Sie sind auf Seite 1von 154

Political Law, Bar 2011

Glenn Tuazon

TABLE OF CONTENTS:
1.
2.
3.
4.
5.
6.
7.
8.
9.

the Constitution (we the sovereign Filipino people)


It is also the source of clarification on disputed matters, for
instance, it has been used in litigation between Church and
State (imploring the aid of almighty God proof that there is

CONSTITUTIONAL LAW

no hostility to religion)
o It sets the tone by establishing:

1. A healthy civil society

2. And a democratic republican government


What is the rule on amendments and revisions?
o Amendment small change

Can be proposed either by Congress, Con.


Convention, initiative and referendum
Revision changes the structure of government

Only by Congress or Con. Convention

NOT by initiative or referendum


Procedure in proposal of amendments and revisions
o Congress

vote of all its members

Doesnt say whether jointly or separately:

Because this provision was approved when


o

The Constitution

period, because there was no BOR


What is the nature of the preamble?
o It does not give rights and obligations; just identifies author of
o

CONSTITUTIONAL LAW (BRANCHES)


BILL OF RIGHTS
CITIZENSHIP
PUBLIC OFFICERS
ADMINISTRATIVE LAW
ELECTION LAW
LOCAL GOVERNMENTS
NATIONAL ECONOMY AND PATRIMONY AND SOCIAL JUSTICE, ETC.
PUBLIC INTERNATIONAL LAW

One cannot invoke protections under the BOR during this

What is a Constitution?
o Written instrument where the fundamental powers of
government are established, limited, defined, and by which
these powers are distributed among several departments, for

the Con. Comm. thought we would still have

their more safe and usual exercise, for the benefit of the body
o

politic.
The Constitution is a living testament and memorial of the

sovereign will of the people from whom all government

authority emanates Estrada v. Arroyo


Was there ever a time when there was no Philippine Constitution?
o There was a time there was no Phil. constitution (Feb to Mar
o

1987)
But protections existed under the ICCPR and UDHR

unicameral assembly
Must be voted on separately, because this is

the default rule


What happens after?

Plebiscite where there is majority vote

needed by the electorate


Constitutional convention

How is a constitutional convention called?

1. By a 2/3 vote of all members of congress

OR
2. If not obtained, by a majority vote of all

members of Congress, with question of w/n


to call for a convention resolved by the

What is the subject of amendment or revision?

ANYTHING, except those violating jus cogens.


Which provisions self-execute? Which dont?
o Almost all provisions on policy are NON-self-executory
o 1. There is one provision where the SC recognizes an
o

enforceable right: right of people to balanced and healthful

people in plebiscite
What happens after?

Plebiscite where there is majority vote

ecology

(MMDA v. Concerned citizens, Oposa v. Factoran,

needed by the electorate


o

Initiative

There is no valid initiative law yet, based on an SC


o

decision (Defensor-Santiago v. COMELEC)

Is this still correct?

The minute resolution on the MR in


(RA 6735) to be valid.
What are the required votes for an initiative on the

are not self-executory provisions

3% of the voters of each district

Viz. For national initiative, just 10% and 3%


What is the scope of peoples initiative?

It only applies to amendment, not to revisions

General considerations

of the Constitution. So it cannot apply to


sweeping changes like changing from

presidential to parliamentary.
Takes effect on the day it was ratified

How is it ratified?
o Through a plebiscite, where a

The State affirms


Tondo Medical Center v. CA appeal was made using several
provisions in Art. II, but the SC disclaimed these, saying these

Constitution?

12% of total number of registered voter AND

further fruition)
Protect and promote a right to health Sec. 15 is also
recognized as executory

Because it is worded almost similarly as Sec. 16

Whereas the other provisions are worded differently

Lambino v. COMELEC held the initiative law

LLDA v. CA)
N.B. that A.M. No. 09-6-8-SC puts this right into

What is the scope of national territory?


o Components of territory:

A) archipelago (aerial, terrestrial, fluvial)

B) all other territories outside archipelago


o Last year: we finally passed a law defining baselines

Straight baselines for the archipelago

Imaginary straight lines joining outermost


points of the outermost islands, without

majority of votes is needed


Period for ratification?
o 60-90 days from sufficiency of

appreciable departure from the general

petition for initiative

configuration of the archipelago


But for territories outside the archipelago, the law
considered those as regime of islands each would

have their own baselines, and not included in one


o

baseline along with the rest of the archipelago


What is the archipelagic doctrine?

Archipelagic principle: all waters are considered

a decision is rendered against it


When can there be suit against the State?

1. Waiver
o When is there consent to be sued?

Express provision of law, or special

law
Implied: commencing suit or

entering into business contract


What is the extent of waiver?

Waiver does not extend to execution

waiver).
Otherwise, the general rule is to check if it is

performing governmental or proprietary acts.


N.B. so for these entities, the general

exceptions hold true


Forms of government and relevant definitions:
o Democratic and republican

Republican representative of the people

Democratic gesture of appreciation for EDSA I


o Differentiate State from government from administration:

State people, territory, government, sovereignty

Government system remains the same

Administration changes from election to election


o State:

De facto or de jure
o Democracy:

We have really not had a parliamentary form of


government. Initially, 1973 constitution provided for

of judgment, just immunity from suit.

such, but Marcos never relinquished his supremacy

There has to be a subsequent


waiver from execution. But the

aggrieved party can sue for


mandamus in case the State

expropriation
What about suits against government agencies
which are incorporated?

Check if the charter allows suit (this is a

internal waters
State immunity
o Par in parem non habet imperium
o Extends to:

1. Diplomatic agents

2. UN and its organs

3. Other IOs, if provided


o What is the test to determine if suit is against the State?

Whether it requires an affirmative act from the State, if


o

Ex. does not pay just compensation in

unjustly refuses to pay.


2. Performance of proprietary acts
3. Equity

The State may be sued if the doctrine of

from the rest of the government


What are the relevant principles?
o 1. The Philippines renounces war as State policy

We renounce only aggressive war; we allow defensive


o
o

immunity is used to perpetuate an injustice

war
2. As to applicability of International Law

See International Law notes


3. Civilian authority is at all times supreme over the military

N.B. Civilian authority, not officials.


o
o

Moreover, the delegating law was complete and has sufficient

of the military
4. Compulsory military service by civilians if needed
5. Maintenance of peace and order

This is a constituent function, which the State is duty

o
o

Symbolized by President being Commander-in-chief

bound to perform
As opposed to ministrant functions

standards.
Sufficient standards
o Eastern Shipping v. POEA: fair and equitable employment
practices is a sufficient standard in POEA requiring MC No. 2

which are

voluntarily done, and when needed


What is the subsidiary principle?

What civilians can do, the government will

medical education is sufficient standard to allow the BME to


o

not do
6. Separation of Church and State (discussed in Bill of Rights)
Differentiate principles from policies:

A. Principles: things the country is supposed to live by

and sanction those who fall short. Is the setting of the targets
unduly delegated to the President?

HELD: No. Because the targets set are based on

(first 6 provisions as laid down here)

B. Policies: guidelines for action everything else


Delegation of power
o What delegating law must possess:

1. Completeness

2. Sufficient standards
o When rules and regulations can have the force of penal

estimated revenue collection as approved by the


DCBB and stated in the BESF submitted by President
to Congress so the President alone does not set the

targets.
Outside scope of delegating law:
o Cebu Oxygen v. Drilon: RA 6640 decreed a wage increase
higher than the agreed-upon CBA. The DOLE however issued

1. Delegating statute itself must authorize

a regulation that the salary increase in the CBA will not be

promulgation of penal regulations


2. Penalty provided by the statute itself
3. Publication in OG or newspaper of GC

counted in assessing compliance with RA 6640.

HELD: Invalid; added a provision/limitation when none

Valid delegation:
o Abakada v. Executive Sec.: The Presidents power in the VAT

existed in the law.


Tatad v. Sec. of Energy: The Executive considered other
factors outside of the two provided in RA 8180 in deregulating

law to increase the VAT according to the existence of certain


o

create standardized medical entrance tests.


RA 9335 (Attrition Act): Deemed valid, even if it allows the
BIR and BOC to give awards to those who surpass BIR targets

law:

(standard contracts for Philippine seamen)


Tablarin v. Gutierrez: standardization and regulation of

conditions is a valid contingent legislation.


Gerochi v. DENR: the power delegated to the ERB to impose

universal charge on electricity end-users is not undue


delegation of power to tax, because its purpose is actually not

oil prices.

HELD: Invalid.
Undue delegation:
o People v. Dacuycuy: RA 4670 provides the penalty of
imprisonment, in the discretion of the court.

revenue generation by regulation thus, police power.

HELD: Unconstitutional undue delegation of

legislative power.
Contra Employers Confederation v. NWPC: Can delegate
wage-fixing power to executive, provided there are sufficient
standards.

General rule: Cannot be delegated.


o What are the exceptions?

1: delegation to local governments

2: delegation to administrative bodies

BUT NOTE: what is delegated to admin


agencies is not legislative power but rule-

Legislative Department
Subdivisions:

Legislative power (1)


Houses of Congress (2-7)
Elections (8-9)

Limitations and privileges (10-14)


Sessions, officers, internal bodies (15-20)

Powers of inquiry (21-22)

Legislative power

Congress
What are the post-legislation powers of Congress?
o Only scrutiny and investigation, to check compliance with law
otherwise, there will be violation of separation of powers
What is the difference in power of legislative and executive as re:
abolition of offices?
o Legislative in general holds the power to abolish public offices
o As an exception, the President may inactivate functions of

Matters of competence (23-25)

making power which is executory in nature


o 1. Filling-up details or
o 2. Contingent legislation
3. Tariff powers to the President
4. Emergency powers to the President, as given by

bureaus, departments, and offices in the executive department

Where is legislative power vested?


o Vested in the Congress: composed of Senate and HOR
o Except: to extent reserved to the people by the provision on

only (as part of broad authority to reorganize)


Houses of Congress

initiative and referendum


What are the kinds of legislative power?
o Original: possessed by the sovereign people
o Derivative: delegated to the legislative bodies
o Constituent: power to amend or revise the Constitution
o Ordinary: power to pass ordinary laws
What is the nature of legislative power?
o Plenary in nature
o What are the limitations?

1. Substantive (as re: content of laws)

2. Procedural (as to how they are passed)

3. No irrepealable laws

Senate

24 members
o 1. Natural born citizen
o 2. On day of election, at least 35 years old
o 3. Able to read and write
o 4. Registered voter
o 5. On the day preceding election day, resident of Philippines for
at least 2 years

Social Justice Society v. Dangerous Drugs Board: Cannot add or

domicile and registering as a voter in another place fails to

subtract from these qualifications. (apply to HOR too see Maquera v.

Borra, where a property bond was disallowed)


Six year term, beginning June 30
Two consecutive terms, maximum
o Voluntary renunciation of office not considered an interruption
o What about involuntary severance?

It is considered an interruption, because it is by

establish this.
Citizenship:
o Co v. HRET: Those born of Filipino mothers before Jan. 17,
1973 who elect Filipino citizenship upon age of majority are
o

case, joined US army) and then reacquired Filipino citizenship

operation of law and not voluntary renunciation


o

HOR

is still natural-born. But there is a dissenting opinion here.


Valles v. COMELEC: Mere possession of alien passport or
alien certificate of registration is not automatically a
renunciation of Filipino citizenship, which must be express. It

Not more than 250 members unless provided by law


o Now, there are more than 250 members, obviously
o 1. Natural born citizen of the Philippines
o 2. On the day of the election, at least 25 years old

For youth party-list representative, at least 25 and not


o
o
o

is just dual citizenship. Filing of certificate of candidacy is an


act of choosing Filipino citizenship. (See section on citizenship

more than 30 on the day of election


3. Able to read and write
4. Registered voter in the district in which he shall be elected
5. On the day immediately preceding election day, resident for
at least 1 year in the district in which he shall be elected

* Obviously for PLs, there is no district requirement

considered natural born citizens.


Bengzon v. Cruz: One who lost Filipino citizenship (in this

just Philippines in general is required


Special requirement for PL representatives?

Must be a bona fide member of the PL he seeks to

represent at least 90 days before the election


What does residence mean?
o Residence requirement actually means domicile.
o Requisites of domicile?

1. Animus manendi

2. Animus non-revertendi.
o Actual physical presence is not enough, as there must be proof

for more on dual citizenship)


Three year term, beginning June 30
Three consecutive terms, maximum
o Voluntary renunciation of office not considered an interruption
o QUINTO v. COMELEC:

Filing for candidacy is ipso facto resignation for


appointive official, but not elective official
Two types:
o District representatives
o Party-list representatives
o (No more sectoral representatives after 1998)
Apportionment of districts:
o From provinces, cities, and MM area contiguous, compact,
and adjacent (CCA) territory

As far as practicable so there can be exceptions

o
o

of permanence. Merely leasing a lot in the supposed new

for island provinces

Gerrymandering is prohibited.
According to population uniform and progressive ratio
At least one representative for:

1. Each city with population of at least 250K

2. Each province
Aquino III v. COMELEC: ONLY cities have to comply

the party-list system. The constitution does not

with the minimum 250K. In this case, however,


o

proportionate representation was ignored (sadly).


Reapportionment of districts within 3 years after every census

return
On creation of new districts:
o When a municipality is converted into a city large enough

require absolute proportionality.


Guidelines for PLs in RA 7941:
o 1. Must represent marginalized or underrepresented
2. DQed:

Religious

N.B.: religious leaders may be


representatives; the probation is against

to entitle it to one district, the incidental effect is splitting


the district into two. Does this need census?

No. The splitting of districts is by law.

No need for plebiscite under Art. X of the Constitution

religious groups
Advocates violence or unlawful means to seek goal
Receiving support from foreign government or

organization for partisan election purposes


Violates election laws
Untruthful statements in petition
Ceases to exist for at least 1 year
Failed to participate in last 2 preceding elections (or

when one district is split into two, because you are not
creating new juridical personalities or dividing the
territory per se. There is only a need for plebiscite if
o

you are creating a new Local Government Unit.


When the increase of districts creates an imbalance, can

fails to obtain at least 2% of votes cast in 2 prior

COMELEC correct the imbalance by transferring districts?

No. The COMELEC must wait for legislative


o

elections CHANGED to failure to obtained a seat in

enactment.
Sema v. COMELEC: Only law can create new legislative

o
o

districts. So RA 9054, in so far as it grants ARMM the authority

the prior 2 elections


3. Must not be indirectly funded or assisted by government
VC Cadangen v. COMELEC: COMELEC has jurisdiction to
determine whether an organization applying for the party list

to create provinces and cities which could result in the creation

Its constitutional. It prevents a party from dominating

system represents marginalized sector. It cannot be

of new legislative districts, is unconstitutional.


Party-list representatives:
o 20% of total number of representatives
Banat v. COMELEC: The 2% vote provision to fill in the remaining seats

challenged by certiorari because the decision is based on facts

as provided in RA No. 7941 is unconstitutional, as an obstacle to broad


representation. The next higher vote getters, regardless of the number

and the SC does not try facts.


Guidelines for PL representatives:
o 1. Must not have lost for an elective office in the immediately
o
o

of votes, will fill-in the remaining seats.


o What about the three-seat cap?

preceding election
2. Five are nominated
3. No change in the names or order unless when (as approved
by COMELEC):

A. A nominee dies

B. He withdraws his nomination in writing

C. Incapacitated
4. Must be bona fide member of the PL he seeks to represent

Limitations and privileges

d) other positions, e) prohibited involvements

at least 90 days before election

(A) Salaries

Elections

When are elections?


o 2nd Monday of May unless otherwise provided by law
What if there is a vacancy in either house?
o Can call special elections:
o But elected Senator or representative only serves the

unexpired term
Tolentino v. COMELEC: Congress enacted law declaring that the 13th

valid practice, and there need not be any separate call, since the statute
filled that purpose and charges voters with information already.
What does RA 6645 (Special Election Law) provide?
o There will be a special election if the vacancy happens:

A) at least 1.5 years before the next regular election

for Senators
B) at least 1 year before the next regular election for

approved the increase and are thus not entitled to the increase.
Are emoluments allowed?
o Open question, because the prohibition seems to allow indirect
increase in salary (not as strict as 1935 Constitution). But one
may appeal to the spirit of the provision to avoid increases.
Are allowances allowed?
o Yes since these do not constitute salary. The only limit is
moral.

members of HOR
What must be passed:

A) if Congress is in session Resolution by the

increase
What about a decrease?
o Not covered by the prohibition because it only covers increases
Is a new Senator or representative elected through special election
entitled to the new salary rate?
o No. The new members are serving the terms of those who

Guingonas unexpired term (since he was appointed as VP). This is

Determined by law
No increase in compensation takes effect until after the expiration of the
full term of all the Senators and HOR representatives approving the

highest vote getter in the next general elections for Senator will fill-in

There are five: a) salaries, b) arrest, c) financial and business interest,

(B) Arrest

concerned house
B) if not in session Certification by the Speaker or

1. Senators and reps privileged from arrest for all offenses punishable
by not more than six years
o When does this privilege apply?

While Congress is in session thus, not during recess

Whether regular or special, whether legislator is

Senate President (depending where vacancy occurs)


What it must contain

1. Declaration of vacancy

2. Calling for special election 45-90 days from date of

actually attending it or not

resolution or certification

2. No member can be questioned or held liable in any other place for

1. First prohibition:
o No senator or HOR rep may hold any other office or

any speech/debate in Congress or any committee


o This is protection from other forums apart from Congress itself.
o Protects against libel suits, BUT NOT against disciplinary
o

employment in:

Gov, any subdivision, agency, instrumentality,

authority of Congress.
What does Speech or debate cover?

Includes utterances made in performance of official

o
o

functions (speeches, statements, votes cast, bills


o

introduced, etc.)
When does this privilege apply?

Congress need not actually be in session. (So

compare with Arrest, where there is need for session)


What is the extent of protection?

Extends even to agents of assemblymen, provided the

National Red Cross chair, did not forfeit his seat because
PNRC is a private corporation, albeit performing public
functions. It is not among the prohibited positions.
2. Second prohibition:
o Cannot be appointed to:

1. Office created during term elected

2. Office whose emoluments were increased during

agency consists of assisting the legislator.


Pobre v. Defensor Santiago: Miriam Defensor Santiago was
berating the SC as idiots, but she was held to have been

term elected
This is an absolute prohibition, unlike the first prohibition,

protected by parliamentary immunity, although the SC said she

where he can accept the other office, but has to just forfeit his

crossed the limits of decency and good conduct.

seat.
(E) Prohibited involvements

(C) Financial and business interests connected with bill

including GOCCs and subsidiaries

During term
Or else, forfeit his seat
Liban v. Gordon: Gordon, upon assuming position as Phil.

When does this limitation apply?


o All Senators and representatives, upon assumption of office
What must they do?
o 1. Make full disclosure of financial and business interests
o 2. Notify the house concerned of potential conflict of interest

From filing proposed legislation

Wherein they are authors


N.B. THEREFORE, they are not prohibited from introducing bills that

May not personally appear as counsel before:


o 1. Any court of justice
o 2. Electoral tribunals
o 3. QJ bodies
o 4. Admin bodies
Cannot be involved in any, if granted by Gov, any sub, agency,
instrumentality, GOCC, subsidiary:
o 1. Contract
o 2. Franchise
o 3. special privilege

have conflicts with their interest, as long as they disclose


(D) Other positions

Cannot intervene in any matter, before any office of government for

Arroyo v. De Venecia: If what was violated was a mere internal rule of

pecuniary benefit or where he may be called upon to on account of his

the house, the SC cannot take jurisdiction. The house can waive

office
Puyat v. De Guzman: A congressman cannot buy nominal amount of

compliance with its own rules.


o Exceptions:

1. When what was violated is a Constitutional

shares in a corporation in a suit before the SEC and appear in


intervention. This is a circumvention of the constitutional policy.

Sessions, officers, and other internal bodies

affected.

Session

Internal order

Regular session:
o Once a year, on fourth Monday of July

Unless other time fixed by law


o Continues to be in session for such number of days as it may

determine
o UNTIL 30 days before opening of its next regular session
o (Exclude: Saturday, Sunday, legal holiday)
Special session:
o Can be called by the President at any time
o When the legislature is in recess

Majority of each house quorum to do business


o Dont count those outside the country because they are beyond
the coercive jurisdiction of each House
Smaller number:
o 1. May adjourn from day to day
o 2. May compel attendance of absent members according to
house rules
Disciplinary provisions:
o Each house may determine rules of proceedings

Osmena v. Pendatun: The disciplinary action taken


by Congress against a member is not subject to

Officers

provision OR
2. Persons other than members of the legislature are

judicial review because each House is the sole judge

Constitutional officers elected by majority of its members:


o 1. Senate President
o 2. Speaker of the House
Each house chooses other officers as deemed necessary
Santiago v. Guingona: Tatad, the loser in the election for Senate

o
o

President wanted to assume minority leader position. But Guingona

of what disorderly conduct is.


Punish members for disorderly behavior
How does a house suspend or expel a member?

1. Need 2/3 concurrence of all members

2. Suspension cannot exceed 60 days

Paredes v. Sandiganbayan: The


suspension here is different from that under

assumed it. Filed Quo Warranto case.


o HELD: The Senate has prerogative to choose how to elect

RA 3019, the latter of which is preventive


while in this provision, it is punitive (and

other officers apart from the SP and SotH. So the Court

internal).

cannot de-proclaim Guingona.

10

Journal rules:

o
o

1. Published from time to time

Except parts affecting national security


2. Yeas and nays recorded at request of 1/5th of members

present
What if there is conflict between extraneous evidence and

the journal?

The journal is conclusive upon the courts.


What if there is conflict between the journal and an

enrolled bill?

The enrolled bill prevails, due to respect given to a coo

from the enrolled bill, then the journal prevails.


What if an enrolled bill conflicts with the journal on a

journal?

Open matter
There will also be a record of proceedings
During sessions, cannot do the ff without the consent of the other

disclosed that he was not voting for the party candidate in an


election contest, the SC invalidated the expulsion, saying that it
impaired the ETs prerogative to be the sole judge of election

houses are sitting

contests.
Garcia v. HRET: There is no GADALEJ when the ET
dismisses a case for failure to pay cash deposit required by the

Electoral tribunals

oath, and assumed office.


Lazatin: After this point, COMELEC rules do not apply

anymore, but the ET rules.


What is the Supreme Court jurisdiction over ET?
o When there is GADALEJ.
o Bondoc v. Pineda: When a party expelled a member who

house:
o 1. Adjourn for more than 3 days
o 2. Hold session in any other place than that in which the two

the seat of a proclaimed winner.


There must be an election contest for the ET to have

jurisdiction.
When does a case pass from COMELEC to ET?
o When a winning candidate has been proclaimed, taken his
o

matter required by the Constitution to be placed in the

parties and party-list organizations


What is an election contest?
o The defeated candidate challenges the qualification and claims
o

equal branch of government.


What is the exception to the above matter?

When the Senate President withdraws his signature

9 members each
3 of whom: Justices of SC (designated by CJ)

Senior justice is chairman


6 members from the Senate or HOR, respectively

Based on proportional representation of political

HRET rules. Since the nature of the case is sensitive, it follows

Two ETs:
o 1. SET
o 2. HRET
What is their Jurisdiction?
o Sole judge of all contests relating to election, returns, and

that there must be strict compliance with internal rules.


Is the ETs jurisdiction limited only to Constitutional
qualifications?
o No.
o It includes even statutory qualifications. This is the
consequence of being the sole judge.

qualifications of members (ERQ)


Composition?

11

Abbas v. Senate: Contest sought DQ of Senators sitting in SET. But

even if there are replaced, the replacements would face the same

house. So in this case where one party only had 1

challenge. No other body can replace the SETs function. So they have

representative in the Senate, this would entitle the party to 0.5

to nonetheless discharge their functions.


Limkaichong v. COMELEC: Alleged irregularity in proclamation will not

on who should sit in the CONA. This includes determination of

whether the proclamation was valid or not.


Abayon v. COMELEC: The COMELEC decides whether the party-list

party affiliation and number of party members for purpose of

that can decide whether the party-list representative is qualified.


Commission on Appointments (CONA)

seats. There is no such thing as a half seat.


Drilon v. Speaker: The two houses have primary jurisdiction

divest HRET of its jurisdiction. The ET would have to decide as well

organization is qualified to join the party-list system. But it is the HRET

Guingona v. Gonzales: No need to complete all 12 seats for a

On ETs and CONA

Function of the CONA?


o Function: to check and balance presidential appointments
o The CONA acts on all appointments submitted to it within 30

session days of Congress, from submission


o For positions required to be confirmed by the CONA
Composition (25):
o 1. Senate President (ex-officio chairman)
o 2. 12 Senators
o 3. 12 HOR representatives
Representation chosen based on proportional representation of the

When constituted?
o Constituted within 30 days after Senate and HOR have been
organized
When are the Senate and HOR organized?

Upon election of the SP or SOH


When does the CONA meet?
o Only when Congress is in session
o At call of chairman or majority of members
o What if the Congress is not in session?

Then this is when there are ad interim appointments


o

parties (and party-list system)


o Daza v. Singson: The party need not be registered. If there

Records and books of account

are changes in the party alignment, then the CONA must


o

determining proportional representation.


Rules on voting:
o Majority vote
o Chairman does not vote, except if there is a tie

always reflect these changes.


Coseteng v. Mitra: Mere endorsement by eight other

members cannot count in favor of Coseteng, the only member


of KAIBA who won that election (0.4%). There must be at least
8.4% representation to win a seat in the CONA (for the HOR),

What is required for these books?


o 1. Preserved and open to the public

In accordance with law


o 2. Audited by the COA

Publishes annually an itemized list of amounts paid to


and expenses incurred for each member

under that election.


Inquiry powers

12

Sec 21: inquiries in aid of legislation

What is the purpose of Sec. 21?


o To obtain information for legislation
o EO creating the PCGG included a proviso that none of its

may be summoned.
The rights of persons appearing in or affected by inquiries shall be

respected apply the Bill of Rights


o Ex. Right against self-incrimination
Does the filing of a criminal case divest the legislative of power to

members may be compelled to provide information or act


as witness before any of the government bodies. Is this
valid?

conduct the inquiry?


o No. The inquiry is not in the nature of a criminal prosecution.

No. It is repugnant to this power. It was repealed by

the 1987 constitution.


Can Congress punish for contempt?
o Yes. This power to do so exists until the legislatures final

Also, cannot invoke in general right against self-incrimination


because the process is not to impute liability per se (although

adjournment, because this power is for the preservation of the

legislative body
Can courts prohibit Congress from requiring respondents to

publication. The requirement of publication is expressly stated in Art. VI,

shall determine the rules of its proceedings. The exceptions are when

possesses plenary powers


Each question separately need not be material to proposed

there is arbitrary and improvident use of power, which ultimately denies


due process.

pertinent
BUT SEE Bengzon v. Senate Blue Ribbon: The court rules

Sec 22: executive privilege/oversight function (question hour)

that the investigation was not in aid of legislation because

Enriles speech did not suggest any contemplated legislation.

