling that the ballot and removal procedures are
people are induced by circumstances of reputation or
more appropriate methods of dealing with the
acquiescence to suppose that he is the officer he
misconduct in public office
assumes to be. Consequently, people do not to inquire
into his authority, and they submit to him or invoke
Official Immunity v. State Immunity
his action;
The immunity of public official is a more limited principle than
(2) He possessed public office under color of a known
state immunity since its purpose is not directly to protect the
and valid appointment or election, but he failed to
sovereign, but rather to do so only collaterally, by protecting the
conform to some precedent requirement or condition;
public official in the performance of his government function.
(3) He possessed public office under color of a known
election or appointment, but such is VOID because:
The Doctrine of Sovereign Immunity is principally rested upon
A. He is ineligible;
the tenuous ground that the king could do no wrong. It served
B. The electing or appointing body is not
to protect the impersonal body politic or government itself from
empowered to do such;
tort liability.
C. His exercise of his function was defective or
irregular; and
D. The public DOES NOT KNOW of such Basis of Color of right or None. Neither
ineligibility, want of authority, or irregularity. Authority title to office lawful title nor
color of right to
He possessed public office under color of an election or an office
appointment by or pursuant to a public, unconstitutional law, Validity of Valid as to the Absolutely void;
before the same is adjudged to be such. “Official” Acts public until his his acts can be
title to the office impeached at
OFFICER DE JURE v. OFFICER DE FACTO is adjudged any time in any
DE JURE DE FACTO insufficient proceeding
Requisites A de jure office De jure office; Rule on Entitled to Not entitled to
exists; He assumed Compensation receive compensation at
He is legally office under compensation all
qualified for the color of right or only when no de
office; general jure officer is
He is lawfully acquiescence by declared and
chosen to such the public; only for actual
office; He actually and services
He undertakes to physically rendered
perform the possessed the
duties of such office in good An intruder or usurper may grow into a de facto officer if his
office according faith. assumption of office is acquiesced in, as when he continues to
to law’s act for so long a time as to afford a strong presumption that he
prescribed mode. has been duly appointed or elected.
Basis of Right: He has the Reputation: He
Authority lawful right or possesses office Office Created Under an Unconstitutional Statute
title to the office and performs its The prevalent view is that a person appointed or elected in
duties under accordance with a law later declared to be unconstitutional may
color of right, but be considered de facto at least before the declaration of
he is not unconstitutionality.
technically
qualified to act in Legal Effects of Acts of De Facto Officers
all points of law (1) As regards the officers themselves: A party suing or
How Ousted Cannot be In a direct defending in his own right as a public officer must
ousted even in a proceeding (quo show that he is an officer de jure. It is not sufficient
direct warranto); that he be merely a de facto officer.
proceeding Cannot be ousted (2) As regards the public and third persons: The acts of a de
collaterally facto officer are valid as to third persons and the
Validity of Valid, subject to Valid as to the public until his title to office is adjudged insufficient.
Official Acts exceptions public until his
title to the office Rationale: The doctrine is intended not for the protection of the
is adjudged public officer, but for the protection of the public and
insufficient individuals who get involved in the official acts of persons
Rule on Rightfully Conditionally discharging the duties of a public office.
Compensation entitled to entitled to
compensation; receive De Facto Officer’s Official Acts are Not Subject to Collateral
The principle compensation: Attack
“No work, no only when no de A de facto officer’s and his acts’ validity cannot be collaterally
pay” is jure officer is questioned in proceedings where he is not a party, or which
inapplicable to declared; were not instituted to determine the very question.
him. He is paid only
for actual Remedy: Quo warranto proceedings filed by:
services (1) The person claiming entitlement to the office;
rendered. (2) The Republic of the Philippines (represented by the
Solicitor-General or a public prosecutor)
Requisites:
(1) Intention to relinquish a part of the term
TERMINATION OF OFFICIAL (2) Act of relinquishment
RELATION (3) Acceptance by the proper authority, either expressly
or impliedly
removed or suspended except for cause provided by efficient to be valid, it must pass the test of good faith;
law. [Sec. 2(3), Art. IX-B, 1987 Constitution] otherwise, it is void ab initio.
(2) Removal or resignation from office is not a bar to a
finding of administrative liability [Office of the Reorganization is valid provided they are pursued in good faith.
President v. Cataquiz (2011)]
(3) Removal not for a just cause, or non-compliance with Attrition
the prescribed procedure constitutes a reversible It is the reduction of personnel as a result of resignation,
error and entitles the officer or employee to retirement, dismissal in accordance with existing laws, death, or
reinstatement with back salaries and without loss of transfer to another office.
seniority rights.
ABOLITION RECALL
SCOPE
Exceptions: Appointments to the following positions
It embraces all branches, subdivisions, instrumentalities, and are exempt from the competitive examination
agencies of the Government, including government-owned and requirement
controlled corporations with original charters. (i) Policy determining – where the officer is vested
with the power of formulating policies for the
government or any of its agencies, subdivisions,
JURISDICTION OF THE CIVIL SERVICE COMMISSION or instrumentalities
(ii) Primarily confidential – the officer enjoys
Exclusive Jurisdiction primarily such close intimacy with the
(1) Disciplinary cases appointing authority which insures freedom
(2) Cases involving “personnel action” affecting the Civil intercourse without embarrassment or freedom
Service employees: of misgiving of betrayal or personal trust on
A. Appointment through certification confidential matters of the state. [De Los Santos v.
B. Promotion Mallare (1950)] The position characterized by the
C. Transfer close proximity of positions of the appointee as
D. Reinstatement well as the high degree of trust and confidence
E. Reemployment inherent in their relationship. [Civil Service
F. Detail Commission v. Javier (2008)]
G. Reassignment
H. Demotion It is the nature of the position which determines
I. Separation whether a position is policy determining, primarily
(3) Employment status confidential, or highly technical.
(4) Qualification standards
(2) Non-Career Service – Entrance on bases other than
Power of the CSC to Review an Appointee’s Qualifications those of the usual tests. Tenure limited to a period
The only function of the CSC is to review the appointment in the specified by law or which is coterminous with the
light of the requirements of the Civil Service Law, and when it appointing authority or the duration of a particular
finds the appointee to be qualified and all other legal project.
requirements have been otherwise satisfied, it has no choice but
to attest to the appointment. [Lapinid v. CSC (1991)]
Recall of Appointments
Limitations Grounds
(1) It cannot order the replacement of the appointee (1) Non-compliance with the procedures or criteria
simply because it considers another employee to be provided by the agency’s Merit Promotion Plan
better qualified. (2) Failure to pass through the agency’s Selection or
(2) The CSC cannot co-manage or be a surrogate Promotion Board
administrator of government offices and agencies. (3) Violation of existing collective agreement between
(3) It cannot change the nature of the appointment management and employees relative to promotion
extended by the appointing officer. (4) Violation of other existing civil service laws, rules,
The authority of city or municipal mayors to exercise and regulations
administrative supervision over city or municipal civil
registrars is not exclusive, but concurrent with the CSC. The The above grounds are available despite initial approval by the
Civil Service Commission, as the central personnel agency of the CSC of the appointment.
government, has the power to appoint and discipline its officials
and employees and to hear and decide administrative cases Distinguished from recall under the Local Government Code.
instituted by or brought before it directly or on appeal. The CSC has the power to recall an appointment which has been
initially approved when it is shown that the same was issued in
disregard of pertinent CSC laws, rules, and regulations. In
APPOINTMENTS TO THE CIVIL SERVICE contrast, under the LGC, recall is a mode of removal of a public
official by the people before the end of his term of office.
Classification of Positions in the Civil Service
Appointments Not Requiring CSC Approval
(1) Career Service – characterized by (1) Presidential appointments
A. Entrance based on merit and fitness to be (2) Members of the AFP
determined as far as practicable by competitive (3) Police forces
examinations, or based on highly technical (4) Firemen
qualifications, (5) Jail guards
B. Opportunity for advancement to higher career
positions, and Limitations on Power to Appoint
C. Security of tenure (1) Constitutional limitations
A. Prohibition on nepotic appointments by the
General Rule: Appointments to the Career Service is President
to be determined as far as practicable by competitive B. Midnight appointments ban
examination.
C. Grant of power of appointment to officers and C. The Commission disapproves the appointment
bodies other than the President of a person to a higher position
D. Grant of exclusive power to appoint officials and
employees of the judiciary to the SC
E. Recommendation of the JBC for appointments to Transfer
the SC and lower courts It is a movement from one position to another which is of
F. Grant of exclusive power to appoint officials and equivalent rank, level, or salary without break in service.
employees of the Constitutional Commissions to
the same This may be imposed as an administrative remedy.
G. One-year appointments ban for losing
candidates General Rule: If transfer is without consent, it violates security
H. Non-appointment or designation of elective of tenure.
officials
I. Prohibition on holding multiple offices for Exceptions:
appointive officials (1) Temporary appointee
J. Grant of exclusive power to appoint officials and (2) Career Executive Service Personnel whose status and
employees of the Ombudsman ot the same salaries are based on ranks, not on position
K. Recommendation of the JBC for appointments of
the Ombudsman and his deputies
(2) Limitations found in statutes Reinstatement
(3) Restrictions as developed under jurisprudence It is technically the issuance of a new appointment and is
A. Appointing authority cannot preempt discretionary on the part of the appointing power.
appointing power of successor
B. Appointing authority cannot appoint himself to It cannot be the subject of an application for a writ of
a vacancy mandamus.
C. No appointment to a post which is not vacant
Requisites for Validity
(1) Any permanent appointee of a career service position
PERSONNEL ACTION (2) No commission of delinquency or misconduct, and is
not separated
Promotion (3) The reinstatement is to a position in the same level for
It is the movement from one position to another with increase which the officer is qualified
in duties and responsibilities as authorized by law and is Reinstatement has the same effect as executive clemency, which
usually accompanied by an increase in pay. completely obliterates the adverse effects of the administrative
decision which found him guilty of dishonesty. He is restored
(1) Next-in-Rank Rule ipso facto upon grant of such. Application for reinstatement is
The person next in rank shall be given preference in unnecessary.
promotion when the position immediately above his
is vacated.
Detail
BUT the appointing authority still exercises discretion It is the movement of an employee from one agency to another
and is not bound by this rule, although he is required without the issuance of an appointment.
to specify the “special reason or reasons” for not
appointing the officer next-in-rank. Requisites for Validity
(1) Only for a limited period
(2) Automatic Reversion Rule (2) Only for employees occupying professional,
All appointments involved in a chain of promotions technical, and scientific positions
must be submitted simultaneously for approval by (3) Temporary in nature
the Commission.
The disapproval of the appointment of a person An Employee May Be Reassigned from One Organizational
proposed to a higher position invalidates the Unit to Another in the Same Agency
promotion of those in the lower positions and It is a management prerogative of the CSC and any department
automatically restores them to their former positions. or agency embraced in the Civil Service and does not constitute
removal without cause.
However, the affected persons are entitled to
payment of salaries for service actually rendered at a Requisites for Validity
rate fixed in their promotional appointments. (1) No reduction in rank, status, or salary.
(2) The reassignment is from one organizational unit to
Requisites another in the same agency.
A. Series of promotions (3) Should have a definite date or duration. Otherwise, a
B. All promotional appointments are floating assignment would be tantamount to a
simultaneously submitted to the Commission diminution in status or rank.
for approval
Reemployment
Names of persons who have been appointed permanently to Procedure
positions in the career service and who have been separated as The House of Representatives has the sole power to initiate all
a result of reduction in force and/or reorganization, shall be cases of impeachment while the Senate sits as a court for the trial
entered in a list from which selection for reemployment shall be of impeachment cases.
made.
No impeachment proceedings shall be initiated against the
same official more than once within a period of one year (Sec. 3,
Art. XI, Constitution).
ACCOUNTABILITY OF PUBLIC
OFFICERS The term “to initiate” refers to:
(1) The filing of the impeachment complaint, coupled
with
IMPEACHMENT (2) Congress’ taking initial action of said complaint (i.e.
referral to the House Committee on Justice) [Francisco
A method of national inquest into the conduct of public men. v. House of Representatives (2003)].
It is the power of Congress to remove a public official for serious
crimes or misconduct as provided in the Constitution (Corona Judgment
v. Senate, 2012). Judgment in cases of impeachment shall not extend further than
removal from office and disqualification to hold any office
Purpose under the Republic of the Philippines, but the party convicted
To protect the people from official delinquencies or shall nevertheless be liable and subject to prosecution, trial, and
malfeasances. It is primarily intended for the protection of the punishment, according to law (Sec. 3, Art. XI, Constitution).
State, not for the punishment of the offender.
The second paragraph of Sec. 14, RA 6770, which states that “no In the absence of any allegation that the offense charges were
court shall hear any appeal or application for remedy against necessarily connected with the discharge of the duties or
the decision or findings of the Ombudsman, except the Supreme functions of a public officer, the ordinary court, not the
Court, on pure question of law” is unconstitutional. Effectively, Sandiganbayan has jurisdiction to hear and decide the case.
Congress increased the appellate jurisdiction of the Supreme
Court without its advice and concurrence. By confining the What is controlling is not whether the phrase “committed in
remedy to a Rule 45 Appeal, the provision takes away the relation to public office” appears in the Information. What
remedy of Certiorari, grounded on errors of jurisdiction, in determined the jurisdiction of the Sandiganbayan is the specific
denigration of the judicial power constitutionally vested in factual allegation in the Information that would indicate close
courts [Carpio-Morales v. Court of Appeals, G.R. No. 217126-27 intimacy between the discharge of the accused’s official duties
(2015)]. and the commission of the offense charged in order to qualify
the crime as having been committed in relation to public office.
Decisions on resolutions of the Ombudsman in administrative The relation between the crime and the office must be direct and
cases absolving the respondent of the charge or imposing upon not accidental, that is, the relation has to be such that, in the legal
him the penalty of public censure or reprimand, suspension of sense, the offense cannot exist without the office.
not more than one month, or a fine equivalent to one-month
salary, is final and unappealable (Agpalo, 2005). Officials and Private Individuals Subject to its Jurisdiction
Under Section 4(a, b) of PD 1606, as amended, the Sandiganbayan
Judicial Review in Penal Proceedings shall exercise exclusive original jurisdiction over the cases
mentioned in (1) above where one or more of the accused are
General Rule: Courts cannot review the exercise of discretion officials occupying the following positions in government,
of the Ombudsman in prosecuting or dismissing a criminal whether permanent, acting or interim capacity at the time of the
complaint filed before it [Loquias v. Ombudsman, G.R. No. 139396 commission of the offense:
(2000)]. (1) Officials of the executive branch occupying the
positions of regional director and higher, otherwise
Exception: When the Ombudsman’s findings are tainted with classified as Grade 27 and higher, of the
grave abuse of discretion. [Carpio-Morales v. Court of Appeals, Compensation and Position Classification Act of 1989
G.R. No. 217126-27 (2015)]. (RA 6758), specifically including:
A. Provincial governors, vice-governors, members
of the sangguniang panlalawigan, and provincial
SANDIGANBAYAN
treasurers, assessors, engineers, and other (2) By receiving, directly or indirectly, any commission,
provincial department heads; gift, share, percentage, kickbacks or any other form of
B. City mayors, vice-mayors, members of the pecuniary benefit from any person and/or entity in
sangguniang panlungsod, city treasurers, connection with any government contract or project
assessors, engineers, and other city department or by reason of the office or position of the public
heads; officer;
C. Officials of the diplomatic service occupying the (3) By the illegal and fraudulent conveyance or
position of consul and higher; disposition of assets belonging to the National
D. Philippine army and air force colonels, naval Government or any of its subdivisions, agencies or
captains, and all officers of higher rank; instrumentalities or government-owned or controlled
E. Officers of the Philippines National Police while corporations and their subsidiaries;
occupying the position of provincial director (4) By obtaining, receiving, or accepting directly or
and those holding the rank of senior indirectly any shares of stock, equity or any other
superintendent or higher; form of interest or participation including the
F. City and provincial prosecutors and their promise of future employment in any business
assistants, and officials and prosecutors in the enterprise or undertaking;
Office of the Ombudsman and special (5) By establishing agricultural, industrial, or
prosecutor; commercial monopolies or other combinations
(2) Presidents, directors or trustees, or managers of and/or implementation of decrees and orders
government-owned or controlled corporations, state intended to benefit particular persons or special
universities or educational institutions or interests; or
foundations; (6) By taking undue advantage of official position,
(3) Members of Congress and officials thereof classified authority, relationship, connection of influence to
as Grade 27 and up under the Compensation and unjustly enrich himself or themselves at the expense
Position Classification Act of 1989; and to the damage and prejudice of the Filipino
(4) Members of the judiciary without prejudice to the people and the Republic of the Philippines. (Sec. 1, RA
provisions of the Constitution; 7080).
(5) Chairpersons and members of Constitutional
Commissions, without prejudice to the provisions of Recovery of Ill-Gotten Wealth
the Constitution; and The right of the State to recover properties unlawfully acquired
(6) All other national and local officials classified as by public officials or employees, from them or from their
Grade 27 and higher under the Compensation and nominees or transferees, shall not be barred by prescription,
Position Classification Act of 1989. laches or estoppel. (Sec. 15, Art. XI, Constitution)
In case private individuals are charged as co-principals, The provision applies only to civil actions for recovery of ill-
accomplices or accessories with the public officers or gotten wealth and not to criminal cases. Thus, prosecution of
employees, including those employed in government-owned or offenses arising from, relating or incident to, or involving ill-
controlled corporations, they shall be tried jointly with said gotten wealth in the said provision may be barred by
public officers and employees in the proper courts which shall prescription (Presidential Ad-Hoc Fact Finding Committee on
exercise exclusive jurisdiction over them. Behest Loans v. Desierto).
TERM LIMITS
Term of Office
3 years from noon of June 30, 1992 or the date provided by law.
Term of Office
3 years
GENERAL PRINCIPLES
ADMINISTRATIVE LAW
1. Constitution;
2. Statutes creating administrative bodies;
3. Court Decisions interpreting the charters of
administrative bodies;
4. Rules, Regulations, and Orders issued by
administrative agencies.
1. AS TO SOURCE
a. Law that controls administrative bodies
b. Law made by administrative bodies
2. AS TO PURPOSE
a. Procedural
b. Substantive
3. AS TO APPLICABILITY
a. General
b. Special or particular
purpose of enabling it to carry out laws entrusted to it for administration which the President desires to bring to
enforcement or execution. the attention of all or some of the departments,
agencies, bureaus, or offices of the Government for
CREATION OF ADMINISTRATIVE AGENCIES information or compliance.
6. EXECUTIVE ORDERS – acts of the President
GENERAL RULE: It is primarily a legislative function. providing for rules of general or permanent character
in the implementation or execution of constitutional
EXCEPTION: Offices created by the Constitution. (Eugenio v. or statutory powers.
CS, G.R. No. 115863, March 31, 1995)
EXTENT OF PRESIDENT’S POWERS
DIFFERENT WAYS OF CREATING PUBLIC OFFICE
Extent of President’s Powers
1. Constitutional provision; As to Executive As to LGUs
2. Legislative enactment; departments, bureaus,
3. Authority of law; (Sec. of DOTC v. Mabalot, G.R. No. and offices
138200, February 27, 2002) Control and supervision. Only general
4. Power of the President to create public office by valid supervision.
delegation from Congress;
5. Power of the President to create public office under
the faithful-execution clause. (CONST. Art. VII, Sec. KINDS OF ADMINISTRATIVE AGENCIES
17)
A. AS TO FUNCTION
FAITHFUL-EXECUTION CLAUSE
1. Those that grant privileges; (e.g. Bureau of Lands)
SECTION 17. The President shall have control of all the 2. Those that carry out the actual business of the
executive departments, bureaus, and offices. He shall ensure Government; (e.g. BIR)
that the laws be faithfully executed. 3. Those that perform some business service to the
public; (e.g. Bureau of Posts which is now defunct)
ADMINISTRATIVE AGENCIES DIRECTLY CREATED BY 4. Those that regulate businesses affected with public
THE 1987 CONSTITUTION interest; (e.g. LTFRB)
5. Those that regulate private businesses and
1. Civil Service Commission (Art. IX-B) individuals under police power; (e.g. SEC)
2. Commission on Elections (Art. IX-C) 6. Those that adjudicate individual controversies
3. Commission on Audit (Art. IX-D) because of some strong social policy involved such
4. Office of the Ombudsman and his Deputies (Art. XI, as labor; (e.g. NLRC, NCMB)
Sec. 5) 7. Those that make the government a private party; (e.g.
5. Commission on Human Rights (Art. XIII, Sec. 17) GSIS)
8. Those that adjudicate and decide election cases. (e.g.
ORDINANCE POWER OF THE PRESIDENT – it is the COMELEC)
executive’s rule-making authority in implementing or
executing constitutional or statutory powers. (ABAKADA B. AS TO TITLE OR DESIGNATION
GURO Party List, et al. v. Purisima, G.R. No. 166715, August 14,
2008) 1. AGENCY – refers to any of the various units of the
Government including departments, bureaus, offices,
HOW THE PRESIDENT’S ORDINANCE POWER IS instrumentalities, GOCCs, local government unit or a
EXERCISED distinct unit therein.
2. DEPARTMENT – an executive department created
1. PROCLAMATIONS – acts of the President fixing a by law. It includes any instrumentality as having the
date or declaring a status or condition of public rank of a department, regardless of its designation.
moment or interest, upon the existence of which the 3. BUREAU – it is a principal subdivision of a
operation of a specific law or regulation is made to department. It includes any instrumentality as having
depend. They have the force of an executive order. the rank of a bureau, regardless of its designation.
2. GENERAL or SPECIAL ORDERS – acts and 4. OFFICE – refers to any major functional unit of a
commands of the President in his capacity as department or bureau, including regional offices. It
Commander-in-Chief of the AFP. may also refer to any position held or occupied by
3. ADMINISTRATIVE ORDERS – acts of the individual persons, whose functions are defined by
President which relate to particular aspects of law or regulation.
governmental operations in pursuance of his duties 5. INSTRUMENTALITY – any agency of the National
as administrative head. government not integrated within the department
4. MEMORANDUM ORDERS – acts of the President framework with special functions or jurisdiction by
on matters of administrative detail or of subordinate law, endowed with corporate powers, with special
or temporary interest which only concern a particular funds, and enjoying operational autonomy usually
officer or office of the Government. through a charter. It includes regulatory agencies,
5. MEMORANDUM CIRCULARS – acts of the chartered institutions, and GOCCs.
President on matters relating to internal
a. REGULATORY AGENCY – any agency to implement the law and legislative policy fixed by the
expressly vested with jurisdiction to regulate, legislature. It necessarily includes the power to amend, revise,
administer, or adjudicate matters affecting the alter, or repeal such rules and regulations.
substantial rights and interests of private
persons. Its principal powers are exercised by a DOCTRINE OF SUBORDINATE LEGISLATION – the power
collective body such as a commission, board, or of administrative officials to promulgate rules and regulations
council. in the implementation of a statute is necessarily limited only to
b. GOVERNMENT OWNED or CONTROLLED carrying into effect what is provided in the legislative
CORPORATION – any agency organized as a enactment. A regulation that goes beyond the source of the
stock or non-stock corporation vested with statute may be declared as void. (Fort Bonifacio Development
functions related to public needs, whether Corporation v. CIR, G.R. Nos. 158885 and 170680, October 2, 2009)
governmental or proprietary in nature, and
owned by the government directly or through its LEGISLATIVE vs. QUASI-LEGISLATIVE POWER
instrumentalities either wholly or, in the case of
stock corporations, at least a majority (51%) of its Legislative Power vs. Quasi-legislative Power
capital stock must be owned by the government. Legislative Quasi-legislative
(People v. Morales, G.R. No. 166355, May 30, 2011) Power of the legislative Power of administrative
body to make laws and agencies to issue rules
to fix a legislative policy. and regulations
It cannot be delegated by intended to implement
POWERS OF ADMINISTRATIVE AGENCIES the legislature to the the law and legislative
Power vs. Function administrative agencies. policy fixed by the
Power Function legislature.
Means by which a That which one is bound
function is fulfilled. or is one’s business to KINDS OF ADMINISTRATIVE RULES AND
do. REGULATIONS
ADMINISTRATIVE FUNCTION – those functions which 1. LEGISLATIVE RULES – are in the nature of
involve the regulation and control over the conduct and affairs subordinate legislation and are designed to
of individuals for their own welfare, and the promulgation of implement a primary legislation by providing the
rules and regulations to better carry out the policy of the details thereof. They usually implement an existing
legislature or the policies that devolve upon administrative law, imposing general or extra-statutory obligations
agencies by the laws creating them. (In re: Rodolfo U. Manzano, pursuant to the authority delegated to it by Congress.
Adm. Matter No. 88-7-1861-RTC, October 5, 1988) 2. INTERPRETATIVE RULES – are intended to
interpret, clarify, or explain existing statutory
EXPRESS AND IMPLIED POWERS regulations under which the administrative body
operates. Their purpose is merely to construe the
Express vs. Implied Powers statute being administered.
Express Implied 3. CONTINGENT RULES – those issued by an
Jurisdiction and powers Jurisdiction and powers administrative authority based on the existence of
conferred expressly by necessary for the certain facts or things upon which the enforcement of
the Constitution or by effective exercise of a law depends.
law. express powers.
LEGISLATIVE vs. INTERPRETATIVE RULES
DOCTRINE OF NECESSARY IMPLICATION – All powers
necessary for the effective exercise of express powers are Legislative vs. Interpretative Rules
deemed impliedly granted. Legislative Interpretative
As to purpose
An express grant of power to formulate implementing rules and Implement and provide Merely clarifies the
regulations carries with it the implied power to amend, modify, details in the law. statute being
alter, or repeal them. (Yazaki Torres Manufacturing v. CA, G.R. administered.
No. 130584, June 27, 2006)
GENERAL RULE: Administrative rules and regulations REQUISITES FOR THE VALID EXERCISE OF QUASI-
must be published in order to be effective. (Tañada v. JUDICIAL POWER
Tuvera, G.R. No. L-63915, December 29, 1986)
1. Jurisdiction over the subject matter must be c. EQUITABLE POWERS – permits the
conferred by the law or by the Constitution. administrative tribunal to consider and make a
2. Jurisdiction over the person must be properly proper application of the rules of equity. (Cariño
acquired by the administrative body. v. CHR, G.R. No. 96681, December 2, 1991)
3. Due process must be observed in the conduct of the
proceeding. ADMINISTRATIVE DUE PROCESS
DOCTRINE OF ADHERENCE OF JURISDICTION – also The essence of due process in administrative proceedings is the
called the doctrine of continuity of jurisdiction. It means that opportunity to explain one’s side or seek a reconsideration of
when judicial or quasi-judicial body has acquired jurisdiction, the action or ruling complained of, and to submit any evidence
that jurisdiction continues until the judicial or quasi-judicial a party may have in support of his defense. The demands of due
body has done all that it can do in the exercise of that jurisdiction process are sufficiently met when the parties are given the
opportunity to be heard before judgement is rendered. (Lacson
When an administrative body is conferred quasi-judicial v. Executive Secretaty, G.R. No. 165399, May 30, 2011)
functions, all controversies relating to the subject matter
pertaining to its specialization are deemed to be included within RIGHT TO BE HEARD - “To be heard” does not mean only
its jurisdiction. (Tejada v. Homestead Property Corporation, G.R. verbal arguments in court; one may also be heard through
No. 79622, September 29, 1989) pleadings. (Casimiro v. Tandog, G.R. 146137, June 8, 2005)
h. Removal of acting or temporary employees; and 1. Conduct inspection of accounts, records, documents,
i. Application for installation, establishment, or and other papers relative to its investigation;
operation of a radio system. 2. Obtain other information which it finds relevant to a
matter being investigated;
RULES IN ADMINISTRATIVE APPEAL AND REVIEW 3. Issue subpoena and notices;
4. Swear and interrogate witnesses;
1. Where provided by law, appeal from an 5. Inspect premises;
administrative determination may be made to a 6. Require written answers to questionnaires;
higher or superior administrative officer or body. 7. Require periodic or special reports;
2. Unless otherwise provided by law or executive order, 8. Require the filing of statements.
an appeal from a final decision of an administrative
agency may be taken to the Department head. BASIC PRINCIPLES IN ADMINISTRATIVE
3. If the law that created the agency provides for an INVESTIGATIONS INITIATED BY COMPLAINT
appeal as well as the procedure and the requisites for
taking that appeal, the specific relief provided for in 1. The burden is on the complainant to prove his
the law itself can be obtained. allegations which must be supported by substantial
4. If the law does not provide for an appeal or for evidence;
judicial relief or review, the questioned decision can 2. Findings of facts made therein are to be respected as
be the subject of judicial review under Rule 65 of the long as they are supported by substantial evidence;
Rules of Court. 3. The administrative decisions/findings can only be set
5. By virtue of the President’s power of control, the aside on proof of grave abuse of discretion, fraud, or
President himself or through the Department Head error of law.
may affirm, modify, alter, or revers the administrative
decision of a subordinate. (Administrative Order No. RIGHT TO COUNSEL IN ADMINISTRATIVE
18, Series of 1987) INVESTIGATIONS IS NOT MANDATORY
6. An appellate administrative agency may conduct an
additional hearing in appealed cases if deemed The right to counsel in administrative investigations is not
necessary. (Reyes v. Zamora, G.R. No. L-46732, May 5, mandatory in because the hearing conducted by the
1979) investigating administrative authority is not part of a criminal
prosecution. (Remolona v. CSC, G.R. No. 137473, August 2, 2001)
ADMINISTRATIVE RES JUDICATA – forbids the reopening
of a matter that has already been determined by competent TEST TO DETERMINE WHETHER EXERCISE OF POWER
authority. Decisions and orders of administrative agencies, IS INVESTIGATIVE OR ADJUDICATIVE
rendered pursuant to their quasi-judicial authority, have the
force and binding effect of a final judgement upon their finality. If the only purpose for investigation is to evaluate the evidence
(Brillantes v. Castro, G.R. No. L-9223, July 30, 1956) submitted based on the facts and circumstances presented, and
if the administrative agency is not authorized to make a final
GENERAL RULE: Administrative res judicata only applies to pronouncement affecting the parties, then the exercise of power
judicial and quasi-judicial proceedings, not in the exercise of is merely investigatory.
purely administrative functions. (Montemayor v. Bundalian, G.R.
No. 149335, July 30, 1956) The power to investigate does not carry with it the power to
adjudicate. (Cariño v. CHR, G.R. No. 96681, December 2, 1991)
EXCEPTIONS:
a. Res judicata may not be invoked in labor relations
proceedings. (Nasipit Lumber Company v. NLRC, G.R.
No. 54424, August 31, 1989)
b. When judgement is rendered upon a null contract.
JUDICIAL RECOURSE AND REVIEW
JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS –
(B.F. Goodrich Philippines, Inc. v. Workmen’s an administrative decision may be appealed to the courts of
Compensation Commission, G.R. No. L-38569, March 28, justice only if the Constitution or the law permits it or if the
1988) issues to be reviewed involve questions of law.
SUFFRAGE
DEFINITION
SCOPE OF SUFFRAGE
CLASSES OF REFERENDUM
i. Referendum on statutes
A petition to approve or reject an act or law, or
part thereof, passed by Congress; and
KINDS OF ELECTION
b. Resided in the Philippines for at least one (1) year; The right to vote is not a natural right but is a right created by
c. Resided in the place wherein they propose to vote for law. Suffrage is a privilege granted by the State to such person
at least six (6) months immediately preceding the or classes as are most likely to exercise it for the public good
election. [People v. Corral (1936)].
There is no literacy, property, or other substantive requirement The State, in the exercise of its inherent police power, may enact
shall be imposed on the exercise of suffrage (1987 Constitution, laws to safeguard and regulate the act of voter’s registration for
Art. V, Sec. 1). the ultimate purpose of conducting honest, orderly, and
peaceful election [Akbayan Youth v. COMELEC (2001)].
The age and residence requisites must be complied with on the
day of the election. Any person, who, on the day of registration Biometrics validation requirement is not an unconstitutional
may not have reached the required age or period of residence substantive requirement: Even if there is failure to comply
but who, on the day of the election shall possess such with the biometrics validation of the voter’s registration (under
qualifications, may register as a voter (R.A. 8189, Sec. 9). RA 10367 or the Biometrics Law of 2013), it is not
unconstitutional. The requirement is a “mere aspect of the
In election cases, the Court treats domicile and residence as registration procedure, of which the State has the right to
synonymous terms. Both import not only an intention to reside reasonable regulate.” [Kabataan Partylist v. COMELEC (2015)].
in a fixed place but also personal presence in that place, coupled
with conduct indicative of such intention [Pundaodaya v. EFFECT OF TRANSFER OF RESIDENCE
COMELEC (2009)]. Any person who transfers residence solely by reason of his
occupation, profession or employment in private or public
DISQUALIFICATIONS OF VOTERS service, education, etc. shall not be deemed to have lost his
original residence [Asistio v. Aguirre (2010)].
The following shall be disqualified from voting:
a. Any person who has been sentenced by final judgment to SYSTEM OF CONTINUING REGISTRATION OF VOTERS
suffer imprisonment for not less than one year, such
disability not having been removed by plenary pardon or PERIOD OF REGISTRATION
granted amnesty.
Note: Any person disqualified to vote under this paragraph GENERAL RULE
shall automatically reacquire the right to vote upon Daily. COMELEC allows a continuing system of registration,
expiration of five (5) years after service of sentence. conducted daily in the office of the Election Officer during
b. Any person who has been adjudged by final judgment by regular office hours.
competent court or tribunal of having committed any crime
involving disloyalty to the duly constituted government EXCEPTION
such as rebellion, sedition, violation of the anti-subversion No registration shall be conducted within:
and firearms laws, or any crime against national security, a. 120 days before a regular election
unless restored to his full civil and political rights in b. 90 days before a special election [Sec. 8, RA 8189].
accordance with law.
Note: Any person disqualified to vote under this A party can file a petition to extend the deadline of the voter’s
paragraph shall automatically reacquire the right to vote registration, provided it is within the 120-day prohibitive period
upon expiration of five (5) years after service of sentence. for the conduct of voter registration under Section 8 of RA 8189.
c. Insane or incompetent persons as declared by competent [Akbayan vs COMELEC (2001)].
authority. (Sec. 118, B.P. 881, Omnibus Election Code)
MANNER OF REGISTRATION FOR ILLITERATE OR
DISABLED VOTERS
ILLITERATE PERSONS
REGISTRATION OF VOTERS
REGISTRATION, DEFINITION Registration is with the assistance of the Election Officer or any
member of an accredited citizen’s arms.
The act of accomplishing and filing of a sworn application for
registration by a qualified voter before the election officer of the PHYSICALLY DISABLED PERSONS
city or municipality wherein he resides and including the same Application for registration may be prepared by:
in the book of registered voters upon approval by the Election a. Any relative within the 4th civil degree of
Registration Board [Sec. 3a, RA. 8189]. consanguinity or affinity;
b. By the Election Officer; or
Registration does not confer the right to vote but is a condition c. Any member of an accredited citizen’s arm [Sec. 14,
precedent to the exercise of the right [Yra v. Abano (1928)]. RA 8189]
In order that a qualified elector may vote in any election, There shall be in each city and municipality as many Election
plebiscite or referendum, he must be registered in the Registration Boards (“ERB”) as there are election officers therein
Permanent List of Voters for the city or municipality in which [Sec. 15, RA 8189].
he resides [Sec. 115, B.P. 881].
CHANGE OF RESIDENCE OR ADDRESS
PERIOD
Change of residence to another city or municipality - The Any time not later than 120 days before a regular election and
registered voter may apply with the Election Officer of his new 90 days before a special election. [R.A. 8189 Sec. 28]
residence for the transfer of his resignation records. [Sec. 12, RA
8189]. OVERSEAS ABSENTEE VOTER
DEFINITION
GROUNDS OF DEACTIVATION The petition for inclusion of voters in the list shall be filed:
any time
(1) Sentenced by final judgment to suffer imprisonment for not o except one hundred five (105) days prior to a
less than 1 year (unless granted a plenary pardon or an regular election or seventy-five (75) days prior to
amnesty) a special election,
Note: The right to vote is reactivated automatically upon the and shall be decided within fifteen (15) days after its
expiration of 5 years after the service of sentence as certified filing. (Sec. 34, R.A. No. 8189)
by the clerk of court
(2) Adjudged by final judgment for having committed any The petition for exclusion of voters in the list shall be filed:
crime involving disloyalty to the duly constituted any time
government (e.g. rebellion, sedition, violation of the o except one hundred (100) days prior to a regular
firearms law) or any crime against national security (unless election or sixty-five (65) days before a special
restored to full civil and political rights in accordance with election,
law)
and shall be decided within ten (10) days from its
Note: The right to vote is reactivated automatically upon the
filing. (Sec. 35 R.A. No. 8189)
expiration of 5 years after the service of sentence as certified
by the clerk of court.
A challenge to the right to register as a voter may be instituted
(3) Insane or incompetent persons as declared by competent
by any voter, candidate or representative of a registered
authority
political party. The challenge must be:
(4) Did not vote in 2 successive preceding regular elections
a. in writing;
(excluding SK elections)
b. specifying the grounds for the objection to register;
(5) Registration has been ordered excluded by the Court
c. under oath; and
(6) Loss of Filipino citizenship [Sec. 27, R.A. 8189]
d. attached to the application, together with the proof of
notice of hearing to the challenger and the applicant.
REACTIVATION OF REGISTRATION
COURT WITH JURISDICTION OVER INCLUSION AND
PROCEDURE
EXCLUSION PROCEEDING
Any voter whose registration has been deactivated may file
with the Election Officer a sworn application for reactivation of
ORIGINAL AND EXCLUSIVE JURISDICTION over all cases
his registration in the form of an affidavit stating that the
of inclusion and exclusion of voters is vested in the Municipal
grounds for the deactivation no longer exist.
and Metropolitan Trial Courts (MTC) of their respective cities
or municipalities.
APPELLATE JURISDICTION is vested with the Regional Trial POLITICAL PARTY; DEFINITION
Court (RTC). Decisions of the Municipal or Metropolitan Trial
Courts may be appealed by the aggrieved party to the Regional An organized group of citizens advocating an ideology or
Trial Court within five (5) days from receipt of notice thereof. platform, principles and policies for the general conduct of
Otherwise, said decision shall become final and executory. government and which, as the most immediate means of
i) The RTC shall decide the appeal within 10 days from securing their adoption, regularly nominates certain of its
the time it is received leaders and members as candidates for public office [Sec. 60, BP
ii) The decision shall immediately become final and 881 and Sec. 3(c) of RA 7941].
executory
iii) No motion for reconsideration shall be entertained. PARTY
(Sec. 33, R.A. 8189) Either a political party or a sectoral party or a coalition of
parties [Sec. 3(b), RA 7941, Party-List System Act].
NO RES JUDICATA
KINDS OF POLITICAL PARTIES
A decision in an exclusion or inclusion proceeding, even if final
and unappealable, does not acquire the nature of res judicata. (1) NATIONAL PARTY - constituency is spread over the
geographical territory of at least a majority of the regions.
Exception: The decision is res judicata as to the right to remain (2) REGIONAL PARTY - constituency is spread over the
in the list of voters or for being excluded therefrom for the geographical territory of at least a majority of the cities
particular election in relation to which the proceedings had been and provinces comprising the region.
held [Domino v. COMELEC (1999)]. (3) SECTORAL PARTY – organized group of citizens
belonging to any of the following sectors: labor, peasant,
COMMON RULES GOVERNING JUDICIAL fisherfolk, urban poor, indigenous cultural communities,
PROCEEDINGS IN MATTER OF INCLUSION, elderly, handicapped, women, youth, veterans, overseas
EXCLUSION AND CORRECTION OF NAMES OF VOTERS workers and professionals whose principal advocacy
pertains to the special interests and concerns of their
a) It should be filed during office hours sector.
b) Notice of the place date and time of the hearing of the Note: The enumeration of marginalized and under-
petition shall be served upon the members of the Board represented sectors is not exclusive. The crucial element is
and the challenged voter upon filing of the petition, using not whether a sector is specifically enumerated, but
any of the modes of service: whether a particular organization complies with the
i. Personal delivery requirements of the Constitution and RA 7941 [Ang Ladlad
ii. Registered mail, or LGBT Party v. COMELEC (2010)].
iii. Posting in the bulletin board of city or municipal
hall and in 2 other conspicuous places within the PARTY-LIST SYSTEM
city of municipality
c) A petition shall refer only to one (1) precinct and implead Mechanism of proportional representation in the election of
the Board as respondents representatives to the House of Representatives from national,
d) Generally, no costs shall be assessed against any party. regional and sectoral parties or organizations or coalitions
However, the court may order a party to pay the costs and registered with the COMELEC [Sec. 3(a), RA 7941].
incidental expenses of the suit should it find that the
application was filed solely to harass the adverse party and SECTORAL ORGANIZATION
to cause him to incur expenses Group of citizens or a coalition of groups of citizens who share
e) Any voter, candidate or political party who may be similar physical attributes or characteristics, employment,
affected by the proceedings may intervene and present his interests or concerns.
evidence
f) The decision shall be based on the evidence presented and COALITION
in no case rendered upon a stipulation of facts. An aggrupation of duly registered national, regional, sectoral
i. If the question is whether or not the voter is real or parties or organizations for political and/or election purposes
fictitious, his non-appearance on the day set for [Sec. 3, R.A. 7941, Party-List System Act].
hearing shall be prima facie evidence that the
challenged voter is fictitious JURISDICTION OF THE COMELEC OVER POLITICAL
g) The petition shall be heard and decided: PARTIES
i. Within ten (10) days from the date of its filing
ii. Within ten (10) days from receipt of the appeal (1) Registration:
iii. In all cases, the court shall decide these petitions not a. Of Political Parties as provided in Sec. 60, BP 881
later than fifteen (15) days before the election and b. Of party-lists as provided in Secs. 5-7, R.A. 7941
the decision shall become final and executor (Sec. (Party-List System Act,).
32, R.A. No. 8189) (2) Resolution of Intra-Party Disputes:
“[T]he COMELEC’s powers and functions under
Section 2, Article IX-C of the Constitution, "include
the ascertainment of the identity of the political party
and its legitimate officers responsible for its acts."
[T]he COMELEC’s power to register political parties
necessarily involved the determination of the persons
POLITICAL PARTIES
who must act on its behalf. Thus, the COMELEC may The combined number of all party-list congressmen shall not
resolve an intra-party leadership dispute, in a proper exceed 20% of the total membership of the House of
case brought before it, as an incident of its power to Representatives, including those elected under the party-list.
register political parties.” [Atienza v. COMELEC,
(2010)]. Only those parties garnering a minimum of 2% of the total votes
cast for the party-list system shall be entitled to one guaranteed
ENTITIES WHICH CANNOT BE REGISTERED AS seat each.
POLITICAL PARTIES
(1) Religious denominations and sects Each party, regardless of the number of votes it actually
(2) Groups which seek to achieve their goals through obtained, is entitled to a maximum of three (3) seats [Banat v.
violence or unlawful means COMELEC {2009)].
(3) Entities which refuse to uphold and adhere to the
RULES ON THE COMPUTATION OF THE SEATS
Constitution
(4) Associations supported by foreign governments [Art. Step 1: Compute the total number of seats allocated for
IX-C, Sec. 2 (5), Constitution] party-list representatives
Step 2: Rank all party-list candidates based on the
PURPOSE OF REGISTRATION number of votes they garnered from highest to lowest
(1) To acquire juridical personality Step 3: Compute for each party-list candidate’s
(2) To entitle it to rights and privileges granted to percentage of votes garnered in relation to the total
political parties number of votes cast for party-list candidates.
Step 4: First – Allocate 1 seat each for party-list that
(3) To participate in the party-list system
garnered at least 2% of the total number of votes.