COMMENT: this seems to be an overstepping of

Heads of departments may appear on any matter pertaining to their


departments
o But with due deference to separation of powers, Department

the Courts bounds, because it cannot second-guess

Sec 21.
De la Paz v. Senate: Violation of internal procedures of Senate cannot
be, as a general rule, subject to judicial supervision since Each house

legislation it is the totality of information gathered that is


o

they may invoke this right for specific questions).


Garcillano v. HOR: The rules of the Congress in inquiries in aid of
legislation must be published according to the Civil Code provisions on

appear before it?


o No.
What is in aid of legislation?
o Easy to comply with this in Phils. since our legislature
o

2. SC Justice
Even a department head who is an alter ego of the President

Heads, who are alter egos of the President, may not appear

the intent of Congress based on a single speech.

The main principle here: it must be in aid of


legislation, not in aid of prosecution
Who may be summoned?
o Anyone, except:

1. President

13

without permission of the President.


This provision does not apply to any one else with Cabinet

rank, if not Department Heads.


o N.B. Quick and dirty rule: just Department Heads
Who initiates?

o
o

1. Upon own initiative of the department head, with consent of

President OR
2. Upon request of either house

What does request imply?

That Sec. 22 is NOT mandatory and

compulsory
Written questions submitted to SP/SOH 3 days before scheduled
appearance
o Interpellations not limited to written questions
o But may cover matters related thereto
What if security of State or public interest is affected?
o The President must state it in writing, and
o Appearance can be in executive session
Executive privilege really applies to Sec. 21 (because this is the

the state of war. The power to make war is with executive.


Origination clause

in Art. VII)
o Only the President may invoke this. If it is invoked by some
other person, there must be proof that he or she has

o
o

Presidential authority.
Coverage:

1. State secrets

2. Informers privilege

3. Generic privilege for internal deliberations


SC has final say to determine if privilege covers the matter.
Punos dissent the SC seemed to have guessed Neris intent

What bills must originate from the HOR?


o 1. Appropriation, revenue, or tariff bills
o 2. Bills authorizing increase of public debt
o 3. Bills of local application
o 4. Private bills
But Senate may propose or concur with amendments
N.B. HOR just initiates, but the senate may completely replace it. As
long as the idea comes from HOR. The bill is the only one that must be

originated, but not the law.


The Senate can even anticipate the house bill, provided the HOR bill
was filed prior to the Senate version.

through guesswork.

Appropriations

Matters of legislatures competence

State of war

necessary to carry out declared national policy


o For limited period and subject to restrictions
o When it ends:

1. By resolution of Congress

2. Upon next adjournment


N.B.: existence of state of war means that we renounce aggressive
war as national policy
o But the executive may lodge war even without a declaration of

mandatory provision, whereas Sec. 22 is merely optional more on this

Emergency powers to President:


o In times of war or other national emergency:
o Congress may by law authorize President to exercise powers

Is a bill that creates an office and appropriates money for it an


appropriations bill?
o No. The primary and specific aim must be the allocation of

Requirements to declare a State of war:


o 1. Joint session but
o 2. Separate vote
o 3. 2/3 vote of both houses

sum of money, and not just incidental.


Congress may not increase appropriations recommended by President
for executive branch

14

No provision or enactment embraced in general appropriations bill

o
o

unless it relates specifically to some appropriation therein


o Provision or enactment limited to the appropriation to which
o

it relates
Garcia v. Mata: An example of a rider is the Appropriations Act
called for tour of active duty for more than 2 years in a 5 year

Passage of laws

period.
Procedure for approving appropriations for Congress: same procedure

as for other departments and agencies


Requirements for Special appropriations bills:
o 1. Must specify purpose for which it is intended
o 2. Supported by funds actually available (certified by National

What is the one subject rule?


o Every bill must only embrace one subject which shall be
o
o

Treasurer) OR raised by revenue proposal


Transfer of appropriations:
o General rule: no law passed authorizing any transfer of
o

law
Automatic renewal of prior years appropriation bill if at the end of a
fiscal year, Congress fails to pass the GAB
o Remains in effect until the GAB is passed

of 1956-7, which contained a prohibition for reserve officers

appropriations
Exception: The following may (by law) be authorized to

augment any item in the general appropriations law for their


respective offices from savings in other items in their

appropriations:

1. President

2. Senate President

3. SOH

4. CJ

5. Heads of Con-Comm.
Demetria v. Alba: A law allowing the President to transfer

expressed in the title.


This is a mandatory requirement.
Purposes of this rule?

1. To prevent hodge-podge or log-rolling legislation

2. To prevent surprise or fraud

3. Fair appraisal to the people


How is the rule interpreted?

Liberally allow if title is general and all provisions are


germane to this general subject
Tio v. Videogram Regulaory Board: Act Creating Videogram
Regulatory Board included 30% tax on gross receipts on video
transactions.

HELD: Valid, not a rider. Taxation is sufficiently

related to regulation of video industry.


Phil. Judges Association v. Prado: Act creating Phil. Postal
Corp., defining powers, functions, responsibilities, regulation of
industry, other purposes included removal of judges franking

funds was declared unconstitutional because it did not state

privileges.

HELD: Valid, not a rider. Sufficiently related (but

that these must be savings from other items in his respective

Must only be disbursed for public purpose


And supported by vouchers and subject to guidelines under

appropriations
o This list is exclusive.
Discretionary funds:
o Appropriated for particular officials

violated EPC).
Tobias v. Abalos: Act converting Mandaluyong to HUC of
Mandaluyong included resulting conversion of city into
congressional district.

15

HELD: Valid.
Banat v. COMELEC: RA 9369, which speaks of poll

automation, contains substantial provisions dealing with

manual canvassing of election returns.

HELD: Valid.
How does a bill become law?
o 3 readings on separate days

When can there be 3 readings on one day only?

Public calamity or emergency as certified by

President
Printed copies given to members 3 days before its

passage
First reading:

Read the title

Pass to Bicameral Conference Committee


o Second reading:

Entire text read,

Debates held,

Amendments introduced
o Third reading:

No amendment allowed

Take vote immediately thereafter

Yeas and nays entered in journal


Presentation of bill to President
o How does the president signify approval?

1. Signing the bill

2. No action in 30 days. Thus, there is enactment by

legislative side.
What happens if it is rejected?

Vetoed, return to originating house, with objections.

President can exercise item veto.


What are the exceptions to the exception?
1. Doctrine of inappropriate provisions
2. Executive impoundment
Three cases when the Constitution requires yeas and nays to be
recorded:
o 1. Last and third readings of a bill
o 2. Upon 1/5 members request
o 3. Re-passing a bill over Presidential veto
What is a Bicameral Conference Committee?
o Extra-constitutional creation
o Intended to resolve conflicts between house and Senate
o

inaction on the Presidents end. No such thing on


o

along with objections to the other house.

2/3 approval of other house becomes law

Must yeas and nays be recorded?

Yes.
Must the President veto the entire bill?

Yes.

What is the exception?


Appropriation, revenue, or tariff bills. The

2/3 approval on originating house, then sent

versions of bills
Tolentino v. Sec. of Finance: the Conference Committee may

draft a bill which contains provisions not found on either bill


Vetoes:
o General rule: no item veto (only for ART bills)
o Invalid veto: deemed without effect
o Can an item veto be done within a section?

Yes. Item veto does not mean the President can


only veto an entire section. He can veto within a
section, as long as there is a subject and a tax rate

Objections are entered in house journal.


What is the process of reconsideration, where the

legislation can override a Presidential veto?

16

(that is an item).
What is the doctrine of inappropriate provisions?

The President may veto riders in an appropriation bill,

even if it is not an appropriation or a revenue item.


What is executive impoundement?

Refusal of the President to spend funds allocated by

No law granting tax exemption can be passed without concurrence of

majority of all members of Congress


General limit to power to tax: must be for public purpose
o Planters v. Fertiphil: LOI 1465, a piece of martial law

Congress for a purpose. The court did not pass upon

legislation, imposed a P10 capital contribution for each sale of

this question, but simply relied on the inappropriate

a bag of fertilizer until adequate capital is present to make PPI,

provisions doctrine.

a private company, viable. HELD: invalid, because it was not


for a public purpose.

Taxes

Money

Characteristics of taxation:
o 1. Uniform and equitable.

Not intrinsic, but geographical uniformity; also, EPC


o 2. Progressive system of taxation.

Tax rate increases as tax base increases


Congress may authorize President to fix within specified limits:
o 1. Tariff rates
o 2. Export and export quotas
o 3. Tonnage and wharfage dues
o 4. Other duties or imposts within framework of national

development program of government


Can the power to tax be delegated to the executive?
o Yes. Power to tax is legislative, but Sec. 28(2) allows Congress

to delegate it to the President. The President is bound by

No money paid out of treasury except pursuant to appropriation made


by law
Limitations on appropriations?
o 1. Must be for public purpose.
o 2. No public money/property appropriated, applied, paid,
employed to religious sects or religious personnel

EXCEPT when such person is assigned to:

1.Armed forces

2. Penal institution

3. Government orphanage

4. Government leprosarium
What is the rule on special funds?
o Money collected on tax levied for special purpose must be paid

conditions set by Congress. This is an exception to the rule of

non-delegability.
What are specially exempt from property taxation?
o Land, buildings, and improvements that are actually, directly,

and exclusively used for religious, charitable, or educational

purposes.

Ex. Charitable institutions, churches and


o

appurtenances, mosques, non-profit cemeteries


NOTE: These are only property tax exemptions

for that purpose only


What if they are not used or the purpose is fulfilled or
abandoned?

Transferred to general funds of the government


Is the OPSF a special fund?

No, because it was not pursuant to the power to tax.

It was pursuant to police power.


Is a law requiring automatic reappropriation for foreign debts
invalid because there is no fixed amount?

17

No. It is valid. The amount can be fixed by the simple act of

looking into Treasury books.


Is a continuing appropriation law valid?
o Yes. The law does not require yearly or annual appropriation.
Philconsa v. Enriquez: CDF/Pork barrel was approved by SC, stating
that the Congress already specified uses of the power, and power given

to the executive officials was merely recommendatory, subject to


Presidents approval. (Fr. B doesnt like this.)

Misc

o 3. Petition must be registered with COMELEC


What if its an initiative on the Constitution?
o 1. It must be 12% of all registered voters
o 2. Represented by at least 3% of registered voters of each leg.
District
o 3. And only once every 5 years
And then?
o All registered voters vote on the proposition forwarded
What cannot be the subject of initiative?
o 1. Petition embracing more than 1 subject
o 2. Statutes involving emergency powers specially vested in
Congress by the Constitution cannot be subject of referendum

Can the Congress increase appellate jurisdiction of the SC?


o No, unless there is SC advice and concurrence.

Ex. OMB Act directly allowed appeals from OMB to

SC was unconstitutional.
Can the law grant title of nobility or royalty?
o No.

until 90 days after effectivity


RA 6735 Initiative and Referendum Law

Summary of Congressional voting requirements:


3/4 vote

2/3 vote

Majority vote

1/3 vote

Proposing

Suspension

Election of SP and

Passing

To

amendme

of a member

SOH, by their

articles of

record

nts or

by his

respective houses (all

impeachm

yeas

revisions

respective

smembers)

ent

and

to the

house (all

(House of

nays

Constitutio

members)

Represent

(mem

n (one

atives

bers

house,

alone)

prese

vote

Initiative and Referendum:

1/5

What can the people do pursuant to this power?


o 1. Directly propose and enact laws
o 2. Approve and reject any act or law or part thereof passed by
Congress or local legislative body
What are the types of initiative?
o 1. Initiative on the Constitution

12%-3%
o 2. Initiative on Statutes (national legislation)

10%-3%
o 3. Initiative on Local Legislation

See local government


Requires for petition for national initiative?
o 1. Signed by at least 10% of total number of registered voters
o 2. Represented by at least 3% of registered voters of each leg.

nt)

then the
other, all
members)

District

18

Calling a

Constitutional

Constitution

convention, if 2/3 vote is

al

not met (all members),

convention

and thereafter the

officer (Senate)
Confirming the

question re: calling is

appointee as new VP is

Declaration

resolved in a plebiscite
Commission on

of State of

appointments, both

(each house votes

war (joint

voting and to convene

separately)

session, but

(if the Chairman doesnt

separate

call for meeting)

vote)
Overriding

Law granting tax

Presidential

exemption (all

veto

members, not just those

(originating

present)

the present one dies

Executive Department
Presidency, Vice-presidency

house, then
the other)

Executive power: vested in President


o Head of State
o Chief Executive he is the Executive and no one else
o Marcos v. Manglapus: The Constitutions list of powers of the
executive are not exclusive. He possesses residual unstated

Revoking proclamation

powers. The Constitution just deems it best to limit certain

of President of martial

aspects of the Presidents power to avoid abuse.

Laurel v. Garcia: But the President may not convey

law or suspension of
privilege of WHC (joint

valuable real property of the government on his sole

vote)
Extension of period of

martial law or
suspension of privilege

of WHC (joint vote)


Granting amnesty
President declares that

will. It must be pursuant to a law by Congress.


The president is also immune from suit and criminal
prosecution while in office.
Executive Privilege

Senate v. Ermita: What topics are covered by


privilege:

1. Conversations and correspondence

he can discharge

between President and official covered by

duties, but the Cabinet


says otherwise
Validating a treaty (only

EO 464
2. Military, diplomatic, other national security
matters

Senate)
Deciding to impeach an

19

3. Information between inter-government

agencies prior to conclusion of treaties and

this privilege, the court could have held an in-camera

executive agreements
4. Discussion in close-door Cabinet meetings
5. Matters affecting national security and

session to determine whether the claim really is

public order
Two requisites for executive privilege to apply:

1. It must fall within one of these matters

privileged.
Estrada v. Disierto: A president is immune from prosecution during
tenure. But once out of office, the immunity for non-official acts is lost.

covered
2. Claim of privilege must be stated with

Qualifications of President:
o 1. NBC

Tecson v. COMELEC: An illegitimate child of a

sufficient particularity so the Congress or

court can determine whether it is legitimate


How can communications be privileged?

1. It must related to a quintessential and

o
o
o
o

non-delegable power of the President


o Ex. Power to enter into executive

agreements with other countries


2. Communications are received by close

advisor of the President


o Test: operational proximity
3. No compelling need (or unavailability of

limitation of privilege
From among the Executive branch officials, only the President
is exempt from Art VI, Sec 21: the President. The executive

residency in the Philippines


Vice President
o Same qualification as President
o Elected with, and in same manner
o Removed from office in same manner
o May be appointed as member of cabinet with no need for
Term:
o
o

branch, while co-equal to the legislative, must not frustrate


o

Filipino father is a natural born citizen nonetheless.


2. At least 40 years on the day of the election
3. Registered voter
4. Can read and write
5. On the day immediately preceding elections, at least 10 year

CONA confirmation.

information elsewhere) that would justify


o

CJ Puno, in his dissent, said that instead of relying on

power of Congress to legislate.


Neri v. Senate: Applied privilege #1: presidential

Six years, beginning 30 June, 12 noon

Elected second Monday of May


President: Not eligible for any reelection

Erap situation: he was allowed to run because this

communication privilege. It is presumed to be privileged. In


this case, Senate was not able to overcome the presumption.

But if the decision reached in the communication is criminal, it


cannot be privileged.

20

was interpreted as to apply only to the incumbent


No person who has succeeded as President and has

served more than 4 years qualified for reelection


VP: No more than 2 successive terms

Voluntary renunciation does not interrupt


Canvassing:

By Board of Canvassers in each province/city

Certificates of Canvass transmitted to Congress to

Senate President
Not later than 30 days from E-Day: open all

who lodged a protest ran and won for Senate, she


was deemed to have abandoned the protest

certificates in presence of both houses in joint public

Vacancy, sickness

session

Congress determines authenticity and due

Vacancy problem AT THE

execution not just ministerial


Then canvasses
Lopez v. Senate and House: Congress may

PRESIDENCY

as long as it approves it afterwards as a


body
Macalintal v. COMELEC: Proclamation of P
and VP winners is function of Congress, not

COMELEC
Pimentel v. Joint Canvassing Committee:
Final adjournment of Congress only
terminates legislative functions, but not non-

legislative functions such as canvassing.


In case of tie between two or more for highest number
of votes:

Senate and HOR both vote separately

majority vote of ALL


Presidential Electoral Tribunal (PET):

Supreme Court en banc

Poe Jr. v. Arroyo: Under PET rules, only the 2nd and

P-elect fails to qualify


P-elect not chosen when term is

VP is acting P until P-elect qualifies


VP is acting P until P is chosen and

supposed to start
P-elect dies or is permanently

qualified
VP becomes P

incapacitated before term of office


Both P and VP not chosen or failed

SP, (or Speaker, in that order),

to qualify
Both P and VP died or became

becomes acting P
SP, (or Speaker, in that order),

permanently incapacitated before

becomes acting P

start of term
P, VP, SP, and Speaker all have died,

Congress decides by law who acts

become permanently incapacitated,

as P (not becomes) until P and VP

or cannot assume office

elected and qualified

Vacancy problem AFTER THE

Solution

OFFICE HAS INITIALLY BEEN


FILLED

3rd placers may contest the election. The widow of the


nd

Solution

BEGINNING OF THE TERM OF

delegate preliminary count to a committee,

Defensor-Santiago v. Ramos: When the 2nd placer

2 placer may not substitute or intervene for him.


Legarda v. De Castro: PET may correct manifest
errors in the statement of votes and certificates of
canvass.

21

Incumbent P dies, is permanently

VP becomes P

disabled, is removed, resigns


Both P and VP die, are permanently

SP, or speaker, in that order,

disabled, are removed, resign

becomes acting P until P or VP have

Acting P dies, is permanently

been elected or qualified


Congress provides by law who will

incapacitated, is removed, resigns


Vacancy in office of VP

act as P until new P or VP qualify


P nominates VP from either house of

Congress assumes VP position

that Erap resigned, based on statements before he left Malacanang and

from majority vote of all members of


Congress, vote separately

Inability to discharge issue

Result

President transmits to SP and SOTH

VP is acting P, until President gives

written declaration that he cannot

contrary written declaration

discharge powers and duties


Majority of cabinet transmits to SP

VP is acting P, until President gives

and SOTH written declaration to

contrary written declaration

same effect
President transmits to SP and SOTH

hours with no need for call to

exists BUT within 5 days, majority of

decide, within 10 days from

cabinet transmits otherwise

receipt of last written declaration

session)
Can decide, through 2/3 vote of
both houses, voting separately,
b) or P to discharge duties
Public informed about state of

health
Who cannot be denied access
to P:
o

1. National security

adviser
2. Secretary of Foreign

Affairs
3. AFP chief of staff

election
Held 45-60 days from time of call
Automatically deemed certified (since there is no P to
certify)
Becomes law upon 3rd reading
Appropriations: from current appropriations (any)

No need for special appropriations bill

Cannot:

Suspend convening of Congress

Postpone special election

Privileges, benefits, limitations

either: a) for VP to be acting P,

occurs

No need for call


Within 7 days, enact law calling for special election

Except for vacancies within 18 months from next Pres.

(or 12 days if Congress is not in

Serious illness of the P

Angara diaries
Procedure when vacancy occurs in P AND VP office:
o Congress convenes at 10 a.m. of third day after vacancy

Congress convenes within 48

written declaration that no inability

Estrada v. Arroyo: GMAs assumption of Presidency: based on finding

P has official residence


P and VP salaries:
o Determined by law
o Cannot be decreased during their tenure
o Salary increases: only take effect after expiration of the term of
o

22

the incumbent when the increase happened


NO OTHER emolument from the government or any other

source
Estrada v. Desierto:
o President is immune from suit during his tenure

o After tenure, he can be made liable for non-official acts


o Crimes and misconducts are not official acts of the State
Soliven v. Makasiar:
o Only President may invoke immunity from suit
o President may waive this immunity, by filing suit

o
o

Limits on positions and appointments

Applies to P, VP, cabinet members, deputies and assistants:

1. Cannot hold any other office or employment


o What are the exceptions?

1. Provided in Constitution (ex. SOJ sitting in JBC)

2. Positions are ex-officio and no salary or other


o

emoluments (ex. SOF is head of Monetary Board)


N.B. (Compare with legislative, where they just have to give up

their position)
Public Interest Group v. Elma: Chief Presidential Legal

and subsidiaries)
What if the spouse/relative was already in position?
o Then he/she can continue. What is prohibited is appointment
and reappointment, not continuation in office.
To which positions can they be appointed?
o Judiciary, ambassadors, consuls
o N.B. (I guess because the appointment is subject to JBC for
the former and competitive exams for the latter)

Three-fold limitations on appointments:

Counsel (CPLC) has duty to give independent legal advice on

1. Appointments by Acting President effective unless revoked by

President within 90 days of assumption or resumption of office


2. Midnight appointments two months before next P election, and until
end of term:
o P or Acting P cannot appoint
o Except temporary appointments to executive positions, the

actions of heads of the executive departments and investigate


matters on presidential appointees. So the CPLC cannot
simultaneously occupy a position he has to review (ex. CPLC

and PCGG chair at the same time)


2. Cannot directly or indirectly (profession, business, government

vacancy of which prejudice public service or safety


De Castro v. JBC: Midnight ban does not apply to
appointments in the SC. Art VIII Sec 9 requires vacancies in
the SC to be filled in within 90 days from occurrence of

contract):
o A. practice profession
o B. participate in business
o C. be financially interested in any K, franchise, special privilege

3. Sec, U-Sec
4. Chairmen or heads of bureaus or offices (including GOCCs

vacancy, and this prevails. The existence of the JBC also

granted by Government, S, A, I, GOCCs and subs


3. Strictly avoid any conflict of interest

prevents possible abuses in appointment


3. CONA approval needed for: (basis: Sarmiento v. Mison, which limits
CONA approval to the first sentence of Art. VII, Sec 16)
o 1. Heads of executive departments
o 2. Ambassadors
o 3. Other public ministers and consuls
o 4. AFP officers from colonel or naval captain

Spouse and relatives by consanguinity or affinity of President until fourth


civil degree cannot be appointed to or as:
o 1. Con Commissions
o 2. OMB

23

Soriano v. Lista: The Philippine Coast Guard is a


o

Disapproval by Congress

Or until next adjournment


Ad interim appointments are considered permanent, not

temporary. Matibag v. Benipayo


Ad interim appointments only apply to positions needing CONA

non-military agency and does not fall under this


o

provision.
5. Other positions, as provided by Constitution, such as:

A. Chair and members of Con Commissions

B. Regular members of JBC

C. OMB and deputies

D. Sectoral representatives in Congress (prior to

approval. This is different from appointments in acting capacity

1998)
When CONA approval not needed:
o 1. Other officers whose appointments not provided by law
o 2. Those he is authorized by law to appoint
o 3. Those vested upon him by Congress

Though Congress may vest appointment of other

the President prior to appointment is not fatal because power to appoint

officers lower in rank upon:

President alone

Courts

Heads of agencies, boards, commissions,

which:

1. Can apply even to other positions

2. Can be done even when Congress is in session


Bermudez v. Secretary: Absence of recommendation of Secretary to
is lodged with the president.
Pimentel v. Ermita:
o Alter ego positions President can appoint acting appointees
temporarily in these positions. These need no appointment.
The permanent appointee would need confirmation by the
CONA. Reason: expediency and need for president to have an
alter ego he can trust. Senate cannot impose upon him to

departments
Rufino v. Endriga: When authority is given to head of

collegial bodies, it is to the chairman that the authority

behalf of the CONA.

is given, and not to the entire body. But he can only


appoint other officers lower in rank; thus, this does
o

Powers of the President

not include equal-ranking officers.


Can Congress increase the number of positions that need

CONA approval?

No. It cannot unduly expand the Constitutional

have the undersecretary be the acting secretary.


Senators not in the CONA do not have standing to act on

enumeration.
What about appointments to the SC and judges of lower courts?
o By the President, but no CONA approval needed because the

Power of control:
o Control of all executive departments, bureaus, offices
o President can alter, modify, nullify, or set aside acts of ANY
o

executive officer, up to the lowliest clerk


Qualified political agency: acts of executive officials, unless
disapproved or reprobated by the President, are presumptively

JBC is there
Ad interim appointments:
o Appointments made during recess of Congress
o Effective only until:

the acts of the latter. (Villena v. Sec. of Interior) Another


exception is when the President is required to act in person by
law (ex. Pardons).

24

Thus, the decision of a dept. secretary, when not

power of control (whereas power of control necessarily

reprobated by the Chief Exec., is the last step in

exhaustion of admin remedies. (Demaisip v. CTA)


Asst. Executive Sec., acting for the President, may

reverse a decision of the Sec. of Agriculture and

Stems from being the ceremonial, legal, and administrative head of the
armed forces.
o Gudani v. Senga: President has power over the military, and

(who can provide for security of tenure). So

can demand obedience. The President may prevent a member

distinguish between control over discretion

of the AFP from testifying before legislative inquiry, and may

(executive) and person (legislature)


Orosa v. Roa: The Sec. of Justice may reverse the

punish violators by court martial. REMEDY OF CONGRESS?


May ask court to compel the President by judicial order to

act of a prosecutor and order him to withdraw an

allow the AFP officer to attend. The President must comply

information already filed, since the Secretary here is

with this.

acting on the Presidents behalf. This action is not


directly reviewable by courts. One may appeal to the

1.

Office of the President to exhaust admin remedies.


Malaria Employees v. Executive Sec: The power of

Calling out powers armed forces, to prevent or suppress lawless


violence, invasion, or rebellion
a. Standard: whenever necessary
b. NOT reviewable by the courts (unlike martial law or suspension

control includes power to reorganize an executive


office, even if it involves reduction of personnel,
consolidation or abolition of offices.

N.B. This is not a situation involving removal

c.

because removal is only incidental to

d.

reorganization
Philips Seafood v. BOI: Executive control may be

2.

limited by the SC, in its rule making power, by making


certain admin agency decisions (such as the BOIs)
subject to appeal to courts and not appealable to the

of privilege of WHC)
Sanlakas v. Exec Sec.: State of rebellion = calling out powers.
Factual necessity of declaring a state of rebellion is highly

of officers or employees (power to appoint)

includes power of supervision)


Ex. to Local Governments

Military/Extraordinary powers

Resources (Roque v. Director)


Disciplinary power by the President does not flow
from the power of control, but power to appoint.

Disciplinary power limited by legislature

Ensure that laws are faithfully executed does not include

President.
Power of supervision:

dependent on President.
Does not include power to take over media, cause warrantless

arrests, to legislate from the executive, etc.


Suspend privilege of writ of HC
a. Rebellion or invasion + requirements of public safety
b. Only applies to:
i. Persons judicially charged for rebellion
ii. Offenses inherent in or directly connected to invasion
c. Safeguard: must charge anyone arrested during suspension of
the writ within 3 days, or else he should be released

25

3.

Declare martial law


a. Rebellion or invasion
b. For the whole Philippines or a part of it
c. Martial law does not:
i. Suspend the Constitution
ii. Supplant civil courts or legislative assemblies
iii. Authorize military courts to have J over civilians where
iv.

A. President may grant after conviction by final judgment:


o 1. Reprieve
o 2. Commutation
o 3. Pardon

Absolute pardon: complete even without acceptance

Conditional: must be accepted

President determines whether condition

civil courts can function


Suspend privilege of writ

and legal disabilities. BUT it does not include

Procedure for suspension of writ or martial law:

1. President makes a declaration, the period of which will cover up to 60

for call within 24 hours of proclamation/declaration


3. Congress may revoke the proclamation, through a joint majority vote
o The President cannot set aside revocation
o N.B.it is joint to make it easier to override
o N.B. Congress cannot extend the period motu propio
How is an extension granted?
o 1. President takes initiative and requests Congress to approve
o
o

the extension
2. Congress votes jointly by majority vote
3. Congress may extend proclamation for a period to be

wages are due


Must withdraw appeal first, before one can be granted

clemency (must be final)


o 4. Remission of fines and forfeitures
B. Amnesty:
o Must have concurrence of all members of Congress
o General pardon for those suspected of high political offenses
o No need for final judgment
o Cannot grant tax amnesty without concurrence of Congress.
Llamas v. Orbos: Includes administrative penalties
Limits:
o 1. Not in impeachment or otherwise provided in the
o
o

determined, if cause persists and public safety requires


How does the SC review the declaration?
o 1. Any citizen may file appropriate proceeding
o 2. SC may review factual basis of proclamation or the
o

reinstatement and back wages.


Garcia v. COA: If pardon given because he was
found to not commit the crime reinstatement back

days
2. Within 48 hours from declaration, the President submits report to
Congress
o If Congress not in session: Congress convenes without need

violated. Torres v. Gonzales


Monsanto v. Factoran: pardon removes penalties

Constitution
2. Amnesty needs Congress approval
3. COMELEC must give favorable recommendation prior to
clemency for violation of election offenses

extension
3. SC must issue decision within 30 days

Executive clemency

26

Amnesty

Pardon

Political offenses
To a class of persons
Concurrence of majority of Congress

Ordinary offenses
To individuals
No need for Congress to act

Public act; subject to judicial notice

Private act of president; must be

Extinguishes offense

proved
Extinguishes penalties only

rights

suggestions are incorporated, the treaty

Civil Indemnities not extinguished


Granted after final judgment

goes into effect without need for further


o

Diplomatic power
A. Contracting or guaranteeing foreign loans
o P may contract or guarantee foreign loans on behalf of the RP

What are the safeguards?

1. Need prior concurrence of Monetary

Board

2. Subject to limitations under law


No specific loan or kind of debt instrument prescribed

Senate approval.
Foreign relations power of P:

1. Negotiate treaties and international agreements

2. Appoint ambassadors, public ministers, consuls

3. Receive ambassadors and other public ministers

4. Contract and guarantee foreign loans for RP

5. Deport aliens
Sec. of Justice v. Judge Lantion: Since extradition is not a
criminal prosecution, the subject of extradition is not covered by
the usual guarantees in a criminal proceeding, such as being

in the Constitution
Monetary Board:

Within 30 days from end of each quarter of every

furnished with a copy of the extradition papers.


Pimentel v. Ermita: The President cannot be compelled to
submit a treaty for ratification by Senate, since it is the sole
prerogative of the President whether or not to enter into treaty.

calendar year, must submit to Congress decisions on


applications on loans or guarantees that would have

effect of increasing foreign debt

And on other matters provided by law


B. Entering into treaties
o No treaty shall be valid and effective unless concurred by at

This happened to the Rome Statute (on the ICC).


What the rule for conflicts between treaty and municipal law?
o If in Philippine courts, the latter enactment prevails, whether
o
o

least 2/3 of the members of the Senate

USAFFE v. Veterans Association: Less formal types


of international agreements may be entered into by P

need
What if Senate conditionally approves it, with
suggested amendments?

If re-negotiated and the Senates

May or may not restore political

Granted before or after conviction

Temporary and mere implementations: no

and become binding without concurrence of Senate


Guidelines:

Permanent and original: need Senate

treaty or law
If in International tribunals, the treaty always wins
Except:

If the constitutional violation was manifest and it

concerns an internal law of fundamental importance


What is the nature of an exchange of notes?
o It consists of exchange of two documents, with each of the
parties possessing the other one signed by the representative
of the other.

concurrence

27

It is a form of executive agreement which needs no Senate

Court?

1. Congress cannot deprive SC of jurisdiction over

concurrence.
Basis of Gen. Appropriations Bill

President submits to Congress:


o 1. Budget of receipts and expenditures
o 2. Sources of financing

Including receipts from existing and proposed revenue

President appears before Congress:


o 1. Opening of regular session
o 2. At any other time

in the exclusive competence of courts.


How do you reconcile Civil code provision on judges must make
not adjudge beauty contests or honor rolls?
o If there is no statutory provision, the judge must look at

are legally demandable and enforceable,


2. Power to determine whether there has been GADALEJ of

any branch/instrumentality of government.


Where is it vested?
o Supreme Court and lower courts
What is jurisdiction?
o Power to hear and decide a case
What is the role of legislature in judicial process?
o 1. Defining enforceable and demandable rights, and providing
o

legal matters.
Can the Congress amend the Rules of Court?

Only if it involves substantive rights. Otherwise, it falls

decision even without law (Art 9) to the two cases where the SC did

What is judicial power?


o 1. Power to settle actual controversies involving rights which
o

reason to do so (efficient delivery of justice, etc.).


Can a law be passed prohibiting courts from issuing
injunctions in infrastructure projects of government?

Yes, but only to factual and technical matters, not

Judicial Department

jurisdiction without its concurrence


May congress abolish courts?

Yes. Even if the judge loses his position, the rule is


done for political reasons there must be good

When?

Within 30 days from opening of regular session

SONA

Sec. 5 matters
2. Congress cannot increase the SCs appellate

simple the same as abolition of office. As long as not

measures
o

But what is the limit to this power vis--vis the Supreme

customary law or whatever is applicable


Can the SC pardon?
o No. But it retains jurisdiction over a case as long as the
penalty has not yet been meted out. This was seen in the

remedies
2. Determining court with jurisdiction

28

Echegaray case where the SC refused to mete out the penalty.


What is judicial review?
o Power to declare a law, treaty IA or EA, or issuance
unconstitutional
What are the essential requisites of judicial review?
o 1. Actual case ripe for adjudication

What is the exception?

If lack of clarity detriments public order


2. Locus Standi (standing of person)

Elements of standing:

1. Personal and substantial interest

2. Injury is fairly traceable to challenged

involved
2. Presence of a clear case of

disregard for law by government


3. Lack of another party with more

direct/specific interest
What must be the character of interest?

Material, not just incidental or inchoate


What are the requisites of third party standing?

1. Litigant suffered injury in fact giving

sufficiently concrete interest


2. Litigant has close relation to the third party
3. There is some hindrance to the third

taxing/spending powers.
2. Sufficient interest in preventing illegal expenditure of money

raised by taxation
o 3. Direct injury from enforcement of statute
What is the effect of declaration of unconstitutionality of statute?
o Operative fact: can be a source of rights and duties
Can lower courts conduct judicial review?
o Lower courts may conduct judicial review. But declaration
binds only the parties to that case and doesnt set precedents.
What are political questions?
o Questions under the Constitution that are to be decided by the
people in their sovereign capacity or where there is full
o

when is the earliest opportunity?

At the CA because the OMB cannot decide

on the question of constitutionality


What are the requisites of a taxpayer suit?
o 1. Case involving expenditure of public funds

Does this include augmentation powers of the


President?

No. It has to be exercise by Congress of

partys ability to protect his own interests


What are the Auxiliary requisites?
o 3. Raised at earliest opportunity

If the case was originally in the ombudsman,

Determinative of the case itself. Meaning, the court


must be unable to decide the case without touching

action

3. Injury likely redressed by favorable action


What is the exception to standing?

Transcendental interest
o 1. Character of funds or assets

on question of constitutionality of laws.


N.B. but in criminal cases, usually it can be initially

offense a purely political question?

Yes. It is up to the legislature.


When can the court decide on moot cases?
o 1. Grave violation of the Constitution
o 2. Exceptional situation and paramount public interest
o 3. Constitutional issue raised requires formulation of controlling
o
o

raised at any stage of the proceedings


4. It must be the lis mota

What is lis mota?

discretionary authority given to the legislative or executive


Is the determination of what constitutes an impeachable

principles to guide the bench, bar, and public


4. The case is capable of repetition evading review
N.B. Because Erap wasnt elected into office, the question re:

his possible re-election was deemed moot


What are the safeguards to guarantee independence of the
judiciary?

29

o
o
o

1. SC cannot be abolished by law


2. SC justices only removable by impeachment
3. SC jurisdiction cannot be changed by law without its advice

SC

or concurrence
4. SC has administrative supervision over all lower courts and

personnel
5. SC has exclusive power to discipline lower court judges or

NBC
40 years of age

o
o

justices
6. Security of tenure cannot be deprived by Congress
7. May not be designated to any agency performing quasi-

Phil. citizen
Other

qualifications

qualifications

provided by

provided by

15 years or more a

Congress
Member of Phil.

Congress
Member of Phil.

lower court judge

bar

bar

Proven CIPI

Proven CIPI

(competence,
integrity, probity,
independence)

legislature below amount for previous year


After approval: automatically and regularly released
Can Congress give exemptions to legal fees to

fitness for judicial office. Here, he failed to disclose a previous admin


charge and this was taken against him, even if the case was moot and

development fund and special allowances,

o
o

he resigned from office previously.


Kilosbayan v. Ermita: Before one offered an appointment to the SC
can accept it, he must correct the entry in his birth certificate saying he

which is an impairment of the Courts fiscal

substantive laws are involved)


10. SC alone may order temporary detail of judges
11. SC can appoint all officials/employees of judiciary

JBC v. Judge Quitain: Every prospective appointee to the judiciary


must apprise the appointing authority of every matter bearing on his

GOCCs and LGUs?

No. This will reduce the judiciary

lower court

NBC
Other

in Phils.
Proven CIPI

autonomy.

Appropriations for judiciary may not be reduced by

autonomy.
9. SC alone may change Rules of Court (except when

collegiate

or in practice of law

reasonably incidental to fulfilment of judicial duties.

Not its job to give advisory opinions.


8. Salaries may not be reduced. Judiciary enjoys fiscal

Non-collegiate

court

judicial/administrative functions

Cannot be required to act as board of arbitrations

Cannot be charged with admin functions unless

Lower

is an alien.
Topacio v. Ong: Proper remedy for those contesting a persons
enjoyment of public position is Quo Warranto. May be commenced by
Sol-Gen, public prosecutor, or in some cases, the person claiming to be
entitled to the office. But that person must show a clear right to the
contested office.

What are the issues re: Appointments to judiciary?

Judicial and Bar Council

Qualifications

30

What is the composition of the JBC?


o 1. CJ as ex-officio chair
o 2. SOJ
o 3. Rep. of Congress
o 4. Rep. of IBP
o 5. Professor of law
o 6. Retired member of SC
o 7. Rep. of private sector
o SC clerk as ex-officio secretary
What is the term of the regular members (last four)?
o Four year terms, staggered
How are the regular members appointed?
o With CONA consent
Receive emoluments as determined by SC
o In yearly appropriations
Functions:
o Primary recommending appointees to judiciary
o Secondary other functions and duties assigned by SC

The Supreme Court

o
o
o

Procedure for appointment:

1. President appoints members of SC and judges of lower courts from

list given by JBC of at least 3 nominees per vacancy


2. No CONA confirmation is needed for appointments to the judiciary
Contrast the rules on when vacancies must be filled:
o Vacancies in SC filled within 90 days from occurrence of
o

CJ + 14 AJs
o En banc or divisions of 3, 5, or 7
What must be heard en banc:
o Decided with majority of members who actually took part in
deliberations and voted
[constitutionality]
1. Constitutionality of a treaty, international or executive
agreement, or law
2. Constitutionality, application, operation of:

PDs, PPs, EOs, instructions, ordinances, other

o
o
o
o

regulations
[re: decisions]
3. Those required by ROC to be heard en banc
4. When a division cannot reach majority decision
5. to modify or reverse a principle or doctrine laid down en

o
o

banc
[special powers]
6. Administrative cases involving discipline or dismissal or
judges of lower courts

You cannot go directly after a judge, without going

through the SC first.


7. Election contests for P or VP (as PET)
8. Appeals from SB or Constitutional Commissions

(N.B. take note of this not in the Constitution)


Division must have at least three concurring votes. Or else, en banc
o But decisions by divisions not appealable to en banc.
o N.B. you always need at least 3 votes to get a favorable
o
o

vacancy
Vacancies in lower courts filled within 90 days from submission

to the President of the JBC list


How is the 90 day appointment rule resolved vis-a-vis the 60 day
midnight appointment ban?
o The President may appoint an SC Justice within the 60 day

ban. The midnight appointments ban only pertains to the

decision from the SC


Fortich v. Corona:

Cases which are not decided upon by a division en


banc

executive branch. The JBC is sufficient safeguard re: the


judiciary.

31

Matters which are not decided upon by a division

ii.
iii.

action is lost (ex. MR is defeated)

complainant desists, this does not strip the

Over which cases does the SC have original jurisdiction over?


o 1. Cases involving ambassadors, other public ministers,
o

court from having jurisdiction over members

consuls
2. Certiorari, prohibition, mandamus, quo warranto, habeas

of the Bar. This is an aspect of the authority

corpus
Over which cases does the SC have appellate jurisdiction over?
o 1. On constitutionality or validity of treaty, international

iv.

agreement or executive agreement, law, PD, PP, EO,


o
o
o

b.

appeal, withdrawn.
5. Cases where only questions of law are involved

i.e. Rule 45

3.

of membership in the IBP.


v. Legal assistance to underprivileged
1. Ex. Student practice rule, indigent litigants
Principles:
i. Simplified and inexpensive procedure for speedy

c.
d.

unless changed by SC
Baguio Market Vendors v. Judge: Congress has no power to
repeal, alter, or supplement Rules of Court. Lim v. CA:
However, rule making power also includes inherent power to

What are the auxiliary admin-related powers of the SC court?

2.

the Bar, you become a member of the IBP.


Payment of IBP is necessary consequence

disposition
ii. Uniform for all courts of same grade
iii. Not diminish, increase, modify substantive rights
Procedure in Q-J bodies and special courts remain effective

So the CA can review still before the SC.


P v. Rocha: But while SC has jurisdiction to review
them, it is not mandatory. Review may be waived and

to admit to the Bar.


Integrated Bar
1. SC has plenary powers here. Upon passing
2.

instruction, ordinance, regulation


2. Legality of tax, impost, assessment, toll, penalty thereto
3. Jurisdiction of lower court in issue

i.e. GADALEJ
4. Criminal cases where penalty is RP or higher

P v. Mateo: Does not proscribe intermediate review.

1.

Pleading, practice, procedure in all courts


Admission to practice of law
1. Garrido v. Garrdio: Even when the

e.

Temporarily assign lower court judges to other stations


a. As public interest requires
b. May not exceed 6 months, without consent of judge concerned
Order change of venue or place of trial
a. To avoid miscarriage of justice
Promulgate rules
a. Matters:
i. Protection and enforcement of constitutional rights
1. Ex. Amparo, Writ of Kalikasan, etc.

suspend its own rules in particular cases to do justice.


Republic v. Gingoyon: Rule 67 in expropriation says
expropriation may be done even before payment of full amount,
by paying deposit to court. But RA 8974 creates an exception
in expropriation cases involving public works projects. HELD:
Congress may amend ROC here because expropriation
involves not just procedural elements but also substantive
matters, which is subject to Congress legislation.

32

f.

stating that there is no factual or reversible error in a

Can the SC create a special division in the SB or other


courts?
i. Yes, this is part of the rule-making power of the SC.

4.
5.

(The issue here was the Estrada trial)


Appoint officials and employees of judiciary (according to CSL)
Administrative supervision over courts and personnel

the same procedure outlined above (signing by all


o

Procedure on decision-making by the SC:

court decision sufficiently complies with paragraph 2.


Borromeo v. CA: Minute resolutions need not follow

members who deliberated, certification by CJ, etc.)


Memorandum Decisions:

These must be used sparingly and only where facts


are accepted by both parties, and in simple litigations

Decisions of SC en banc or in division:


o 1. Reach conclusion first in consultation
o 2. Then assign case to a member for writing of opinion
o 3. Certification to this effect signed by CJ

Issued and copy attached to record of case

Served upon parties

Consing v. CA: But absence of certification does not

only.
Must have the decision adopted by reference
attached, for easy reference.
Otherwise, a full decision is still preferred because:

1. It assures parties that the judge studied

mean that there was no consultation prior to

the decision and either appeal or accept the

assignment of the case to a member. Presumption of

loss
3. Enrich case law

regularity prevails. The erring officer is liable


o

administratively though.
4. Member must state why:

He took no part

Dissented

Or abstained
Same requirements above followed by lower collegiate courts

Tenure, salary, other stuff

(not administrative bodies)


What must be stated:
o 1. For decisions must expressly clearly and distinctly facts
o

the case
2. Gives losing party opportunity to analyze

and law on which they are based


2. Petition for review or MR cannot be refused due course or

A. Salary of CJ and AJs and lower court judges fixed by law


o Salary cannot be decreased during continuance in office
o Nitafan v. CIR: but salary subject to income tax
B. Tenure of judges:
o Hold office during good behavior, until 70 years old
o Or incapacitated
C. SC en banc has power to discipline judges of lower courts or order
dismissal by majority vote of members who took part and deliberated
o P v. Gacott: But SC only has to be en banc when the case is

denied without stating legal basis

Borromeo v. CA: Resolutions disposing of petitions

for dismissal, suspension for more than 1 year, fine exceeding


10K, or disbarment. (Basis: conversation of Justice Regalado

fall under this paragraph, not the first. So merely

33

with former CJ Concepcion.)


How judges are removed:

o
o

1. SC justices: ONLY by impeachment


2. Justices and judges of lower courts inferior to SC: removable

ONLY by SC sitting en banc


Vistan v. Nicolas: A judge sitting on the Bench may not present himself

as a congressional candidate this constitutes misconduct.


Judges cannot be designated to any agency performing quasi-judicial or

General provisions

Independence means independence from private and public powers


What are the safeguards ensuring independence of the
Commissions?
o 1. May not be abolished or have powers reduced by statute
o 2. Expressly described as independent
o 3. Chair and members can only be removed by impeachment
o 4. Term of 7 years (this is fairly long)

7 years, without reappointment

What are the prohibitions on appointment?

In no case can there be a temporary or

admin functions.
o Ex. A judge was assigned to the Provincial Committee on
Justice of Ilocos Norte, which receives complaints and makes
recommendations on how to speedily dispose of cases. HELD:
Invalid, because these are admin functions, which the above
provision disallows appointment of judges into.

Periods to make decisions:

SC 24 months from date of submission


o When deemed submitted for decision: upon filing of last
pleading, brief, or memorandum required by ROC or the court
Lower collegiate courts 12 months
All other lower courts 3 months
o In re: delays before the Sandiganbayan: the Sandiganbayan

may appoint temporary officials


What if there is a vacancy?

Any vacancy may be filled, but the filler only


serves the unexpired portion
Starting point for all terms is Feb. 2, 1987

Of those first appointed,


o Chairman 7 years (term ended

falls under the 3 month rule because it is a trial court, not a

collegiate court.
Duties upon expiration of given period:
o 1. Certification issued to parties signed by the judge or CJ,
o

explaining why there is no decision yet


2. Court must decide or resolve the case without further delay

Sesbreno v. CA: There is no automatic affirmation of

acting member
Contra: in alter-ego positions, the President

Feb. 2, 1994)
Commissioner A 5 years (Feb. 2,

1992)
Commissioner B 3 years (Feb. 2,

1990)
After this, ALWAYS 7 years to keep it staggered

Ex. Commissioner A dies and replacement is


appointed April 2, 1994. When will his term

the appealed decision. The duty is simply to decide

end?
o

ASAP. This rule differs from the 1973 Constitution.

Constitutional Commissions

Feb. 2, 1999. You must always

keep the staggering.


Term starting point is always Feb. 2, even if
tenure began later. (Matibag v. Benipayo)

34

5. Chair and members may not be appointed or reappointed in


a mere acting capacity

Is an ad interim appointment valid?

Yes, its not an acting capacity

If an ad interim appointment is not confirmed?

Then the appointee can be given another ad

o
o

1. Hold any other office or employment


2. Engage in practice of any profession
3. No active management and control of business directly

affected by office
4. No financial interest in any contract/privilege, franchise
granted by government or its subdivisions

interim appointment
6. Salaries may not be decreased during term

But may be increased


7. Fiscal autonomy

Differentiate from fiscal autonomy for judiciary:

Judiciary:
o 1. Appropriation may not be less
o

o
o
o

Decision making

Decide by majority vote of all its members, within 60 days from


submission for resolution
o Can a CC provide that decision of divisions must be

than previous year


2. Automatically and regularly

released
Commissions:
o 1. Automatically and regularly

released only
CSC v. Dept. of Budget: Reason given by Dept. of

concurrence of required majority.


Can individual commissioners, subordinates, or legal

counsel make a decision on behalf of the CC?

No. The commissions are collegial bodies.


There were 6 COMELEC commissioners, but 2 retired

can get funds. The no report, no release rule is


invalid.
9. Commissions en banc may develop rules

But not increase, diminish, modify substantive rights

If there is conflict between ROC and rules of

who deliberated

In CCs, majority of all its members


Do you need to wait for the submission of a dissenting
opinion to deem the decision rendered and complete?

No. Resolution or decision is complete when there is

Budget: there are no funds; SC said its sure they

unanimous?

No. This is unconstitutional.


Compare with the judiciary:

In the judiciary, one only needs majority of all those

before the decision was promulgated. They casted their

commission what prevails?

If case is before commission, their rules win.

If before court, ROC wins.


Can the SC or Congress review rules by the CCs?

No. The SC power to review rules of QJAs

vote, though. Are their votes counted?

No. As there were 4 left, there must be 3 votes to

does not apply to CCs.


o 10. Appoint employees based on CSL
What are the prohibitions?

have majority of the total membership.


How are decisions reviewed?
o Rule 65 to SC, for GADALEJ and matters where functions
exercised is QJ

30 days from receipt of decision

35

What if its the CSC?

Rule 43 to CA, within 15 days

And then Rule 45 to SC


What is the rule for COMELEC?

For decisions by divisions, can still have COMELEC

covered by Civil Service. Follow Labor Code, not CS

en banc review the decision


Only decisions of the COMELEC en banc can go up

through certiorari
Exception?

When the division decides an MR, violating

Law.
What is the basis of appointments?
o 1. Merit
o 2. Fitness
How are merit and fitness determined, by default?
o Determined by competitive examinations
o Is merit and fitness as a requirement for appointment

the rule that COMELEC en banc has to


decide an MR. The SC may take
o

cognizance by virtue of certiorari.


Civil Service Commission (CSC)

What is the composition of the CSC?


o 1 Chairman and 2 Commissioners
Qualifications:
o 1. NBC
o 2. At least 35 y.o. upon appointment
o 3. Proven capacity for public administration
o 4. Not lame ducks
How are they appointed?
o Appointed by President with consent of CONA
Who are covered by civil service?
o All branches, subdivisions, instrumentalities, agencies of
o

government, including GOCCs with original charters


Norm: how was it created by special charter or under the

general Corp law?

There has to be a special charter.

Ex. UP, Morong Water District, EIIB


Does this cover the National Housing Corporation?

No, its not an instrumentality of government nor

applicable to all kinds of appointees?

Yes

N.B. this is a trick question. See next


Are competitive examinations to determine merit and

fitness applicable to all positions?

No. Can use other means for:

1. Policy determining

2. Primarily confidential

3. Highly technical
What is the role of CSC in appointment process?
o Only to determine if a person has qualifications under CS law
o Cannot make recommendations on who is more qualified
o Does the CSC have power to revoke certificate of
eligibility?

Yes, as long as the process only involves rechecking


o

of papers and re-evaluation of documents.


Can CSC hear and decide complaints for cheating in CS
examinations?

Yes, its part of its duty to determine qualifications


Does the RTC have jurisdiction over personnel actions?

No.

How are decisions of lower level officials on


personnel matters appealed?

1. Appeal to agency head

2. And then to CSC

36

Cannot be removed or suspended except for cause provided by

law:
o
o
o

or mention names of candidates they support?

Yes. This is not active engagement in partisan

1. Cause provided by substantive law germane to position


2. According to procedural due process
May a career CSO occupying position of local assessment

operations officer III be assigned as security guard?

No. Failure to report to duty as security guard is not

political activity
Can right to self-organization be denied to government
employees?
o No. But the right to strike can be denied to some

ground to dismiss him, because the new assignment

reducing rank is void.


Do HT, PD, and PC positions enjoy security of tenure?
o Yes.
o However, it is limited to specific period, coterminous with

organizations, like public school teachers.


Is there a prohibition against government officials issuing a mass
appointment before their terms expire?
o No. This is not covered by the midnight appointment ban,
which prohibits appointments two months before Presidential

appointing authority, or subject to appointing powers pleasure

Can they express views on political problems and issues,

elections. HOWEVER, the CSC may review these

(this is expiration of term and not removal)


Does transfer of permanent employee to another permanent

appointments, in keeping with goals of efficiency and

position without his consent violate security of tenure?


o Yes.
o Is a temporary transfer valid?

Yes

But it cannot be done as just a preliminary step

towards removal, a scheme to lure him away from


permanent position, or an indirect termination of

professionalism in civil service.


Other classifications under the CSL:
o 1. Career positions
o 2. Non career positions
What are the main characteristics of career positions?
o 1. Security of tenure

To which does security of tenure apply?

To the CES rank, not to the particular


position. So they may be transferred but not

service, or a means to force resignation.


There can be no security of tenure, when:
o 1. There was no valid appointment in the first place
o 2. The appointee did not possess qualifications required

Do temporary appointees enjoy security of tenure?


o No. They may be removed anytime even without cause.
Partisan Election activity:
o Does signing and filing certification of nomination within a

have their rank diminished


2. Position levels

E.O. 883 provided that lawyers occupying certain


positions in civil service automatically obtain a
certain rank in Career civil service. E.O. 2
declared all midnight appointments invalid. If you
were career civil service 2, and then due to EO

political party or organization violate ban on partisan

883, you obtained level 3, and you took your oath

election activity?

No. These are only internal acts that are not deemed

during election ban, do you lose your entire CS


position, or do you only lose the promotion?

to enable/ensure victory of a candidate in elections.

37

The palace seems to treat acceptance of

promotion during midnight period as ground

to lose the entire position in CS.

This is a case sub judice


What are the positions in Career Service?

1. Closed career positions

Ex. HT positions

2. Open career positions

Examinations

3. Career Executive Service

Ex. U-Secretaries, bureau directors, etc.

What is the rule under Memorandum

What is the nature of the oath/affirmation?


o Oath and affirmation to promote and defend this Constitution
What are the disqualifications?
o 1. Lame duck provision

No losing candidate in election, within 1 year of loss

What if they are qualified otherwise?