Step 5: Second – Assign additional seats from the
GROUNDS FOR REFUSAL/CANCELLATION OF
balance by: (a) Allocating 1 seat for every whole integer
REGISTRATION
then (b) Allocating the remaining seats (i.e. total seats
minus Round 1 and Round 2a allocations) to those next
The COMELEC may, motu propio or upon verified complaint of in rank until all seats are completely distributed.
any interested party, refuse or cancel, after due notice and Step 6: A maximum of 3 seats per political party is
hearing, the registration of any national, regional or sectoral allowed. Apply if necessary.
party, organization or coalition on any of the following grounds: [BANAT v. COMELEC, supra]
a. Religious sect or denomination, organization or
association, organized for religious purposes
b. Those advocating violence or unlawful means to seek
its goal
c. Foreign party or organization CANDIDACY
CANDIDATE, DEFINITION
d. Those receiving support from any foreign government,
foreign political party, foundation, organization, Any person who files his certificate of candidacy within
whether directly or through any of its officers or prescribed period shall only be considered as a candidate at the
members or indirectly through third parties for partisan start of the campaign period for which he filed his certificate of
election purposes candidacy [Sec. 15, R.A. 9369].
e. Those which violate or fail to comply with laws, rules
or regulations relating to elections A. QUALIFICATIONS OF CANDIDATES
f. Those which declare untruthful statements in its
petition Qualifications prescribed by law are continuing requirements
g. Those which ceased to exist for at least one (1) year and must be possessed for the duration of the officer's active
tenure [Labo v. COMELEC (1989)].
h. Those which fail to participate in the last two (2)
preceding elections or
QUALIFICATIONS TO RUN FOR PRESIDENT AND VICE-
i. Those which fails to obtain at least 2% of the votes cast PRESIDENT
under the party-list system in the two (2) preceding
elections for the constituency in which it has registered (1) Natural-born citizen of the Philippines
[Sec. 6, R.A. 7941] (2) Registered voter
(3) Able to read and writer
EFFECT OF CHANGE OF PARTY LIST AFFILIATION (4) At least 40 years of age at the day of election
Any elected party-list representative who changes his political (5) Resident of the Philippines for at least 10 years
party or sectoral affiliation during his term of office shall forfeit immediately preceding such election (Sec. 63,
his seat within six (6) months before an election shall not be Omnibus Election Code)
eligible for nomination as party-list representative under his
new party or organization [Sec. 15, R.A. 7941]. QUALIFICATIONS TO RUN FOR SENATOR
(1) Natural-born citizen of the Philippines
SEAT ALLOCATION (2) Registered voter
(3) Able to read and write
(4) At least 35 years of age at the day of election
NUISANCE CANDIDATE
WITHDRAWAL OF CANDIDACY
DEFINITION
A nuisance candidate is one who: A person who has filed a certificate of candidacy may, prior to
a. Puts the election process in mockery or disrepute; or the election, withdraw the same by submitting to the office
b. Causes confusion among the voters by the similarity of concerned a written declaration under oath. (Section 73, Omnibus
the names of the registered candidates, or Election Code)
c. Clearly demonstrates that he/she has no bona fide
intention to run for the office which the certificate of EFFECT OF WITHDRAWAL
candidacy has been filed, and thus prevents a faithful
determination of the true will of the electorate. (Sec.69, (1) If a candidate files a certificate of candidacy for more than
Omnibus Election Code) 1 office, he shall not be eligible for any of them. However,
he may declare under oath the office for which he desires
WHO can file - Candidate for the same elective position. to be eligible and cancel the certificate of candidacy for the
WHEN to file - within five (5) days from deadline/last day of other office or offices provided that this is done before the
filing Certificate of Candidacy expiration of the period for the filing of certificates of
candidacy. (Sec. 73, BP 881)
GROUND FOR DENYING AND CANCELLING A (2) The filing of the withdrawal shall not affect whatever
CERTIFICATE OF CANDIDACY civil, criminal, or administrative liabilities which a
candidate may have incurred. (Sec. 73, BP 881)
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 of falsity in any material representation
contained therein (Sec 78, Omnibus Election Code)
CAMPAIGN
PREMATURE CAMPAIGN
FILING OF PETITION FOR DENIAL AND
CANCELLATION OF CERTIFICATE OF CANDIDACY
“Any person who files his certificate of candidacy within this
The petition may be filed at any time not later than 25 days from period shall only be considered as a candidate at the start of the
the time of the filing of the certificate of candidacy and shall be campaign period for which he filed his certificate of candidacy:
decided, after due notice and hearing, not later than 15 days Provided, that, unlawful acts or omissions applicable to a
before the election. candidate shall take effect only upon that start of the aforesaid
campaign period.” [Panera v. COMELEC (2009)].
DISQUALIFICATIONS OF CANDIDATES
Note:
The following shall be disqualified from registering: Simple RULE: NO Certificate of Candidacy filed, NOT yet
(1) Sentenced by final judgment to suffer imprisonment for a candidate – THUS NO premature campaigning.
not less than 1 year (unless granted a plenary pardon or A candidate is liable for an election offense only for acts
an amnesty) shall automatically reacquire right to vote done during the campaign period, not before. [Panera v.
upon the expiration of 5 years after the service of sentence; COMELEC (2009)].
(2) Adjudged by final judgment for having committed any
crime involving disloyalty to the duly constituted GENERAL RULE
government (e.g. rebellion, sedition, violation of the It shall be unlawful for any person, whether or not a voter or
firearms law) or any crime against national security candidate, or for any party, or association of persons, to engage
(unless restored to full civil and political rights in in an election campaign or partisan political activity except
accordance with law) shall automatically reacquire the during the campaign period.
right to vote upon the expiration of 5 years after the
service of sentence; or
EXCEPTION
(3) Insane or incompetent persons as declared by competent Political parties may hold political conventions or meetings to
authority. [Sec. 11, R.A. 8189, Voter’s Registration Act of nominate their official candidates within 30 days before the
1996]
commencement of the campaign period and 45 days for
Presidential and Vice Presidential election.
EFFECTS OF DISQUALIFICATION
making any loan to a candidate or political party by any 1. Normal and customary religious dues or
such, if the same is made in accordance with laws and contributions; or
regulations and in the ordinary course of business; 2. Periodic payments for legitimate scholarships
established and school contributions [Sec. 97, B.P.
ii. Natural and juridical persons operating a public utility or 881]
in possession of or exploiting any natural resources of the
nation;
iv. Natural and juridical persons who have been granted Includes:
franchises, incentives, exemptions, allocations or similar 1. Pamphlets, leaflets, cards, decals, stickers or other written
privileges or concessions by the government or any of its or printed materials
divisions, subdivisions or instrumentalities, including Allowable size: Not more than eight and one-half inches
government-owned or controlled corporations; in width and fourteen inches in length
v. Natural and juridical persons who: 2. Handwritten or printed letters urging voters to vote for or
a. within one year prior to the date of the election, against any particular candidate:
b. have been granted loans or accommodations in
excess of P100,000 by the government or any of its 3. Cloth, paper or cardboard posters, whether framed or
divisions, subdivisions or instrumentalities posted,
including government-owned or controlled
corporations; Allowable size:
General Rule: area not exceeding two feet by three feet.
vi. Educational institutions which have received grants of
public funds amounting to no less than P100,000.00; Exception: not exceeding three feet by eight feet in size
at the site and on the occasion of a public meeting or
vii. Officials or employees in the Civil Service, or members of rally, or in announcing the holding of said meeting or
the Armed Forces of the Philippines; and rally, streamers
viii. Foreigners and foreign corporations Note: Said streamers may not be displayed except 1 week
before the date of the meeting or rally and that it shall be
removed within 72 hours after said meeting or rally.
PROHIBITED DONATIONS
4. Paid advertisements in print or broadcast media. Such
For any person or organization, civic or religious, directly or advertisements must comply with the following
indirectly, to solicit and/or accept from any candidate or from requirements:
his campaign manager, agent or representative, or any person
acting in their behalf, any gift, food, transportation, contribution a. Any published or printed political matter and any
or donation in cash or in kind from the start of the election broadcast of election propaganda by TV or radio for
period up to and including election day or against a candidate or group of candidates to any
public office shall bear and be identified by the
REQUISITES OF A PROHIBITED DONATION reasonably legible or audible words “political
advertisement paid for” followed by the true and
correct name and address of the candidate or party
1. Who: By candidate, spouse, relative within 2nd civil
for whose benefit the election propaganda was
degree of consanguinity or affinity, campaign manager,
printed or aired. (Sec. 4.1, R.A. 9006)
agent or representative; treasurers, agents or
representatives of political party b. If the broadcast is given free of charge by the radio
2. When: During campaign period, day before and day of or TV station, it shall be identified by the words
the election "airtime for this broadcast was provided free of
charge by" followed by the true and correct name
Directly or indirectly: and address of the broadcast entity. (Sec. 4.2, R.A.
1. Donation, contribution or gift in cash or in kind; or 9006)
2. Undertake or contribute to the construction or
repair of roads, bridges, school buses, puericulture c. Print, broadcast or outdoor advertisements donated
(health) centers, medical clinics and hospitals, to the candidate or political party shall not be
churches or chapels cement pavements, or any printed, published, broadcast or exhibited without
the written acceptance by the said candidate or
structure for public use or for the use of any
political party. Such written acceptance must be
religious or civic organization.
Exceptions:
attached to the advertising contract and submitted The aggregate amount that a candidate or registered political
to the COMELEC within 5 days after its signing. party may spend for an election campaign shall be as follows:
Any published or printed political matter for or against a For Political Parties
candidate or group of candidates to any public office shall bear
- P5 for every voter currently registered in the
and be identified by the words "paid for by" followed by the true
constituency or constituencies where it has official
and correct name and address of the payor and by the words
candidates (Sec. 13, R.A. 7166)
"printed by" followed by the true and correct name and address
of the printer. (Sec. 84, Omnibus Election Code)
STATEMENT OF CONTRIBUTIONS
It shall be unlawful: Every candidate and the treasurer of the political party must file
1. To print, publish, post or distribute any poster, pamphlet, with the COMELEC:
circular, handbill, or printed matter urging voters to vote 1. duplicate copies of the full, true and itemized statement
for or against any candidate unless they bear the names of all contributions and expenditures
and addresses of the printer and payor as required in 2. within 30 days after election day
Section 84 hereof;
DUTY OF ELECTION REGISTRAR
2. To erect, put up, make use of, attach, float or display any
billboard, tinplate-poster, balloons and the like, of It is the duty of the city or municipal election registrar to advise
whatever size, shape, form or kind, advertising for or in writing, either by personal delivery or by registered mail,
against any candidate or political party; within 5 days from the election date, all candidates to comply
with the obligation to file their statements. (Sec 14, RA 7166)
3. To purchase, manufacture, request, distribute or accept
electoral propaganda gadgets, such as pens, lighters, fans
of whatever nature, flashlights, athletic goods or FORMS OF STATEMENT
materials, wallets, shirts, hats, bandanas, matches,
cigarettes and the like, except that campaign supporters
accompanying a candidate shall be allowed to wear hats The statement shall be:
and/or shirts or T-shirts advertising a candidate; 1. in writing, subscribed and
2. sworn to by the candidate or by the treasurer of the
To show or display publicly any advertisement or party,
4.
propaganda for or against any candidate by means of 3. complete as of the date next preceding the date of
cinematography, audio-visual units or other screen filing (Sec. 109, Omnibus Election Code)
projections except telecasts which may be allowed as
hereinafter provided; and
CONTENTS OF STATEMENT
5. For any radio broadcasting or television station to sell or
give free of charge airtime for campaign and other It shall set forth in detail the following:
political purposes except as authorized in this Code under 1. the amount of contribution, date of receipt, and the
the rules and regulations promulgated by the full name and exact address of the person from whom
Commission pursuant thereto. (Sec. 85,BP 881) the contribution was received
2. the amount of every expenditure, the date thereof, the
full name and exact address of the person to whom
payment was made, and the purpose of the
expenditure
LIMITATIONS ON EXPENSES
3. any unpaid obligation, its nature and amount, and to
whom said obligation is owing; and
4. such other particulars which the COMELEC may COMPOSITION OF ELECTION INSPECTORS
require.
The Board of Election Inspectors is composed of three (3)
5. If the candidate or treasurer of the party has received
persons, namely:
no contribution, made no expenditure, or has no
1. Chairman
pending obligation, the statement shall reflect such
2. Poll clerk
fact (Sec. 109, Omnibus Election Code)
3. Member
GENERAL RULE
PLACE OF FILING STATEMENT The entire Board shall be composed of public school teachers,
priority to be given to those with permanent appointments. (Sec.
Statements of contributions and expenditures shall be filed as 164, BP 881, as amended by Sec. 13, R.A. 6646)
follows:
1. With the COMELEC: Presidential and Vice-Presidential EXCEPTION
candidates In case there are not enough public school teachers, the
following may be appointed for election duty:
General Rule: Provincial Election Supervisor: for (1) Teachers in private schools;
candidates of being Members of the Batasang Pambansa (2) Employees in the civil service; or
(3) Other citizens of known probity and competence who are
Exception: Regional Election Director of said region: for registered voters of the city or municipality.
candidates in the National Capital Region.
ii. It shall canvass the results by consolidating the f. Municipal board of canvassers.
certificates of canvass electronically transmitted. i. Chairman- the election registrar or a representative
iii. Thereafter, the national board shall proclaim the of the Commission
winning candidates for senators and party-list ii. Members
representatives. - the municipal treasurer,
- the district supervisor
b. Congress as National Board of Canvassers. - or in his absence any public school principal in the
- President and Vice President municipality and
i. The Senate and the House of Representatives in joint - one representative from each of the ruling party
public session shall compose the national board of and the dominant opposition political party
canvassers for president and vice-president. entitled to be represented
ii. The certificate of canvass for president and vice-
president duly certified by the board of canvassers of g. Board of canvassers for newly created political
each province or city, shall be subdivisions
electronically transmitted to the Congress, directed to - the Commission shall constitute a board of
the president of the Senate. canvassers and appoint the members thereof for
iii. Upon receipt of the certificates of canvass, the the first election in a newly created province, city
President of the Senate shall: or municipality in case the officials who shall act
a. open all certificates in the presence of the Senate as members thereof have not yet assumed their
and House of Congress upon determination of duties and functions
the authenticity and due execution, in the
manner provided by law,
b. canvass all the results for president JURISDICTION OF THE COMELEC OVER BOARD OF
and vice-president and thereafter CANVASSERS
c. proclaim the winning candidates.
d. Period for opening certificates of canvass: not
later than thirty (30) days after the day of the (1) COMELEC has direct control and supervision over the
election, board of canvassers. Any member of the Board may, at
any time, be relieved for cause and substituted motu propio
c. Provincial Board of Canvassers. by the COMELEC. (Sec. 227, B.P. 881)
i. Chairman- Provincial Election Supervisor or a (2) COMELEC has the power to investigate and act on the
senior lawyer in the regional office of the propriety or legality of the canvass of election returns
Commission, made by the board of canvassers.
ii. Vice Chairman- Provincial Fiscal
iii. Members
- provincial superintendent of schools, and DUTIES OF THE BOARD OF CANVASSERS
- one representative from each of the ruling
(1) To compile and add the results as they appear in the
party and the dominant opposition political
election returns transmitted to it (Guiao v. COMELEC, 137
party in the constituency concerned entitled to
SCRA 366).
be represented
(2) During the canvass, the Board of Canvassers prepares the
Statement of Voters, which is tabulation per precinct of
d. City board of canvassers.
the votes obtained by the candidates as reflected in the
i. Chairman-city election registrar or a lawyer of the
election returns.
Commission
ii. Members
The Statement of Votes forges the basis of the certificate of
- the city fiscal and the city superintendent of
canvass and of the proclamation.
schools, and
- one representative from each of the ruling
party and
- the dominant opposition political party MINISTERIAL DUTIES OF THE BOARD OF CANVASSERS
entitled to be represented, as members. No irregularities in the election returns: The duty of the Board
in canvassing the votes on the election returns submitted to it
e. District board of canvassers of Metropolitan Manila consists in the simple matter of arithmetic. And once the
i. Chairman- lawyer of the Commission and COMELEC or the board of canvassers is satisfied in the
ii. Members authenticity of the returns, it has no power to look beyond the
- a ranking fiscal in the district and face thereof, and its task of tallying is merely ministerial.
- the most senior district school supervisor in the
district to be appointed upon consultation with With error in the computation discovered after proclamation:
the Ministry of Justice and the Ministry of the board of canvassers can simply correct the error; the remedy
Education, Culture and Sports, respectively, & being purely administrative.
- one representative from each of the ruling party
and QUASI-JUDICIAL DUTIES OF THE BAORD OF
- the dominant opposition political party in the CANVASSERS
constituency concerned The board of canvassers must be satisfied that the election
returns submitted to it are genuine and authentic. Thus, the
votes is later declared to be disqualified or not eligible for the a special election to be held within sixty days after the
office to which he was elected, does not necessarily entitle the vacancy occurs to elect the Member to serve the unexpired
candidate who obtained the second highest number of votes to term.
be declared the winner of the elective office.
Dissolution of the Batasang Pambansa: The President shall
The candidate obtaining the second highest number of votes for call an election which shall not be held earlier than forty-
the contested office could not assume the office despite the five nor later than sixty days from the date of such
disqualification of the first placer because the second placer was dissolution then the Commission shall send sufficient
“not the choice of the sovereign will.” Surely, a minority or copies of its resolution for the holding of the election to its
defeated candidate could not be deemed elected to the office. provincial election supervisors and election registrars for
[Talaga vs. Commission on Elections (2012)] dissemination, who shall post copies thereof in at least
three conspicuous places preferably where public
meetings are held in each city or municipality affected.
EXCEPTION TO SECOND-PLACER DOCTRINE (Sec. 7, Omnibus Election Code)
The only time that a second placer is allowed to take the place PROCEDURE FOR FILLING A PETITION TO DECLARE
of a disqualified winning candidate is when 2 requisites concur, FAILURE OF ELECTIONS
namely:
(a) the candidate who obtained the highest number of
Petitioner files verified petition with the Law
votes is disqualified; and Department of the COMELEC.
(b) the electorate was fully aware in fact and in law of
that candidate’s disqualification as to bring such
awareness within the realm of notoriety but the
electorate still cast the plurality of the votes in favor Unless a shorter period is deemed necessary by
circumstances, within 24 hours, the Clerk of Court
of the ineligible candidate. concerned serves notices to all interested parties,
indicating therein the date of hearing, through the
C. FAILURE OF ELECTION fastest means available.
Note: However, this does not preclude the authority of the (2) Technical examination of the signatures and thumb marks
appropriate canvassing body motu propio or upon written of voters [Balindong v. COMELEC, 260 SCRA 494; Matalam
complaint of an interested person to correct manifest errors in v. COMELEC, 271 SCRA 733].
the certificate of canvass or election returns before it.
(3) Prayer for re-opening of ballot boxes [Alfonso v. COMELEC
NATURE OF THE PROCEEDINGS (1994)].
Summary Proceeding heard summarily by the COMELEC after (4) Padding of the Registry List of Voters of a municipality,
due notice and hearing. massive fraud and terrorism [Ututalum v. COMELEC, 181
SCRA 335].
Reason: This is because canvass and proclamation should be
delayed as little as possible. Questions which require more (5) Challenges directed against the Board of Election
deliberate and necessarily longer consideration are left for Inspectors [Ututalum v. COMELEC, 181 SCRA 335].
examination in the corresponding election protest [Sison v.
COMELEC (1999)]. (6) Fraud, terrorism and other illegal electoral practices.
These are properly within the office of election contests
Remedy: Parties adversely affected by a ruling of the board of over which electoral tribunals have sole, exclusive
canvassers may appeal the matter to the Commission within 3 jurisdiction [Loong v. COMELEC].
days from a ruling thereon. The Commission shall summarily
decide the case within 5 days from the filling thereof (Sec 19 RA
7166) PROCEDURE
PROCEDURE
If filed with the Board first: 5. Upon receipt of the evidence, the Board considers the
1. Petitioner submits his / her objection to the objection and the opposition, and summarily rules on
chairman of the board of canvassers. the objection. The Board then enters its ruling on the
2. The Board makes its ruling. prescribed form and authenticates the same by entering
3. Within 3 days from the ruling, the parties the signatures of all its members.
adversely affected may appeal the matter to the
COMELEC. 6. The parties adversely affected by the ruling
4. Upon appeal, the COMELEC shall summarily immediately inform the Board if they intend to appeal
decide the case within 5 days from the filing the ruling. Such information is then entered in the
thereof [Sec. 19, R.A. 7166]. minutes of canvass.
If initiated directly with the COMELEC 7. The Board then sets aside the returns and proceeds to
1. Petitioner files petition with the COMELEC. consider the other returns. The Board then suspends
2. Upon the docketing of such petition, the Clerk of the canvass after all the uncontested returns have been
Court concerned shall issue summons with a copy canvassed and the contested return ruled upon by it.
of the petition to respondents.
3. The Clerk of Court concerned shall immediately 8. Within 48 hours from the ruling, the party adversely
set the petition for hearing. The COMELEC shall affected files a written and verified notice of appeal with
hear and decide the petition en banc. the Board. The party then files an appeal with the
COMELEC within a non-extendible period of 5 days
The Board of Canvassers shall not commence, proceed thereafter.
or resume canvass unless otherwise ordered by
COMELEC [Sec. 5, Rule 27, COMELEC Rules of 9. Immediately upon receipt of the notice of appeal, the
Procedure]. Board makes an appropriate report to the COMELEC,
elevating therewith the complete records and evidence
(b) Matters relating to the preparation, transmission, submitted in the canvass, and furnishing the parties
receipt, custody and appreciation of the election returns and with copies of the report.
certificates of canvass
Where Only with the Board of Canvassers 10. The COMELEC summarily decides the appeal within 7
When At the time the questioned return is presented for days from receipt of the record and evidence elevated
inclusion in the canvass. to it by the Board.
Who Any candidate, political party or coalition of
political parties 11. The COMELEC's decision becomes executory after the
Procedure lapse of 7 days from receipt thereof by the losing party.
1. The contesting party makes an oral objection to the
chairman of the Board of Canvassers at the time the 12. The COMELEC then authorizes the Board of
questioned return is presented for inclusion in the Canvassers to proceed with the proclamation of the
canvass. Such objection is recorded in the minutes of winner. Any proclamation made without COMELEC
canvass. Simultaneous with the oral objection, the authorization is void ab initio, unless the contested
objecting party enters his objection in the form for returns do not adversely affect the results of the
written objections prescribed by the COMELEC. election. (Sec. 20, R.A. 7166)
2. Upon receipt of such objection, the Board automatically Note: Mandatory procedure and non-compliance would be
defers the canvass of the contested returns and proceeds fatal to the pre-proclamation petition.
to canvass the returns, which are not contested by any
party.