They are not allowed to be appointed


o

in any capacity to any public office or position

Ex. Gordon had to resign from being mayor before

Circular 21?
o Those already holding positions

once these were declared CES


o

remain under permanent status


But if promoted or transferred, they

being SBMA chair


Exception to this rule:

1. The VP may be appointed as member of

the Cabinet.

2. Member of Congress sits in the JBC.


3. Appointive officials: If otherwise allowed by law or primary

are temporary until they qualify for

functions, may hold another office or employment in

that higher position

government

Ex. Sec of Finance is ex officio chairman of Monetary

4. Career Officers

Ex. Those in foreign office and not belonging

to CES
5. AFP governed by separate merit system
6. GOCC personnel
7. Permanent labourers

Skilled, semi-skilled, unskilled


What is the characteristic of non-career positions?
o Minimal security of tenure
o Who are examples of those in non-career positions?

1. Elective officials and their confidential staff,

2. Holding positions at the pleasure of superior

3. With fixed terms of office (ex. CCs)

4. Contractual personnel and emergency/seasonal

nonetheless.
2. Elective official: NOT eligible for appointment or designation

Board
What is the exception?

There must be no incompatibility between


the positions (ex. PCGG Chair and Chief
Presidential Legal Council, because the

latter reviews the PCGG chairs acts)


4. No additional, double, or indirect compensation unless
specifically authorized by law

Double compensated for two positions

Addition one position, then given addition

Is this absolute?
No. It can be authorized by law.

Must there be a specific authorization?

personnel

38

No need. There can be a general

COMELEC

authorization.
Ex. SC justice who becomes examiner for

Composition

the Bar provided in general law


May an officer paid per diem be given bonuses?

No, because this is additional compensation.


A law authorizes money generated by a school to

be used for other programs or projects. Can this

include double or additional compensation?

No.
Can a retiree be given both separation pay and

retirement benefits?

No, unless a law allows this.


Does the prohibition cover pensions and

getting his pension. And then given


position in City of Manila and given
compensation. Must he give up his
pension?
o No. The pension was already

earned.
Then he can still get compensation

from the city position.


If he retires from the city position, in

member
o 4. Not lame duck
What must be decided in division:
o 1. Election cases and pre-proclamation contests
o 2. Petition to cancel certificate of candidacy
o 3. Appellate power over election cases coming from RTC or
MTC
What must be decided en banc:
o 1. MRs of decisions

So MRs of resolutions (non-substantive) can be

decided in division
Can the COMELEC en banc decide election
cases?
No. COMELEC en banc cannot decide

calculating his retirement pay, do you

election cases. Otherwise, null and void. It

count his judiciary position?


o No. He has already been
o

least ten years


Contrast: CSC provides proven capacity for
administration and COA requires CPA or Bar

gratuities?

No. These are allowed.

Judge retired from judiciary, he was

What is the composition?


o Chairman, 6 commissioners
Qualifications:
o 1. NBC
o 2. 35 y.o. upon appointment
o 3. College degree

Majority are members of Phil. Bar, practicing for at

compensated for that.


What about presents, emoluments, titles, or office of any

must be by division.
What if a case that must be filed to the COMELEC
en banc was erroneously filed to a division?
It may automatically be elevated to en banc,

kind from a foreign government?

May accept but only with the Consent of Congress

under COMELEC Rules of Procedure.

39

Is there simply re-consultation en banc or should

there be a rehearing?
There must be a rehearing, as required by

excluded?
o 1. Barangay federation
o 2. SK (under DILG)
o Are plebiscites popular elections?

Yes.

When does it have original jurisdiction?


o E,R,Q of all elective regional, provincial, city (R, P, C) officials
When does it have appellate jurisdiction?
o 1. Elective municipal officials decided by RTC
o 2. Elective barangay officials decided by MTC
o Do you have to go up to the RTC from the MTC?

No, you can go straight to the COMELEC from the

the COMELEC Rules of Procedure. Failure


o

to comply with this leads to GADALEJ


2. Other matters/admin functions

Who has jurisdiction on prosecution of election


law violators?
Its an administrative function, so it falls
within the jurisdiction of COMELEC en banc,

not division
Others: failure of elections, postponement of

elections, annulment of book of voters


3. Mere clerical correction of manifest errors in tabulation

Why can COMELEC en banc act upon these?


Because these are mere administrative

matters and not election cases


4. Promulgation of rules concerning pleadings and practice

before it
What can be raised to the Supreme Court?
o Only decisions of the COMELEC en banc, on certiorari AND

COMELEC must have exercised quasi-judicial or adjudicatory


o

MTC
What questions may be resolved by the COMELEC in its
appellate jurisdiction?

Questions of fact only.

For questions of law, go to the SC.


Who decides these appeals, the division or en banc?

Division. There can be an MR thereafter to reach


COMELEC en banc.
What is the special power of the COMELEC only when it
exercises appellate jurisdiction?

It has the power to issue writs of certiorari,

powers.
What if its exercising mere administrative powers?

Appeal is to the RTC (or the CSC, as the case may be

mandamus, quo warranto, and habeas corpus.


What is the period to appeal from court to COMELEC?

5 days (1993 COMELEC rules)


What is the status of COMELEC decisions on contests for elective
o

for personnel actions)

Constitutional Powers and Functions


Re: contests

COMELEC exercises powers over popular elections. What are thus

When COMELEC exercises jurisdiction over election contests,


what power is it exercising?
o Quasi-judicial power.

40

municipal and barangay offices?


o Final, executory, and not appealable
o But can be subject to certiorari (Rule 65)
What are the two kinds of jurisdiction the COMELEC may exercise?
o 1. Pre-proclamation controversies: administrative/quasi-judicial
o 2. Contests: judicial

Original in R,P,C

Appellate in M,B
Is there jurisdiction over intra-party disputes of political parties?
o Yes.
o May the COMELEC decide on questions of party

because prosecution of election offenses is

precedes the power to prosecute election

functions under Art IX-C, Sec. 2 (ascertainment of

solely by the COMELEC


Can Congress limit COMELECs power to
prosecute?

Yes, because the phrase where appropriate

leadership?

Yes, since it involves COMELECs performance of


partys identity and its legitimate officers)
BUT it cannot decide on the internal party matters

such as the change of its officers.


How does the COMELEC ascertain identity of the party

and its legitimate officers?

COMELEC need only turn to the Party Constitution.


Can the COMELEC issue writs?
o Yes. Can issue writs of prohibiton, certiorari, etc. Under BP

offenses
2. Helps judges determine in preliminary inquiry whether there
should be a warrant issued
3. Can deputize prosecutors from DOJ

When officers of DOJ are deputized by COMELEC,


what is the power of the COMELEC over them?

COMELEC has final say

If these deputized officials become guilty of


violation of law, COMELEC cannot discipline

697

them, but may only recommend to proper

May the COMELEC deputize the AFP or police?


o Yes, with concurrence of president
What is the prohibited period for registration of voters?
o 120 days before regular elections and 90 days before special
o

It must be by delegation of the COMELEC

jurisdiction of the Electoral Tribunal begin?


o COMELEC has exclusive jurisdiction over pre-proclamation

elections.
What if the COMELEC proves that registration cannot be

reasonably held within this period?

It may fix other periods or dates for registration.


What is the extent of the COMELECs power to prosecute election

offenses?
o 1. Conduct preliminary investigations and file information in
court

authorities
When does the jurisdiction of COMELEC end, and when does the

cases.
After proclamation, and after assumption of office, ET obtains

jurisdiction
How about party list representatives?
o If one party list nominee is challenged by another, it is a
o

CONTEST within the jurisdiction of the ET


But what is a contest?

SC retained its definition as essentially a quo

Investigation and prosecution does not involve

warranto case. If the one challenging the winner is

physical searching and gathering of proof


What if a public prosecutor acts?

contest.

not seeking the place of the winner, then there is no

41

Broad powers

board?
o Political parties cant be represented in election board,

Can the COMELEC determine questions on the right to vote?


o No, it DOES NOT have this power. Congress has the power to
determine who can vote. Inclusion and exclusion cases are

also filed in the MTC, appealable to the RTC.


Over whom does the COMELEC have power over in the media?
o Over holders of franchises only. There can be no resolution

against individual reporters from voicing out opinions on

election issues. Power is over media, and not practitioners of

media.

Can COMELEC reapportion legislative districts?


o No. This is Congresss power.
Can COMELEC declare failure of elections?
o Yes.
No pardon, amnesty, parole, suspension of sentence for violation of

recommendation of the COMELEC


o Relate this with Art. VII. This is where you first encountered
this.
Cannot compel media to give free time or print space; there must be

and military during this period.


When is election period?
o 90 days before Election Day and 30 days after.
N.B. Fiscal autonomy provision applies as well.

What is the composition of the COA?


o 1 chairman, 2 commissioners
Qualifications:
o 1. NBC
o 2. at least 35 y.o. on day of appointment
o 3. Either CPA with ten years auditing experience, or members
of Phil. Bar practicing law at least 10 years

Not same profession for all members

Compare: college degree and majority Bar members

some compensation.

for COMELEC, proven capacity for public admin for

Registration of parties

registration boards, or inspectors.


o But they can appoint observers.
Election period determines when some laws take effect
o For instance, COMELEC at this time has power over media

COA

election law can be granted by the President without favorable

What is the extent of participation of political parties in the election

Which political parties may not be registered?


o 1. Religious denominations
o 2. Seek to achieve goals through violent means
o 3. Refuse to uphold Constitution
o 4. Supported by foreign governments
Free and open party system
o Two party system before only top two parties has special

CSC
o 4. Not lame ducks
Important powers:
o 1. Examine and audit all government revenues
o 2. Examine and audit all government expenditures
o 3. Settle government accounts
o 4. Promulgate accounting and auditing rules

COA Circular 89-296 provides that there is failure


of bidding when there is only one offeror or all the

rights in election process. But there can be more than two.

42

offers do not comply with what is required. In a


bid, there were 3, but 2 were disqualified. Valid?

Yes. The more than one bidder

directly or indirectly, from or through the government, required

requirement does not distinguish w/n they

by law for the granting institution to submit such audit as

are qualified.
o 5. Decide admin cases involving expenditures of funds
What does COA determine re: expenditures (#2)?
o Whether these expenditures are unnecessary, irregular,
o

extravagant, or unconscionable
Can the COA overrule an entitys general counsel re: w/n

etc?

Yes
Can the COA invalidate a valid compromise agreement

GADALEJ.
When may the COA settle government accounts (#3)?
o When there controversy as to what is due and how much is
o

techniques is exclusive
Can COA decide money claims?
o Yes; it must decide based on law. But if a money claim is
the constitutionality of a law.
Can a law be passed exempting entities of Government or a GOCC
from jurisdiction of COA?
o No.

due
What kind of accounts may be settled?

Liquidated accounts only. This means that the sum

BILL OF RIGHTS

total can be determined by arithmetical calculations


A government truck bumps Xs car and X sues for

Private acts and the Bill of Rights

damages. Can the COA settle the account?

No. it is not liquidated yet.


Compare post-audit and pre-audit powers of COA:
o Pre-audit funds cannot be released without auditing
o Post-audit audit done only after funds are released
What positions are subjected only to post-audit?
o 1. Constitutional bodies, commissions, offices given fiscal
o
o

COA audit prevails.


2. Power to define the scope of its audit and establish

denied by a law, the COA has no authority to pass judgment on

over a civil suit entered into by a city?

No. Its a valid transaction. The COA committed

condition of subsidy or equity (this takes place of the pre-audit)


Distinguish between non-exclusive and exclusive powers:
o 1. Power to examine and audit is non-exclusive

Thus, there can be private auditors hired. But the


o

expenditures are irregular, unnecessary, unconscionable,

Whether there is original charter or none


4. Non-governmental entities receiving subsidy or equity,

Only regulates government action no application against acts of


private citizens (can resort to NCC)

Due Process

autonomy
2. Autonomous state colleges and universities
3. Other GOCCs and subsidiaries

What is due process?


o 1. No person deprived of life, liberty, or property without due
o

43

process of law.
2. No person denied of EPC.

What is life?
o Good life, health also protected
o Includes life of the unborn, upon conception
What is liberty?
o Freedom from outside constraint
o Is there a right to contact visits for detainees?

No, since there is a reasonable security concern


o

mandatory ripens into a vested property right that is

against escapes or smuggling.


Is there a right to bear arms?

No, except only for those authorized by law. Even the

there is due process. What is due process?


o Substantive DP against arbitrary laws
o Procedural DP for procedural fairness

Must publish not only laws but also EOs and PDs and

US provision only refers to right of militia to bear arms


Does the limitation on police officers through monitoring
logging in the time of departure and arrival violate this

provision?

No, there is no deprivation of liberty.


What is property?
o All property enumerated in NCC, including employment

Thus, cancellation of employment licenses of harbor

R&Rs issued pursuant to delegation by legislative


Due process affects inherent powers of government (PP, ED, tax)
Who exercises PP?
o 1. Police power is exercised by the Legislative dept.

Can be delegated to local governments

Local governments may regulate businesses,


but it may not affect licensing and regulation

pilots, for instance, requires notice and hearing


The State, however, may regulate professions,

of professions such as the optical profession,

callings, or businesses
What is the nature of business licenses?

They are mere privileges that may be withdrawn when

public interest requires.


But when licenses have been enjoyed for so long and

which is conferred to professional boards


Ex. Municipalities may provide burial
assistance to indigents as exercise of PP

been the subject of substantial investment and has

protected by DP clause
Is public office property?

No, but its a protected right if one is a de jure officer


What is the hierarchy of rights?
o Human rights enjoy primacy over property rights.
A person may be deprived of life, liberty, or property provided
o

of movement, escorting when they leave camp, and

Pension plans where employee participation is

(police power)
A law may close commercial blood banks or

prohibit gambling
Can there be a policy against a companys

become the source of employment of thousands, it

employees getting romantically involved with

can be deemed a property right


Likewise, franchises are property, but these are

employees of a competitor?

Valid if based on right to guard trade secrets,

subject to police power.


What about pension plans?

etc. but illegal when there is no necessity


EO requiring closure of bus terminals in the city: void
due to unreasonable means to carry out purpose

44

o
o

2. Police power is carried out by the Executive


Does the MMDA have power to exercise police power?

No. It is not a political subdivision, merely an

convincing evidence if he is flight risk or

executive authority without police power. Police power

there are humanitarian considerations


Does a student in a disciplinary case in school have right to

counsel?
o Yes, but no right to appear in the proceeding itself
In cases involving teachers where dismissal is involved, is the

teacher entitled to counsel?


o Yes.
A vague law is an invalid law. When is a law vague enough to be

is exercised in MM by cities and municipalities.


Procedural Due Process

What are the types of procedural due process?


o 1. Civil cases
o 2. Criminal cases
o 3. Administrative cases
o 4. Disciplinary cases in schools
Procedural DP in courts (whether civil or criminal):
o 1.Court has jurisdiction
o 2. Jurisdiction over the person or property
o 3. Defendant must be given opportunity to be heard

Either oral or written pleadings


o 4. Judgment based on evidence presented
What is the difference in quantum of proof required?
o Criminal: Proof beyond reasonable doubt
o Civil: Preponderance of evidence
o Administrative: Substantial evidence
Does an extradited person have right to evidence presented

invalid?
o It must be so vague that it cannot be understood. No amount
o

proceedings or be arrested, even


2. During judicial, yes

Judge determines w/n to dismiss petition or issue

of interpretation can make sense of it.


Is the plunder law void for vagueness?

No. In the Estrada case, SC held that the Plunder law


is not vague at all (series and combination can be

against him?
o 1. During executive phase, no

Is there right to bail here?

No, because he is not yet entitled to know


o

Judge must assess through clear and

warrant of arrest
Is there right to bail here?

Yes, there is deprivation of liberty.

understood in their ordinary meaning)


The law must be so vague that it cannot be clarified by a

saving clause or construction


Procedural DP in Administrative cases (Ang Tibay):
o 1. Right to hearing and submit evidence
o 2. Tribunal must consider the evidence
o 3. Need for evidence to support the decision
o 4. Substantial evidence
o 5. Decision rendered on evidence presented
o 6. Must act independently and not simply accept the views of a
subordinate
o 7. Explicate reasons behind the decision
What about Criminal cases?
o Infra Sec. 14 of Bill or Rights
o What is the nature of deportation proceedings?

Although deportation proceedings are not criminal in


nature, the consequences can be as serious as

45

criminal prosecution. Thus, criminal case provisions

in the ROC apply (Lao Gi v. CA)


Only entitled to evidence presented in trial, but not

half prices has no discernible relation to public health, safety, morals,

during investigation.
Are notice and hearing always required in administrative

Equal Protection

rates is a Q-J function that requires notice and hearing


(PHILCOMSAT v. Alcuaz); but there can be temporary setting
of rates provided there are hearings within 30 days (Radio
Comm. v. NTC)
Substantive Due Process

etc. (Balacuit v. CFI)


There can be no law banning sodomy inside the house. This intrudes
into private conduct (Lawrence v. Texas)

proceedings?
o No. If its quasi-judicial, its required. If quasi-legislative, no.
o Ex. The NTC requiring PHILCOMSAT to reduce its existing

A City Ordinance requiring movie houses to charge children from 7-12

When is a law valid substantively?


o 1. It must be for a valid purpose
o 2. The means employed must be reasonable
City of Manila v. Judge Laguio:
o There was an ordinance prohibiting videoke bars. SC said this

EPC does not prohibit classification. But it must satisfy four


grounds:
o 1. Substantial distinction
o 2. Germane to the purpose of the law
o 3. Not limited to existing conditions
o 4. Apply equally to all members of the same class
Is there substantial distinction between male and female?
o Yes.
o But you have to check whether it is germane to the purpose of
o

and female as to being bartenders. But now, it might not be

was unreasonable because it encompassed night clubs,


o

discos, dance halls, motels, inns, etc. which are not per se

distinction for benefits


Is there a valid distinction between appointed and elective

regulating motel short time on ground of privacy, because their

officials? (Ex. Appointive officials deemed resigned upon filing

right of privacy is not being violated


White Light Third party standing: if the client is not in the

COC while elective officials are not)


o Yes, you can make a distinction, because the elective officials
were chosen by the people. (Latest decision: Quinto v.

position to challenge based on privacy, then the motel

germane anymore.
ISA v. Quisumbing cannot make distinction between local
and foreign hire teachers as far as salary, but can make

offensive to morality
White Light v. City of Manila vis--vis Ermita-Malate:
o Ermita-Malate Hotel operators cannot challenge law

the law.
N.B.: before there was reasonable classification between male

operators can
Banning those reviewing for board exams from attending review classes

COMELEC Dec 2009)


There can be a distinction between businesses within the fenced in
area of the old American base and those outside, because the purpose

to avoid leakage is unreasonable and arbitrary (Lupangco v. CA)

46

of RA 7227 is to facilitate conversion of the former bases into an

Writ of amparo, habeas data

economic zone (Tiu v. CA)


Parreno v. COA: Law ordering discontinuance of pension of retired

military officer if he becomes a citizen of another country upholds EPC.


Serrano v. Gallant Maritime Service: Law that distinguishes between

dwelling?

No. See that property is not the third item in the

separation pay of overseas employees and other employees: invalid for

violating EPC.
British American Tobacco v. Camacho: distinctions made between
old cigarette manufacturers and new entrants
o In making distinctions on economic grounds, all that is required
o

is that there must be a reasonable basis


Here, the reasonable basis is ease in implementation of

collection of taxes
Can a law initially valid, become invalid based on EPC?
o Yes, based on developments of the law. This is the principle of
o
o

Relative unconstitutionality.
For instance, employees of GOCCs.
Central Bank Employees v. Bangko Sentral

There were laws amending charters of various

Searches and Seizures

given some restraints, but others were not.


Does the EPC prohibit the state from passing discriminatory laws?
o No.
Can make valid distinctions between City and Municipal Election

Officers of the COMELEC, who are not allowed to hold office in the
same city/municipality for more than 4 years, and other officials,

What is covered by this right?


o Right of persons to be secure against unreasonable search or
seizure
o What is just prohibited is unreasonable search or seizure
o Purpose: protect privacy of individuals
When is it unreasonable?
o In general, when without a warrant
o Except when under the three exceptions
o Is there presumption of regularity in search and seizure
cases?

There is NO presumption of regularity in search and

because the purpose is to avoid fomenting familiarity between


COMELEC officials and the people of the place of assignment (De

enumeration, but security


o Reyes v. CA: Does not cover right to travel.
Security is defined as freedom from fear/threat
Does WOA or WHD require proof beyond reasonable doubt?
o No. Petition must be supported by substantial evidence:

This is taken from totality of circumstances

And depending on evidence available to petitioner at


the time

GOCCs. Only Central Bank Employees were still

What is protected?
o 1) life, 2) liberty, 3) security
o Does not involve protection from threatened demolition of

Guzman v. COMELEC)
A law provides that police officers being investigated may be

seizure cases (Sony Music v. Judge)


N.B. in warrantless arrests under Environment Cases,
there is presumption of regularity (see Rem Law

preventively suspended beyond the usual 90 days valid because


police officers carry guns which may be used to intimidate witnesses

(Himagan v. P)

47

notes)
Are checkpoints illegal?

Not illegal per se, especially when there is grave peril or public

a deportation order that has

security is on the line. Routine inspection and a few questions


o

are fine.
BUT for thorough search to be justified there must be probable

arrest purely for investigative

cause. (In any case, there can be warrantless search of a

moving vehicle)
Does the BOR prohibit the violation of search and seizure clause
by private individuals?
o No. Bound by Art. 32 of the Civil Code, if private individuals
Essential requisites of valid warrant:
o 1. Must be issued upon probable cause

Not proof BRD

Need evidence to produce probable cause, and not

witnesses he may produce

What is required is personal DETERMINATION, not


examination by the judge. Usually, it is the

mere conclusions of law


Proof of probable cause must point to a specific

complainant and witnesses are insufficient to fulfill this


purpose. He must take the depositions in writing, so
the judge may properly determine probable cause

Tabujara v. P: There is GADALEJ when a


judge issues a warrant based merely on an

witnesses (the word personally modifies determine,


not examine)
The judge may rely on report of investigating authority,

and if he is satisfied, then he can issue the warrant.

investigating officer that does the examination


If the judge chooses to examine under oath the
complainant and witnesses, the affidavits of the

search warrants
2. Determined personally by a judge

Doesnt mean the judge must personally examine

purposes
2. Neither may the PCGG issue search

warrants.
3. Examination under oath of the complainant and the

offender for warrants of arrest, but no need if for


o

become final.
Cannot, however, issue a warrant of

But he must decide, not the investigating officer


If hes not satisfied, may ask for additional supporting

unsworn statement.
NOTE: for search warrants, the judge must personally

ask searching questions to the witnesses/applicant


4. Warrant must particularly describe the place to be searched
or person to be arrested

What is the standard?

As specific as the circumstances will

documents.
Who cannot issue warrants of warrants?

1. The Commissioner on Immigration

CANNOT issue warrants of arrest, since he

ordinarily allow
An undetermined amount of marijuana is
sufficiently particular, because technical

is not a judge.
o But he many order the arrest of an

precision is not required; otherwise, no

alien for the purpose of carrying out

48

warrant would issue (P v. Tee)


Is a John Doe warrant valid?

Yes, if there is description of person to be

arrested (descriptio personae)


A mere typographical error is excusable, especially
when the executing officer is the same affiant who had

prior knowledge of the place intended to be searched

(Burgos v. Chief of Staf)


Mistake in identification of the owner of the place is

territory
But for compelling reasons, it can be with any other court, but

there must be justifying reasons


What is the rule on examination of bank deposits?
o Usually these are protected. (See Commercial Law notes)
o But the bank deposits may be examined:

1. If depositor assents in writing

2. Needed in impeachment cases

3. When the subject matter is subject to litigation


Are drug tests allowed?
o American jurisprudence allowable in public schools
o In private schools: same reasoning may be used
o Requisites:

1. Not for criminal purposes

2. Under parens patriae duty of State

3. Need for it is established


o What about public employees in government offices?

Yes, same reasoning for public schools


o For candidates for national office?

NO. Because this is equivalent to adding to


o

proceeding
Goods seized must be returned, unless possession is

prohibited by law
Can third parties object on behalf of a person whose constitutional
right against unlawful search or seizure has been violated?
o No. Objection to an unlawful search or seizure is a purely

excusable if the place is properly described


Where to apply for warrant?
o Where there is a case already pending, with that court
o Where there is none, in the court with jurisdiction over the
o

Search or seizure without warrant or invalid warrant effects?


o Evidence obtained is inadmissible for any purpose, and in any

personal right and cannot be availed by third parties


Does an application for bail have effect of waiver of right to
challenge the validity of warrant?
o No.
Is ownership essential for right against unreasonable searches?
o No. The person to be searched need not own the place to be
searched. Control or possession is enough.

Warrantless searches
1. Search incidental to lawful arrest
o Requisites?

1. Contemporaneous to arrest

2. Only within vicinity, reach, control of the person


arresting (vicinity test)
Ex. So if the arrest is in the sala, you cannot enter the rooms
What is the test for vicinity?

Within immediate control of the person


2. Seizure in plain view
o When the officer enters the place accidentally and there is no
o
o

constitutional qualifications.
For candidates of local office?

NO. Unreasonable violation of privacy.

49

prior intent to get something.


Requisites?

1. Prior valid intrusion into the place

2. Evidence inadvertently discovered

3. Illegality of evidence immediately apparent

4. No further search needed

3. Search of moving vehicle


o What is the reason?

When you get a warrant, the vehicle would be gone


o Prior requirement?

The must be probable cause to believe that the

else like illegal drugs, this is still valid.


A mere suspicion or hunch will not validate a stop and frisk. A

the house
Requisites?

1. Right over property exists

2. Actual or constructive knowledge of the right

3. Intent to relinquish the right


Vergara v. P: Even when petitioner opens his bag when the

police officer.
What is special about this exception?

This is the only exception where probable cause need

not exist (P v. Aruta)


Compare Aminudin from Lo Ho Wing:
o Aminudin case here, the police officers had every opportunity
o

to get a search warrant, but didnt.


Lo Ho Wing case The police also knew in advance (2 days)
about the arrival of suspects with shabu but did not get a
warrant. They alighted from an airplane and passed through
customs, then allowed to get into a taxi. The vehicle was

police asks to see its contents, it does not necessarily follow

stopped and searched. Moving vehicle exception applied.


May a Fishing vessel violating fishery law be seized without a
warrant?
o (1) it is usually equipped with powerful motors moving vehicle
o (2) it is incidental to valid arrest

that he waived his rights. It might have been mere passive


o

Generally, this rule is for weapons. But if he finds something

genuine reason must exist based on the experience of the

vehicle is involved in illegal activity

The police officer decides this


4. Waiver (consented warrantless search)
o Ex. Feel free, look into my house
o Who must give consent?

The person giving consent must have authority over


o

conformity out of fear.


In Lopez v. Commissioner, the consent to search was given by
a mere manicurist. I dont think this case is doctrinal, because

Warrantless arrest

the officers thought that the manicurist was the wife. Had they
known she was a mere manicurist, I dont think they would ask

1. In flagrante delicto
o Distinguish between entrapment (allowed) vs. inducement (not)
o Continuing offenses can be arrested without warrant
2. An offense has been committed and he has personal knowledge that

her to give consent to search.


5. Customs search or seizure
o This happens in airports, etc.
o Situations where you do not have expectation of privacy
6. Exigent circumstances or emergency situations
o Ex. Coup attempt, where rebels go in and out of buildings
7. Stop and frisk rule
o Terry v. Ohio If a police officer of experience sees a person

the person indeed committed the offense


o The offense IN FACT must have been committed, not just

behaving in a manner which he thinks might be harmful, he can


approach the person, identify himself, and frisk the person

reasonable belief on the part of the officer


The officer must have personal knowledge of the commission

of the crime
Passage of 19 hours will militate against the crime being just
committed (People v. Manlulu)

50

3. Escaping from place where he is serving final judgment or temporary

confinement, or during transfer from one place of confinement to

another place
[4. Waiver can be considered as #4 exception]
o NOTE: posting bail is not a waiver to question validity of arrest
When must objection to the arrest be made?
o Any objection to the arrest must be interposed before one

enters his plea in arraignment otherwise, the objection is


deemed waived
Privacy of Communication and Correspondence

Privacy of communication and correspondence: generally inviolable


Exception:
o 1. Lawful order of court
o 2. When public safety or order requires otherwise (as

What are protected in this right?


o 1. Freedom of speech or expression
o 2. Freedom to peaceably assemble to demand redress from
government
What is speech?
o Any form of communication
Distinguish:
o 1. Content-neutral regulation

Merely concerns time, place, manner of speech


without reference to what the speech contains

This is more easily allowed


o 2. Regulation that aims at the content of the speech
If the speech is directed towards content, apply two main rules:
o 1. No prior restraint

Where a person is prevented from speaking or


communicating if without authorization from

prescribed by law)

This is without judicial order. So there can be

discretion by executive officers.

But they need prior authorization from the president.

This power is subject to judicial review.


What if there is violation of this right?
o Renders the evidence inadmissible
RA 4200 Anti-Wiretapping Law
o Crimes where there can be court-authorized taps

Treason, espionage, provoking war and disloyalty in

by executive officer, movie censorship, judicial prior


restraint (injunction), license taxes measured by gross
receipts for privilege of engaging in advertising
o

business, or flat license fees to sell religious books


2. No subsequent punishment

Prior restraint

case of war, piracy, mutiny, rebellion, conspiracy and

proposal to commit rebellion, inciting rebellion,

Constitution allows COMELEC to regulate speech during election period


o Even if there is prior restraint exercised by COMELEC in
election period, there is no presumption of unconstitutionality

Basis: Art. IX(C)(4) of Constitution giving COMELEC

sedition, conspiracy to commit sedition, inciting to


o

government
Usual examples: censorship, licensing administered

sedition, kidnapping
N.B. these are mostly crimes against law of nations and
crimes against public order + kidnapping

power to regulate election-related speech


But prohibiting placing of campaign decals on private cars is
overbroad, and thus invalid prohibition (Adiong v. COMELEC)

Freedom of Expression

51

Banning the publishing of survey results is also overbroad

because it does not meet the OBrien test, since it suppresses

and religious speech. Commercial speech does not enjoy

one type of expression while allowing others like editorials


o

(SWS v. COMELEC)
Cannot prohibit columnists from using their columns or

programs to campaign against or for a plebiscite choice, since

the authority given by the Constitution is over holders of


franchises and to give candidates equal opportunity and equal
access to media not restrain free discussion. (Sanidad v.

COMELEC)
Can exit polls and surveys be prevented?
o No. Prevention of this is prior restraint
o Cannot ban exit polls because the evils envisioned are merely

showing of a movie. He has to go to court


Phil. jurisprudence: we dont follow this rule. The censorship

board may restrain the showing of a movie


MTRCB has power to review both religious shows like the INC

Subsequent punishment

What are three tests to determine whether speech may be


punished?
o 1. Dangerous tendency test

Here, all that was required was a logical relation


between the prohibition and the object of the

like The Inside Story (MTRCB v. ABS-CBN)


May live TV coverage of a criminal trial be prohibited?
o Yes. Reason: to maintain the fairness of the proceedings
Are there situations where prior restraint may be allowed?
o Yes. For exigent circumstances.

Ex. Attempted coup radio stations may be prevented

illegal transaction

2. Government has a substantial interest to protect

3. Regulation directly advances the interest

4. Not more extensive than necessary


Best example advertisement of artificial milk. There was a
this was deemed too broad, thus failing requisite #4.

program, as well as public affairs and documentary programs

same protection.
Is commercial speech protected?

Yes.
Conditions for regulation: (Central Hudson Gas v. PSC)

1. Speech must be truthful and should not propose an

total prohibition. While this fulfilled the first three requisites,

speculative (ABS CBN v. COMELEC)


Is movie censorship allowed?
o US jurisprudence: an administrative officer cannot prevent the
o

Speech that has greatest protection is core speech: political

from broadcasting the movements


Ex. Recent hostage taking could have restrained

broadcast
What is the rule for Commercial speech?
o Definition: speech that proposes commercial transaction.

prohibition. This is the early accepted standard.


Ex. Cut of G.G. Woods head! or Tuloy ang welga

hanggang sa magkagulo na!


2. Clear and present danger

Immediately resulting into danger

Speech may still be punished even if the evil that is


contemplated does not happen
3. Balancing of interests

Ex. Electoral process v. freedom of speech

Ex. RA 4880 prohibiting too early nomination of


candidates and limiting period of political activity. This

52

promotes the preservation of the political process and


o

prevents its debasement.


So what applies?

For sedition cases, it seems dangerous tendency is

right to know
ii. When the object of the defamatory

it was false or with reckless


disregard to veracity
How far down do you go?

Barangay official
Iii. Fair commentary on public matters
o

1. Within constitutional power of government


2. Furthers government interest unrelated to suppression of

B. Obscenity
o Its very difficult to find something obscene
o Miller v. California test:

1. Average persons perspective

2. Take the work as a whole

3. Appeals to prurient interest

4. Lacks serious political, literary, or artistic value


o Do you use national standard or local standard to

freedom of expression cases


Not every form of speech is protected. There are two forms not

protected:
o 1. Libel
o 2. Obscenity
A. Libel
o A) Allegation of a defect
o B) Publication

There is publication when it has been written, and

determine what an average person is?

In Philippines, there seems to be no difference


o
o

then made known to someone other than the person


to whom it has been written
C) Identity of the person
D) Malice

If there is no malice, there is no libel

But every defamatory imputation is PRESUMED to be

prove actual malice: one must know

speech
o 3. No greater than what is needed
When can there be a facial challenge?
o Over-breadth of a prohibition is a constantly recurring test.
o Over-breadth, leading to a facial challenge, only applies to

o
o

i. Private communication to someone with a

imputation is a public officer.


o The person suing for libel must

still applicable
But with the restoration of democracy, CPD is coming

into favor
When can non-verbal or symbolic speech be regulated? (OBrien
test)
o
o

anyway.
Stricter rules on television, radio, and speech in schools
What is Relative obscenity?

Ang Dating Daan case obscene to certain people.

Basis: there are still children watching when the show


is on
May sex on the internet be banned?

No law banning sex on the internet has ever been

malicious, even if it is true


Exceptions:

53

upheld.
You can protect children another way and adults have

a right to look at sex


What is the hecklers veto?

When speech by an acting party is banned not because of

what they are saying but due to the potential reaction of the
o

reacting party
Is this ground to ban speech?

No, unless there is CPD

Non-establishment of religion

Right to assemble in order to petition

What standards are used?


o Use the same standards in freedom of speech and press for
assembly and petition, since the right to assembly and petition
o

is equally important
Assembly and petition may be punished when it presents CPD

o
o

Decision must be based on CPD.


3. It must be made early enough so you have time to go to

What the State cannot do:


o Set up a church, pass laws that aid one religion or all religions,
or prefer one religion over another
o It cannot participate in affairs of religious organizations
Does this mean the State cannot do anything that would have the
effect of favoring a particular religion?
o No. If the primary purpose is not religious but there is

of a substantive evil
JBL Reyes v. Bagatsing and BP 880:
o 1. To rally, you need a permit. The application must be early
enough to give authorities chance to decide.
2. The authorities must decide whether to allow or not.

N.B. The first sentence of the provision is complete already


What are the two prohibitions?
o 1. Establishment of religion

Ex. Making an official religion of a State


o 2. Violation of free exercise of religion

incidental effect of benefiting a particular religion, it is allowed.


What are required for it to be valid?
o 1. It must have secular purpose;

State sponsored Bible readings are invalid (School


o

court to question it.


What is the extent of discretion of authorities?
o Authorities have reasonable discretion to determine or specify

District v. Schempp)
2. Primary effect neither advances or inhibits religion;

Aglipay church objected to stamps that advertised the


Eucharistic congress. HELD: The stamps were valid.
It was for tourism. Benefit to Catholic Church is

streets or public places to be used, to secure convenient use

by others and maintain public safety/order


When is there no need for a permit?
o No need for a permit if in a freedom park.
Is Calibrated preemptive response (CPR) valid?
o No. It cannot replace maximum tolerance.
Strikers placards are protected by guarantee of free speech. Words

incidental.
Money used to purchase religious statute. HELD: it
was valid since private funds of the municipality were
used. Also, a fiesta is not a religious affair but a
socio-religious affair which is an ingrained tradition in

used cannot be expected to be polite. (PCIB v. Philnabank)

Freedom of Religion

rural communities.
3. No excessive entanglement with recipient institutions

Lending secular textbooks to parochial school kids is


allowed (Board of Education v. Allen) but not when

54

there is close government supervision since there is

excessive entanglement (Lemon v. Kurtzman)


State has no business intervening in purely ecclesiastical affairs.
o Matter can be decided by internal rules of the church
o A case involving a minister who failed to account for funds and

was dismissed is not an ecclesiastical affair since it did not


involve doctrines or religious teachings (Austria v. NLRC)
Excommunication is a purely ecclesiastical affair
Certifying food as halal can the government do this?

No. Its just the religion that can do this.


Other Consti provisions expressing non-establishment:
o 1. Art VI, Sec 29 no public money/property given to religious
o
o

o Right to believe this is absolute


o Right to externalize ones belief is not.
Will it be proper for public officers to make derogatory remarks
towards religion?
o No.
Is requiring permit for selling religious items valid?
o It depends.
o Ex. Selling books for profit may require permit
o Ex. Selling books without profit and only for apostolic work
may not require permit

Ex. American Bible Society selling bibles not for


profit. Cannot be taxed (else this is a prevention of

sect or minister/religious personnel (except for those assigned


to Army, penal institution, government orphanage or
o
o

VAT are allowed, since it is not imposed on the exercise of a

leprosarium)
2. Art II, Sec6 Separation of church and State is inviolable
3. Art IX(C), Sec 2(5) No religious sects can be registered as

privilege, but a mere operation fee and it is so incidental to the


exercise of religious freedom that its impossible to differentiate

political parties
Constitutional exceptions to non-establishment clause:
o 1. Art VI, Sec. 28(3) charitable institutions, churches, etc and

it from other economic impositions (Tolentino v. Sec of


o

all lands, buildings, improvements A,D,E used for religious,

charitable, or educational purposes exempt from taxation


2. Art VI, Sec. 1(2) [Cited above: the Armed Forces, penal

institution, government orphanage or leprosarium]


3. Arv XIV, Sec 3(3) At the option in writing of parents or
guardians, religion can be taught in public elementary and HS

Finance)
Likewise, a State may impose regulations on solicitations for

religious purposes to protect the public


Ang Ladlad case you cannot use belief as basis to disqualify
homosexuals
Estrada v. Escritor (2003, reaffirmed 2006) benevolent neutrality
o Lady clerk of court living with someone else without marriage.
There was an effort to dismiss her as clerk. Court found that

within regular class hours


4. Art XIV, Sec 4(2) usually there is citizenship requirement

her belief was sincere that it was fine, she had blessing of
pastor. Court did not disturb the relationship, because there

for ownership of educational institutions (60%), but not for


those established by religious groups and mission boards

Free exercise of religion

dissemination)
But a general administrative fee like registration fees for the

was no harm.
What is benevolent neutrality?

Morality based on religion can be accommodated as

Differentiate right to believe from right to externalize ones belief:

55

long as it does not offend compelling State interest


Must prove sincerity of belief

Examples of religion as basis to exempt person from compliance

with certain laws:


o Exempted from compliance with the Flag Law (Ebralinag v.
o

Division Superintendent)
Exemption from compulsory education based on religious

(Wisconsin v. Yoder)
But religion cannot be an excuse to violate narcotics laws, such
as in the case of those who ingested sacramental peyote
(Employment Division v. Smith)

What is Liberty of abode?


o Freedom to choose where you want to live
o It cannot be impaired except upon lawful order of court
What about right to travel?
o Can be impaired even without lawful order of court
o For what reasons?

1. National interest

2. Public security

3. Public health
o And how is it impaired?

As provided by law.

But it can also be impaired through lawful order of

list seat nominees


Contract negotiations: May PCGG be compelled to reveal contents
of a compromise agreement?
o It depends. Distinguish between soft proposals and firm

Right to Information

spectrum of subject
What is the remedy when a government agency or court refuses to

it to you, the remedy is mandamus

Ex. Refusal of COMELEC to reveal names of Party-

court

no injury to the feelings, etc of a juridical entity.


What does this right cover?
o Matters of public concern
o Jurisprudence lacks very precise definition. It embraces broad

disclose records?
o If you are seeking information, and government refuses to give

Liberty of Abode and Freedom of Movement

this right
As a corollary, who may invoke the right to privacy?
o Right to privacy may only be invoked by the individual involved
and not the government agency compelled, because there is

grounds, since their sect has a system of informal education


o

Everyone has right and standing to challenge any violation of

proposals:
A. If there is no firm proposal yet, there is no right to be

informed
B. If there is a firm proposal, even when there is no contract

yet, you have a right to know


What about information regarding negotiations for treaties and

executive agreements prior to conclusion of the agreement?


o These is privileged information according to Senate v. Ermita.
What is this rights relationship to publication of laws and

Two rights:
o 1. Right to information on matters of public concern
o 2. The corollary right of access to official records and

regulations?
o Laws and regulations affecting the public are non-binding
unless published, intended to make full disclosure and proper

documents
To whom does the right belong to?
o ALL citizens of the Philippines

56

notice to people.
Is there a right to access court records?

o
o
o
o

It depends. Distinguish between decisions and opinions of the

court vis--vis pleadings filed by parties.


Decisions and opinions are public concern.
W/N pleadings may be accessed is left to the courts discretion

Because these need not be of public concern


What is the limitation in access to court records?

When the purpose of the examination is unlawful or

o Yes, since it is a valid form of union security. (Villar v. Inciong)


Prohibiting managerial employees from forming unions is valid because
the legal prohibition has a valid purpose (ensuring freedom of unions)
(United Pepsi Cola v. Laguesma)

Eminent domain

sheer, idle curiosity


What does the right to information not cover?
o 1. National security info
o 2. Trade secrets
o 3. Information with respect to criminal prosecution that may

jeopardize criminal process


o 4. Privileged information
Does this include a right over a summary of the information?
o No. An office who gave you information has no obligation to

What is the concept of eminent domain?


o Private property shall not be taken for public use without just
compensation
Can the government take public property?
o No need. It already owns these.
Who possesses power of eminent domain?
o Inherently possessed by the State. Exercised by the National
o

Government.
By delegation, it can be possessed by local governments, other

public entities, and public utilities.


By implication, can the executive limit the right of eminent

give a summary of this information (Valmonte v. Belmonte)


Right to association

domain?

No. The power of eminent domain cannot be limited

What is the limit to the right to associate?


o The group must not be contrary to law really means for

by an EO. The guidelines provided by an EO cannot


be considered as conditions precedent for eminent

purposes not contrary to due process


o So this right may be abridged but in accordance to due process
What is the test for w/n the rights of the union may be abridged?
o Depends on the kind of union or association
o Apply hierarchy of rights:

If a union/organization is for the purpose of

propagating preferred rights (freedom of religion or

speech) apply CPD test

If for property rights apply reasonableness test only


What is the rule for government employees?
o Government employees have right to form unions but right to

domain. (Republic v. Juan)


Elements of exercise of power of eminent domain?
o 1) taking of private property
o 2) for public use
o 3) just compensation
What court has jurisdiction?
o Always the RTC (because value of the property is only
incidental for just compensation, not jurisdictional)

Taking

strike may be limited


Is a closed-shop agreement legal?

57

When is there taking?

o
o

1. Expropriator must enter or take possession of the property


2. Entry must not be for a momentary period; must be

o
o

permanent
3. Entry must be under warrant or color of legal authority
4. The owner is deprived of ownership or permanent use of the

property.
Is a right of way taking?
o Yes, it is equivalent to taking, when it has effect of depriving
o

What is public use?


o 1. Something that is open to the public.
o 2. Something for public benefit, then it is already taking.
o Similar to public welfare in PP.
o Ex. Socialized housing is public use.
What if the expropriating authority instead sells the property to a

private person?
o Violation of property right.
What are the rules upon abandonment of real property condemned

owner of his property.


Ex. Right of way through installation of transmission lines over

for public purpose:


o 1. Owner has right to recover it.
o 2. Recovery is through payment of value by which he was paid

the property is expropriation through easement.


What if entry is with permission given by the owners?
o If entry is with permission by the owners, this is not yet taking.

Usually, expropriation would have to follow. (Garcia v. CA)


Distinguish taking in eminent domain from police power?
o Police power regulate or destroy property
o Eminent domain transfer of ownership
o Thus, when government decides to destroy noxious property

specified in the petition. If used for another purpose, then it is violation

like trees infested by pests with communicable diseases. The


o

to make it into a historical landmark is also public use


(Manosca v. CA)
Just compensation

public use. (Government v. Ericta)


When municipal property is taken by the State, when is there

compensation?
o Compensation needed if it is patrimonial property of the

municipality, acquired with private funds in its corporate or


o

of the constitutional right.


Cases on w/n there is public purpose:
o Tourism is a public purpose (Ardona v. Reyes)
o Expropriation of the birth place of Felix Manalo, founder of INC,

government may destroy these trees, and there is no taking.


Requiring cemeteries to give 6% of land area to paupers:
expropriation because there is taking of private property for

by the government. (Repurchase)


Public use also requires that the expropriator use it for purposes

private capacity.
No compensation needed for public buildings or legua

What is just compensation?


o Remedying the loss suffered by the owner
What is the measure?
o Measure is the LOSS of the owner, not the GAIN of the
o

communal held by the municipality in trust for inhabitants.


What can be taken?
o Anything except money and choses in action.

expropriator
Usually means market value. This means the value of the
property will command in the free market, if the owner is not

bound to sell and the expropriator is not bound to buy.


Generally: market value + consequential damages
consequential benefits = just compensation

Public use

58

If there is failure to pay just compensation, can the owner file a

case to recover possession?


o No, he can just demand payment of just compensation

the compensation to the contractor, instead of deposit under


Rule 67. Puno and Carpio dissented, saying that this is an

because the first stage of the hearing (taking) is already over


o

and settled.
What is the exception?

When government fails to pay just compensation

undue amendment of the ROC.


In terms of time, when is the value of the property to be
calculated?
o General rule: what determines just compensation is the value

within 5 years of finality of judgment of expropriation,

of the property at the time of the filing of the petition

But this is normally because the filing of the petition

the owner can file for recovery of possession. (RP v.

Lim)
When is there right to repurchase or re-acquire property?
o Owners right to repurchase the property depends on the title

the expropriation by government (ex. It was

condition that when the purpose is ended, the property shall

developed), just compensation is value of property at

revert to the owner, then the owner can re-acquire the property.
When eminent domain is exercised, who is entitled to

compensated for loss of value


This other person who is not an owner but has an

get his just share (De Knecht v. CA)

Can the Executive provide for laws that


establish formulae in determining just
compensation?
o

the time of the taking + legal interest


If the increase of the value of the property went up
independently of the expropriation, just compensation

interest in the property may intervene in the action to

is based on the time of the filing of the petition


o What if its a Local Government Unit (RA 7160) taking?

Value at the time of actual taking


Does it earn interest?
o Yes, at 6% because its not a forebearance or loan
o But its 12% if it is interest due to delays, which is tantamount
to damages forebearance of money
The concept of just compensation includes promptness in the payment.
If there is long delay in the payment, then what is due to the owner may

No. PDs issued that provide for a formula in determining just


compensation are all void for encroaching on judicial

and the taking has a short interval


But what if property is entered into prior to filing the petition?

If the increase of the value of the property is due to

acquired by the expropriator. For example, if there is a

compensation?
o 1. The owner
o 2. Those whose property rights may have been violated

Ex. Upon taking, the lessee of a property can also be

In this case, the SC said that there must be direct payment of

prerogatives (EPZA v. Dulay)


Construction of NAIA 3 was already complete when it was deemed

be more.
How is the value of the property measured?
o Commissioners are appointed by court to determine.
X, a landowner, challenges the valuation of his property. Can he
withdraw the money deposited as just compensation in the
meantime?

contrary to law and PP. When government took it from the contractor, it
still needed to pay just compensation (Republic v., Judge Gingoyon)

59

a long time without compensation.


Must compensation be in money?
o No. Can be in government bonds, as long as equivalent to the
o

Yes. Otherwise, he would be unjustly deprived of property for

value of the property.


Can be, for instance, in the form of Land Bank notes.

o No. You cannot substitute expropriation for a valid contract.


Who possesses power of eminent domain?
o National government, through legislature.
o But executive carries it out.
o It may be delegated to local government or public corporations.
But what they possess is not eminent domain but their power is
inferior domain.

What is needed is not a mere resolution but an

(Maddumba v. GSIS)
Is power of eminent domain subject to judicial review?
o Yes.
o Courts may review:

1. Adequacy of compensation

2. Whether taking was for public use

3. Necessity of the taking (new)

This is where the controversial De Knecht

ordinance.
Eminent domain by local government:
o REQUISITES:

1. Ordinance enacted by local legislative council


authorizing local chief executive to exercise eminent

ruling comes in, where the Court substituted

its judgment for the legislatives, by stating


that path #1 would only affect motels and
o

path #2 would displace a lot of residences.


What property is subject to be taken is not subject to judicial

review.
What about res judicata? Ex. Government went to court to expropriate

a property and it was rejected because the use was not for public use.

owner of property, but it was not accepted


Cannot expropriate on the strength of a sanggunian resolution
alone (Suguitan v. Mandaluyong). It must be an ordinance.
LIMITS on local government power of expropriation:

1. Must follow order of priority in acquiring land for


socialized housing. Private lands rank last in the order

Can the government attempt to expropriate it again?


o Yes. The public use may change.
o Government is not precluded from attempting to expropriate

of priority.

Also, for socialized housing, cannot

again property that it failed to successfully expropriate before.

But res judicata applies in so far as it cannot raise the same

expropriate small property owners lands


2. Resort to expropriation: Can only be done after
OTHER modes of acquisition exhausted

issues in a prior infirm expropriation in another court


proceeding. It should just correct the infirmity. (Paranaque v.

domain
2. Exercised for public use, purpose or welfare
3. Just compensation
4. Valid and definite offer previously made to the

Contract clause (non-impairment)

VM Realty)
Government entered into contract to buy property. The price turned out

to be too high. Can the government expropriate the property


instead?

60

What is the contract clause?


o No law shall be passed that impairs contracts
Who is limited by this right?

This is a limitation to the legislative department, not the

judiciary
When is there impairment?
o There is impairment when the terms of the contract are

not be denied to a person due to poverty


Rights of Suspects

changed as between the parties to the contract


La Insular v. Machuca: A and B had a contract of sale of cigars. A law

is passed imposing sales tax on the seller. Was there impairment?


o HELD: No impairment because it does not change the
obligations of seller to buyer; it just establishes a new

obligation to a new party (i.e. the government)


Co v. PNB: Imposing stricter redemption rules on foreclosed property.

Was there impairment?


o Yes, this would impair contracts.
Manila Trading v. Reyes: Mere change in procedural remedies does

not impair.
The sanctity of contracts and franchises are subject to police power.
o Chavez v. COMELEC: Ex. Removal of billboard of a
power exercised by government is to protect the sanctity of

elections. No impairment.
A corporation owes money to a lot of people. It applies for a
rehabilitation plan. The rehabilitation plan is submitted to court.
o If the plan only results to postponement of payment, there is no
o

In sum: Miranda Rights


Who has rights under this section?
o 1. Those under criminal investigation, not administrative
o 2. And they must be under the custody of the law

This has been modified by statute: If a person has


been invited by the police, even if not under the

commercial endorser who ran for public office. The police

Free access to courts, QJ bodies, and adequate legal assistance shall

custody they are already protected by this section/


What are his rights?
o 1. Right to be silent
o 2. Right to counsel, preferably of own choice

If he cannot afford counsel, he will be given one


o 3. Right to be informed of his rights
o 4. No torture, CIDT, incommunicado, or other similar detention
conditions
Can these rights be waived?
o These rights cannot be waived, except in writing and in
o

violation of obligation of contracts


If the plan changes relationship between company and its

creditors, there is violation of obligation of contracts


Kuwait Airways v. PAL
o Sold to private owner. The governments contracts do not bind
the new owner.
May a license be impaired or changed?
o Yes. It is a mere privilege.
o This same principle applies to timber licenses and franchises.

presence of counsel
What if the person in custody said that he did not need a

lawyer and he will tell the truth?

There can still be no waiver without counsel.


P v. Gamboa: Constitutional protections only apply to testimonial

compulsion, but not object evidence, such as paraffin tests.


What about re-enactments?
o These rights cover re-enactments of crimes, which are

communicative in nature.
Who and what are not covered by this protection?
o 1. One who voluntarily presented himself to the police to
surrender

Legal assistance and free access to courts

61

2. One who made spontaneous admissions without questioning

or coercion
When did these rights take effect in the Philippines?
o Jan. 17, 1973 when the 1973 Constitution took effect,

inspired by the Miranda case


Can officers invoke presumption of regularity?
o No. There is no presumption of regularity in the performance of

official functions here.


Is a person in a police line-up entitled to counsel?
o No, he is not yet under investigation. He must be singled out

first.
When do Sec. 12 rights begin to apply?
o When investigation is not anymore a general inquiry into crime,

the person under custody did not raise any objection, it is

but has begun to focus on a particular suspect, and he has

been taken into police custody


When do Sec. 12 rights end?
o Upon filing of criminal case in court or in prosecutors office,

because custodial investigation has ended. Upon this time,

Sec. 14 will start to apply.


A person talks to a mayor. Is he entitled to these rights?
o It depends. If he approached the mayor as spiritual

deemed to be of his own choice.


What are examples of non-independent counsels?
o Municipal attorney
o Barangay captain
o Counsel of police
o Test: is the interest of the lawyer serving the government?

If yes, then he is not independent.

The interest of the lawyer must be to protect the


person under investigation.
What is the legal effect of violation?
o Inadmissible as confession against the person
o Also inadmissible against others

Exception: interlocking confession


o P v. Lucero: Counsel must be there from first moment and all
o

counsellor then this is not covered. If he approached the


o

o In a manner understandable to him.