EFFECT OF FILING PRE-PROCLAMATION
3. Within 24 hours from and after the presentation of such CONTROVERSIES
objection, the objecting party submits the evidence in
support of the objection, which shall be attached to the The period to file an election contest shall be SUSPENDED
form for written objections. during the pendency of the pre-proclamation contest in the
COMELEC or the Supreme Court [Sec. 248, Omnibus Election
Within the same 24-hour period, any party may file a Code].
written and verified opposition to the objection in the
prescribed COMELEC form, attaching supporting EFFECT OF THE PROCLAMATION OF WINNING
evidence, if any. The Board shall not entertain any CANDIDATE
objection or opposition unless reduced to writing in the
prescribed forms. A pre-proclamation controversy shall no longer be viable
after the proclamation and assumption into office by the
4. The Board chairman immediately and formally admits candidate whose election is contested. The remedy is an
the evidence attached to the objection or opposition by election protest before the proper forum [Mayor v.
affixing his signature at the back of each and every page COMELEC (1989)].
thereof. The prevailing candidate may still be unseated
even though he has been proclaimed and installed in
Period for presentation of evidence: Presentation and 2. Change or alteration or transfer of a voter's precinct
reception of evidence shall be completed within 30 assignment in the permanent list of voters without the
days from the date of the commencement thereof. express written consent of the voter (Sec. 4, R.A. 8189)
8. Rendition of decision: The Court shall decide the election Certificate of Candidacy
contest within 30 days from the date it is submitted for 1. Continued misrepresentation or holding out as a
decision, but in every case within 6 months after its candidate of a disqualified candidate or one declared by
filing. Such decision shall declare who among the final and executory judgment to be a nuisance candidate
parties has been elected, or in a proper case, that none (Sec. 27f, R.A. 6646)
of them has been legally elected.
2. Knowingly inducing or abetting such misrepresentation
9. Finality of decision: The decision becomes final 5 days of a disqualified or nuisance candidate (Sec. 27f, R.A.
after its promulgation. No motion for reconsideration 6646)
shall be entertained.
3. Coercing, bribing, threatening, harassing, intimidating,
10. Filing of Appeal: The aggrieved party may appeal the terrorizing, or actually causing, inflicting or producing
decision to the COMELEC, by filing a notice of appeal violence, injury, punishment, torture, damage, loss or
within 5 days from promulgation of the decision. disadvantage to discourage any other person or persons
from filing a certificate of candidacy in order to eliminate
E. QUO WARRANTO all other potential candidates from running in a special
election (Sec. 5, R.A. 8295)
Quo Warranto (Sec. 253, Omnibus Election Code) Election Campaign
Who may Any registered voter in the constituency 1. Appointment or use of special policemen, special
file agents or the like during the campaign period (Sec.
Grounds Ineligibility or disloyalty to the Republic of 261m, B.P. 881)
the Philippines 2. Use of armored land, water or aircraft during the
Period for Within 10 days from proclamation of the campaign period (Sec. 261r, B.P. 881)
filing results of the election
3. Unlawful electioneering (Sec. 261k, B.P. 881)
AWARD OF DAMAGES 4. Acting as bodyguards or security in the case of
policemen and provincial guards during the campaign
Actual or compensatory damages may be granted in all election period (Sec. 261t, B.P. 881)
contests or in quo warranto proceedings in accordance with law
5. Removal, destruction, obliteration, or tampering of
[Sec. 259, Omnibus Election Code].
lawful election propaganda, or preventing the
distribution thereof (Sec. 83, vis-à-vis Sec. 262, B.P. 881)
Canvassing JURISDICTION
Any chairperson of the board of canvassers who fails to
give notice of meeting to other members of the board,
GENERAL RULE
candidate or political party as required (Sec. 27e, R.A. 6646)
Regional trial court shall have the exclusive original jurisdiction
Acts of government or public officers to try and decide any criminal action or proceedings for
1. Appointment of new employees, creation of new violation of this Code
positions, promotion, or giving salary increases within
the election period (Sec. 261g, B.P. 881) EXCEPTION
Metropolitan or Municipal Trial Code for offenses relating to
2. Transfer of officers and employees in the civil service
the failure to register or failure to vote which shall be under the
within the election period without the prior approval of
jurisdiction of the metropolitan or municipal trial courts.
the COMELEC (Sec. 261h, B.P. 881)
Other prohibitions From the decision of the courts, appeal will lie as in other
1. Unauthorized printing of official ballots and election criminal cases (Sec. 268, Omnibus Election Code)
returns with printing establishments that are not under
contract with the COMELEC (Sec. 27a, R.A. 6646) Note:
2. Wagering upon the results of elections (Sec. 261c, B.P. COMELEC has exclusive jurisdiction to investigate and
881) prosecute cases involving violation of election laws [1987
Constitution, Sec. 2 (6), Art. IX-C].
3. Sale, etc. of intoxicating liquor on the day fixed by law
for the registration of voters in the polling place, or the However, it may validly delegate the power to the Provincial
day before the election or on election day (Sec. 261dd (1), Prosecutor or to the Ombudsman.
B.P. 881)
4. Opening booths or stalls within 30 meters of any polling
place (Sec, 261dd (2), B.P. 881)
5. Holding fairs, cockfights, etc. on election day (Sec. 261dd THE POLICY OF NON-INTERFERENCE
(3), B.P. 881)
6. Refusal to carry election mail during the election period GENERAL RULE
(Sec. 261dd (4), B.P. 881). In addition to the prescribed The COMELEC, as the body tasked by no less than the 1987
penalty, such refusal constitutes a ground for Constitution to investigate and prosecute violations of election
cancellation or revocation of certificate of public laws, has the full discretion to determine whether or not an
convenience or franchise. election case is to be filed against a person and, consequently,
7. Discrimination in the sale of air time (Sec. 261dd (5), B.P. its findings as to the existence of probable cause are not subject
881) In addition to the prescribed penalty, such refusal to review by courts. [Guzman vs COMELEC (2009)].
constitutes a ground for cancellation or revocation of
the franchise. EXCEPTION
This policy of non-interference does not apply where the
COMELEC, as the prosecuting or investigating body, was acting
arbitrarily and capriciously, like herein, in reaching a different
but patently erroneous result (Ibid).
OTHER ELECTION OFFENSES UNDER RA 6646
(2) If the chairman of the BEI fails to affix his signature at the
back of the official ballot, in the presence of the voter,
before delivering the ballot to the voter. (under RA 7166)
PRESCRIPTION
Five years from the date of their commission.
ADDITIONAL NOTES
(Not Included
SOURCES OF in SC Syllabus)
ELECTION LAW
1. 1987 Constitution
2. BP 881 (Omnibus Election Code)
3. RA 6646 (Electoral Reforms Law of 1987)
4. RA 6679 (Barangay Elections)
5. RA 6735 (Law Providing for Initiative and Referendum)
6. RA 7166 (1991 Synchronized Elections Law)
7. RA 7941 (Election of Party-List Representatives)
8. RA 8189 (Continuing Registration)
9. RA 8436 (Automated Election System)
10. RA 8524
11. RA 9006 (Fair Election Act of 2001)
4. Deputize, with the concurrence of the President, law changing of a polling place, adequate general notice must be
enforcement agencies and instrumentalities of the given.
Government for the exclusive purpose of ensuring free,
orderly, honest, peaceful and credible elections PRE-ELECTION REQUIREMENTS
5. Register political parties, etc.
6. Accredit citizens' arms
7. Investigation and prosecution of cases of violation of
election laws 1. Establishment of Precincts
8. Filing of petitions in court for inclusion or exclusion of The COMELEC shall establish all election precincts. Each
barangay shall have at least 1 such precinct. (Sec. 149,
voters
Omnibus Election Code)
9. Recommendatory:
a. To Congress
The COMELEC may introduce adjustments, changes or
Effective measures to minimize election spending,
new divisions or abolish precincts if necessary. But no
including limitation of places where propaganda
changes shall be introduced within 45 days before a
materials shall be posted, and to prevent and penalize
regular election and 30 days before a special election or
all forms of election frauds, offenses, malpractices,
referendum or plebiscite. (Sec. 149, Omnibus Election Code)
and nuisance candidates. (Art. IX-C, Sec. 2, 1987
Constitution)
Where it is not practicable to divide a precinct by
b. To the President
territory, the COMELEC may adjust or split the precinct
For removal of any officer or employee it has
by assigning the registered voters alphabetically and
deputized (Sec. 52a, Omnibus Election Code
equitably among the adjusted or split precinct. The
10. Supervision / Regulation, for the duration of the election
polling places of the said precincts must be in the same
period, of use of all franchises or permits for operation of:
building. (Sec. 8, R.A. 7166)
a. transportation and other public utilities;
b. media of communication or information;
2. Publication of Maps of Precincts
c. all grants, special privileges, or concessions granted
At least 5 days before the first registration day and until
by the Government or any instrumentality thereof.
after the election, referendum, or plebiscite, the
COMELEC shall post in the city or municipal hall and in
DATE OF ELECTION
3 other conspicuous places and on the door of each
There is a simultaneous conduct of elections for national and polling place, a map of the city or municipality showing
local officials once every 3 years. Under R.A. 7166, elections its division into precincts. Such maps shall be kept posted
shall be held on the 2nd Monday of May. until after the election, referendum or plebiscite. (Sec.
151, BP 881)
1. President and Vice-President
3. Designation of polling places
elected on the same day every 6 years.
The COMELEC may introduce changes in the location of
polling places when necessary after notice to the
2. Senators, Elective Members of the House of Representatives, and
Elective Provincial, City and Municipal Officials registered political parties and candidates affected if any,
same day every 3 years, except with respect to the and hearing. No location shall be changed within 45 days
Senators, only 12 of whom shall be elected every 3 years. before a regular election and 30 days before a special
election, referendum or plebiscite except when it is
3. Barangay Elections destroyed or it cannot be used. (Sec. 153, BP 881)
Barangay and sangguniang kabataan elections shall be
held on the last Monday of October and every three (3) 4. Arrangements and Contents of Polling Places
years thereafter and the term of office of all barangay and Each polling place shall have at least 10 voting booths of
sangguniang kabataan officials after the effectivity of this such size, specifications and materials as the COMELEC
Act shall be three (3) years. may provide to enable the voters to fill out their ballots
secretly. (Sec. 158, BP 881)
Provided that, no barangay elective official shall serve for
The polling place shall be so arranged that the booths, the
more than three (3) consecutive terms in the same
table, the ballot boxes and the whole polling place, except
position (RA 9164)
what is being written within the booths, shall be in plain
TIME OF ELECTION view of the board of election inspectors, the watchers and
other persons who may be within the polling place. (Sec.
Must be fixed by the authoritative power. (i.e. the Constitution; 159 (d), BP 881)
laws in the case of regular elections; the executive or other
designated power in the case of special elections). The COMELEC shall post inside each voting booth and
elsewhere in the polling place on the day before the
PLACE OF ELECTION election, referendum, or plebiscite and during the voting
period a list containing the names of all candidates or the
Shall be fixed by general law or by a proclamation or by the issues or questions to be voted for. (Sec. 158; BP 881)
notice by which the election is called. Such designated place
shall be mandatory. In case of emergencies which necessitate the
There shall be a guard rail between the voting booths and (1) Accepting financial contributions from foreign
the table for the Board of Election Inspectors. (Sec. 159; governments or their agencies (Art. IX-C, Sec. 2 (5), 1987
BP 881) Constitution)
(2) The party is a religious sect or denomination, organization
5. Inspection of polling places or association organized for religious purposes
Before the day of the election, referendum or plebiscite, (3) The party advocates violence or unlawful means to seek its
the Chairman of the COMELEC shall, through its goal
authorized representatives, see to it that all polling places (4) The party is a foreign party or organization
are inspected and such omissions and defects as may be (5) The party is receiving support from any foreign
found are corrected. (Sec. 163, BP 881) 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
POLITICAL PARTIES
(6) The party violates or fails to comply with laws, rules or
regulations relating to elections
(7) The party declares untruthful statements in its petition for
RIGHTS OF POLITICAL PARTIES registration
(8) The party has ceased to exist for at least 1 year
i. To be voted upon as a party, provided that it is (9) The party fails to participate in the last 2 preceding elections
registered under the party-list system (Art. IX-C, Sec. 7, (10) If registered under the party-list system, the party fails to
1987 Constitution) obtain at least 2% of the votes in the 2 preceding elections
ii. To have a watcher in every Election Registration for the constituency in which it has registered. (Sec. 6 (1),
Board (Sec. 15, R.A. 8189) R.A. 7941)
iii. To inspect and/or copy at its expense the (11) Under the party-list system, the COMELEC may refuse or
accountable registration forms and/or the list of cancel registration either motu propio or upon verified
registered voters in the precincts constituting the complaint of any interested party, after due notice and
constituency at which the political party is fielding hearing.
candidates (Sec. 42, R.A. 8189)
iv. To have a watcher and/or representative in the PROCEDURE
procurement and watermarking of papers to be used
in the printing of election returns and official ballots PETITION
and in the printing, numbering, storage and Petition verified by the party/ organization/ coalition's
distribution thereof (Sec. 8, R.A. 6646) president or secretary. The petition must state its desire to
v. To have watchers who shall verify the contents of the participate in the party-list system as a national, regional or
boxes containing the shipment of official ballots, sectoral party or organization or a coalition of such parties or
election returns and sample official ballots received organizations.
by the provincial, city and municipal treasurers
Sec. 189, BP 881. Note that this privilege is only WHEN
available to the ruling party and the dominant opposition Not later than 90 days before the election
party.
vi. To have one watcher in every polling place and ATTACHMENTS:
canvassing center (Sec. 26, R.A. 71660) 1. Constitution
vii. To be present and to have counsel during the canvass 2. By-laws;
of the election returns (Sec. 25, R.A. 6646) 3. Platform or program of government
viii. To receive the 4th copy (if the dominant majority party) 4. List of officers
or the 5th copy (if the dominant minority party) of the 5. Coalition agreement (as applicable)
election returns (Sec. 27, R.A. 7166 as amended by 6. Other relevant information as may be required by the
R.A. 8045 and R.A. 8173) COMELEC
FORFEITURE OF STATUS After due notice and hearing, the COMELEC shall resolve the
Any registered political party that, singly or in coalition with petition within 15 days from the date it was submitted for
others, fails to obtain at least 10% of the votes cast in the decision, but not later than 60 days before election. (Sec. 5, R.A.
constituency in which it nominated and supported a candidate 7941)
or candidates in the election next following its registration
shall, after notice and hearing be deemed to have forfeited
such status as a registered political party in such constituency.
NOMINATION OF PARTY-LIST REPRESENTATIVES
(Sec. 60, BP 881)
4. File protests against any irregularities or violation of 1. prepare the ballot for the illiterate or disabled voter
law inside the voting booth;
5. Be furnished with a certificate of the number of votes 2. bind himself in a formal document under oath to fill
cat for each candidate, duly signed and thumb out the ballot strictly in accordance with the
marked by the members of the BEI. instructions of the voter and not to reveal the contents
of the ballot prepared by him.
CASTING OF VOTES
In every case, before delivering an official ballot to the A violation of these 2 duties shall constitute an
voter, the chairman of the Board of Election Inspectors election offense.
shall affix his signature at the back of the ballot in the
presence of the voter. (Sec. 24, R.A. 7166) SPOILED BALLOTS
Failure to authenticate shall be noted in the minutes of the If a voter should accidentally spoil or deface a ballot in
Board of Election Inspectors and shall constitute an such a way that it cannot lawfully be used, he shall
election offense. surrender it folded to the chairman who shall note in the
corresponding space in the voting record that said ballot
is spoiled. The voter shall then be entitled to another
ballot which the chairman shall give him after
BALLOT AND VOTING announcing the serial number of the second ballot and
recording the serial number in the corresponding spaces
1. The voter, upon receiving his folded ballot, shall in the voting record.
forthwith proceed to one of the empty voting booths and
shall there fill his ballot by writing in the proper space No voter shall change his ballot more than once. (Sec.
for each office the name of the individual candidate for 14, R.A. 8436)
whom he desires to vote.
The spoiled ballot shall, without being unfolded and
Voters are not allowed to: without removing the detachable coupon, be
a. To enter a booth occupied by another, nor enter distinctly marked with the word "spoiled" and signed
the same accompanied by somebody, except as by the board of election inspectors on the
provided for in the succeeding section hereof; endorsement fold thereof and immediately placed in
b. To stay therein for a longer time than necessary the compartment for spoiled ballots.
c. To speak with anyone other than as herein
provided while inside the polling place. 2. After the voter has filled his ballot he shall fold it in
Unlawful Acts: the same manner as when he received it and return it
a. To prepare the ballot outside the voting booth to the chairman.
b. To exhibit its contents to any person
c. To erase any printing from the ballot 3. In the presence of all the members of the board of
d. To intentionally tear or deface the same or put election inspectors, he shall affix his thumbmark on
thereon any distinguishing mark the corresponding space in the coupon, and deliver
e. To use carbon paper, paraffin paper, or other the folded ballot to the chairman.
means for making a copy of the contents of the
ballot; 4. The chairman, in the presence and view of the voter
f. To make use of any other means to identify the and all the members of the board of election
vote of the voter. inspectors, without unfolding the ballot or seeing its
contents, shall verify its number from the voting
Preparation of Ballots for Illiterates and Disabled record where it was previously entered.
Persons (Sec. 196, B.P. 881)
No voter shall be allowed to vote as an illiterate or as Any ballot whose number does not coincide
a physically disabled unless it is so indicated in his with the number of the ballot delivered to the
registration record. voter, as entered in the voting record, shall be
considered as spoiled and shall be so marked
A voter who is illiterate or physically unable to and signed by the members of the board of
prepare the ballot by himself may be assisted in the election inspectors.
preparation of his ballot by the following:
5. The voter shall affix his thumbmark by the side of his
a. a relative by affinity or consanguinity within the signature in the space intended for that purpose in the
fourth civil degree, or voting record and the chairman shall apply silver
b. If (a) is not available, then any person of his nitrate and commassie blue on the right forefinger
confidence who belongs to the same household; nail or on any other available finger nail, if there be
or no forefinger nail.
c. Any member of the board of election inspectors. 6. The chairman shall sign in the proper space beside the
thumbmark of the voter.
In no case shall an assistor assist more than 3 times.
The person assisting shall:
Note that the absence of the signature of the shall be held together with rubber bands, with cardboard
chairman in the ballot given to a voter as proof of the size of the ballots to serve as folders.
of the authenticity of the ballot, is fatal.
2. The chairman of the board of election inspectors shall take
7. The chairman, after finding everything to be in order, the ballots of the first pile one by one and read the names
shall then detach the coupon in the presence of the of candidates voted for and the offices for which they were
board of election inspectors and of the voter and shall voted in the order in which they appear thereon, assuming
deposit the folded ballot in the compartment for valid such a position as to enable all of the watchers to read such
ballots, and the detached coupon in the compartment names.
for spoiled ballots.
3. The chairman shall sign and affix his right hand thumb
Any ballot returned to the chairman whose mark at the back of the ballot immediately after it is
detachable coupon has been removed not in the counted.
presence of the board of election inspectors and
of the voter, shall be considered as spoiled and 4. The poll clerk, and the third member, respectively, shall
shall be so marked and signed by the members record on the election returns and the tally board or sheet
of the board of election inspectors. each vote as the names voted for each office are read. (The
election returns are mandated by law to be prepared
8. The voter shall then depart. simultaneously with the counting of the votes.)
NON-CONCLUSIVENESS OF ADMISSION OF 5. After finishing the first pile of ballots, the board of election
CHALLENGED VOTE inspectors shall determine the total number of votes
It must be noted that the admission of the challenged vote shall recorded for each candidate, the sum being noted on the
not be conclusive upon any court as to the legality of the tally board or sheet and on the election returns. In case of
registration of the voter challenged or his vote in a criminal discrepancy such recount as may be necessary shall be
action against such person for illegal registration or voting [Sec. made. The ballots shall then be grouped together again as
201, B.P. 881]. before the reading. Thereafter, the same procedure shall be
followed with the second pile of ballots and so on
COUNTING OF VOTES successively.
The counting of votes is conducted by the Board of Election
Inspectors, which shall not adjourn or postpone or delay the 6. After all the ballots have been read, the board of election
count until it has been fully completed, unless otherwise inspectors shall sum up the totals recorded for each
ordered by the COMELEC. candidate, and the aggregate sum shall be recorded both
on the tally board or sheet and on the election returns.
COUNTING MUST BE IN PUBLIC AND WITHOUT
INTERRUPTION 7. It shall then place the counted ballots in an envelope
As soon as the voting is finished, the board of election inspectors provided for the purpose, which shall be closed signed and
shall publicly count in the polling place the votes cast and deposited in the compartment for valid ballots.
ascertain the results. The Board shall not adjourn or postpone
or delay the count until it has been fully completed, unless 8. The tally board or sheet as accomplished and certified by
otherwise ordered by the COMELEC. the board of election inspectors shall not be changed or
destroyed but shall be kept in the compartment for valid
VENUE FOR COUNTING ballots.
The COMELEC in the interest of free, orderly, and honest
elections, may order the board of election inspectors to count the MARKED BALLOTS, DEFINITION
votes and to accomplish the election returns and other forms
prescribed under the Omnibus Election Code in any other place Marked ballots are ballots containing a distinguishing mark
within a public building in the same municipality or city. which would tend to identify the voter who cast such ballot.
The public building shall not be located within the PURPOSE OF DISALLOWING MARKED BALLOTS
perimeter of or inside a military or police camp or Some unscrupulous persons taking advantage of their
reservation nor inside a prison compound. influence or political prestige may require voters to place a
distinguishing “mark” on their ballot, in consideration of
If it becomes necessary to transfer the counting of votes to some promise, reward or other valuable consideration and
a safer place on account of imminent danger of violence, to which the voters would have no escape because of the
terrorism, disorder or similar causes, the Board of Election distinguishing marks required of them to place on their
Inspectors may effect such transfer by unanimous ballots.
approval by the Board and concurrence by the majority of
the watchers present. (Sec. 18, R.A. 6646) This threatens the independence of the voters in the
exercise of their right to vote. Hence, the prohibition on
MANNER OF COUNTING VOTES marked ballots.
EFFECTS OF MARKED BALLOTS
1. The board of election inspectors shall unfold the ballots Marked ballots are invalidated in their entirety, and none of
and form separate piles of one hundred ballots each, which the votes therein are counted.
A majority vote of the board of election inspectors shall be 18. Misspelling the name of a candidate.
sufficient to determine whether a ballot is marked or not.
19. Illegible writings, being imprints of other names written on
All marked ballots shall be placed in an envelope labeled the ballot caused by the folding of the same.
"marked ballots" which shall be sealed and signed by the
members of the board of election inspectors and placed in 20. Writing crosses and circles signifying the desistance of the
the compartment for valid ballots and shall not be counted. voter to write any other name.
1. Where 170 ballots were voted for in the same manner and 24. Corrected name written over the canceled one on the space
there is evidence aliunde to prove that such manner of for councilor although he is a candidate for mayor.
voting was planned.
25. Mistakes in writing names of local candidates in spaces for
2. Where the name of 1 candidate is clearly and markedly senators and writing again the names of his candidates for
indented to the right to make the ballot easily councilors in the proper spaces.
distinguishable.
26. Unintentional, accidental, unintelligible marks or words.
3. Use of two or more kinds of writing deliberately put by the
voter to serve as identification marks. 27. Accidental placing of a stain.
4. Writing the name of a person who is not a candidate 3 28. Voting names of non-candidates in the absence of evidence
times on 3 spaces provided for in different offices. that these names were used as identifying marks.
5. Expressions opposite the space for candidates written for APPRECIATION OF BALLOTS
the purpose of identification. GUIDELINES FOR APPRECIATION OF BALLOTS
DOUBTS are to be resolved in FAVOR of the validity of
6. The inclusion of the names of 2 well-known movie stars ballots. The purpose is of election laws is to give effect and
who were not candidates. not to frustrate the WILL of the voter.
7. Writing the name of a registered voter who is not a LIBERAL CONSTRUCTION in reading the ballots, and
candidate. intendments should be in favor of a reading which render
the ballot EFFECTIVE rather than in favor of a conclusion
8. The placing, without explanation of initials, after the which on some technical grounds would render it
corrected names of candidates for mayor and vice-mayor. ineffective.
9. Placing a big letter “X” immediately after the name of a Minor blemishes should not affect the validity of the ballot
candidate for councilor. where the intention of the voter to vote for certain persons
is discernible in the ballot.
10. The capital letter “N” opposite the printed words for
senators. Errors in spelling, honest mistakes due to ignorance or
illiteracy should not defeat the intention of the voter.
11. Writing the word “sinador” in a place far and separate However, if the ballot is so defective as to fail to show any
from the proper spaces for candidates. intention, it must be disregarded.
DUTIES OF THE BOARD OF CANVASSERS The board of canvassers shall forthwith make a certificate
After the canvass of election returns, in the absence of a stating the name of the candidate who had been favored by
perfected appeal to the COMELEC, the Board of luck and his proclamation on the basis thereof.
Canvassers shall proclaim the candidates who obtained
the highest number of votes cast in the province, city, Nothing in the above shall be construed as depriving a
municipality or barangay, on the basis of the certificates of candidate of his right to contest the election.
canvass. Failure to comply with this duty constitutes an
election offense. (Sec. 231, B.P. 881) PROCLAMATION OF A LONE CANDIDATE (RA 8295)
The Board of Canvassers shall not proclaim any candidate Upon the expiration of the deadline for the filing of
as winner unless authorized by the COMELEC after the certificates of candidacy in a special election called to fill
latter has ruled on any objections brought to it on appeal a vacancy in an elective position other than for President
by a losing party. and Vice-President, when there is only one (1) qualified
candidate for such position, the lone candidate shall be
Any proclamation made in violation hereof shall be void proclaimed elected to the position by proper proclaiming
ab initio, unless the contested returns will not adversely body of the COMELEC without holding the special
affect the results of the election. election upon certification by the COMELEC that he is the
only candidate for the office and is therefore deemed
Once the Board of Canvassers has completed its duty, the elected.
board cannot meet again and re-canvass the votes or
reverse their prior decision and announce different results. 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 Sec. 69 and 78 of the
VOID PROCLAMATION Omnibus Election Code, the lone candidate shall assume
A proclamation is void when it is: office not earlier than the scheduled election day. (Sec. 3)
1. Based on incomplete returns (Castromayor v.
COMELEC, 250 SCRA 298) or The COMELEC shall decide petitions for disqualification
2. When there is yet no complete canvass (Jamil v. not later than election day. Otherwise, such petitions shall
COMELEC, G.R. No. 123648, Dec. 15, 1997). be deemed dismissed. (Sec. 3)
PARTIAL PROCLAMATION
Notwithstanding the pendency of any pre-proclamation
controversy, the COMELEC may summarily order the
proclamation of other winning candidates whose election will
not be affected by the outcome of the controversy. (Sec. 21, R.A.
7166)
PUBLIC CORPORATIONS
General Principles
Corporation
It is an artificial being created by operation of law, having the
right of succession and the powers, attributes and properties
expressly authorized by law or incident to its existence.
public corporations
(1) Corporations formed and organized for governing a
portion of a State
(2) Those formed or organized by the State to accomplish
part of its public functions
LOCAL
(3) Instruments of the government subject to the control
of the legislative
(4) Formed for political purposes connected with public
GOVERNMENT (5)
good for administration
They are governed by charters enacted by legislature
PUBLIC Corporation
Totality of the relation of the corporation to the State. If the [1]
CORPORATIONS corporation is created by the State as the latter’s [2] own agency
or instrumentality to [3] help it in carrying out its governmental
functions, then that corporation is considered public; otherwise,
it is private.
Public Corporation Private Corporation Governed by the legislative Governed by the special
charters creating them laws creating them and
the Corporation Code
Creators Creations of the State Created by the will of
either by general or the incorporators with Government control through Government control
special act recognizance of State. legislative charters through stock ownership
(stock) or membership
(non-stock)
Nature Involuntary Constitutes a
consequence of voluntary agreement
legislation by and among its
members
Test to determine whether it is a GOCC or a Private
Corporation
Is it created by its own charter for the exercise of a public
In the case of Boy Scouts of the Philippines vs COA,
function, or by incorporation under the general
BSP is a public corporation; thus, subject to the CoA’s
corporation law?
audit jurisdiction. The purpose of the BSP as stated in
its amended charter shows that it was created for a
Those with special charters are government
public purpose - in order to inculcate in the youth
corporations subject to its provisions, and its employees
“patriotism and nationalism” as declared in Section
are under the jurisdiction of the Civil Service
13, Article II of the Constitution.
Commission, and are compulsory members of the
Article XII, Section 16 of the 1987 Constitution Government Service Insurance System. (Baluyot vs
prohibits the creation of private corporations except Holganza, G.R. No. 136374. February 9, 2000, citing
by a general law applicable to all citizens but a public Camporedondo v. National Labor Relations
corporation intended for a public purpose is not Commission)
prohibited. As a public corporation, it is not subject to
the test of ownership or control and economic Exception: In a legal regime where the charter test
viability but to a different criteria relating to their doctrine cannot be applied, the mere fact that a
public purpose or constitutional policies and corporation has been created by virtue of a special law
objectives and their administrative relationship to the does not necessarily qualify it as a public corporation.
government or any of its offices. (Boy Scouts of the (Philippine Society vs COA, supra)
Philippines vs. Commission on Audit, G.R. No.
177131, June 7, 2011)
as agency of State to assist in civil government of the country. It (Rodriguez, pp 4--8, 55-56)
is one formed and organized for the government of a portion of
the State. The mere change of the sovereign authority governing
a country does not necessarily dissolve the municipal
MUNICIPAL CORPORATIONS corporation organized under the former sovereign.
The argument that by the change of sovereignty the
old city was extinguished in the same manner as the
CONCEPT
agent dies upon the death of the principal, loses sight
A “body politic and corporate constituted by the incorporation
of the dual character of municipal corporations,
of the inhabitants for purposes of local government thereof; it is
corporate and governmental. Only such governmental
established by law partly as an agency of the state to assist in
functions as are compatible with the present
the civil government of the country, but chiefly to regulate and
sovereignty may be considered suspended. (Villas vs.
administer the local or internal affairs of the city, town or district
City of Manila, 42 Phil 935, April 3, 2011)
which is incorporated.” (Rodriguez, The Local Government Code
of 1991 Annotated., p 4 , citing Dillon, Mun. Corp., Vol. 2, pp 58-
59) The Municipal Laws of such country continue to be in
force until abrogated or changed by a new
The term municipal corporation has gradually given way to the government. A Municipal Corporation is not totally
more recent term, local government. (Rodriguez, The Local dissolved as a mere consequence of military
Government Code of 1991 Annotated., p. 4) occupation or territorial cessation. (Villas vs City of
Manila, supra)
(1) De Jure Municipal Corporation Municipal Corporations by prescription are those that exercised
(2) Municipal Corporation by Prescription powers from time immemorial, with a charter which is
(3) De Facto Municipal Corporations presumed to have been lost or destroyed.
CREATION Indicators:
(1) Community has claimed and exercised corporate
ESSENTIAL REQUISITES functions
(1) Law or Ordinance (2) Knowledge and acquiescence of legislature
(2) Income (3) Without objection or interruption for a period long
(3) Population Indicators enough to afford title by prescription
(4) Land Area
(5) Attestation from DOF, NSO, LMB & DENR DE FACTO MUNICIPAL CORPORATION
(6) Plebiscite
De facto municipal corporations are those organized under
The central policy considerations in the creation of local color of law, with the rights of its inhabitants dependent on the
government units are economic viability, efficient acquiescence as much as on the regularity of origin.
administration, and capability to deliver basic services to their
constituents. The criteria prescribed by the LGC (income, Requisites:
population and land area) are all designed to accomplish this (1) Valid law authorizing incorporation
results. (Navarro vs. Ermita, 648 SCRA 400, April 12, 2011.) (2) Attempt in good faith to organize under said law
Exception: When the local government unit to be created (3) Colorable compliance with the law
consists of one or more island, it is exempt from the land (4) Assumption of corporate powers
area requirement if the local government unit to be
created is a municipality or a component city. ATTACK AGAINST VALIDITY OF INCORPORATIONS
Verifiable
such action, unless said law or ordinance fixes another Qualifications Provided
Indicators
date (Sec. 10, LGC).
Income Sufficient for a. Shall not be
(3) Equitable distribution of assets and liabilities; or essential government reduced to less
turnover of all property rights to the local facilities/services than minimum
government in case of fusion. commensurate with requirement
population size after division
b. Must not fall
below current
income
Methods Congress may alter or dissolve municipal classification
corporations: c. Classification be
(1) Fixing, altering, changing its boundaries; updated every 6
(2) Dividing a municipal corporation into two or more months
separate municipalities;
(3) Merging or consolidating two or more municipalities
into one; Population Total number of Shall not be reduced
(4) Annexing one municipal corporation to another; or inhabitants in the to less than minimum
(5) Repealing its charter. territory requirement after
division
DISSOLUTION
Submit to Sangguniang
Panlalawigan/Panglungsod
MANNER OF CREATION Submit to Sangguniang Bayan for Metro
Manila/ other Metropolitan subdivisions
(Section 386, Local Government Code)
Barangays
MUNICIPALITIES
Barangay may be –
(1) Created Municipality may be –
(2) Divided (1) Created
(3) Merged (2) Divided
(4) Abolished (3) Merged
(5) Substantially alter its boundaries (4) Abolished
(5) Substantially alter its boundaries
How: By law or Ordinance promulgated by the Sangguniang
Panlalawigan/Panglungsod How: By an Act of Congress
Subject to plebiscite conducted by COMELEC to those
Recommendation by Sangguniang Bayan is necessary for LGUs or units directly affected
those created by the Sangguniang Panlalawigan Plebiscite shall be held within 120 days from the Act’s
effectivity.
Subject to plebiscite conducted by COMELEC to those Exception: A different period provided in the Act.
LGUs or units directly affected
The absence of the Local Government Code at the time of its
“It is clear that in granting autonomy, priority is to be accorded enactment was not intended to cripple legislative competence to
the smallest unit, the barangay. That enables its residents the create municipal corporations. Section 3, Article XI of the 1973
fullest development as a self-reliant community, with a distinct Constitution does not proscribe nor prohibit the modification of
personality of its own. Adherence to such a philosophy compels territorial and political subdivisions before the enactment of the
the conclusion that when there are indications that the Local Government Code. What the Constitutional provision
inhabitants of several barangays are inclined to separate from a means is that once said Code is enacted, the creation,
parent municipality they should be allowed to so. What is more modification or dissolution of local government units should
logical than to ascertain their will in a plebiscite called for that conform with the criteria thus laid down. (Torralba vs
purpose. It is they, and they alone, who shall constitute the new Municipality of Sibagat, 147 SCRA 390, January 29, 1987)
unit.” (Paredes vs Executive Secretary, 126 SCRA 6, March, 2,
1984)
Requisites for Creation
Types of Cities The President shall have the duty to declare a city as highly
urbanized within 30 days from meeting the requirements –
application and ratification in a plebiscite. (Sec. 453, Local
Component City Government Code of 1991)
Absence of requisites to be highly urbanized will make the city
PROVINCES
a component of the province in which it is located; or where it
used to be a municipality if located within a boundary. (Section
452, Local Government Code) Province may be –
(1) Created
(2) Divided
(3) Merged
Highly Urbanized City (4) Abolished
(5) Substantially alter its boundaries
Qualified Voters shall remain excluded from provincial
elections
How: By an Act of Congress
Subject to plebiscite conducted by COMELEC to those
Exception: those who acquired the right to vote on
LGUs or units directly affected
provincial elections before the effectivity of LGC (Id.)
Plebiscite shall be held within 120 days from the Act’s
Independent Component City (Independent from the effectivity.
province) Exception: A different period provided in the Act.
Voters shall be governed by its specific charter. (Id.)
REQUISITES FOR CREATION
3. Population – 250, 000 The term “region” used in its ordinary sense means two or
Certified by NSO more provinces. Congress never intended that a single
Provided : These three requisites shall not be province may constitute the autonomous region.
reduced to less than the minimum Otherwise, we would be faces with the absurd situation of
requirements at the time of creation. (Section having two sets of provincial officials. (Ordillo vs
416, Local Government Code) COMELEC, 192 SCRA 100)
AUTONOMOUS REGIONS The LGC declared that is shall be the policy of the State that the
territorial and political subdivisions of the State shall enjoy
genuine and meaningful local autonomy to enable them to
The Constitution provides that it shall be the President who
attain their fullest development as self-reliant communities and
will supervise the implementation of the act creating an
make them more effective partners in the attainment of national
autonomous region.
goals.
REQUISITES FOR CREATION
Toward this end, the State shall provide for a more responsive
(1) An organic act passed by the Congress
and accountable local government structure instituted through
(2) A Regional Consultative Commission
a system of decentralization whereby local government units
(representatives from multi-sectoral bodies
shall be given more powers, authority, responsibilities, and
appointed by the President) shall assist in drafting the
resources. The process of decentralization shall proceed from
act.
the national government to the local government units.
(3) It shall define the government structure (executive-
legislative)
(4) It shall provide specific courts (personal, family, and Local Autonomy Regional Autonomy
property law jurisdiction) (Section 18, Article X, 1987
Constitution) Break up monopoly of the Cede some powers of the
(5) It shall provide legislative powers over: National Government over National Government to the
Administrative organization affairs of local government Autonomous Government
Creation of sources of revenues to effectuate a veritable
Ancestral domain and natural resources autonomy (Disomangcop v.
Personal, family and property relations Datumanong)
Regional urban and rural planning
development Permit certain groups with
Economic, social, and tourism development common tradition and
Educational policies shared social-cultural
Preservation and development of cultural character powers of the
heritage National Government.
Other matters authorized by law for the
promotion of general welfare (Section 20,
Article X, 1987 Constitution)
(6) Plebiscite Autonomy is relative
Provided : only provinces, cities, and
“Municipal governments are only agents of the national
geographical areas voting favorably shall be
government. Local councils exercise only delegated legislative
included. (Section 18, supra)
powers conferred on them by Congress as the national law
making body. The delegate cannot be superior to the principal power (III, A) and decentralization of administration. (Ganzon
or exercise powers higher than those of the latter. It is a heresy vs CA, GR No. 93252, August 5, 2011)
to suggest that local government units can undo the acts of
Congress, from which they have derived their power in the first
place, and negate by mere ordinance the mandate of the
stature.” (Magtajas vs Pryce Propertes Corporation 232 SCCRA Operative Principles of Decentralization
255 (1994)) (1) Effective allocation of powers, responsibilities and
resources among different local government units;
“When indeed the Constitution has expanded the autonomy of (2) An accountable, efficient, and dynamic organizational
local governments, they have not been thereby made imperium structure and operating mechanism that will meet the
in imperio. Congress may still impose limits on their powers. priority needs and service requirements of each
Thus they may not violate the statutory limits on their powers.” community;
(Tan vs Pereña, GR No. 149743, February 18, 2005) (3) Local officials and employees paid wholly or mainly
from local funds shall be appointed or removed,
according to merit and fitness, by the appointing
authority;
Decentralization of Administration
(4) The vesting of duty, responsibility, and accountability in
The central government delegates administrative powers to local government units shall be accompanied with
political subdivisions in order to broaden the base of provision for reasonably adequate resources to
government power and in the process make local governments discharge their powers and effectively carry out their
“more responsive and accountable”. It relieves the central functions: hence, they shall have the power to create and
government of the burden of managing local affairs and enables broaden their own sources of revenue and the right to a
it to concentrate on national concerns. just share in national taxes and an equitable share in the
proceeds of the utilization and development of the
national wealth within their respective areas;
(5) Provinces/cities shall ensure that the acts of their
Decentralization of Power component units are within the scope of their prescribed
powers and functions;
(Political Decentralization) (6) LGUs may group themselves, consolidate or coordinate
their efforts, services, and resources commonly
Involves abdication of political power in favor of LGU’s beneficial to them;
declared autonomous. (Limbona vs. Mangelin, 170 SCRA 786) (7) The capabilities of local government units, especially the
municipalities and barangays, shall be enhanced by
providing them with opportunities to participate
actively in the implementation of national programs and
Forms of decentralization projects;
(8) A continuing mechanism to enhance local autonomy by
Devolution legislative acts, administrative and organizational
reforms;
It is the transfer of power and authority from the national (9) LGUs shall share with the national government the
government to LGUs as the territorial and political subdivisions responsibility in the management/ maintenance of
of the State. The nature of power transfer is political and the ecological balance within their territorial jurisdiction;
approach is territorial or areal. (10) Effective mechanisms for ensuring the accountability of
LGUs to their constituents shall be strengthened to
upgrade the quality of local leadership;
(11) Facilitated by improved coordination of national
Deconcentration
government policies and programs as an extension of
It is the transfer of power, authority or responsibility, or the adequate technical and material assistance to less
discretion to plan, decide and manage from central point or developed local government units;
local levels, but within the central or national government itself. (12) Private sector participation (delivery of basic services) in
The nature of the transfer is administrative and the approach is local governance shall be encouraged to ensure local
sectoral. autonomy as an alternative for sustainable development;
and
(13) 13 National government shall ensure that
decentralization contributes to the continuing
Debureaucratization improvement of LGUs and the quality of community life.
It is the transfer of some public functions and responsibilities, (Section 3, Local Government Code)
which the government may perform, to private entities or non-
governmental organizations; it is people’s empowerment or
participation in local governance.
Features of Local government units
Decentralization means devolution of national administration, Sensitive to the needs of the locality
but not power, to the local levels. There’s decentralization of Through initiative and referendum
Accountable to the electorate of the locality
Through recall
Freed from central government interference Purpose of Police Power
(Bernas, pp 1117-1118)
(1) To promote the general welfare, comfort and
convenience of the people;
(2) To promote and preserve public health
Powers devolved to the Local Government Unit (3) To protect public morals
(1) Public Works
a. Distributed responsibility on Roads General Rule: The general welfare provisions shall be liberally
(2) Health interpreted to give more powers to LGU in accelerating
a. Maintenance of health and day-care centers economic development and upgrading the quality of life for the
b. Delivery of health care services people in the community
c. Establishment and operation of hospitals
(3) Agriculture Limitation in Exercise of Police Power
a. Conservation projects
b. Agricultural support services An ordinance enacted by virtue of the general welfare clause is
c. Jurisdiction over cooperatives valid
(4) Social Welfare Exception:
(5) Certain Tourism functions a. If it contravenes the fundamental law of the
(6) Construction of School Buildings and Facilities Philippine Islands,
(7) Local Taxation b. An Act of the Philippine Legislature,
Increase in tax share c. Against public policy,
Increase in taxing power d. Is unreasonable, oppressive, partial,
Common revenue powers among province, discriminating, or in derogation of common
municipality, city, and barangay (e.g. Toll right (Batangas CATV v CA, G.R. no. 138810).
fees)
(8) Distribution of Shares from Natural Resources Based on the hierarchy of constitutionally protected rights, the
(Rodriguez, pp 31-36) right to life enjoys precedence over the right to property. The
reason is obvious: life is irreplaceable, property is not. When the
state or LGU’s exercise of police power clashes with a few
individuals’ right to property, the former should prevail. (Social
Control and Supervision, distinguished Justice Society v Atienza, G.R. no. 187836).
Test for Valid Exercise of Police Power
Control
Power of an officer to alter or modify or nullify or set aside what
1. The interests of the public, not a mere particular class,
a subordinate officer ha[s] done in the performance of his duties
require the exercise of police power (Lawful subject)
and to substitute the judgment of the former for that of the latter.
2. The means employed is reasonably necessary for the
Officers in control lay down the rules in the performance
accomplishment of the purpose and not unduly oppressive
or accomplishment of an act. If these rules are not followed,
to individuals (Lawful Means)
they may, in their discretion, order the act undone or
redone by their subordinates or even decide to do it
themselves.