Who is a competent and independent counsel:
o Competent member of Bar
o Independent free from government pressure
o P v. Mojello: If counsel is assigned by the investigators and

throughout.
P v. Marcos: But statement in open court that a confession
given without counsel was voluntarily signed CURES the

mayor as an official, then covered.


Similarly, making an admission during procedure where a

person is pleading to be a state witness: admissible


A suspect signed booking sheets. Is this a confession?
o No, its just a record of the fact of arrest and its circumstances,

infirmity.
Aballe v. P: A knife with blood was found due to an
uncounseled EJ confession. This knife, even if it is object
evidence, is inadmissible because it is the fruit of an invalid

and not a confession that he committed the suspected offense.


What about a person interviewed on television?
o Admissible, since it is not an investigation.
An admission to a bantay-bayan?
o He is considered a public official and this provision applies.
Right to be informed of his rights how must a person be

informed?

62

interrogation.
Difference between admission and confession?
o Confession acknowledging that you have committed a crime
o Admission admitted having performed some act; not
necessarily criminal, but may be connected
Requisites of a valid EJ confession?
o 1. Voluntary

2. Made with assistance of independent and competent

counsel
o 3. Confession is express
o 4. Confession is in writing
o 5. Signed or thumb marked by confessant
Tantamount to confessions without counsel:
o P v. Galit: Signing receipt of seized property
o P v. Bagano: Asked to affix signature on marijuana bags

Rights of the accused

Bail

Who are entitled to bail


o All persons
o Except those charged with offenses punishable by RP when
o

evidence of guilt is strong, are entitled to bail


N.B. You only lose right to bail if the evidence of guilt is strong

(for life and RP). Thus, loss of right to bail is NOT automatic.
What if you are charged with crime punishable by life

jurisprudence)
What are the duties of trial judge upon application of bail (by one

RP/life/death
When must bail be denied?
o 1. Capital offense
o 2. Before conviction in RTC, when offense is punishable by
RP/life and evidence of guilt is strong
3. After conviction in RTC, when offense is punishable by

RP/life/death
Does the suspension of the privilege of WHC prevent a person
from filing bail?
o No. It is not suspended.

to adduce evidence in opposition of application for

Criminal due process

bail, the court may ask questions to the prosecution to


o

RP/life
3. Before conviction in RTC, when offense is punishable by

RP/life but evidence of guilt is not strong


When is it discretionary?
o 1. After conviction in RTC of an offense not punishable by

not automatically entitled to it)?


o 1. He must notify the prosecution
o 2. He must decide whether evidence of guilt is strong

Tolentino v. Camanao: When the prosecutor refuses

bail because it is under discretion of executive.


BUT later decisions recognize the right to bail even in

extradition cases, when the risk of flight is not likely.


What is the rule on amount of bail?
o Cannot require excessive bail this is practically denying bail
When is bail a matter of right?
o 1. Before or after conviction in MTC
o 2. Before conviction in RTC, when offense not punishable by
o

imprisonment?
o Right to bail is withheld as well (as established by

When is there right to bail?


o You need to be in custody to have right to bail
Is there bail in Extradition cases?
o Extradition cases are not criminal cases, so there is no right to

ascertain strength of the evidence.


3. If the evidence of guilt is not strong, the accused has right to
bail. If evidence of guilt is strong, judge has discretion to give

Refers to substantive and procedural due process


Military tribunals: usually not reviewed by SC

Presumption of innocence

bail still.

63

What is the effect of this presumption?


o No one can be convicted unless there is proof of guilt BRD
It is possible for the state to shift burden of proof to defendant, when

precise so that there is no doubt that whatever happens has

there is prima facie evidence of guilt.


o E.g. when one is in possession of a stolen carabao, there is a
o

logical conclusion that he stole the carabao


E.g. Accountable public officer unable to account for money

assigned to him
When does presumption of innocence end?
o It ends when acquittal is already final.
o When the case is on appeal, does the accused still enjoy
presumption of innocence?

Yes
What is the equipoise rule?
o When there is even balance in the evidence adduced by both

sides, the presumption tilts decision in favour of the accused


Can circumstantial evidence prevail over presumption of

from which the inferences are drawn are proven, c) the


combination can produce a conviction beyond reasonable
doubt
Right to be heard
Right to be heard involves several components:
o 1. Right to be present at trial
o 2. To counsel
o 3. To impartial judge
o 4. Confrontation
o 5. Compulsory process

What is required for counsel?


o Counsel must be qualified: member of the Bar
o If after ones conviction, you find out that the counsel is not a

member of the Bar, that nullifies the conviction


What is the duty of the judge if a person appears without counsel?
o Judge must ask you if you want counsel. (Yes.) Then if you

can afford one. (No sir.)


o Then judge appoints a counsel de officio.
Can the accused waive his right to counsel?
o No, never.
The counsel de officio must also actively represent his client, not merely

act pro forma


If a person has his own lawyer but the lawyer is always absent.

Can he demand that a counsel de officio be appointed?


o No.
Question: during Martial Law, right to counsel may be generally

waived?
o No.
Accused had Counsel de parte X. X was absent. Court appointed
Counsel de officio Y. Accused claimed violation of right to choose

Right to be present at trial:

reference to the accused


What are the requisites before one may be tried in absentia?
o 1. Must have been arraigned
o 2. Must have been notified of the trial
o 3. No justifiable reason for absence
Can bail still be forfeited?
o Bail has condition that when needed, you may be summoned

Right to counsel

innocence?
o Yes, if: a) there is more than one circumstance, b) the facts

Yes, you may waive this right. But the waiver must be very

counsel. Valid objection?

Is the right to be present in trial waivable?

64

No. The right to choose counsel more properly pertains to

1935 Constitution spoke of right to secure attendance of witnesses in

ones behalf
1973 and 1987 added compulsory process to secure not just

custodial investigation, and what is inviolable during trial is right


to counsel and not an absolute right to choose. Here, in the

witnesses but also other kinds of evidence

interest of finishing the trial, the court properly appointed the

counsel de officio.
Is the mistake of the counsel the mistake of the party?
o Yes. Except when it is so gross as to have prejudiced the

Right to be informed

constitutional right of the accused.


Right to impartial judge

When is judge partial?


o E.g. Judge already received judicial confession, but the trial is
o

not yet ended.


Study circumstances, then establish reasons to show judge is
against ones interest

Right of confrontation

What is the right to confrontation?


o The right to confront the witness face-to-face
What is the reason for this?
o To enable you to test the testimony of the witness by cross-

facts are there, you are sufficiently informed


Reasons:
o 1. To prepare for defense
o 2. Protection against double jeopardy
o 3. To inform the judge to see if the facts alleged constituted a
crime

Right to speedy trial

examination
To enable the judge to observe the demeanor of the witnesses, face-to-

face with person he/she is accusing


Are there exceptions?
o 1. Dying declaration
o 2. Trial in absentia

Right to compulsory process

What must one be informed about?


o 1. Nature of the accusation

Ex. Murder, theft, homicide


o 2. Cause of the accusation

These are the facts alleged against you


Which is more important?
o Cause
o Because even if the nature of allegation is erroneous but the

Two things:
o 1. Compel attendance of witnesses
o 2. Right to have evidence in ones favor produced

N.B. Speed is relative


When is there a violation of the right to speedy trial?
o 1. Delays were unreasonable
o 2. Caused by the prosecution
What is the remedy for violation of right to speedy trial?
o Ask for dismissal of the case. The dismissal is equivalent to an
acquittal, and thus bars second prosecution for same offense
Are you entitled to a speedy decision?
o Not under this section, but there is another section (speedy
disposition of cases) where you have the right to expedite
disposition of all cases against you

65

Right to public trial

they have released the person detained. But there is still no sign of him.

There are exceptions:


o When evidence is offensive to decency and public morals
When there Is publicity, they behave properly

Did the burden shift?


o No. The burden is on the respondents, by interposing an
affirmative defense, to establish the fact of release.

Waiver of rights

Self-incrimination clause

The presumption is always against waiver


Prosecution must prove:
o 1. Fact of waiver
o 2. Voluntariness of waiver

Speedy disposition of cases

Applies to judicial, Q-J, and admin bodies


Guerrero v. CA: 10 years trial, and no decision yet, without explanation.

of pictures of accused
What about handwriting?
o Handwriting is protected against self-incrimination, because it

ordered a re-hearing, the accused filed for dismissal based on violation


of speedy trial. Valid?
o No. Because the delay was not the fault of the prosecution.
Roque v. OMB: Remedy is mandamus to dismiss.

Writ of Habeas Corpus

requires it
What is the Privilege of writ of HC?
o The right to have immediate determination of legality of

deprivation of physical liberty


Who suspends this?
o The President

is not just a mechanical act but one that requires intelligence


Marcelo v. Sandiganbayan: But merely affixing handwriting
on envelopes to authenticate the envelopes as the ones that

When is the WHC suspended?


o Only in cases of invasion or rebellion, when public safety

What is the purpose of this provision?


o 1. to prevent witness from having to lie
o 2. to prevent extorting confession by duress
What is covered?
o Questions that have tendency to incriminate: for instance,
establishing an element of the crime charged
o Only TESTIMONIAL COMPULSION
What about object evidence or physical examination?
o Right does not cover physical examination or object evidence
o Ex. Examining body of witness, putting on pair of pants, taking

The case was transferred to a second court. When the new judge

Dizon v. Eduardo: Respondents defense against petition for HC is that

were seized from accused is not a violation of this provision


Can one compel accused to produce private books and papers?
o No.
o Exception?

When the state has the right to inspect books or


documents such as in police or taxing power
Who are protected by this right?
o Only natural persons are protected by this right
o May a corporate officer refuse to produce books on the
ground of self-incrimination?

66

No. Because he is not incriminating himself, but it is

the corporation incriminating him


When can you raise the defense of self-incrimination, and in what
situations?
o In any situation where one is being examined or asked officially

you do not have to follow it, with consequences


4. Posse comitatus (peace officer can have able bodied

may be admin, civil, or criminal


The right against self-incrimination of a person accused differs

persons assist him)


5. Patria potestas (parent over children)

Excessive Fines and Cruel and Inhuman Punishments

from one not accused:


o 1. The accused can absolutely refuse to go to the witness
stand

(This same principle can apply to respondents in an

administrative proceeding where he may be subjected


to sanctions of a penal character such as cancellation
o

of license to practice medicine)


2. The non-accused cannot refuse to take the stand; but he can

relation to the person


So one can be a millionaire, and then you are fined P100K for
jaywalking. This may be nothing for the person, but this is still

excessive as to jaywalking
Death penalty shall not be imposed except with compelling reasons for

heinous crimes
o It may (and was) restored, but it was suspended again
o It may be revived again
What determines whether a crime is heinous? If congress passes

for an offense to which his compelled testimony relates


2. Use and fruit cannot use testimony and its fruits in any

manner in connection with criminal prosecution of the witness


Can this right be waived?
o Yes.

a bill saying rape is a heinous crime, does this settle the matter?
o No. Whether or not a crime is heinous is a question of fact.
o Legislative fact just enough fact enough to justify passing a

Involuntary servitude and Political Prisoners

What kind of fines cannot be imposed?


o Excessive fines shall not be imposed.
When is a fine excessive?
o The fine must be excessive in relation to the ofense, not in
o

raise the defense only when an incriminating question is asked


Differentiate transactional immunity from use and fruit immunity:
o 1. Transactional witness is immune from criminal prosecution
o

3. Return to work order

This does not violate involuntary servitude because

What is the rule on political prisoners?


o No person may be detained solely due to his political beliefs
o For political prisoners: solely is key word
What is involuntary servitude?
o Covers forceful service against ones wish
Exceptions:
o 1. To punish a crime
o 2. In interest of national defense (ex. Military or civilian service)

67

law
o Judicial fact enough fact to convict (this is a higher bar)
When is a punishment cruel and degrading?
o Ex. Covering a person in honey and placing him on an anthill
What if death penalty is imposed under law right now?
o Death Penalty imposed is reduced to RP
o But we are not a party to the treaty that prohibits the Death
Penalty
Is death by injection cruel and unusual?

o No.
Does the death penalty violate equal protection because it is

usually imposed only on the poor who cannot defend themselves?


o SC: No, that is too sweeping
What is duty of judge when accused pleads guilty to capital

offense?
o The judge cannot impose the penalty immediately. Look into
facts to check if death indeed is the proper penalty

Non-imprisonment for Debts

this:
o

If an act is punished by a law and an ordinance, does conviction


under one bar conviction under another?
o Yes.
Two types of DJ:
o 1. Second jeopardy for same offense
o 2. Second jeopardy for same act

This is the law-ordinance type


Elements:
o 1. There was a first jeopardy (put in situation where one could
o

be punished)
2. The first jeopardy terminated by conviction, acquittal, or

dismissal without consent of accused


3. The second jeopardy must be for the same offense as the

Dismissal without express consent of the accused. This is

considered waiver or estoppel


Dismissal for undue delay/lack of speedy trial:
o This is already a judgment on the merits
Dismissal, however, must be in writing and signed by the judge. Without

this, there is no dismissal yet.


You are convicted of attempted homicide. You are acquitted. You

Double Jeopardy

there is no 2nd element


o 3. Valid arraignment
Termination of jeopardy when does it end?
o 1. Acquittal

Includes violation of right to speedy trial

Includes demurrer to evidence


o 2. Final conviction
o 3. Dismissal without express consent of accused
You raised a defense of lack of jurisdiction of the court. The court
dismissed, although it turned out that it had jurisdiction. What is

This covers contractual debts


This does not cover debts imposed by law like a criminal fine, where
imprisonment may be a substitute

Ex. If you are a civilian tried before a military court,

are charged with physical injuries instead for the same act. Is this

double jeopardy?
o Yes. Same offense.
You are charged with frustrated homicide. You are convicted. The
victim then dies. You are charged with homicide. Is this DJ?
o No, because the homicide did not yet exist when you are

first
When can you say that you have been placed in jeopardy?
o 1. Valid information
o 2. Court has jurisdiction

convicted of frustrated homicide.


What are supervening events?
o 1. When the second offense is not yet in existence during first
o

prosecution
2. Facts constituting graver offense only were discovered after

filing of complaint/information
3. The plea of guilty to a lesser offense was without consent of
the fiscal and offended party, or either

68

When the defendant appeals, the case is opened again, and you may

get a higher penalty than the first one.


Is there a situation where the prosecution may ask for a review of

o
o
o

1. Citizens upon adoption of the 1987 Constitution


2. Fathers or mothers are citizens of the Philippines
3. Born before January 17, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching age of majority

To which constitution does this apply to?

1935 constitution, because under the 1973

an acquittal?
o Yes, if the prosecution can show GADALEJ
Ex post facto laws and Bills of Attainder

constitution, those born of Filipino mothers

What is an ex-post facto law?


o Criminal law that is retroactive
o But if the criminal law is in favor of the accused, it is not an ex-

post facto law


Examples of ex-post facto law:
o A substantive law that changes penalty to a higher one or a

the 1935 constitution, her child can still elect


Filipino citizenship upon reaching age of

procedural law that lessens defenses available to the accused


What are its characteristics?
o 1. Refers to criminal matters
o 2. Retroactive in application
o 3. Prejudices accused
If a law is passed transferring jurisdiction over one case from the

case, because of the time of marriage rule,

changed.
What is a bill of attainder?
o A law or statute that imposes a penalty without a trial.
Ex. A law is passed saying that all those who served the government

the child can still elect Filipino citizenship.


When must election be made?

Within reasonable period after reaching age

of majority
o 4. Naturalized according to law
What is the rule for an illegitimate child of a foreign mother
(Tecson a.k.a. FPJ case)?
o If the father is unknown, follow the mothers citizenship
o If the father is known and is Filipino, he is a Filipino. Prove the

under the Japanese occupation are not qualified to run for office:
o This is a bill of attainder. It imposed the penalty of

disqualification without trial.

CITIZENSHIP

majority
N.B. because the Filipina becomes an alien
too upon marrying the alien spouse. In any

RTC to the Sandiganbayan, is it an ex post facto law?


o This is not ex-post facto because rights of the accused are not

are already Filipino citizens


When must the mother be a Filipino citizen?

At the time of her marriage

N.B. so if a Filipina married an alien under

Who are the citizens of the Philippines?

69

paternity.
What are the modes of acquiring citizenship?
o 1. Jus soli according to place of birth

Not followed by Philippines


o 2. Jus sanguinis according to blood relationship
o 3. Naturalization adopting an alien and giving him citizenship

Either for original acquisition (CA 473)

Or reacquisition (CA 63)

What is the effect of naturalization?

1. The minor legitimate children become

perform any act to acquire Philippine citizenship


o 2. Those who elect Philippine citizenship under #3 above
o 3. Repatriated (see Cruz case below)
How is there loss of citizenship?
o 1. Naturalization in foreign country
o 2. Cancellation of certificate of naturalization
o 3. Serving in armed forces of enemy country
o 4. Being a deserter in the armed forces
o 5. Taking oath of allegiance to laws/constitution of foreign

Natural-born Filipinos who are deemed to have lost citizenship


may re-acquire it through repatriation proceedings

Do they regain Natural born citizenship?

Yes. (Cruz)
What does it involve?

1. Oath of allegiance

2. Filing the oath with the civil registry

No need to file in court


What is the nature of repatriation?

It is a privilege, and not a right. The State has


ultimate discretion.
What is its difference with naturalization?

Its speedier than naturalization, because the ones


who are entitled to repatriation used to be natural born

country
6. Express renunciation of citizenship
Is marriage with an alien a ground to lose Philippine

citizenship?

No, unless there is renunciation


How is citizenship reacquired?
o 1. Direct act of Congress
o 2. Naturalization
o 3. Repatriation
What is RA 9225s policy on dual citizenship?
o (Since Aug. 29, 2003)
o 1. A Filipino who previously renounced Filipino citizenship can

Filipinos as well
2. The spouse, if not disqualified, becomes

naturalized too
Who are natural born citizens?
o 1. Citizens of the Philippines from birth who do not need to

o
o

reacquire it without renouncing the foreign citizenship

How?

Repatriation
2. A Filipino who acquires foreign citizenship after RA 9225

citizens.
Who may be repatriated?

1. Women who lost citizenship by marriage

2. Natural born citizens and their minor children who


lost citizenship due to political or economic necessity
Who may not be repatriated?

1. Those who oppose organized government or

belong to groups that oppose organized government


2. Those who support the necessity or associate for

propriety of violence, personal assault


3. Convicted of crimes involving moral turpitude
4. Suffering from mental alienation or incurable

contagious diseases
What is derivative citizenship?

The unmarried child below 18 of those who


reacquired their citizenship by repatriation are

retains his Filipino citizenship


What is repatriation?

70

deemed citizens too


Distinguish dual citizenship from dual allegiance:

Dual citizenship is concurrent application of laws of two or


more states, where a person is simultaneously considered a

citizen of both States


Dual allegiance is where a person simultaneously owes, by

some positive act, loyalty to two or more States


What if a person possessing dual citizenship wants to run for
public office?
o They simply have to elect Philippine citizenship to terminate

dual citizenship status upon filing certificate of candidacy


What happens to the right to vote of those who retain or reacquire

Filipino citizenship?
o Must still comply with Overseas Absentee Voting Act
Does reacquisition of Philippine citizenship automatically translate
to reacquisition of domicile?
o No. You need to establish animus mandendi and non
revertendi

PUBLIC OFFICERS

Article XI of the Constitution

o 3. Bribery
o 4. Graft & Corruption
o 5. Other high crimes
o 6. Betrayal of public trust
Can the list of impeachable officers or impeachable offenses be
changed by Congress?
o No.
Can impeachment be stymied by condonation?
o No. It is beyond power of executive clemency.
What is the effect of impeachment?
o 1. Only removes from office
o 2. Disqualifies to hold any office
o 3. Not criminal
o What if the officer resigns?

He can still be impeached


o What about other public officers?

They may be removed through provision of law, but


not impeachment
Procedure for impeachment:
o 1. Filing of verified complaint

Only house can initiate

Started by member of congress or citizen with


o

What is the nature of public office?


o Public office is not proprietary
Who are impeachable officers?
o 1. President
o 2. VP
o 3. Members of SC
o 4. Members of Constitutional Commissions
o 5. OMB
What are the grounds for impeachment?
o 1. Culpable violation of Constitution,
o 2. Treason

endorsement by congressman
2. Submitted to committee

After the complaint is included in order of business

after the inclusion


3. Submitted to house: can reject or recommend

1/3 vote (if passed, these become the articles of

71

within 10 session days


It is referred to the committee within 3 session days

impeachment)
Vote is within 60 days from referral from committee
What if the committee rejects the impeachment?

The 1/3 vote can still pass the articles of

impeachment
o 4. Senate decides with 2/3 vote (16 seats)
How is impeachment deemed initiated and what is is the value of

knowing this?
o Impeachment initiated upon filing of complaint and referral to
o

committee
Material, because an officer can only be impeached once a

year
What are the roles of the different officers?
o Senate has sole power to try and decide cases of
o
o

impeachment
If the President is on trial, the CJ presides but does not vote
The Supreme Court can determine if Congress committed

GADALEJ (ex. Recognizing two impeachment complaints)


What is the jurisdiction of the Sandiganbayan?
o Over offenses of public officers, done in connection with their
o

law
o 5. Not lame ducks
Composition?
o 1 OMB
o 1 over-all deputy
o 1 deputy each for Luzon, Visayas, Mindanao
o Can have 1 deputy for military establishment
Q: how long should the OMB appointee serve? The remaining term

custodian of public funds, he is still not a public officer

over which the SB can take jurisdiction over


It is a statutory court; its existence is only confirmed by the

Constitution
Can SC judges be prosecuted before the SB?

Yes
Who is the Tanodbayan? Who is the Special Prosecutor?
o OMB is the Tanodbayan.
o The Tanodbayan before became the Special Prosecutor
o SP may not exercise powers conferred to OMB under the
o

related to public functions


Qualifications of OMB and deputies:
o 1. NBC
o 2. At least 40 upon appointment
o 3. Of recognized probity and independence
o 4. Member of Phil. Bar

At least 10 years practice of law or judge in practice of

of the predecessor or 7 years?


o Depends on the nature of the appointment. If it says that he

functions
Private individuals may be tried if charged as co-principals,
accomplices, or accessories

Azarcon v. SB: So if a private individual is deemed a

What is the jurisdiction of the OMB?


o Can investigate any illegal act of public officials, even if not

will just fill in the remaining years, then do so. Else, 7 years.
See the prohibition in running for elections immediately after

cessation office, mentioned below


Is there need for CONA appointment for the OMB?
o No. No need for CONA appointment
o Appointed by President from list of 3 nominees given by JBC
(first appointment: 6 people)
When must vacancies be filled?
o All vacancies filled within 3 months after they occur
What are the disqualifications?
o 1. Cannot hold any other office or employment
o 2. Cannot engage in practice of profession or active
management of business which may be affected by functions

Constitution. Since power to investigate is given to the OMB,

of office

the SP may only investigate and file cases when authorized by


the OMB

72

3. Cannot be financially interested in contracts, franchises, or

privileges granted by government, GOCCs, or subdivisions


4. Cannot run for elective office in the election succeeding

cessation from office


What are the functions of the OMB?
o 1. Investigate

On whose initiative?

On its own or on complaint in any form

It may be delegated

What penalties can it impose?

A. OMB can suspend local officials

B. Can dismiss only local officials but not

elective officials (only the court can do this)


C. Can impose administrative penalties on

report irregularities to COA


5. Request any government agency for assistance and

information necessary to discharge duties


6. Publicize matters covered by investigation if circumstances

so warrant, and with due process


7. Determine cause of mismanagement, red tape, inefficiency,
fraud and corruption and make recommendations for

Congress)
Can the OMB deputize public prosecutors to

officials and employees apart from the OMB


deputies the OMB or CS?

OMB, because the OMB must be an

special charter
Can OMB investigate public school teachers?

Yes. The Magna Carta, which confers

independent office. The CSC has no power

jurisdiction to the DECS was enacted 1966,

which was modified by both the Constitution


and the OMB Act.
2. Direct any public officer or employee to perform any act

required by law or stop, prevent, and correct any impropriety


3. Direct officer to take appropriate action against

elimination and observance of ethics/efficiency


8. Promulgate rules of procedure and exercise other functions
or duties provided by law

Can Congress add to duties of OMB?

Yes

Who determines the qualifications, etc. of other

investigate or prosecute?

Yes.
Which GOCC officers can the OMB investigate?

Only GOCCs with original charter

Ex. PAL, while owned by government, has no

recommendatory
4. Direct officer concerned to furnish it with documents relating

impeachable officers + members of

prosecute?

Yes
What is the nature of the recommendation?

Its actually mandatory, not just

to contracts and transactions involving use of public funds and

public officers and employees (except

Can the OMB use mandamus to compel a fiscal to

employee/official at fault, and recommend removal,


suspension, demotion, fine, censure, or prosecution

73

to do so.
Does it enjoy fiscal autonomy?
o Yes. The appropriations must be automatically and regularly
released.
What are the judicial review remedies?
o Non-administrative cases Rule 65 to SC
o Administrative cases Rule 43 to CA

Does appeal stop the execution of the decision being

challenged?

No, or it would render the punishment toothless


When can the government recover ill-gotten wealth?
o Recovery of ill-gotten wealth does not prescribe
o But the crime can prescribe
What are prohibited financial transactions?
o Cannot obtain for business purposes:

Loans

Guarantees

Other financial accommodations


o What if the loan is for personal purposes, and not

2. Possess a delegation of portion of sovereign powers of

government, for benefit of the public


3. Powers conferred and duties imposed defined by

business?

Valid.

Ex. Housing loan


o Who are covered by the prohibition?

1. P, VP

2. Members of Cabinet

3. Members of Congress

4. Members of SC

5. Members of CCs

6. Other Constitutional Offices

8. Officers of AFP with general or flag rank


When is a public officer required to submit a declaration under

Constitution, legislature, or by its authority


4. Duties performed independently and only controlled by law

Unless placed under general control of superior office

or body
o 5. Permanent or continuous
How are public offices created?
o 1. Constitution
o 2. Law (statutory enactments)
o 3. By authority of law
Distinguish from a clerk or employee:
o Officers duties involve exercise of discretion
o When used in reference to a person having authority to do an
act or perform a particular function, the officer is the one who
o

has authority to do the act or exercise


What is the most important distinction?

Officer is delegated some sovereign function of


government, to be exercised for the publics benefit

Modes of Acquiring Title to Public Office/Appointments

oath of assets, liabilities, and net worth


o Upon assumption of office
o And as often as required by law
o What is the character of the SALN?

It is sworn

And made accessible to public

How are official relations commenced?


o 1. Appointment
o 2. Election
What is the difference between appointment, commission, and
designation?
o 1. Appointment is selection, by authority vested with the power,
o
o

General Principles

What are the elements of public office?


o 1. Created by law or by authority of law

74

of an individual who is to perform the functions of a given office


2. Commission is the written evidence of appointment
3. Designation is the imposition of additional duties of a person

already in public service, usually through law


What are the kinds of appointments?

1. Permanent

To a person who meets all the requirements

Enjoys security of tenure


2. Temporary/Acting appointments

Issued in the absence of eligible candidates, when in

requisites needed. What is the nature of the appointment?


o Temporary.
o Is X deemed ipso facto resigned from his old position?

Yes.
o If X is terminated from his temporary appointment, can he

the necessity of public interest, the position must be


filled by someone who meets all the requirements

save for the CS eligibility


No security of tenure
What are the implications of temporary

pleasure of the appointing authority


Cannot exceed 12 months
Can be replaced sooner if there is an eligible

replacement
If the temporary appointee gains eligibility,

demand reinstatement to his old position?

No. There is no cause to demand reinstatement.


X is appointed to a position, and the appointment says unless
terminated sooner. What is the nature of the appointment?
o It is coterminous with the project and thus the employee serves

appointments?

No definite tenure and is dependent on the

X was appointed to a higher position, but did not possess the

at the pleasure of the appointing authority.


X is given a temporary appointment with a fixed period. How can X
be terminated?
o For any cause, upon expiration of the period
o For just cause, before expiration of the period
o X is given temporary appointment with a fixed period but it
also says unless terminated sooner. Can X be

there is no automatic conversion; he needs a

terminated at will?

No. If before the end of the period, it must be with just

new appointment
What if the position appointed to is a career civil
service position?

Still a temporary appointment if not qualified


Does designation confer security of tenure?

No. The person only occupies the position in

CONA

an acting capacity.
3. Provisional

Not qualified in an appropriate examination but


otherwise meets the requirements for appointment to

a regular position in competitive service


Whenever there is vacancy and filling of position is

needed for public interest


And there are no eligible candidates at the time

cause.
Differentiate regular appointment from ad-interim appointment:
o N.B. this distinction applies to positions confirmable by the

Regular

Ad-interim

Made by the President when

Made by the President when

Congress is in session

Congress is not in session, with no

Confirmed by the CONA


Continues until end of the term

CONA confirmation yet


Immediately effective
Still a permanent appointment
Valid, until:

75

1. Disapproved by CONA, or

2. Bypassed by CONA until next


adjournment of Congress

Ad-interim

No confirmation

Appointment
Issuance of

Appointment
Issuance of

Issuance of

commission
Acceptance by

commission
Acceptance by

commission
Acceptance by

appointee
Confirmation by the

appointee

appointee

CONA

performed?

No security of tenure vests yet.


What if the position to which the appointment is being made is not
vacant?
o The appointment is invalid.
o This contemplates situations, for instance, where the original

needed
Nomination
Confirmation by CONA

qualifications
What is the implication when the appointment is not yet
complete because not all the acts required have been

Steps for appointment:


Regular

holder of the position is being transferred without his consent,


and thus the position is not yet empty when the replacement is

being appointed.
Who has ultimate discretion in who will be appointed?
o The appointing authority.
o What is the CSC role?

The CSC is just there to determine minimum


qualifications, but cannot substitute judgment for the

N.B. the President may


revoke the appointment
prior to CONA

When is attestation of the CSC regularly required?


o N.B. confirmation by the CSC is called attestation
o When the appointment is to career service position. Attestation
o

appointing authority.
Can the appointing authority disregard the next-in-rank
rule?

confirmation

Just check if the appointee possesses the needed

Yes. It is not bound by such, although this is generally

considered.
Is the President bound by the recommendations for
appointment by his cabinet secretaries, or can he appoint
someone else?

Can appoint someone else. The appointing authority

leads to security of tenure.


When must the appointment be submitted to the CSC for
attestation?

Within 30 days of appointment


What is the effect of lack of certification of the CSC?

There is no permanent appointment yet, and thus it

has ultimate discretion.


Does discretion include type of appointment (permanent
or temporary)?

Yes.

Can the CSC convert a temporary appointment

can be revoked/withdrawn
What is the CSC tasked to do here?

into a permanent one?

76

No.
Can the CSC convert a permanent appointment

Yes, because an official only begins to govern upon

into a temporary one?

Yes, if the appointee does not possess the

proclamation and on the day his term begins.


The LGC after all speaks of qualifications of elected

needed qualifications.
What is the scope of judicial review of appointments?
o Only political questions, and cannot go into discretion.
o Who can file a case for usurpation of office?

Only one who claims valid title to office

o
o

Eligibility and qualification requirements

to forfeiture of office

BP 881: Failure to take oath within 6 months of


proclamation leads to vacancy in office, unless

entering upon position (ex. Taking oath, giving bond, etc.)


Who gives bonds?

1. Accountable public officers or those entrusted with

during incumbency?

Loss of office.
Understanding qualification in the second sense, what acts or
failures can affect the officers title?
o 1. Prolonged failure or refusal to take oath of office could result

Differentiate:
o Eligibility state of being legally fit to be chosen
o Qualification acts which a person is required to do before
o

officials, not candidates.


Are property qualifications for public office allowed?

No.
What happens when a person loses these qualifications

failure is for a cause beyond his control


2. Until the officer has taken his oath, he has no right to enter
into the position

What is the effect of taking an oath before a

collection and custody of public money


2. Ministerial officers whose acts may affect rights and

interest of individuals
What are the two meanings of qualification?
o 1. Endowments, qualities, or attributes that make an individual

person without authority to administer it?

No effect
What happens as long as the proclaimed winner

eligible for public office


o 2. Act of entering into performance of public office
When must an individual possess the qualifications for public

has not taken his oath yet?

The incumbent is still a hold-over.


X was proclaimed and duly sworn into office. Y

office (understood in first sense)?


o During appointment or election and continuously as long as the
o

official relationship continues


The LGC does not mention when the candidate must
possess Filipino citizenship. X was elected to a public
position requiring Filipino citizenship. When he ran, he
was still an alien. But when he took his oath, he was
already naturalized. Was X qualified?

77

filed an election protest. Can X assume office?

Yes.
Can Congress add to qualifications of officials?
o If Constitutional office, no.
o If statutorily created, yes, as long as:

Germane to the office

Not too specific as to fit a particular, identifiable


person, depriving the appointing authority of discretion
Can Congress provide for disqualifications?

Same rule as above distinguish between Constitutional and

statutory offices.
The disqualifications, however, must not violate the

during his term, or which emoluments have

Constitution
What are the general DQs under the Constitution?
o 1. Lame duck bar
o 2. No elective official is eligible for appointment or designation
o

o
o

to any public office or position


3. No appointive official can hold any other position in

government UNLESS allowed by law or primary functions of his


o

position
Can an appointive official hold an ex officio position
o

succeeding cessation of office


Cannot be candidates for elective position in the

elections immediately preceding appointment


6. Spouse and relatives by consanguinity or affinity within 4th
civil degree of the President, during his tenure, cannot

cannot be paid additional for the ex officio position,

appointed as:

Members of Constitutional Commission

OMB

Cabinet (sec, u-sec, head, chairmen)

GOCC
Compare this with the nepotism provision in the Civil

other office or employment during tenure

Unless provided in the Constitution

An EO provided that Cabinet secretaries can hold

any agency performing QJA or administrative functions


4. Member of Con-Com, OMB, deputies

Cannot hold any other office or employment

Term is 7 years, without reappointment


5. OMB and deputies

Cannot run for office in the election immediately

position but is a part of the principal office. Thus he


because it is compensated for in the main position.
What are the specific DQs under the Constitution?
o 1. P, VP, cabinet, deputies and assistants cannot hold any

been increased during his term


3. Members of SC and other courts cannot be designated to

without violating this provision?

Yes. An ex officio position is actually not any other

Appointed to an office which was created

Service Law:

Its just 3rd degree of consanguinity or affinity

Covers appointment of relatives of the appointing

two other offices. Valid?

No.
An EO provided that Cabinet secretaries hold

authority, the chief or head of the bureau, or persons

other positions in an ex officio capacity. Valid?

Yes.
2. Congress: may not hold any other office or employment in

government, subdivision, agency, or instrumentality, including

GOCCs without forfeiting his seat

When is the prohibition absolute?

78

exercising immediate supervision over him

Covers all branches, GOCCs, LGUs, etc.


What if they marry each other after being appointed?

This is fine. Not covered by the nepotism provision.


Who are exempted from the rules on nepotism?

1. Persons employed in confidential capacity

2. Teachers

3. Physicians

4. Members of AFP

Does this rule cover subsequent political actions (such as

promotion, etc.)?

Yes, otherwise, the rule can be circumvented


What is the rule on divestment?
o Any person who has conflict of interest must resign from

position in private business within 30 days or divest of all

promulgated decisions. These decisions are invalid.


Differentiate ministerial from discretionary powers:
o Ministerial powers are those whose discharge requires neither
o

shareholdings of interest within 60 days


Distinguish the spoils system from the lame duck bar:
o Spoils system

No elective official can be appointed or designated

during his tenure


Exceptions:

1. VP can become cabinet member

2. Congress may be member of JBC

3. Elected official must first resign from office


o But for Congressmen, cannot be

there is no other plain, speedy, or adequate remedy,


o

writ of mandamus will issue


In general, for discretionary acts, what is the extent to
which mandamus, if ever, would apply?

Only to compel the exercise of discretion, but not the

Political lame duck

Candidates who ran in the prior elections cannot be,

within 1 year of elections:

Appointed to government office

Or GOCCs/subsidiaries

Member of CSC
Exception losing candidates in barangay elections

discretion itself.
What are the general duties of public officers?
o 1. To be accountable to the people, to serve them with utmost
responsibility, integrity, loyalty, and efficiency; to act with
o

patriotism and justice; and to lead modest lives


2. Submit a declaration under oath of assets, liabilities, and net
worth upon assumption of officer and thereafter as may be

Powers and duties of public officers

performed
For which power does mandamus apply?

Only to ministerial powers


What is the exception laid down in Lopez v. OMB?

Where there is GADALEJ, equivalent to a denial of a


settled right to which the petitioner is entitled, and

during his term

judgment nor discretion


Discretionary powers are those whose discharge involves
judgment by the officer as to how and when the duty shall be

appointed to an office created


o

N.B. there are cases where judges have resigned but still

What powers does the authority of public officers comprise?


o 1. Expressly conferred by act appointing him
o 2. Expressly annexed to the office by law
o 3. Powers under doctrine of necessary implication
When does an officer have authority to exercise powers?
o Only when he is holding that office

required
o 3. Owe the State and Constitution allegiance at all times
What is the nature of the Sol-Generals duty to represent the
government?
o Its mandatory. While he can exercise discretion w/n to
prosecute a case or withdraw, it must be exercised pursuant to
the best interest of the State.

79

Is the government estopped from questioning the acts of its

officials?
o No.

from a foreign government without the consent of the


o

Prohibitions against officials:


1. Partisan political activity
o What is the extent allowed?

To exercise right to vote

Cannot use authority or influence to coerce political


o

position?

Yes. But he cannot credit the years of


service in the first position because this is

activity
Does this prohibition cover expression of views on current

adequately covered by the pension.

support?

No. This is allowed.


Who are covered?

Officers or employees in the civil service

Who are not covered?

Those holding political offices


o Ex. cabinet members

Active members of the armed forces, not

those in the reserve force


What is prohibited for these exempted officials?

Cannot solicit contributions from subordinates or

3. Loans
o See above discussion (under Constitutional provisions, where
loans for business purpose are disallowed)
4. Laborers
o Cannot be assigned to perform clerical duties
5. Detail or reassignment
o When is detail or reassignment prohibited?

Within 3 months before any election


o What is the exception?

If approved by COMELEC
6. Nepotism
o See above discussion in disqualifications (the 3rd degree rule,
as opposed to the 4th degree rule for the President)

subject them to any act that would violate this


o

Congress
Are pensions and gratuities covered by this?

No.

Can a person receiving pension for a government


position subsequently take a different government

affairs or mentioning the names of candidates they

2. Cannot accept present, emolument, office, or title

prohibition
Distinguish from the prohibition in BP 881?

Under BP 881, it is unlawful for any person or political

De Facto Officers

party to engage in election campaign or partisan


political activity except during campaign period.
2. Additional or double compensation
o What is the prohibition?

1. Cannot receive additional, double, or indirect


compensation unless authorized by law

80

What are the elements of a de facto officer?


o 1. Validly existing public office
o 2. Actual physical possession of said office
o 3. Color of title to the office.
o What are examples of this?

Reputation or acquiescence: the public, without

Liability of Public Officers

inquiry, relies on the supposition that he is the public

officer he purports to be
Failure to conform to requirement imposed by law,
although there is a known and valid election or

appointment
If unknown to the public that: the office is not eligible,
authority, irregularity in appointment or election
Under a known appointment or election under an

unconstitutional law before it was declared as

unconstitutional
What is the effect of his acts?
o They are valid, binding, and have full legal effect
o This is intended to protect the public and individuals who get

o
o

perform official duty


2. Art 32, NCC: violation of constitutional rights of individuals
3. Art 34, NCC: peace officers who fail to respond to persons in

involved in the apparently official acts of the de facto officer


Can the rightful incumbent recover from the de facto officer the

danger of injury to life or property


4. Sec 38(2), Ch. 9, Book 1, Admin Code: public officer who
without just cause neglects to perform a duty within a period

salaries received?
o As a general rule, yes he may, even if the de facto officer took
o

the office in GF and under color of title.


What if there is no de jure public officer?

Then the de facto officer acting in GF who has


discharged duties of the office is legally entitled to

due to official acts done within the scope of his authority


What are the exceptions?

1. Bad faith

2. Malice

3. Negligence

4. Death or injury to persons or damage to property


What are the liabilities of public officers under statute?
o 1. Art 27, NCC: injury caused by failure without just cause to
o

there is want of authority in electing or appointing

What is the general rule on liability?


o A public officer is not liable for injuries sustained by another

fixed or within reasonable period liable for damages


What is the liability under contracts?
o Public officer only personally liable for contracts entered into

without or in excess of authority


What are their liabilities under tort?
o Only if he exceeds scope of authority or powers conferred by

emoluments for actual services rendered.


Can he file appropriate action to recover salary,

fees, and other compensations?

Yes.
N.B. this is the latest ruling + exception based on Gen.

Manager v. Monserate G.R. 129616


What is the remedy?
o Quo warranto, by the Solicitor General in the name of the RP

law (ultra vires)


What if during execution of judgment X is no longer a

public officer?

Still personally liable


When would a public officer act ultra vires but not be
liable?

If there is no malice or if the acts are presumptively

or a person claiming title to the office

81

valid and enforced as such by the officer


When is the President immune from suit?
o Only during his tenure this is absolute

Can he invoke immunity after his tenure?

No, he cannot invoke immunity for damages arising

from ultra vires acts done by him while holding the

to criminal, civil, and administrative liability


o Dismissal of one type of action does not extinguish the others.
What are the types of liability of ministerial officers?
o 1. Nonfeasance

Neglect or refusal to perform act which is his legal

can be no salary
Can a public officers salary be garnished or unearned

salaries assigned?

No, this is contrary to public policy.


There was reorganization and Xs position was abolished.

required
o 3. Malfeasance

With ignorance, inattention, or malice


When can a head be responsible for the wrongful acts or

position. Can X claim salaries of the higher office?

No. X is in estoppel.
What if compensation, allowances, and benefits of an
officer are not approved by the Dept. of Budget and

Management?

These are void. DBM approval is needed.


Can the COA withhold an officers salary to the extent of
alleged shortage?

Yes. But the withheld amount cannot be applied to

misconduct
o

Rights of Public Officers

discharged duties thereof.


See notes on de facto officers when there can be and

X requested retention and was appointed to a lower

duty to perform
2. Misfeasance

Failure to use degree of care, skill, or diligence

omissions of his subordinates?


o He should have actually authorized by written order the act or

so. Can he claim salaries?

No. No legal title, no compensation.


What is the right of a de facto officer to salary?

If he in good faith had possession of the office and

Presidency.
o Can the President institute a lawsuit?

Yes (Soliven v. Makasiar)


What is the 3-fold liability rule?
o The wrongful acts or omissions of a public officer may give rise

X was appointed to office by one without authority to do

liabilities that are still being litigated.


What are the Constitutional provisions re: salaries?

1. No increase in salaries of members of Congress


take effect until expiration of full term of members who

1. Right to Office
o Just and legal claim to exercise powers and responsibilities of

public office
2. Right to wages
o Basis for this right?

1. Legal title to the office, and

2. the law attaches compensation to the office

approved the increase


2. Salaries of P and VP may not be decreased during
their tenure. No increase takes effect until full term is

served.
3. Salaries of judiciary members cannot be decreased
during service.

82

4. Additional, double, indirect compensation prohibited

unless authorized by law


5. Salaries are standardized

Recall the Central Bank Employees case

salaries?

Yes.

When is there no entitlement to back salaries?

When the exoneration is not due to finding of

(relative constitutionality and EPC)


LWUA officials and employees were given rice subsidy. Is

illegal dismissal but an act of liberality of the

this a violation of RA 6758 (Salary Standardization law)?

No, because it was shown that: a) these benefits

existed before effectivity of RA 6758, and grant is


limited to incumbents by a certain period (as to not
o

result in diminution of pay)


When is separation pay given?

If reason for separation is not for cause but for

reorganization.
What are the types of preventive suspension?

1. Preventive suspension pending investigation under

Court.
3. Right to preference in promotion
o N.B. this however does not prevail over discretion of the
appointing authority
4. Right to vacation and sick leave
o Do elective officials enjoy vacation and sick leave?

Initially the SC held that they do not, because they do


not have official hours of work. But under the LGC
(RA 7160), elective officials are entitled to the same
leave privileges as those enjoyed by appointive

the Admin Code


2. Preventive suspension pending appeal if the

suspension or dismissal, and after review, respondent

officials.
Can an official be declared absent on Saturdays, Sundays,
or holidays?

No, they are not required by law to work then. Thus,

penalty imposed by the disciplining authority is

Is an illegally dismissed employee entitled to back

is exonerated
Is there right to salary for period of preventive

they cannot be deprived of salary accruing on these

suspension?

As a rule, no, even if he is exonerated.


When is there payment of salary?
The employee is exonerated AND the

prior to or after these days. Otherwise, there would

days even if they did not report to work on the day


be unjust deprivation of property without due process

suspension was unjustified.


For the second situation, what is the remedy if the
employee is exonerated?

1. Reinstatement

2. AND back salaries for period of

of law.
5. Right to maternity leave
6. Right to retirement pay
o What is the general principle?

Retirement laws are construed liberally in favor of the


o

suspension pending appeal

retiree.
Is the period of work where an officer is paid on a per diem
basis, and not on fixed salary, creditable for purposes of
retirement?

83

Yes.
X worked at a certain position in public office. When the

performance of duty

Does this include transportation allowance for

secretary of finance was indisposed, X was appointed as

money value of his terminal leave computed on? His

those using government vehicles?

No.
Right to be indemnified against liabilities they may incur in

regular position of his higher, albeit temporary position?

The terminal leave pay is calculated based on the

bona fide discharge of duties


Right to longetivity pay

acting secretary of finance, and thereafter was returned to


his original position. X retired. What is the basis of the

highest monthly salary received by an official. Thus, it


o

Termination of Official Relationship

must be based on his salary as acting secretary.


CSC MC No. 27 only allows extension of up to 1 year of

1. Expiration of term or tenure


o When a public officer holding office at the pleasure of the

service to complete the required 15-year service period for


retirement purposes. However, PD 1146 allows extension

appointing authority gets replaced, what is the legal

to complete the 15-year requirement. Which wins out?

Initially, the SC held that PD 1146 should prevail. But

effect?

Expiration of term, not removal


Can the Congress call for delayed elections?

No, this effectively reduces the term of the new

then it considered the general principle why

compulsory retirement at 65 is imposed. So CSC Mc.


No. 27 prevails, although officials in their discretion
o

may still allow an extension over 1 year to meet the

required 15 year service period.


What is the rule in the judiciary?

Extension is allowed if the court is satisfied

officials, lower than what the Constitution requires


When does a term begin?

If a statute fixes the period by which the officer may


arrange his affairs and qualify for the office his term

begins upon qualification


Where no time is fixed by law upon appointment or

public service.
When is totalization of service credits allowed (that is, to

election
Where the law fixing the term is ambiguous the one

tack service term in one position onto another completely

that fixes the term at a shorter period prevails


Where the duration of the term and commencement

that the career of the retiree is marked by


competence, integrity, and dedication to
o

Right to reimbursement for expenses incurred in due

and termination are fixed by constitutional or statutory

different position ex. DOH service and GOCC service)?

ONLY when the retiree does not qualify for benefits in

provisions (ex. staggered) term is only the unexpired

either or both of the systems.

7. Other rights

portion of such
Where only the duration is fixed then the term will be
served in full, and not the balance

84

When an office is created or an officer is appointed for

the performance of a particular act term expired


o

upon accomplishment of such


What is the hold-over principle?

In the absence of an express prohibition, the public

What is the first essential element of resignation?


Voluntariness. If it is not voluntary; i.e. procured by

officer is entitled to hold office until a successor is

qualified, to prevent hiatus in public service


What is the status of the officer?

Still de jure
What if the law fixes a specific date for the end of

resignation, and any promise thereafter of


another position was rendered ineffectual,
because public office is a public trust it is

not subject to personal promises


What is the legal justification behind the Estrada
removal?
Resignation, because in his final press
release he acknowledged GMAs presidency,

(GSIS charter)
If there is a special retirement law fixing optional

that he left the palace for the sake of healing,


that he was thankful for the opportunity to

retirement upon reaching a certain number of

serve, and called his supporters to join him

years of service, and the officer avails of this,


what is the legal effect?

Tantamount to termination by reaching the


o

age limit
See above discussion on the principles of retirement and what

in promotion of national reconciliation


What is the second essential element of resignation?
Acceptance by the competent authority, expressly or

happens when there is a conflict between statutes and


circulars providing for minimum years of service (right to

impliedly
What is the relevant RPC provision?
An officer who abandons his position prior to
acceptance of the resignation is criminally

retirement pay)
3. Resignation
o What is this?
Act of giving up the office and renunciation of further

valid, therefore
But in Collantes v. CA the courtesy
resignation was treated just like any other

the term?

No hold-over is allowed
2. Reaching the Age Limit
o What is the compulsory retirement age?

70 for members of the judiciary

65 for other government officers and employees

fraud or duress, the resignation may be repudiated.


What about a courtesy resignation?
It lacks element of voluntariness and is not

liable
What if the officer is mandated by law to holdover?

right to it
And the acceptance of the competent and lawful

authority

85

The resignation is only effective upon

appointment or election of a successor


Who are authorized to accept resignations?

Rank

Who accepts resignation

President and Vice President


Member of congress
Governor and Vice Governor; Mayor

Congress
Respective house
President

and Vice Mayor of HUC or ICC


Mayor and Vice Mayor of

Governor

municipality or CC
Sanggunian member
Barangay officials

Sanggunian concerned
City or municipal mayor

Registered voters of the LGU


Can the Preparatory Recall Assembly initiate
recall?
Not anymore. The LGC allowed it, but it was

amended by RA 9244
How is it initiated?
Petition by at least 25% of the registered voters in the
LGU based on the election under which the official
was elected (if not more than 20K voters; 20% if 20K75K; 15% if 75k-300k [but never less than 15k]; 10% if

When is a resignation deemed accepted?


When not acted upon within 15 working days from

receipt thereof
What if the law is silent as to who should accept the

resignation?
If the public officer is appointive, then to the

appointing authority
If elective, then to the officers authorized by law to call

an election order to fill the vacancy


What is the effective date of resignation?
The date specified in the tender
What if no date is specified?
Date when the public officer receives the

office
What is the notice requirement?
Posting in a public and conspicuous place for
and signatures
What happens after?
The COMELEC announces acceptance of
candidates to the position, and it shall

confidence prior to expiration of his term, through the

official sought to be recalled


3. Signed in a public place in the LGU
4. Filed with the COMELEC through its LGU

10-20 days, to verify authenticity of petition

4. Recall
o What is this?
Termination of an elective official for loss of

representative)
2. In the presence of the representative of
the petitioner and representative of the

notice of acceptance of his resignation

300k+ [but never less than 45k])


What is the requirement for the petition?
1. Signed before the election registrar (or his

will of the electorate


Who exercises recall?
Registered voters of a LGU to which the official

include the officer sought to be recalled


When is recall held?
COMELEC representative shall set the date which is
not later than 30 days after filing of resolution/petition

belongs to
Who can initiate recall?

86

for barangay, city, or municipal officers


Not later than 45 days for provincial officials

o
o

office or connected to the

Can the local official resign during recall process?


No.
What are the limitations on recall?
1. An elective local official may be subject of a recall

only once during his term of office


2. No recall shall take place within 1 year from date of

officials assumption to office, or 1 year immediately

Eligibility
9. Misconduct

What is misconduct?
o Unlawful behavior and gross

preceding a local election


What does regular local election mean?
An election where the position of the officer
shall actually be contested, not just any other

elections is not a bar)


5. Removal
o What are the grounds for removal or disciplinary action

under the CSL?


1. Discourtesy in course of official duties
2. Refusal to perform official duty or render OT

service
3. Falsification of official documents
4. Habitual drunkenness
5. Inefficiency and incompetence in performance of

official duties
6. Wilful refusal to pay just debts or taxes due
7. Oppression or Grave Misconduct

What is grave offense?


o Conduct prejudicial to the best

negligence
Not a mere error in judgment, but a

wrongful intention
Ex. Concealment in Personal Data

conviction
10. Disgraceful and immoral conduct
11. Neglect of duty
12. Physical or mental incapacity due to immoral or

vicious habits
13. Conviction of crime of moral turpitude
14. Notoriously undesirable
15. Gambling
What is the general principle for removal?
It can only be for just cause and following procedure
What if there is removal not for just cause or noncompliance with procedure?

The official is deemed to have never been


removed
What is he entitled to?
o 1. Reinstatement
o 2. Back salaries
o 3. Non-loss of seniority
What is the legal effect of demotion without cause?

It is invalid too, tantamount to removal without just

interests of the service


When is there dismissal?
o It is a penalty for a second offense
8. Dishonesty

What is dishonesty?
o Concealment or distortion of truth in

Sheet of information such as prior

election (ex. as to a mayor, the barangay

performance of ones duty


Ex, using spurious Civil Service

cause

a matter of fact relevant to ones

87

What about unconsented transfer resulting in

demotion in rank or salary?

Same.
X is a public school teacher for Grade 6, and was
transferred to Grade 4. Is there violation of security of
tenure?

No. The choice of grade, subject area, level, school,

Who has appellate jurisdiction?

The Civil Service Commission

Is the penalty executory during appeal?

Yes.

Exception?

For removal. It needs prior confirmation by

or district is a question of pure policy and in the

jurisdiction?

No. While it usually does, the case can be

absence of arbitrariness, is best left to the


o

administrators.
What are the two grounds in the Admin Code of 1987 to

filed directly with the CSC and the latter may


decide the case or deputize a

remove an officer or employee from service?

1. Unsatisfactory conduct

Ex. Inefficiency, incompetence in official

department/agency to hear it.


What is the special rule on discipline cases for public
school teachers?