Power to issue license and permits
Supervision
Issuance of license is regulatory rather than an exercise of
Power of mere oversight over an inferior body.
taxation.
Supervising officials merely see to it that the rules are
followed, but they themselves do not lay down such rules,
Kinds of Licenses:
nor do they have the discretion to modify or replace them.
Regulation of Useful Occupation
Regulation of Non-Useful Occupation
Exception: For Revenue purposes
POWERS OF LOCAL GOVERNMENT UNITS A license tax for regulation is not a tax on property but rather a
burden imposed for the right to exercise a franchise or privilege
POLICE POWER (GENERAL WELFARE CLAUSE) of which the holder may not be deprived without due process
and when public interest so require.
The power inherent in the State to regulate liberty and property i. While it is true that the matter of determining whether
for the promotion of the general welfare. there is a pollution in the environment that requires control
if not prohibition of the operation of a business, is
Police power is the plenary power vested in the legislature to essentially addressed to the Environmental Management
make, ordain, and establish wholesome and reasonable laws, Bureau of DENR, it must be recognized that the mayor of
statutes and ordinances, not repugnant to the Constitution, for a town has as much responsibility to protect its inhabitants
the good and welfare of the people. from pollution and by virtue of his police power, he may
deny the application of permit to operate business (the
Power to prescribe regulations flows from the recognition that mayor here has factual basis). (Technology Developers,
the welfare of the people is the supreme law. Inc. vs CA, GR No. 94759, January 21, 1991)
ii. But if the basis for issuance of permit to operate business is KATARUNGANG PAMBARANGAY
a special law, the latter shall govern over the Local
(Section 399-422, Local Government Code)
Government Code. A general law cannot repeal a special
law. (Laguna Lake Development Authority vs CA, GR No.
Barangay based dispute settlement mechanism
120865-71, December 7, 1995.)
Lupong Tagapamayapa
Shall exercise administrative supervison over conciliation
Power to issue permits for rallies (BP 880, The Public Assembly matters.
Act of 1985)
(1) Composition: Punong Barangay/Lupon Chairman and 10-
“No permit, no rally” rule is constitutional. While the 20 members
freedom of speech and assembly were recognized by (2) Punong Barangay shall appoint or accept
the court, such rights are not absolute. It is regulated recommendations for members 10 days after 3-weeks
by police power in promoting health, morals, peace, notice (with list of names), which shall be made 15 days
education, good order or safety, and general welfare from commencement of office.
of the people. (Bayan vs Ermita, GR No. 169838, April (3) A member’s term will end on the 3rd year from his
25, 2006) appointment.
(4) The Barangay secretary shall also be the Lupon secretary
Abatement of Nuisance
A Public Nuisance may be abated by a:
(1) Prosecution (Penal Code or other laws) Pangkat Tagapagkasundo
(2) Civil Action
(3) Extrajudicial Abatement
Private Nuisance would only allow 2 and 3. But in case it’s a 3 members from Lupon shall be chosen by the parties (to a
private nuisance, the following rules will still apply. dispute) to conciliate. If there’s no agreement, the Chairman
shall draw lots.
a. District health officer – to ensure that one or all the Two of the 3 members shall be the chairman and the
remedies for public nuisance are availed of. He shall also secretary. Secretary shall prepare the minutes of Pangkat
determine whether an extrajudicial abatement is the best proceedings (attested to by the Chairman to the Lupon
remedy. Secretary and proper court i.e. MTC).
b. Local Police – assist in executing the abatement Notices shall be served to the parties and certified true
copies of public record (except confidential records) shall
be issued.
Who can commence an action
Different Barangays but same City: Where the respondent (2) Upon making a deposit.
resides at complainant’s election
The principle of res judicata does not apply in eminent domain
Real Property: In its location or where the larger portion is. cases. (Moday v. CA)
The determination of whether there is genuine necessity for the In case of doubt, any tax ordinance or revenue measure shall
exercise of the power of eminent domain is a justiciable question be construed strictly against the LGU enacting it, and liberally
when exercised by the LGUs and generally a political question in favor of the taxpayer.
when exercised by Congress.
Any tax exemption, incentive or relief granted by any LGU
shall be construed strictly against the person claiming it.
Each local government unit shall have the power to create its CLOSURE AND OPENING OF ROADS
own sources of revenues and to levy taxes, fees and charges
subject to such guidelines and limitations as the Congress may A municipality has the unassailable authority to:
provide, consistent with the basic policy of local autonomy. • prepare and adopt a land use map
Such taxes, fees, and charges shall accrue exclusively to the local • promulgate a zoning ordinance which may consider,
governments. (Sec. 5, Art. X, 1987 Constitution among other things, the municipal roads to be constructed,
maintained, improved or repaired
The basic rationale for the current rule is to safeguard the • close any municipal road
viability and self-sufficiency of local government units by
directly granting them general and broad tax powers. A road may be:
a) permanently closed
The Constitutional objective obviously is to ensure that, while b) temporarily closed
local government units are being strengthened and made more c) opened
autonomous, the legislature must still see to it that:
(1) the taxpayer will not be over-burdened or saddled with Types (must be within jurisdiction and through and ordinance):
multiple and unreasonable impositions; a) local road
(2) each local government unit will have its fair share of b) alley
available resources; c) park
(3) the resources of the national government will not be d) square
unduly disturbed; and
(4) local taxation will be fair, uniform, and just. Requisites for Permanent closure:
(1) The ordinance must be approved by 2/3 of Sanggunian
Fundamental Principles: (Section 130, Local Government (2) Provisions for public safety
Code) (3) A substitute for public facility shall be provided when
Uniformity within the territorial jurisdiction necessary
Equitable – as far as practicable on the ability to pay; for (4) May be used or conveyed for any purpose (like how
public purposes; not unjust, excessive, oprressive or LGUs legally dispose their property)
confiscatory; not contrary to law, public policy, national (5) Qualify: FREEDOM PARK – there must be a provision on
economic policy, or in restraint of trade its relocation
Shall not be left to any private person
Solely for the benefit of the LGU Temporary Closure:
Progressive When:
• Actual emergency
Sources of Revenues • Fiesta celebrations
(1) Under the Constitution • Public rallies
taxes, fees and charges (Section 5, Art. X) • Agricultural or industrial fairs
share in the national taxes- Internal Revenue • Undertaking of public works and highways,
Allotment telecommunications, and waterworks projects
• Shopping malls, Sunday, flea or night markets, or
share in the proceeds of the utilization and
shopping areas may be established and where goods,
development of the national wealth within their
merchandise, foodstuffs, commodities, or articles of
areas (Section 7, Art. X)
commerce may be sold to the public.
(2) Under the Local Government Code
(3) floating of bonds - Duration shall be specified by the local chief
executive in a written order
(4) grants/aids
- ATHLETIC, CULTURAL, CIVIC ACTIVITIES –
must be officially
Local Governments being mere agents of the State, have no
sponsored/recognized/approved by the LGU
power to tax instrumentalities of the National Governments.
PAGCOR being an instrumentality of the State is therefore
Opening:
exempt from local taxation. This is in consonance to the
doctrine of State supremacy over local governments. Provincial roads and city streets are property for public use
under Art. 424 of the Civil Code, hence under the absolute
Share of LGUs in national taxes: control of Congress. They are outside the commerce of man
40% on the Internal Revenue and cannot be disposed of to private persons.
Provinces and Cities – 23% The properties of provinces, cities, and municipalities are
Municipalities – 34% divided into property for public use and patrimonial
Barangays – 20% property. Those properties for public use and made
20% of each allocation should be for development projects available to the public in general are outside the commerce
of man and cannot be disposed of or leased by the local
RA 7160 removed the tax exemptions of some corporations thus government unit to private persons.
placing them under the taxing authority of local governments.
Since, however, the power of local governments to tax is subject LEGISLATIVE POWER
to limitations imposed by Congress, exemptions granted by
Congress after RA7160 bind local governments. Products of legislative action
(1) Ordinance - prescribes a rule of conduct.
(2) Resolution - of temporary character, or expresses Veto on particular item/s of appropriation for ordinance,
sentiment. adoption of local development plan and public investment
plan, or ordinance directing payment of money or creating
The power to enact ordinances carries with it the power to liability
change or repeal them Veto only once
Provided: vested rights are not thereby impaired and Veto communicated to Sanggunian 15 days (province) and
repeals are valid only when passed in a certain manner 10 days (city/municipality); otherwise the ordinance shall
which should be definite and should relate specifically to be deemed approved
the ordinance which should be repealed.
Exception: BARANGAY CHAIRMAN – no veto power;
Congress has an implied power to repeal any municipal he shall sign upon the approval of the majority of
ordinance either in express terms or by necessary implication Sangguniang Barangay (Section 54-55, Local Government
for the rule is that, if the subsequent statute is necessarily Code)
repugnant to an ordinance and the intention to repeal it is
obvious, then the ordinance is thereby impliedly repealed. Where petitioner was charged with falsification of a public
document for approving a resolution which purportedly
Jurisdiction on cases involving validity of a municipal appropriated money to pay for the terminal leave of 2
ordinance: employees when actually no such resolution was passed, the
• Provincial board – has the authority to petitioner argued that his signature on the resolution was
disapprove an ordinance within its jurisdiction merely ministerial. The Supreme Court disagreed, saying that
on one ground: ordinance is not within the the grant of the veto power accords the Mayor the discretion
powers granted by the charter. whether or not to approve the resolution. (De Los Reyes vs
• Court of First Instance – Civil Action case to Sandiganbayan, G.R. No. 121215, November 13, 1997)
question the validity
• Supreme Court – appellate jurisdiction
Review
(a) The sangguniang panlalawigan shall review
Requisites for Valid Ordinance ordinances and resolution of cities and municipalities
(1) Must not contravene the Constitution and any statute to determine if they are within their power. (Section
(2) Must not be unfair or oppressive 56, Local Government Code)
(3) Must not be partial or discriminatory
(4) Must not prohibit but may regulate trade How:
(5) Must be general and consistent with public policy Within 3 days after approval, the secretary
(6) Must not be unreasonable of the sangguniang panlungsod (in component cities)
(City of Manila v. Laguio, Jr, G.R. No. 118127, April 12, or sangguniang bayan shall forward to the
2005) sangguniang panlalawigan for review copies of
approved ordinances and resolutions approving the
Rationale that ordinances should not contravene a statute: local development plans and public investment
Governments are only agents of the national government. Local programs formulated by the local development
councils exercise only delegated legislative powers conferred on councils. The sangguniang panlalawigan shall
them by Congress as the national lawmaking body. The review the same within 30 days; if it finds that the
delegate cannot be superior to the principal or exercise powers ordinance or resolution is beyond the power
higher than those of the latter. It is a heresy to suggest that the conferred upon the sangguniang panlungsod or
local government units can undo the acts of Congress, from sangguniang bayan concerned, it shall declare such
which they have derived their power in the first place, and ordinance or resolution invalid in whole or in part. If
negate by mere ordinance the mandate of the statute. (Magtajas no action is taken within 30 days, the ordinance or
vs Pryce Properties Corp., Inc., 234 SCRA 255, July 20, 1994) resolution is presumed consistent with law, and
therefore, valid.
Local Ordinances cannot overcome Presidential
Decree prohibiting the confiscation of license plate (b) The sangguniang panlungsod or bayan shall review
and driver’s license. (Solicitor General vs sangguniang barangay ordinances to determine if
Metropolitan Manila Authority, GR No. 102782, they are lawful. (Section 57, Local Government Code)
December 11, 1991)
How:
Within 10 days from enactment, the
sangguniang barangay shall furnish copies of all
Approval-Veto
barangay ordinances to the sangguniang panlungsod
or sangguniang bayan for review. If the reviewing
Local chief executive affixes his signature on each page. sanggunian finds the barangay ordinances
If the local chief executive vetoes, it may be overridden by 2/3 inconsistent with law or city or municipal ordinances,
vote of all Sanggunian members; the sangguniang concerned shall, within 30 days from
Grounds for veto: ordinance is ultra vires or prejudicial to receipt thereof, return the same with its comments
public welfare and recommendations to the sangguniang barangay
for adjustment, amendment or modification, in which
case the effetivity of the ordinance is suspended until To have and use a corporate seal
the revision called for is effected. If no action is taken LGUs may continue using, modify, or change their
by the sangguniang panlungsod or sangguniang existing corporate seals.
bayan within 30 days, the ordinance is deemed Newly established LGU/those without corporate
approved. seals:
- may create their own corporate seals which shall
be registered with the DILG
- Any change of corporate seal shall also be
registered.
Rules to be observed in VOTING:
To enter into contracts
Two-Thirds (2/3) Vote Required Appropriate and spend money only for public purposes
Extending loans or entering into contracts; To sue and be sued
Issuance of bonds or securities;
Authorizing the lease of public property;
Grant of franchises;
To sue and be sued
Creation of LGU liability or indebtedness
Over-ride the veto of the Mayor; GENERAL RULE AND EXCEPTION ON THE RULE OF
Grant of tax exemptions; PRIVATE LAWYERS REPRESENTING MUNICIPALITIES
Levy of taxes;
Discipline / suspend a member of the sanggunian; Private lawyers may not represent municipalities on their own,
Opening or closing of roads; and neither may they do so even in collaboration with
Selection and transfer of government site or offices; authorized government lawyers. Only the provincial fiscal,
and provincial attorney, and municipal attorney should represent a
Concurrence in the appointment of personnel municipality in lawsuits.
1. (DILG Opinion No. 107-2003, dated 15 August 2003)
To change the name of public structure will historical, cultural Exception: May expressly adopt the work already
and ethnic significance, a UNANIMOUS vote is required. performed in good faith by such private lawyer, which
work is beneficial to it
contract is intra vires. If the contract is ultra vires, the The President shall DIRECTLY SUPERVISE:
municipal corporation is not liable. Provinces Component Cities
and Municipalities Barangay
A private individual who deals with a municipal (Section 29&32, Local Government Code)
corporation is imputed constructive knowledge of the Provincial/City Supervision:
extent of the power or authority of the municipal a. Review of Executive Orders
corporation to enter into contracts. (Section 30, Local Government Code –
Ordinarily, the doctrine of estoppel does not lie against submit 3 days from issuance and 30 days to
municipal corporation. decide on. Otherwise EO is deemed valid.)
b. Submission of legal questions to higher
LGU’s legal official
Doctrine of Implied Municipal Liability (Section 31, Local Government Code)
o Highly Urbanized Cities
The doctrine applies to all cases where money or property of a o Independent Component Cities
party is received under such circumstances that the general o Autonomous Regions (CAR and ARMM)
law, independent of an express contract, implies an obligation (Section 16, Article X, 1987 Constitution)
to do justice with respect to the same. *LGUs can consolidate and coordinate among
themselves (Section 33, Local Government Code)
A municipality may become obligated upon an implied
contract to pay the reasonable value of the benefits accepted or LGUs may request for financial or technical assistance from the
appropriated by it as to which it has the general power to President. The latter shall direct the appropriate agency with
contract. (Province of Cebu vs. IAC, 147 SCRA 447) no extra cost burdened on the LGU.
SETTLEMENT OF BOUNDARY DISPUTES National Agencies shall coordinate and consult (Section 2 (c)
and Section 27, Local Government Code) with LGUs through
PROCEDURE their branches to ensure their participation in project
(1) Disputes on boundary settlements shall be brought to the implementation. This is important as national agencies also
respective Sanggunian: have the duty to maintain ecological balance. (Section 26, Local
DISPUTING UNITS SANGGUNIAN Government Code)
Baranggays in the Sangguninang Panlungsod People’s organizations and NGOs also has a role in promoting
same city or or autonomy and so LGUs are encouraged to ensure the
municipality Sangguninang Bayan establishment, create linkages and provide assistance to such
NGOs. (Section 34-36, Local Government Code)
For the three-term limit for elective local government officials to (2) Appear as a counsel in any criminal case wherein an officer
apply, two requisites must concur, to wit: or employee of the government is accused of an offense in
- That the official concerned has been elected for three relation to his office;
consecutive terms in the same local government post, (3) Collect any fee in administrative proceedings involving the
and LGU wherein he is an official;
- That he has fully served three consecutive terms. (4) Use property and personnel of the government except
(Ong v. Alegre, G.R. No. 154829, January 23, 2006) when defending the interest of the government.
(Section 90, Local Government Code)
Voluntary Renunciation is not considered an interruption
of the running of 3 consecutive terms
- not considered a voluntary renunciation. A
permanent vacancy occurred in the office of the vice
mayor due to the retirement of Vice Mayor Mendoza. Succession of elective officials
Potenciano, being the highest ranking councilor,
succeeded him in accordance with law. It is clear that
his assumption of office as a vice mayor can in no way RULES ON SUCCESSION
be considered as a voluntary renunciation of his office
as a municipal councilor. (Montebon vs COMELEC,
G.R. No. 180444, April 8, 2008) Permanent Vacancies
Preventive suspension of an elected local official is not A permanent vacancy arises when an elective local official:
considered an interruption of the term. Preventive fills a higher vacant office,
suspension, by its nature, is a temporary incapacity to refuses to assume office,
render service during an unbroken term. It is not a valid fails to qualify,
interruption. To constitute as valid, the interruption of the dies
service should occur after there has been a break in time. is removed from office,
The best indicator of the suspended official’s continuity in voluntarily resigns, or
office is the absence of a permanent replacement and the is permanently incapacitated to discharge the
lack of authority to appoint one since no vacancy exists. functions of his office
Furthermore, preventive suspension does not involve a (Sec. 44, Local Government Code of 1991)
voluntary act on the part of the official. By its very nature,
it is involuntary. (Aldovino vs COMELEC, G.R. No.
184836, December 23, 2009)
OFFICES OF THE GOVERNOR, VICE GOVERNOR,
MAYOR, VICE MAYOR
Limitations (Both Elective and Appointive) “Automatic Succession” takes place in case of such
permanent vacancies in these offices
Court has no recourse but to merely apply the law. The sine qua non for the validity of the appointment, by
courts may not speculate as to the probable intent of the analogy of Sec 45(b). (Fariñas vs Barba, supra)
legislature apart from the words. (Pascual vs. Pascual-
Bautista, 207 SCRA 561 (1992)) “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
SANGGUNIAN
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
(2) “Filled by Appointment” where automatic succession legitimate candidates form part of that voice and must also
does not apply be respected. The disqualified candidate has already been
(3) Successor appointed/ Appointee should be from the same proclaimed and has assumed office is of no moment. The
political party as the one causing the vacancy, EXCEPT for subsequent disqualification based on a substantive ground
the Sangguniang Barangay that existed prior to the filing of the certificate of candidacy
There is only one rule governing appointments to the voids not only the COC but also the proclamation.
Sangguniang Barangay. Any vacancy caused by the Arnado's disqualification, although made long after the
cessation from office of a member must be made by the elections, reaches back to the filing of the certificate of
mayor upon the recommendation of that Sanggunian. The candidacy. Arnado is declared to be not a candidate at all
reason is that members of the Sangguniang Barangay are in the May 201 0 elections. Arnado being a non-candidate,
not allowed to have party affiliations. (Fariñas vs. Barba, the votes cast in his favor should not have been counted.
256 SCRA 396 (1996)) This leaves Maquiling as the qualified candidate who
obtained the highest number of votes. Therefore, the rule
Vacant LGU Appointing Officer on succession under the Local Government Code will not
Sanggunian apply.” (Maquiling vs. COMELEC, G.R. No. 195649. April
Sangguniang Highly The President, 16, 2013)
Panlalawigan Urbanized through Executive
AND cities, AND Secretary
Sangguniang Independent REPRESENTATION OF THE YOUTH AND BARANGAY
Panlungsod Component SANGGUNIAN
Cities
Vacancy in the representation of the youth and the barangay in
Sangguniang Component Governor
the sanggunian shall be filled by the official next in rank of the
Panlungsod City
organization.
AND
Sangguniang
Bayan RESIGNATION OF ELECTIVE OFFICIALS
Sangguniang City OR City or municipal
Barangay Municipality Mayor UPON Resignation is deemed effective only upon acceptance by the
recommendation of following authorities:
the Sangguniang
Barangay concerned Resignation by Approved by
Governors and vice- President
governors; Mayors and
vice-mayors of HUCs and
From the Same Political Party ICCs
Mayors and vice-mayors of Governors
A nomination and a certificate of membership of the component cities and
appointee from the highest official of the political party municipalities
concerned are conditions sine qua non, and any Sanggunian members Sanggunian concerned
appointment without such nomination and certificate shall
Barangay officials City or municipal mayor
be null and void ab initio and shall be a ground for
administrative action against the official responsible.
Exceptions:
In case the official has no political party: the local chief (1) Resignation shall be deemed accepted if not acted upon by
executive shall appoint a qualified person to fill, upon the authority concerned within 15 working days from the
recommendation of the sanggunian concerned. receipt thereof.
(Section 45, Local Government Code) (2) Irrevocable resignations by sanggunian members shall be
The appointing authority is not bound to appoint anyone deemed accepted upon presentation before an open
recommended to him by the Sanggunian concerned. The session of the sanggunian concerned and duly entered in
power of appointment is discretionary power. On the other its records.
hand, neither is the appointing power vested with so large (3) This does not apply to sanggunian members who are
a discretion that he can disregard the recommendation of subject to recall elections or to cases where existing laws
the Sanggunian concerned. Since the recommendation prescribed the manner of acting upon such resignations.
takes the place of nomination by political party, the (Section 82, Local Government Code)
recommendation must likewise be considered a condition
A reelected local official may not be held administratively 17) The Cooperatives Officer (Sec. 487, RA 7160)
accountable for misconduct committed during his prior term of
18) The Population Officer (Sec. 488, RA 7160)
office. The rationale for this holding is that when the electorate
put him back into office, it is presumed that it did so with full 19) The Veterinarian (Sec. 489, RA 7160)
knowledge of his life and character, including his past
20) The General Services Officer (Sec. 490, RA 7160)
misconduct. If, armed with such knowledge, it still reelects him,
then such reelection is considered a condonation of his past
misdeeds. (Garcia vs Mojica, G.R. No. 139043, September 10,
1999
The electorate's condonation of the previous administrative Recall
infractions of the reelected official cannot be extended to that of
the reappointed coterminous employees, the underlying basis Recall is the termination of official relationship of an elective
of the rule being to uphold the will of the people expressed official for loss of confidence prior to the expiration of his term
through the ballot. In other words, there is neither subversion through the will of the electorate. (Section 69, Local Government
of the sovereign will nor disenfranchisement of the electorate to Code)
speak of, in the case of reappointed coterminous employees. In
other words, the doctrine of condonation does not extend to
appointive officials. (Salumbides vs Office of the Ombudsman,
G.R. No. 180917, April 23, 2010) By whom exercised
ABANDONMENT OF THE DOCTRINE OF The power of recall for loss of confidence shall be exercised by
CONDONATION the registered voters of a local government unit to which the
local elective official subject to such recall belongs.
In the Morales case (Morales vs CA, G.R. No. 216871, December
6, 2017), the Court abandoned this doctrine. The Court held that
the Doctrine of Condonation is actually bereft of any legal basis.
The concept of public office is a public trust is 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 official’s administrative liability Initiation of Recall Process
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
(Section 70, Local Government Code)
even another elective post.
How to initiate:
(1) by a preparatory recall assembly or
Appointive officials
(2) by the registered voters of the local government unit to
which the local elective official subject to such recall
Common to all Municipalities, Cities, and Provinces: belongs
(3) Preparatory Recall Assembly
1) Secretary to the Sanggunian (Sec. 469, RA7160)
2) Treasurer (Sec. 470, RA 7160) There shall be a preparatory recall assembly in every:
(1) PROVINCE (composing of)
3) The Assessor (Sec. 472, RA 7160) All mayors
4) The Accountant (Sec. 474, RA 7160) Vicemayors
Sangguniang barangay members of the
5) The Budget Officer (Sec. 475, RA 7160) mmunicipalities and component cities
6) The Planning and Development Coordinator (Sec. (2) CITY (composing of)
476, RA 7160) All punong barangay
Sangguniang barangay members in the city
7) The Engineer (Sec. 477, RA 7160) (3) LEGISLATIVE DISTRICT
8) The Health Officer (Sec. 478, RA 7160) In cases where sangguniang panlalawigan members
are elected BY DISTRICT:
9) The Civil Registrar (Sec. 479, RA 7160)
All elective municipal officials in the district
10) The Administrator (Sec. 480, RA 7160) In cases where sangguniang panglungsod member
are elected by district
11) The Legal Officer (Sec. 481, RA 7160)
All elective barangay officials in the districts
12) The Agriculturist (Sec. 482, RA 7160) (4) MUNICIPAL (composing of)
All punong barangay
13) The Social Welfare and Development Officer (Sec.
483, RA 7160) Sangguniang barangay members in the municipality
proceeding against any elective official in the local government Section 519 – Failure to Dispose of Delinquent Property at
unit concerned. Public Auction
International law
A body of rules and principles of action which are
binding upon civilized states in their relations to one
another.3
PUBLIC
security, and protection of territories.5
LAW A. Concepts
3
Bernas, Joaquin, S.J. (2009). Introdiction to Public International Law. 2015, available at
Rex Printing Company, Inc.
4 http://www.asil.org/sites/default/files/ERG_PUBLIC_INT.
Lotus Case, Series A, No. 10, PCIJ, 1927, p. 18.
5Vinopal, Kelly, Researching Public International Law, pdf
American Society of International Law, accessed on June 12, 6
Barcelona Traction Case, ICJ Reports, 1970.
7 Article 53, Vienna Convention on the Law of Treaties.
decide a case ex aequo et bono if the parties to the dispute agree law by operation of law, without a positive act
to its use.8 to adopt it.
1. Equity infra legem B.3. Conflict between International law and Municipal Law
A form of equity which constitutes a method of
interpretation of the law in force, and which is GR: Both must be harmonized to give effect to both systems of
based on law.9 law. It is presumed that municipal law is enacted with due
regard for international law.
2. Equity praeter legem
When fairness supplements the law or fills in its EXP:
gaps. If a local court decides:
o Constitution v. International Law Constitution
prevails
2. Equity contra legem
o Constitution v. Treaty Treaty is subject to
When principles of equity are deployed to strike qualification or amendment by a subsequent law.11
down a law.
The validity of treaties, as well as their
B. Relationship of International and national law proper adoption into municipal law,
are proper subjects of judicial
review.12
Treaties have the same status as
B.1. Theories on the Relationship between International Law
domestic laws.
and Municipal Law However: On the international level, a
state, under the principle of pacta sunt
1. Dualist/Pluralist Theory servanda, is obliged to comply with the
treaty.
International law and municipal law are
essentially different from each other. They differ Local statute v. International Law Equal in status.13
as to source, relations they regulate and If an international court decides International law
substance. In case of conflict, municipal law prevails. [From the standpoint of International Law; VCLT Art.
prevails based on state sovereignty. 27, ILC Articles Art. 31]
C. Sources
2. Monistic Theory
International law and municipal law belong to
only one system of law.
Two monist theories:10
o Municipal law subsumes and is
superior to international law; C.1. The Sources of International Law are as follows:
o International law is superior to
domestic law.
This view is supported by Primary Secondary
Kelsen. used as ‘subsidiary means’ in
determining rules of
international law
e. Treaties g.
B.2. Theories as to Adoption of International Law and f. (Art. 38(a) ICJ Statute) h.
Domestic Law e.g United Nations i.
Convention on the Law of j.
1. Doctrine of Transformation
the Sea k. Judicial Decisions and
International law becomes part of domestic law Legal Scholarship
Customary International
through the appropriate legal machinery such as l. (Art. 38 (d) ICJ Statute)
Law
an act of Congress.
(Art.38 (b) ICJ Statute)
Generally Accepted
2. Doctrine of Incorporation
Principles of International
International law is adopted as part of municipal
8 12
Article 38(2), Statute of the International Court of Justice Gonzalez v. Hechanova, G.R. L-21897, October 22, 1963.
9 13
Frontier Dispute Case (Burkina Faso/Republic of Mali), ICJ Reports, Secretary of Justice v. Lantion, G.R. 139465, October 17, 2000.
13
1986. Nicargua vs. United States of America
10
Bernas, Joaquin, S.J. (2009). Introduction to Public International
Law. Rex Printing Company, Inc.
11
Ichong v. Hernandez, G.R. No. L-7995, May 31, 1957.
C.3. Sources of International Law under the Statute of the 2. State Practice (Material facts or actual behavior
International Court of Justice of States); and
The substance of customary law must be looked for
primarily in the actual practice and opinio juris of
states.19
Rules: Conflict between the Sources
Opinion Juris Necessitatis
1. Between primary and secondary sources primary o The belief of a State that it is bound under by a certain
sources prevail. legal obligation.
2. Between two or more primary sources treaties prevail
over customs, and customs prevail over general State Practice
principles of law. o It covers acts, statements, omissions or silence of a
state from which views about customary law may be
Exception: inferred.
Jus cogens norms are of the highest status. (Article 53, o Evidence of State Practice (non-exhaustive):
VCLT) Historical records;
Official publications;
Official manuals on legal questions;
C.4. TREATIES & AGREEMENTS Diplomatic interchanges; or
Opinions of national legal advisors
Private International Law o Consideration of State Practice
Domestic law which deals with cases where foreign law Duration
intrudes in the domestic sphere where there are questions Consistency
of the applicability of foreign law or the role of foreign Repetition; and
courts Generality
18
Shaw, p. 91, citing Nicaragua Case, ICJ Reports, 1986.
19
Libya/Malta Case, ICJ Reports, 1985.
20
15
North Sea Continental Shelf Cases, ICJ Reports, 1969. Asylum Case, ICJ Reports, 1950.
21
16
Shaw, 2003. Anglo-Norwegian Fisheries Case, ICJ Reports, 1951.
22
17
North Sea Continental Shelf Cases, p. 41. North Sea Continental Shelf Cases, p. 14.
2. Territory
Geographic base in the exercise of state
C.6. Judicial Decisions and Teachings of the Most Highly sovereignty.33
Qualified Publicists Territorial control is the essence of a state.34
23 31
Nicaragua Case, p. 98. Conference on Yugoslavia Arbitration Commission: Opinions on
24
Bernas, p. 18. Questions Arising From the Dissolution ofYugoslavia, Opinion No. 1 of
25
Barcelona Traction Case, ICJ, 1964. November 29, 1991, published on December 7, 1991, 31 ILM 1494, at
26
Chorzow Factory Case, PCIJ, Series A., No, 9, 1928. 1495-96 (1992).
27 32
Administrative Tribunal Case, ICJ, 1954. 1933 Montevideo Convention on Rights and Duties of States.
28 33
Temple of Preah Vihear Case, ICJ, 1962. Magallona, Merlin M. (2005). Fundamentals of Public International
29
Nuclear Tests Case, ICJ, 1974. Law. C & E Publishing, Inc.
30 34
Bernas, Joaquin, S.J. (2009). Introduction to Public International Island of Las Palmas Case, 2 U.N. Rep. Intl. Arb. Awards 829
Law. Rex Printing Company, Inc.
actual, continuous, sufficient to confer valid 4. Sovereignty and the capacity to enter into relations
title to sovereignty with other states.
s.
Prescription Principles of State Continuity
o Title is acquired by continuous and o The State continues as a juristic being
undisturbed exercise of sovereignty over a notwithstanding changes in its government or
period of times. administration, even if such changes are
o Requisites: extralegal or unconstitutional
m. 1. Must be exercised under á titre de o Provided: such changes do not result in the loss
souverain; of any of its essential elements
n. 2. Peaceful and uninterrupted; t.
o. 3. Public and enduring for a certain length Recognition of Other States
of time o The act of acknowledging the capacity of an
p. 4. Territory must not be terra nullius. entity to exercise rights belonging to
statehood.36
Accession or Accretion u.
o Accession or accretion is the natural process of Two Theories of State Recognition
land formation resulting in the increase of o Declaratory theory
territory Recognition is merely “declaratory” of
o Key factor: No act of any party necessary to the existence of the state and that its
increase the territory. being a state depends upon its
o This is a natural action of the environment, possession of the required elements and
resulting in the increase of the territory of a not upon recognition.
state. o Constitutive theory
Recognition constitutes a state, that is, it
Cession is what makes a state a state and confers
o Transfer of territory from one state to another by legal personality on the entity.
treaty. v.
o The only bilateral form of acquiring territory. Extinction of a State
o Validity of cession depends on the valid title of o A state may be extinguished in a legal sense
the ceding state. through merger, absorption, dismemberment of
an existing state, complete loss of population or
3. Government emigration en masse of the population.
An institution by which an independent society w.
makes and carries out those rules of action which State Succession
are necessary to enable men to live in a social o When one state assumes the rights and some of
state, or which are imposed upon the people the obligations of another state because of
forming that society by those who possess the certain changes in the condition of the latter.
power or authority of prescribing them.35 x.
The government must be a central government Fundamental Rights of the State
operating as a political body within the law of y. 1. Right to Existence and Self-Defense;
the land and in effective control of the territory. z. 2. Right of Sovereignty and Independence;
Exception: States that undergo a period of civil aa. 3. Right of Equality;
strife or internal chaos bb. 4. Right to Territorial Integrity and Jurisdiction
cc.
2 Kinds of Government Protectorates
o De Jure government: Government with a o Dependent states which have control over their
color of legitimacy internal affairs but whose external affairs are
o De facto government: Government without a controlled by another state.37
mandate of law dd.
Failed state Mandates and Trust Territories
o One which does not have a government in o These are non-self-governing territories which
control of most of the territory for several have been placed under international
years. supervision to insure their economic, political,
Jus Postlimium social and educational advancement.
q. Acts of the government done under the control of a ee.
de facto government, when they are not of a political Statehood and its attendant rights exist
complexion remain good even upon the restoration of independently of the will of other states.38
the legitimate government. (See Co Kim Cham v Valdez Restrictions upon the independence of States cannot
Tan 1945) be presumed.39
r.
35 38
Bacani v. NACOCO, 100 Phil. 468, 471 (1956). Bosnian Genocide Case, Judgment, ICJ General List No. 91 (2007).
36 39
Bernas, p. 74. S.S. Lotus (France v. Turkey), P.C.I.J, Series A, No. 10 (1927)
37
Bernas, p. 85.
40
Corfu Channel Case (UK v. Albania), Merits, ICJ, General List No. 1 44 Art. 34, European Convention for the Protection of Human
(1949)
41 Rights and Fundamental Freedoms, as amended by Protocols
Bernas, p. 87.
42
Reparations Case, ICJ Reports, 1949. Nos. 11 and 14, 4 November 1950
43
Cassese, Antonio. (2001). International Law. Oxford University
Press.
Elements of Diplomatic and Consular Law the state to which he is To watch over and
1. Immunity of diplomatic staff accredited promote the
The person of a diplomatic agent is inviolable. To observe and report commercial and
Diplomats may not be detained or arrested, and enjoy occurrences which industrial interests of
complete immunity from criminal prosecution in the may affect his state the appointing state
receiving state, although there is no immunity from To protect the rights of the and its citizens or
the jurisdiction of the sending state nationals of his state subjects
2. The inviolability of the diplomatic mission and its grounds To protect its
The private residence, papers, correspondence and nationals travelling or
property of diplomats are also inviolable. residing in those
It is an absolute rule that the premises of the mission regions.
are inviolable and agents of the receiving state cannot
enter them without the consent of the mission. Art. 14, 1963 Vienna Convention on Diplomatic Relations:
3. The security of diplomatic correspondence and diplomatic 1. Heads of mission are divided into three classes,
bags – namely:
The receiving state is required to permit and protect a. That of ambassadors or nuncios accredited to
free communication on behalf of the mission for all Heads of State, and other heads of mission of
official purposes. equivalent rank;
Official communication is inviolable and may include b. That of envoys, ministers and internuncios
the use of diplomatic couriers and messages in code accredited to Heads of State;
and in cipher, although the consent of the receiving c. That of chargés d’affaires accredited to
state is required for a wireless transmitter. Ministers for Foreign Affairs.
2. Except as concerns precedence and etiquette, there
7 Sources of Diplomatic and Consular Law shall be no differentiation between heads of
1. Customary law mission by reason of their class.
Traditional common rule or practice that has become
an intrinsic part of the accepted and expected conduct
in a community, profession, or trade and is treated as Art. 38, Vienna Convention
a legal requirement. a. International conventions, whether general or
2. General legal principles particular, establishing rules expressly recognized
Essentially provide a mechanism to address by the contesting states;
international issues not already subject either to b. International custom, as evidence of general
treaty provisions or to binding customary rules. practice accepted as law;
3. Agreement (conventions, treaties, etc) c. General principles of law recognized by civilized
A settlement, especially one that is legally nations;
enforceable; covenant; treaty. d. Judicial decisions and teachings of the most highly
4. Acts qualified publicists of the various nations, as
That which is done or doing; the exercise of, subsidiary means for the determination of rules of
or the effect, of which power exerted is the cause; a law.
performance; a deed.
5. Analogy Personnel of the Diplomatic Representative
A resemblance of relations; an agreement or likeness The personnel of generally made up of two groups:
between things in some circumstances or effect, 1. The members of his/her family and others of
when the things are otherwise entirely different. his/her household;
6. Comitas Gentium, International Comity, Courtesy,
Precedence, and Etiquette, Protocol (customary source) 2. Those directly in the service of the mission, they
and Diplomatic Practice may include:
A set of rules of conduct for states that have A counselor
international relations Secretaries
Examples: granting of immunity; Protocol, Military, naval, and economic attaches
Ceremonial, diplomatic practice. Interpreters and dragomans
7. Other Sources: Doctrines and Jurisdiction Clerks
A rule or principle of law, especially when Couriers
established by precedent. Chaplains
Doctors
Difference of Diplomatic Officer from Consular Officer Other persons distinctly in the official
Diplomatic Officer Consular Officer service.
Look after the political Commercial interests.
interests of their state and
its nationals Privileges and Immunities of a Diplomat
Functions: Sent by a state to foreign 1. Inviolability
To represent his state ports and cities The privilege extends to diplomats of all
in negotiations with grades, suites, officials and non-officials,
Mainly for ff purposes: official residence, archives and letters, and
to all that belong to the mission and are (a) Protecting interests of the sending State and its
necessary for its maintenance. citizens, within the bounds of law.
The same inviolability is accorded to a (b) Promoting good relations and development
diplomat while passing to or from his post between the State-parties;
through a third state as long as he retains his (c) Reporting on the development and current
official character. conditions of the receiving State;
(d) Issuing required travel documents to travel to
2. Exemption of person from criminal and civil and from the sending State;
jurisdiction (e) Providing assistance to nationals of the sending
A diplomatic representative is exempt from State;
the criminal and civil jurisdiction of local (f) Acting as notary & civil registrar;
courts, and free from arrest, prosecution, (g) Protecting interests of sending State nationals in
and punishment for violation of criminal cases of succession mortis causa;
law. (h) Protecting citizen-minors of the sending State;
If he fails to observe the law, usual (i) Representing nationals of the sending State in
procedure is for the local state to demand tribunals to preserve the rights and interests of these
his recall or in extreme cases to expel him. nationals;
As long as he remains a diplomatic officer, (j) Transmission of evidence for the courts of the
the local courts are without authority to try sending State, when lawful;
a case in which he is defendant or to make (k) Inspecting sea- or aircraft, and their crews,
his property the subject of seizure or registered to the sending State;
attachment. (l) Settling disputes between crew and officers of the
He is exempt from witness duty although craft, as the law of the sending State allows; and,
he may waive such exemption where there (m) All other functions entrusted to a consular post
is no instruction of his home government to which are not prohibited by the laws of, or objected to
the contrary. by the receiving State. (Art. 5, 1963 Vienna Convention
As a matter if courtesy, however, it is on Consular Relations)
common for diplomatic representatives to
give testimony in the form of a deposition. 4 Classes of Heads of Consular Posts (Article 9 of the 1963
3. Immunity of residence from local jurisdiction Vienna Convention on Consular Relations)
The domicile of a diplomatic officer, 1. Consuls-general;
including his house, grounds, buildings, and 2. Consuls;
appurtenances, and also his carriages, is Consuls general and consuls are usually
considered exempt from local jurisdiction appointed by a commission or patent from the
upon the theory that it is considered an head of the state, which is communicated to the
extension of the territory of his state. government where he is to reside.
These cannot be entered without the consent 3. Vice-consuls;
of the diplomatic officer, even for the arrest 4. Consular agents.
of criminals who seek refuge therein. Vice consuls and consular agents are
Usual procedure is to request the diplomat commissioned generally by the minister of
to surrender them and if he refuses to do so, foreign affairs.
to ask for his recall by the home government The aforementioned does not restrict the right
4. Jurisdiction within his residence of any of the Contracting Parties to fix the
Because his residence is exempt from local designation of consular officers other than the
jurisdiction, he is accorded the right to heads of consular posts. The classification is left
exercise jurisdiction within his residential to the municipal law.
and official domicile; including the right to
arrest and send home a member of his suite, Exequator
to hold religious services, etc The term exequator is applied to the written official
5. Precedence, ceremonial prerogatives (according recognition issued by the local state authorizing a
to rank) foreign consul to perform therein his functions as
Diplomatic representatives and precedence such.
vary according to their grades. These have
been defined by practice in the course of Art. 12, 1963 Vienna Convention on Consular Relations
diplomatic intercourse. provides the following:
1. Exequator: Authorization that the head of a
Articles 20 to 40 of the 1961 Vienna Convention on Diplomatic consular post is admitted to the exercise of his
Relations functions
Provides for the entire Facilities, Privileges and immunity
of a Diplomat and the personnel of the diplomatic 2. State refusing to grant an exequator must give to
representatives. the rejected State reasons for such refusal.
3. Subject to the provisions of articles 13 and 15, the
Expanded Functions of the Consul head of a consular post shall not enter upon his
duties until he has received an exequatur
REASON: If the Receiving State is of the opinion that The Court in World Health Organization vs. Aquino,
the member’s appointment will not affect a applied RA 75 to nullify the search warrant issued by
harmonious relations between two states due to the a trial court for the search and seizure of personal
member’s personal obnoxious toward the sovereign effects of an official of the World Health Organization
and its pronounced hostility to its public institutions (WHO).
(Art. 9 of the 1961 Vienna Convention on the Law of
Treaties F. General Principles of Treaty Law
R.A. No. 75 “An act to penalize acts which would impair the
proper observance by the republic and inhabitants of the
Philippines of the immunities, right, and privileges of duly
accredited foreign diplomatic and consular agents in the
Philippines”, provides: F.1 Treaty
Unauthorized persons are those other than An international agreement concluded between states in
diplomatic or consular officer who acts in the RP as written form and governed by international law, whether
an agent of foreign government without prior embodied in a single instrument or in two or more related
registration with the Sec of Foreign Affairs shall be instrument.45
penalized by imprisonment of not more than 5 years
45
Article 2, Vienna Convention on the Law of Treaties (VCLOT), 1969.
46 49
Pimentel vs. Executive Secretary, G.R. No. 158088, July 6, 2005. Magallona, supra 30.
47 50
Article 2, VCLOT, 1969. Article 15, VCLOT, 1969.
48 51
Qatar v. Bahrain, Jurisdiction and Admissibility, Judgment, ICJ Ibid.
Reports, 1994.
• Pacta tertiis nec nocent nec prosunt - A State is not bound to GR: The consent of all parties is required.
act in accordance with a treaty if it is not a party to a treaty Exception: If allowed by the treaty itself, two states may
modify a provision only inofar as they are concerned.
Except if that treaty codifies customary
international law.
Originally called for treaties signed by the 1. Desistance of parties by mutual consent (express);
Chinese with Western Powers after suffering 2. Expiration of term;
military defeat, this doctrine implies that they 3. Accomplishment of purpose;
were establishing a system of benefits for the a. Material breachMaterial breach consists of:
“civilized” powers, while restricting the i. A repudiation of the treaty not
sovereignty of the “uncivilized” and subordinate sanctioned by the VCLT; or
states.54 4. Violation of a provision essential to the
accomplishment of the object or purpose of the treaty;
• Rebus sic stantibus - legal principle that justifies non-
Supervening impossibility of performance
performance of treaty obligations where unforeseen or
Requisites:
substantial changes occur which would render one of the
a. Must result from the permanent
parties thereto unable to undertake treaty obligations as
disappearance or destruction of an object
stipulated therein.
indispensable for the execution of the
treaty;
F.3. Invalidity of Treaties b. Impossibility of performance must not be a
The following are grounds to invalidate treaties under VCLT: result of a breach by the party invoking it,
either of an obligation under the treaty or
11. Error55 of any other international obligation owed
hh. It must relate to a fact or situation which was assumed by to any other party or the treaty;
the State to exist at the time when the treaty was concluded 5. Loss of subject matter;
and formed an essential basis of its consent to be bound by 6. Novation;
the treaty. 7. Rebus sic stantibus;
Cannot be invoked if the State contributed by its own 8. Fundamental change of circumstance59
conduct to the error or if the circumstances were such 9. Outbreak of war; or
as to put that state on notice of a possible error. 10. Violation of jus cogens.
Fraud56 - It must be through the fraudulent act of
another negotiating state.
Corruption of a representative of a state - It must be
corruption, direct or indirect, by another negotiating Distinction between a treaty and an executive agreement
state. Treaty
Coercion of a state by the threat or use of force.57 o Involves political issues or changes of
Violation of a peremptory norm of international law national policy
(jus cogens) o Involves international agreeements of a
Violation of internal law of a state58 - The violation political character
must be manifest and concern a rule of its internal law Executive agreement
of fundamental importance. o Adjustments of detail carrying out well-
established national and international
policies and traditions and those involving
52 55
Article 19, VCLT, 1969. Article 48, VCLT.
53 56
Article 26, VCLT Article 49, VCLT.
54 Unequal Treaties in International Law, Perez and Yaneva, 57
Article 52, VCLT.
58
Article 46, VCLT.
accessed on June 28, 2017, available at 59
Article 62, VCLOT.
http://www.oxfordbibliographies.com/view/document/ob
o-9780199796953/obo-9780199796953-0131.xml
Multiple Nationality
Elements of An Internationally Wrongful Act
Possession by an individual of more than one nationality. It is
1. The act or omission is attributable to the State under
acquired as the result of the concurrent application to him of
international law - need not be punishable by local
the conflicting municipal laws of two or more states claiming
law; may be deemed lawful in internal law; and
him as their national.62
2. The act constitutes a breach of an international
obligation of the State (international delinquency)
• Nationality is within the domestic jurisdiction of the state,
which settles by its own legislation, the rules relating to the
acquisition of its nationality. H.2. Treatment and Protection of Aliens
• When two states confer their nationality upon the same States are not obliged to admit aliens to their territory, but if
person, this becomes an issue of international law.63 they permit aliens to come, they must treat them in a civilized
manner.68
Statelessness
It is the condition or status of an individual who is born Right of Diplomatic Protection
without any nationality or who loses his nationality without
retaining or acquiring another.66 The state of an injured alien may make a claim against
the other state to obtain compensation or some other
forms of redress.
H. State Responsibility and Treatment of Aliens o May be done through negotiation,
arbitration or judicial settlement.
o Must first exhaust all local remedies, and
may seek diplomatic protection only if all
local remedies fail.71
60
Bernas, Joaquin, S.J., “ Constitutional Structure and Powers of 65
Nottebohm Case.
Government: Notes and Cases, Part I.” 66
Cruz, p. 189.
61 67
Cruz, Isagani, A. (2003) International Law. Central Lawbook Shaw, 2003.
Publishing Co., Inc. 68
Malanczuk, P. (1997) Akehurst’s Modern Introduction to International
62
Cruz, p. 184 Law, 7th Revised Ed. Routledge.
63 69
Nottebohm Case, Second Phase (Liechtenstein v. Guatemala), Bernas, p. 225.
70
Judgment, ICJ, 1955. Bernas, p. 226.
64 71
Cruz, supra. Malanczuk
for their nationals abroad. It is the right of the State to (b) When the boundary between two states is a non-
exercise it or not.72 navigable river or a lake, its location is the middle of
the river or lake.
Customary international law provides that before
international proceedings are instituted or claims or Las Palmas case: to have jurisdiction, occupation is not enough;
representations made, the remedies provided by the control must also be established.
local state should have been exhausted.73
3. Exclusion Nationality
The denial of entry of the alien to the host state.
Each state has the right to decide who are its nationals using
4. Extradition either the principle of jus sanguinis or jus soli or naturalization
The surrender of an individual accused or convicted laws.
of a crime by a State within whose territory he is However, for a state to claim a person as a national, the
found and his delivery to the State where he state must have reasonable connection or an “effective
allegedly committed crime or was convicted of a link” with that person (Nottebohm case, Liechtenstein v.
crime.75 Guatemala76).
72
Interhandel Case, Judgment, ICJ Reports, 1957. 76 Bernas, Joaquin, S.J. (2009). Introdiction to Public
73
Shaw, 2003.
74 International Law. Rex Printing Company, Inc.
Shaw, 2003.
75
Magallona, 2005.
punish such acts wherever they may occur, even absent a link regulation, the likelihood of conflict with regulation by another
between the state and the parties or the acts in question. state.
Extradition
The removal of an accused from the Philippines with the object
The Balancing Test of placing him at the disposal of foreign authorities to enable
the requesting state or government to hold him in connection
1. Was there an actual or intended effect on American foreign
with any criminal investigation directed against him or the
commerce?
execution of a penalty imposed on him under the penal or
criminal law of the requesting state or government. (P.D. 1069,
2. Is the effect sufficiently large to present a cognizable injury
the Philippine Extradition Law)
to the plaintiffs and, therefore, a civil violation of the anti-
trust laws?
3. Are the interests of, and link to, the United States . . .
including effects on American foreign commerce j.1. A. Principles
sufficiently strong, vis-d-vis those of other nations, to justify
an assertion of extraordinary authority.
Principle of Specialty
If the answer is yes to all these, then the court will assume
The fugitive may be tried only for the crime specified in the
jurisdiction. (Timberlane Lumber Co. v. Bank of America)
request for extradition, and only when the crime is included in
the list of offenses in the treaty.
International Comity
Even when a state has basis for exercising jurisdiction, it will Basis of Extradition
refrain from doing so if its exercise will be unreasonable
Extradition is based on the consent of the state of asylum as
(Hartford Fire Insurance Co. v. California, Third Restatement §§
expressed in a treaty or manifested as an act of goodwill.77
403).
Any person may be extradited, whether he be a national of the
Unreasonableness is determined by evaluating various factors,
requesting State, of the state or refuge or of another state.78
such as the link of the activity to the territory of the regulating
state, the connection, such as nationality, residence, or
Political and religious offenders are generally not subject to
economic activity, between the regulating state and the person
extradition.79
principally responsible for the activity to be regulated, the
character of the activity to be regulated, the existence of
justified expectations that might be protected or hurt by the
77 79
Cruz, p. 203, citing Fenwick. Cruz, p. 203.
78
Cruz, 2003, citing Oppenheim and Lauterpacht.
Extradition may be resorted to when only if there is an Substantive Rights under ICCPR
extradition treaty between the two states. If there is no
extradition treaty, the host state has the right to grant 3. Right to life, liberty and property
asylum; the individual has no right to demand asylum. 4. Right to equality
5. Freedom from torture and ill-treatment
6. Right to adequate prison conditions
7. Freedom of movement
8. Recognition and protection of legal personality and
j.1.C. Distinction between Extradition and Deportation privacy
9. Freedom of thought, conscience, religion and
expression
10. Freedom of association
Extradition Deportation 11. Protection of minorities
12. Right to self-determination
Surrender of a fugitive Expulsion of an alien
by one state to another considered undesirable Article 4 (1) of the ICCPR.
where he is wanted for by local state, usually In time of public emergency which threatens the life of
prosecution or, if but not necessarily to the nation and the existence of which is officially
already convicted, for his own state. proclaimed, the States Parties to ICCPR may take
punishment. It is a unilateral act of measures derogating from their obligations under the
the local state and is Covenant to the extent strictly required by the exigencies
Surrender is made at the made in its own of the situation, provided that such measures are not
request of the latter interests. inconsistent with their other obligations under
state on the basis of Undesirable alien may international law and do not involve discrimination
extradition treaty. be sent to any state solely on the ground of race, colour, sex, language,
willing to accept him. religion or social origin.
Alien will be
surrendered to the state Resident/host state that
asking for his initiates deportation
extradition.
Nature of offense: Non-derogable83 Rights under ICCPR
State of origin that administrative 1. Right to life (Article 6)
initiates the proceedings
2. Freedom from torture and other inhuman punishment
(Article 7)
Nature of offense:
3. Freedom from enslavement and servitude (Article 8 (1)
criminal
and (2))
4. Protection from imprisonment for inability to fulfill
contractual obligations (Article 11)
5. Protection from ex post facto laws (Article 15)
K. International Human Rights Law 6. Right to recognition everywhere as a person before the law
(Article 16)
Human rights are those inalienable and fundamental rights 7. Freedom of thought, conscience and religion (Article 18)
which are essential for life as human beings.81
80 82
Cruz, p. 204 Preamble, UDHR
81 83
Bernas, p. 248. Article 4(2)
Optional Protocols to the International Covenant on Civil and p. Right to own property alone as well as in
Political Rights association with others
q. Freedom of thought, conscience and religion
First Optional Protocol r. Freedom of opinion and expression
It was entered into force on March 23, 1976. It is designed to s. Freedom of peaceful assembly and association
enable private parties who are victims of human rights t. Right to take part in government of his country,
violations.84 directly or through freely chosen
representatives; right of equal access to public
Second Optional Protocol service in his country.
It was entered by General Assembly Resolution 44/128 on
December 15, 1989. It is adopted to abolish the death penalty. 2. Second Generation (Economic, Social and Cultural Rights)
a. Right to work, to free choice of employment, to
just and favorable conditions of work and to
protection against unemployment.
k.3. international Covenant on Economic, Social and Cultural
b. Right to rest and leisure
Rights c. Right to a standard of living adequate for the
health and well-being of himself and of his
family
d. Right to education
Substantive Rights under ICESCR e. Right to freely participate in the cultural life of
the community, to enjoy the arts and to share in
1. Right to work
scientific advancement and its benefits.
2. Right to favorable conditions of work
3. Right to form free trade unions
3. Third Generation
4. Right to social security and insurance
a. Right to peace
5. Right to adequate standard of living
b. Right to a clean environment
6. Right to special assistance for families
c. Right to self-determination
7. Right to the highest standard of physical and mental health
d. Right to the common heritage of mankind
8. Right to education including compulsory primary
e. Right to development
education
f. Minority rights
9. Right to the enjoyment of cultural and scientific benefits
and international contacts
L. Basic Principles of International Humanitarian Law and
neutrality
Three Generations of Human Rights International humanitarian law provides for instances when
the use of armed force is justifiable (jus ad bellum) and it
1. First Generation (Civil and Political Rights or Fundamental regulates the conduct of armed conflict (jus in bello).85
Rights.
a. Right to life, liberty and security of person
b. from slavery or servitude Jus ad bellum Jus in bello
c. Freedom from torture or to cruel, inhuman or
degrading treatment or punishment
d. Right to equal protection of the law The rules of international Rules by which
e. Right to recognition everywhere as a person law governing the legality international law regulates
before the law of the use of force by States. the actual conduct of
f. Right to an effective remedy by the competent These constitute the legal hostilities once the use of
national tribunals justifications for the use of force has begun.
g. Freedom from arbitrary arrest, detention or exile force under international
h. Right to a fair and public hearing by an law.
independent and impartial tribunal
• International humanitarian law applies from the initiation
i. Right to be presumed innocent until proved
of such armed conflicts and extends beyond the cessation of
guilty
hostilities until a general conclusion of peace is reached.86
j. Freedom from arbitrary interference with his
privacy, family, home or correspondence • Armed conflicts exist whenever there is a resort to armed
k. Freedom of movement and residence within the force between states or protracted armed violence between
borders of each state governmental authorities and organized armed groups or
l. Right to leave any country, including his own, between such groups within a state.87
and to return to his country.
m. to seek and enjoy in other countries asylum from
persecution
L.1. Categories of armed conflicts
n. Right to a nationality
o. Right to marry and found a family International Armed Conflict
84 86
Bernas, p. 259. Prosecutor v. Tadic
85 87
Bernas, p. 307. Prosecutor v. Tadic, Appeals Chamber, Case No. IT-94-1-AR 72
Civilian
Any person not a combatant; in case of doubt whether a
Principles of International Humanitarian Law
person is a civilian, that person shall be considered to be a
civilian.90
• The parties to the conflict must at all times distinguish
between civilians and combatants. Attacks may only be
directed against combatants. Attacks must not be directed
Civilian population against civilians.
• There must be a distinction between civilian objects and
It comprises all persons who are civilians. The presence within
military objectives. No attacks may be directed against
the civilian population of individuals who do not come within
civilian objects.
the definition of civilians does not deprive the population of its
civilian character.91 • Indiscriminate attacks are prohibited.
• There must be proportionality in attack.
• In the conduct of military operations, constant care must be
taken to spare the civilian population.
• There must be precautions against the effects of attacks.
• Medical personnel exclusively assigned to medical duties
88
Common Artice 2 of the Geneva Conventions 92
Henckaerts, J.-M. (2005). “Study on customary international
89
Article 1(4), Additional Protocol I to the Geneva Coneventions humanitarian law”, International Review of the Red Cross, Vol. 87, No.
90
Article 50(1) of Additional Protocol I to the Geneva Conventions. 857.
91
Article 50(2) and (3) of Additional Protocol I of the Geneva
Conventions
must be respected and protected in all circumstances. 1. Abstain from taking part in the hostilities and
• Religious personnel exclusively assigned to religious duties from giving assistance o either belligerent;
must be respected and protected in all circumstances. 2. Prevent its territory and other resources from
being used in the conduct of hostilities by the
• Cultural property must be respected.
belligerents;
• There must be no superfluous or unnecessary suffering in 3. Acquiesce in certain restrictions and limitations
the use of means and methods of warfare. that the belligerents may find necessary to impose,
• The use of poison or poisoned weapons is prohibited. especially in connection with international
• The use of biological weapons is prohibited. commerce95
Prisoners of war are persons enumerated under Article 4 of the Belligerents are bound to:
Third Geneva Convention, who have fallen into the power of 1. Respect the status of the neutral state;
the enemy. 2. Submit to any lawful measures it make take to
maintain or protect its neutrality.
• Prisoners of war must at all times be humanely treated
(Article 13, paragraph 1).
• Prisoners of war must at all times be protected, particularly Neutral Territories
against acts of violence or intimidation and against insults
• War activities by or on behalf of any of the belligerents may
and public curiosity (Article 13, paragraph 2).
not be undertaken in the territory of the neutral state.
• Prisoners of war are entitled in all circumstances to respect
• Neutral territories cannot be used by the belligerents for the
for their persons and their honour (Article 14).
movement of troops, transports of military supplies,
• Women shall be treated with all the regard due to their sex erection of wireless stations for exclusively military
and shall in all cases benefit by treatment favorable as that purposes, recruiting soldiers and military operations.96
granted to men (Article 14, paragraph 2)
• Prisoners of war shall retain full civil capacity which they
enjoyed at the time of their capture (Article 14, paragraph Contraband
3).
It is a term applied to goods which, although neutral property,
may be seized by a belligerent because they are useful for war
and are bound for a hostile destination.97
Law on neutrality
Neutralization
It is a result of a treaty wherein the duration and the other Doctrine of Ultimate Destination
conditions of the neutralization are agreed upon by the
Liability of contraband to capture is determined not by their
neutralized state and other powers.
ostensible but by their real destination.100
Neutralization operates both in times of peace and in
times of war. 94
93 97
Cruz, p. 242. Cruz, p. 249.
94 98
Cruz, p. 243. Cruz, p. 250.
95 99
Cruz, p. 243-4, citing Schwarzenberger. Cruz, p. 250.
96 100
Cruz, p. 244, citing the Hague Convention of 1907 Cruz, p. 251.
101 103
Cruz, p. 252. Cruz, p. 253.
102 104
Cruz, p. 252. Cruz, p. 254.
under international law, in connection o The judicial decisions of international courts and
with any act referred to in this paragraph tribunals;
or any crime defined in this Act;
o Relevant and applicable international human
• Enforced or involuntary disappearance of rights instruments;
persons;
o Other relevant international treaties and
• Apartheid; and conventions ratified or acceded to by the
Republic of the Philippines; and
• Other inhumane acts of a similar character
intentionally causing great suffering, or o Teachings of the most highly qualified publicists
serious injury to body or to mental or and authoritative commentaries on the
physical health. (Sec. 6, RA 9851) foregoing sources as subsidiary means for the
determination of rules of international law. (Sec
Penalties Imposed
15, RA 9851)
o Criminal Liability Such as: The Revised Penal Code and other General and Special
Penal Law shall be suppletory application to the
o Individual Criminal Responsibilities (Sec. 8, RA provisions of RA 9851 (Sec. 16, RA 9851)
9851)
Jurisdiction:
o Irrelevance of Official Capacity (Sec. 9, RA 9851)
o The State shall exercise jurisdiction over
o Responsibility of Superiors (Sec. 10, RA 9851) persons, whether military or civilian, suspected
or accused of a crime defined and penalized in
Non-prescription of the Crimes Committed under this law
this Act, regardless of where the crime is
(Sec. 11, RA 9851)
committed, provided, any one of the following
Orders from a Superior (Sec. 12, RA 9851): conditions is met:
o (a) The person was under a legal obligation to ▪ The accused is a Filipino citizen;
obey orders of the government or the superior in
▪ The accused, regardless of citizenship
question;
or residence, is present in the
o (b) The person did not know that the order was Philippines; or
unlawful; and
▪ The accused has committed the said
o (c) The order was not manifestly unlawful. crime against a Filipino citizen. (Sec.
Note: For the purposes of this section, orders to commit genocide or 17, RA 9851)
other crimes against humanity are manifestly unlawful. Note: No criminal proceedings shall be initiated against foreign
Protection of Victims and Witnesses (Sec. 13, RA 9851) nationals suspected or accused of having committed the crimes
defined and penalized in this Act if they have been tried by a
Reparation to Victims and Procedural Rules for competent court outside the Philippines in respect of the same offense
Reparations (Sec. 14, RA 9851) and acquitted, or having been convicted, already served their
sentence.
Applicability of International Law – The Philippine Courts
shall be guided by the following sources of International
Law: M. Law of the sea
o The 1948 Genocide Convention; It is the branch of public international law which regulates the
relations of states with respect to the use of the oceans.
o The 1949 Geneva Conventions I-IV, their 1977
Additional Protocols I and II and their 2005
Additional Protocol III;
o The 1954 Hague Convention for the Protection
of Cultural Property in the Event of Armed
M.1. Baselines
Conflict, its First Protocol and its 1999 Second
Protocol;
Baselines
o The 1989 Convention on the Rights of the Child
and its 2000 Optional Protocol on the The baseline is the water line along the coast as marked on
Involvement of Children in Armed Conflict; large scale charts officially recognized by the coastal State. It is
a line from which the width of the territorial sea is M.3. Internal waters
measured.105
All waters landwards from the baseline of the territory.
Sovereignty over internal waters is the same as sovereignty
over land, and internal waters are not subject to the right of
Two Ways of Drawing the Baseline innocent passage.112
1. Normal baseline When straight baseline is established, enclosing areas as
This line follows the curvatures of the coast and internal waters which were nor previously considered as part
therefore would normally not consist of straight of internal waters, a right of innocent passage shall exist in those
lines.106 areas or waters.113
2. Straight baseline
This line is drawn connecting selected points on the
M.4. Territorial sea
coast without appreciable departure from the
general shape of the coast.107 Under R.A. 3046 and It is a belt of sea outwards from the baseline and up to 12
R.A. 5446, straight baselines are drawn around the nautical miles beyond.
Philippines. Sovereignty of a coastal state extends to the air space
over the territorial sea as well as to its bed and subsoil,
but sovereignty over the territorial sea is exercised subject
to UNCLOS and other rules of international law.114
M.2. Archipelagic states When the application of the 12-mile rule to
An archipelagic State is a State constituted wholly by one or neighboring littoral states results in overlapping, a
more archipelagos and may include other islands.108 median line equidistant from the opposite baselines will be
applied instead.115
o Exception: Median-line rule does not apply
where historic title or other special
circumstance requires a different rule of
delimitation of territorial seas.116
M.2.a) Straight archipelagic baselines
An archipelagic state may draw straight archipelagic
baselines joining the outermost points of the outermost
M.5. Exclusive economic zone
islands and drying reefs of the archipelago
Provided: Within such baselines are included the It is an area extending not more than 200 nautical miles beyond
main islands and an area in which the ratio of the the baseline. The coastal state has rights over the economic
area of the water to the area of the land, including resources of the sea, seabed and subsoil, but the right does not
atolls, is between 1 to 1 and 9 to 1.109 affect the right of navigation and overflight of other states.117
105 112
Bernas, p. 120. Bernas, p. 124.
106 113
Bernas, p. 120. Article 8(2), UNCLOS.
107 114
Bernas, p. 121. Article 2, UNCLOS.
108 115
Article 46, United Nations Convention on the Law of the Sea Bernas, p. 120.
116
(UNCLOS). Article 15, UNCLOS.
109 117
Article 47, UNCLOS. Bernas, p. 128.
110 118
Article 49(1), UNCLOS Bernas, p. 128.
111
Article 53(2), UNCLOS.
shelf, the coastal state has sovereign rights over the natural consequence and the injury is established by clear and
resources on and beneath the seabed. convincing evidence.”
Precautionary Principle
The point of the precautionary principle is to anticipate and
avoid environmental damage before it occurs. This preventive
measure, which is novel in many ways, would ultimately serve
to lower mitigation costs of resultant environmental damage.121
119
Shaw, p. 1006 122 Principle 4 of General Assembly Resolution 2625 (XXV) on
120
Bernas, p. 323
the ‘Principles of International Law Concerning Friendly
121 The Precautionary Principle in the International Arena,
Relations and Cooperation among States’
Mary Stevens, Vol. 2 Issue 2 Spring/ Summer 2002, accessed
123 Principle 16, Rio Declaration
on June 28, 2017, available at
http://digitalcommons.wcl.american.edu/cgi/viewcontent
.cgi?article=1278&context=sdlp