There must be a representative of the teachers

duties (poor performance)

2. Want of capacity
X filed an affidavit of complaint against Y, a public official.

organization in the committee. The Dep. Ed. cannot


be the one to appoint, because it must be a

Investigation ensued. The X filed an affidavit of


desistance. Is the case dismissed?

No. The investigation is impressed with public interest


o

and is not a purely private matter.


What is the standard of proof in disciplinary cases?

Substantial proof, not clear and convincing evidence,

city, or municipality
When is the decision final?

If the penalty is suspension of not more than

30 days or fine not exceeding 1 month salary


When is it appealable?

For other cases, where it can be appealed to

representative acting in behalf of the teacher.


What are the types of preventive suspension?

1. Preventive suspension pending investigation under

the Admin Code


2. Preventive suspension pending appeal if the
penalty imposed by the disciplining authority is

and not proof beyond reasonable doubt.


Who has original jurisdiction in disciplinary cases?

Head of the ministry/agency/instrumentality, province,

the Department head.


Does the CSC only exercise appellate

suspension or dismissal, and after review, respondent


o

the department head

88

is exonerated
What are the grounds for preventive suspension?

1. Dishonesty

2. Oppression or grave misconduct

3. Neglect in performance of duty

4. Reasons to believe that the respondent of charges


which would warrant removal from service
What is the nature of preventive suspension?

It is not a penalty per se; it is a measure intended to


enable the disciplining authority to investigate charges
o

against the respondent, and prevent him from

jeopardizing the investigation (ex. intimidation, etc).


Thus, there can be preventive suspension even

without hearing.
When is the preventive suspension lifted?

1. Lapse of 90 days without decision

2. Respondent is found innocent of charges


Can the OMB preventively suspend?

Yes, the OMB possesses concurrent authority to

may impose hinged on the commutation or removal of

suspension was not justified.


What about preventive suspension pending appeal (type

to his office ipso facto and back wages.


6. Abandonment
o What is abandonment?

Voluntary relinquishment of office with intent to

2)?

penalties.
NOTE: if the pardon was based on the ground that the
person did not really commit the offense, he is entitled

exonerated, but that the preventive

in effect?

No. It was repealed by RA No. 6654.


Can the president remove administrative penalties or
disabilities?

Yes, of course, subject to terms and conditions he

necessarily included in its powers.


Is the public officer entitled to backwages during

by CSC v. Dacoycoy.
Is summary dismissal (Sec. 40 of CSL) for cases where the
guilt is strong, recidivism, or notorious undesirability still

preventively suspend.

The period is a maximum of 6 months.


Can the RTC preventively suspend?

Yes, because removal from office is within the courts

preventive suspension (type 1)?

NO.

What is the exception?

Not just that the public officer was

43

Within 15 days, Rule 45 Certiorari to the SC


Can the CSC or the agency/ministry/instrumentality appeal
a decision exonerating a public officer to the CA?

YES. Before the rule was no, but this was overturned

power (ex. in RA 3019), then preventive suspension is


o

2. Decision not supported by evidence

3. Errors of law or irregularities


How are CSC decisions appealed?

Within 15 days, to the Court of Appeals, under Rule

There can be back salaries if eventually found

innocent, and thereby reinstated.

The maximum amount is 5 years pay


What is the time period to file an appeal (or prior to that, a

petition for reconsideration)?

15 days
What are the grounds for a petition for reconsideration?

1. Newly discovered evidence

terminate possession and control thereof


Distinguish from resignation:

Resignation is formal relinquishment

Abandonment is relinquishment through non-user


What is the most important element?

Intent to abandon. So if he leaves due to incapacity,


or through compliance with an order, there is no

89

abandonment.
Is delay in qualifying for office abandonment?

No. But see BP 881 where failure to qualify within 6

months in an elective office renders it vacant.


When is an officer or employee automatically deemed to
have abandoned his office?

Failure to return to service after 1 year LOA without

pay
What does the CSL Omnibus Rules provide?

Absence for at least 30 days without

government offices?

He has continuing authority to reorganize the national


government, including the power to group,

approved leave is considered AWOL and is


ground to drop the officer from service, after

due notice
7. Acceptance of incompatible office
o What is the test of incompatibility of offices?

When by nature and relation of the two offices, there


is contrariety in the attempt by one person to faithfully

consolidate, abolish, transfer, and create offices.


9. Prescription of the right to office
o What is the prescriptive period to ask for reinstatement?

Within 1 year of ouster or dismissal

Raison detre?

To not subject public office to continued

and impartially discharge the duties of one, toward the


o
o
o

incumbent of the other.


Distinguish from forbidden office:

This is expressly prohibited by Constitution or law.


What is the effect of accepting incompatible office?

It ipso facto vacates the other.


What is the exception?

When the officer is authorized by law to accept the

10. Impeachment
o See Constitutional Law I discussion

11. Death
12. Failure to assume office
o N.B. this is the 6 month rule stated above: failure to qualify and

take oath within 6 months of proclamation


13. Conviction of crime
o When does conviction terminate public office?

When one of the accessory penalties is


o

by Congress
2. No law shall be passed reorganizing the

disqualification
What is the nature of a plenary pardon?

It extinguishes the accessory penalty of


disqualification BUT in order to restore public office,

judiciary when it undermines the security of


o

uncertainty
Does an administrative proceeding or MR
suspend this period?

No. Must file quo warranto within this period.

other office. Ex. SOJ is also a member of the JBC.


8. Abolition of office
o Who has the power to abolish an office?

In general, the Congress.

What are the exceptions?

1. Constitutional offices cannot be abolished

What are the requisites of a valid abolition of office?

1. In good faith

2. With clear intent to do away with the office

3. Not for personal or political reasons

4. Must be implemented in manner consistent with law


What is the nature of the Presidents power to reorganize

there must be another appointment.

tenure of its members


Valid abolition of office does not constitute removal.

90

Is filing a COC a ground to deem an officer ipso facto

resigned from office?

If elective official, not resigned. If appointive,

although he must specify the reasons for not

resigned. (Quinto v. COMELEC, overturning

Farinas)

appointing the next-in-rank officer.


When does the automatic reversion rule apply?

If there is a series of promotions, and all


promotional appointments are

The CSC and personnel actions

simultaneously submitted for approval to the


CSC, and the commission disapproves the

What cases are within the exclusive jurisdiction of the CSC?


o 1. Disciplinary cases
o 2. Personnel action affecting CS employees

Ex. appointment through certification, promotion,

transfer, reinstatement, reemployment, detail,


o
o

demotion, separation, etc.


3. Employment status and qualification standards
Can the CSC recall an appointment which was initially

rendered for the higher position


2. Transfer

What is transfer?

Movement from one position to another


which is of equivalent rank, level, or salary

No. It is only allowed to approve, review

appointments to determine compliance with CS Law.

It cannot terminate on its own.


What is the scope of civil service?
o Embraces all branches, subdivisions, instrumentalities,

without break in service


May it be imposed as an administrative penalty?

Yes.
When is employee consent required?

When the transfer results in


promotion/demotion, advancement or
reduction, or a transfer that lures him away

agencies of government, including GOCCs with original

restored to their old positions


2. But they get paid for higher
salary for services actually

laws?

Yes
Can the CSC terminate employment or drop members from
rolls?

appointment of a person to a higher.


What is the effect?
o 1. They are all automatically
o

approved, when it finds out that it actually disregarded CS

No, it doesnt bind the appointing authority,

charters
Does the NLRC or RTC have jurisdiction over cases involving these

from his permanent position


X was transferred from Pampanga to Cagayan
after the BIR commissioner issued an RR

employees/officers?
o No. The CSC has exclusive jurisdiction.
What are the other personnel actions?
o 1. Promotion

Does the next-in-rank rule bind?

redefining jurisdictions and re-number RDOs of


the BIR. Is this invalid transfer?

No, the respondent was unable to show the


patent illegality of the CIRs action.

91

Can those in CES be shifted from one office to

another without violating security of tenure?

Yes. Because security of tenure attaches to


o

rank, not office.


3. Reinstatement

What is reinstatement?

A person permanently appointed in career

What is the nature of detail?

Movement of an employee from one agency

to another without appointment

Allowed only for temporary period


5. Reassignment

What is this?

Transfer from one organizational unit to


another in the same agency, without

service who was separated without just


cause may be reinstated to a position in the

same level for which he is qualified.


X was temporarily appointed to a position. He

was then terminated. He subsequently obtained


eligibility and qualification. Can he compel
reinstatement by mandamus?

No. Appointment is still discretionary and

this process. He was temporarily appointed

when he was terminated.


What is the nature of reinstatement?

It is actually the issuance of a new

appointment. The courts cannot interfere

with such exercise of discretionary authority.


Can one convicted but subsequently given

diminution of status/rank
Note distinguish if the reassignment is actually a

transfer without consent, which is invalid.


6. Reemployment

What is the procedure?

If a permanently appointed employee was


separated due to reduction in force or
reorganization, then his name will be placed

plenary pardon by the President demand

reinstatement?

No.
But what if a person was pardoned because he

did not truly commit the offense?

His name is cleansed and he need not apply

in a list.
This list is from whence reemployment can

be taken from.
What is the right of those separated from position
due to the 1986 reorganization or those who
tendered their resignations pursuant thereto?

1. Separation pay, retirement and other

for reinstatement he is restored ipso facto


upon issuance of the clemency and is

benefits

entitled to back wages.


o

duration.
The lack of specific duration is tantamount to
a floating assignment, and is thus a

other factors are taken into account through

reduction in rank, status, or salary


Does this violate security of tenure?

No.
What is the limitation?

Like detail, it must have a definite date or

4. Detail

92

2. In lieu of this, they can be reemployed in


government

ADMINISTRATIVE LAW

General Principles

What is administrative law?


o Branch of public law which fixes organization and determines
competence of administrative authorities and indicates

individual remedies for violation of rights


What is an administrative body or agency?
o Organ of government other than a court or legislature that

Ex. MWSS
4. Where the government is regulating businesses affected by

public interest

Ex. LTFRB
5. Where the government regulates private businesses and

individuals through police power

Ex. SEC
6. Where the government is adjusting individual controversies

because of strong social policy involved

Ex. ECC
o 7. Where the government is a private party

Ex. GSIS
What is the nature of the MMDA?
o It lays down policies and coordinates with various agencies,
organizations, and private sector. It may enforce, but not enact

affects rights of private parties either through rule-making or


o

adjudication
How do you determine if they are administrative bodies?

Even when it conducts hearings and determines

Powers of administrative bodies

controversies, its function is primarily regulatory


Even when it quasi-legislates, it just provides details

to enforce the law, not determine what the law is


How are they created?
o 1. Constitution
o 2. Law
o 3. Authority of law
What are the function-types of administrative agencies?
o 1. Where the government is offering gratuity

Ex. Bureau of Lands


o 2. Where the government is seeking to carry on actual

ordinances.
It does not exercise police power, just administrative power.

What are the powers of administrative bodies?


o 1. Quasi-legislative (rule making)
o 2. Quasi-judicial (adjudicatory)
o 3. Determinative powers (fact finding, investigative, licensing,
rate-fixing)

Quasi-legislative

government business

Ex. BIR
3. Where the government is performing business service for

What is the nature of QL power?


o Fixing details as to what the law should be
o Within the confines of the delegating statute and the rules on
o

delegation of powers
AO 308 issued by the President imposes a national
computerized ID system. Can the President claim to have

public

93

been merely implementing the Administrative Code of


1987?

No. The National ID System requires adjustment of


state policies, national security, privacy rules, and

choice of policies. Its not merely an implementing


o

order.
What is the effect of rules set out by the administrative

to his subordinates to carry out the law


Expressly or impliedly granted
Need not be published

bodies?

If within the power delegated to them, it has the force


o

of law
Can the administrative body determine w/n it should

implement a law?

No. Its duty is to enforce it.


What are the kinds of administrative rules and regulations?
o 1. Supplementary or detailed legislation

Detail-fixing

Expressly or impliedly granted

Must be published
o 2. Interpretative legislation

Construing provisions of statute

Binding on all until they are changed.

Have effect of law and enjoy presumption of legality

What is the effect of erroneous application of the

o 6. Penal

See below
What are the requisites for validity of these issuances?
o 1. Under authority of law
o 2. Within scope and purview of law

What is required for filling in legislation?

It must be germane to objectives of law and


it does not contradict standards in the law

Circular 9 which allows opening of trust account is

beyond the scope of law.


RA 8171 (Lethal Injection law) requires that rules and
regulations must be issued by Sec of Justice and
Director of Bureau of Corrections. The rules,

of law

Expressly or impliedly granted

Need not be published


3. Contingent legislation

Rules made by an administrative authority on the

however, allowed Director to prepare the manual


without approval of Sec of Justice. This is abdication
of responsibility and is against the law, which grants
o
o

existence of certain facts upon which enforcement

(Recall legislative delegation)


Ex. RA 6657 provides that just compensation for
property must be cash or land bank bonds. So DAR

law by public officers?

Does not bar subsequent correct application

4. Procedural

Method by which the agency carries out its functions

Expressly or impliedly granted

Must be published
5. Internal

Issued by a superior administrative or executive officer

depends
Must be expressly granted
Must be published

rule-making power to the Sec of Justice.


3. Reasonable, uniform in operation, not unfair/discriminatory
4. Publication in OG or newspaper of GC

When is just posting allowed?

For interpretative rules and regulations or


those merely internal in nature

94

A DBM circular prevents payment of allowances

enterprises of a given kind or character no need for notice

and additional compensation to government


employees. Is this merely internal?

No. It must be published.

Same with POEA MC No. 2 which sets

schedule of placement and documentation

fees must be published.


What are requirements for rules with penal sanctions?
o 1. Act punishable under the law itself
o 2. Law must define or fix penalty for the violation
o 3. Rules and regulations published in OG, newspaper of GC,

based on finding of fact need notice and hearing


But can there be provisional increases?

Yes, but subject to final determination in the main

case.
Does a writ of prohibition apply to exercise of QL functions?
o No. Since the party must be exercising judicial, quasi-judicial,
the exercise of QJ functions.

Determinative powers

engaging in profession, etc.)

6. Regulation or exercise or police power


Is notice and hearing necessary?
o No requirement of hearing for promulgation of general

regulation of administrative body.


No notice required for:

1. Procedural rules

2. Mere legal opinions

3. Substantive rules where the class affected is so

1. Enabling
o Permit or allow something which the law regulates
o Ex. Licenses for business
2. Directing
o Ex. Assessment by BIR or BOC
3. Dispensing
o To exempt from general prohibition or relieve an individual or
corporation from affirmative duty
o Ex. Zoning boards can vary zoning ordinances
4. Examining
o Investigatory power; requiring production of books, records,
o
o

etc.
Includes attendance of witnesses and having them testify
Can administrative bodies compel attendance of
witnesses, by default?

No. Its not an inherent power.

But an administrative officer authorized to take

large and the questions to be resolved involve use of

and hearing
Quasi-judicial if they apply exclusively to a particular party

or ministerial functions and with GADALEJ, it only applies to

AND archived at the UP Law Center


What is the test of a valid delegation?
o 1. Completeness
o 2. Sufficient Standards
o When are standards not required?

1. Handling of state property and funds

2. Law does not involve personal or property rights

3. Matters of internal administration

4. Power of the board to make a recommendation

5. Matters involving privileges (use of property,

Quasi-legislative if the rates are meant to apply to all

discretion by the rule-making authority


What about rate-fixing? What is its nature?

testimony can administer oath, summon witnesses,


require production of documents, etc.

95

Can the admin body punish for contempt?

No, unless expressly granted.

If granted, only applicable to QJ functions.


5. Summary
o To apply compulsion or force against persons/property to
o

effectuate a legal purpose without a judicial warrant to


o

admin proceeding before remedy will be supplied by the courts

dependent on the statutes granting power


Can the admin body or the parties confer J over the admin
body itself?

No, the body cannot enlarge its own jurisdiction

Neither can the parties dictate w/n the body has

(discussed further below as doctrine of prior resort)


Can the admin body promulgate its own rules of procedure for QJ
proceedings?
o Yes.
o As long as these do not diminish, increase, or modify

found
What is the concept of jurisdiction in QJ proceedings?
o Two elements

Over subject matter

Over person
o 1. If without J, the acts are void and open to collateral attack
o 2. Admin bodies have limited J, so the validity is entirely

jurisdiction
The admin bodys determination as to its own

jurisdiction is not conclusive upon the courts


What if the statute expires?

It does not deprive the admin body of jurisdiction over

substantive rights.
What is admin due process (review of BOR Ang Tibay)?
o 1. Right to hearing
o 2. Tribunal must consider evidence presented
o 3. Decision has basis
o 4. Substantial evidence
o 5. Decision based on evidence adduced at the hearing or
o

contained in the record


6. Board/judges act on independent consideration, and not just

views of subordinate
7. Decision rendered in manner where parties know the issues

and basis for decision


On who conducts hearing and issues decisions
o If the law requires an admin officer to exercise judgment and
discretion there can be delegation to subordinates for
hearing and receipt of evidence (but the superior officer has

acts committed while the statute was in effect, where


o

an opportunity to be heard.
It can be through an MR too, because there, a party

matters are involved, the relief must first be obtained in an

What is this power?


o To make determinations of facts in the performance of official

skills, and knowledge of admin bodies because technical

duties and apply the law as they construe it, to the grounds so

Yes. It may be cured by subsequently giving the party

has the chance to be heard.


What is the doctrine of primary jurisdiction?
o Where the determination requires the expertise, specialized

authorize the action


Ex. Abatement of nuisance, health inspections, etc.

Quasi-judicial

a general saving statute continues the liabilities


Can lack of previous notice be cured?

control)
If the admin agency acts as a collegiate body powers cannot
be exercised by one officer alone

96

Is a formal or trial-type hearing required?


o Not at all times; the essence of due process is being given the
o
o
o

opportunity to explain ones side or seek reconsideration


Does it have to be oral proceedings?

No. It can be based purely on written pleadings.


Must there be a cross-examination?

No need.
When are actual adversarial proceedings in termination

admin proceedings?
o Respondent can refuse to take witness stand if the penalty
involves a penal-like sanction.

Ex. Testimony may result in forfeiture of property

cases or other admin cases needed?

When there is need for clarification or propounding of

searching questions to witnesses with vague

testimonies
But the party must ask for it because its not an

forfeiture is known?
o Yes. Mere posting is not enough.
Is there right to counsel?
o Not necessarily.
When is notice and hearing not required?
o [temporary actions]
o 1. Granting provisional authority for increased rates
o 2. Preventive suspension of public officer/employee
o 3. Padlocking of filthy restaurants or theatres showing obscene

o
o
o
o
o
o
o

taxpayers property
5. Summary abatement of nuisance
6. Cancellation of passport for criminal prosecution
7. Replacement of a temporary or acting appointee
[equity]
8. Urgency of immediate action

practice medicine.
What if he ends up taking the witness stand voluntarily?

He can still invoke the right against self-incrimination


that incriminates him of an offense other than that

admin cases
Is there right to notice where the owner of a property subject to

movies (or lock-up campaign of BIR)


[summary actions]
4. Summary proceedings of distraint and levy upon delinquent

under RA 3019.
Ex. Medical practitioner may lose his privilege to

against particular questions which call for an answer

inherent part of the summary proceedings that attend

o 9. Right was previously offered but not claimed


What is the coverage of the right against self-incrimination in

which is charged.
Who has the power to punish for contempt?
o When the admin body is engaged in performance of QJ powers
When can there be right of appeal?
o Where provided by law.
o Can the appellate admin agency conduct additional

hearings?

Yes, if necessary.
What is the implication of the Presidents power of
control?

The President by himself, or through an alter ego, can


affirm, modify, alter, or reverse admin decisions of

subordinate officials and employees.


Does res judicata apply?
o Yes, decisions and orders of admin bodies have force and
o

97

binding effect of final judgment, akin to RJ.


What is the special rule re: citizenship?

RJ only applies when the following conditions apply:

1. Question of citizenship is resolved by a court or

admin body as a material issue after a full-blown

bureaus, offices, agencies of the National

hearing
2. There was active participation of the Solicitor

General

3. The finding by the admin body is affirmed by the SC


When else does RJ not apply?

When the admin decision of the ECSIF awards the

can be appealed to the Office of the President


Judicial Recourse and Review

decision is clearly contrary to law.)


Specific cases:
o 1. The Laguna Lake Devt Authority (LLDA), as regards

pollution and fishing cases can issue a cease-and-desist order.


Its charter (special law) gives it power to issue permits for fish
o
o

for striking public school teachers and to investigate


3. The HLURB hears cases of unsound real estate business

What are the primary doctrines you must know?


o 1. Finality of administrative action

Decision of tribunal must be final first before courts


o

can review it
2. Primary jurisdiction

Initial action must be taken by an admin agency when

it concerns matters of technical expertise


3. Exhaustion of admin remedies

Applicable to QJ powers; judicial relief can only be

practices and specific performance and has exclusive

jurisdiction over disputes of homeowners associations


4. The Prosecution and Enforcement Division is the

adjudicatory arm of the SEC


5. It is the DOE, not the ERB, that has jurisdiction over disputes

Government and GOCCs

2. SOJ in all other cases not mentioned above


What is the exception where the findings of the Sol-Gen or
SOJ are not final and binding?

When the claim involves at least 1M pesos, wherein it

employee less than what the law provides.


(I guess, to extrapolate a general rule, when the

pens and enclosures in the Laguna de Bay. It trumps the LGC.


2. The DECS Regional Director has authority to issue RTWO

1. Sol-Gen if the dispute involves only departments,

had after completing all available administrative


o

re: direct connection of electrical power


Does the Presidential Electoral Tribunal exercise QJ powers?
o No. The PET exercises judicial powers.
What is the rule for controversies among government offices and

recourse
4, Ripeness for review

Same principle as exhaustion, but as for rule-making

corporations under the Administrative Code?


o Questions of law:

Submitted to Sec. Of Justice as Attorney-General

His ruling binds the parties concerned


o Questions of fact and law:

and administrative powers


There must be a real and problem, and not one which

is future, imaginary, or remote


What is the general rule on where appeal is made?
o Rule 43
o When is the remedy Rule 65, instead of Rule 43?

1. DOJ Sec. CA

2. OMB (non-admin cases) SC

Whereas OMB admin cases go to the CA by


Rule 43

98

3. COA/COMELEC SC

Whereas CSC cases go to CA by Rule 43


When is the remedy Rule 45, instead of Rule 43?

1. CTA en banc (from CTA div.) SC

2. NLRC (from LA) CA via rule 65, then SC via rule

case, within the competence and expertise of an admin

Can the parties waive it?


o Yes, the courts can raise it motu propio. No the parties cannot

45
What are the exceptions to finality of admin action (meaning,

courts interfering even before finality of admin action)?


o 1. Relief is to preserve status quo pending further admin action
o 2. Essential to protect rights
o 3. Allowed by law
o 4. Order is not reviewable and the complainant will suffer great
o
o
o
o

and obvious damage if order is carried out


5. Interlocutory order affecting merits of controversy
6. Admin officer acts in violation of constitution/law
7. Order made in excess of power
N.B. So most of these are really just: 1. GADALEJ, and 2.

admin agency for initial determination


2. Issues involve questions of law
3. Concurrent jurisdiction of courts and admin agencies
Can the courts determine the Manny Villar double
insertion case even before the Senate Committee decides
in it?

Yes, because the issues do not require expertise,


specialized skills, and knowledge of respondent for
resolution. What are involved are purely legal

distribution of power.
What can the court do in such a case?

1. Suspend judicial process pending referral to the

questions.
Even when the case is already pending with the SC, if there

admin body
2. Dismiss the case without prejudice if the parties

would not be unfairly disadvantaged


What is the implication of exhaustion of admin remedies?
o Premature invocation of the courts intervention is fatal to ones
o
o

(preserve status quo)


What are the exceptions to primary jurisdiction/prior resort?
o 1. Congress does not intend that the issues be left solely to the
o
o
o

waive it.
The rule is not for the convenience of the parties, but for proper

Urgency depending on facts of case, and 3. TRO/injunction

agency, it can refer the back to them.


Can the court raise the issue of primary jurisdiction motu propio?

cause of action.
It is a ground for motion to dismiss.
What are the reasons for exhaustion?

1. Enable admin superiors the chance to correct

errors of subordinates
2. Separation of powers
3. To not saddle dockets with admin cases
4. Usually, the remedy is an SCA which requires no

other plain, speedy, available remedy


5. Less expenses and faster to resort to admin

remedies
What are the exceptions to exhaustion of admin remedies?
o [where there is already a reviewable act]
o 1. Doctrine of qualified political agency

Meaning the officer was acting as the Presidents alter


ego already, so there has been exhaustion

EXCEPT when the law expressly provides

are supervening events that change the factual backdrop of the

that you have to go up to the President

99

But if an appeal has been filed to the President

public interest)

Ex. PARO did not immediately take action on protest

already, and then it is withdrawn to go to the courts,


there is failure to exhaust because the petitioner has

of petitioner. It only forwarded protest to DAR in one

already recognized the OP as an available remedy.

EXCEPT when the OP hasnt acted for a


o

o
o
o

o
o
o

o
o
o

year. DAR then kept asking petitioner to submit

long time (in a case, 2 months)


2. Purely legal questions

Legal question which law applies to a particular set

documents that were already attached to the protest.


In the meantime, the PARO had already cancelled the
petitioners title and issued a new one to the farmer-

of facts

(Rule 45)
3. Law does not make exhaustion a condition precedent
4. Admin action is patently illegal/GADALE8
5. When there is denial of due process

Ex. No notice and hearing

(Actually a form of GADALEJ)


6. Rule does not provide a PSA remedy

(under GADALEJ, this is a ground)


[equity]
7. Admin remedy is fruitless

Ex. Suit to recover title to office must be within 1 year

the Secretary of Agriculture was not a PSA remedy.

claim
[based on subject matter]
12. Land cases, where the subject matter is private land

power to review all questions of law


3. Mixed if the questions of law and fact are so intertwined

it a question of fact (same rule as #1)


What are the grounds for reversal of admin findings? (NOTE: this

o
o
o
o
o
o
o

appeal to the Board of Trustees of the NFA and then

o
o

be overturned))
o [abuse]
o 1. GADALEJ
o 2. Prejudice to rights of party because findings violated

terminated and the replacements were already hired

They have to go to courts already.


11. Observance of doctrine will result in nullification of the

findings of admin bodies

Except if not supported by substantial evidence


2. Of law can be appealed because judiciary has inherent

is almost the same as Rule 45 grounds where findings of facts can

Ex. Petitioners security agency contract has been

beneficiary. (Poor petitioner.)


o 14. Amount is relatively small to make rule impractical
What are the powers of the courts vis-a-vis reviewable questions?
o 1. Of fact general rule is that the courts will not disturb the

and inseparable, the default treatment by the courts is to deem

of legal ouster or else it prescribes.


8. Estoppel on part of the admin agency
9. Unreasonable delay or official inaction
10. Irreparable injury or threat thereof unless judicial recourse
is had

13. Special reasons or circumstances (ex. Matters of strong

100

constitution or law, or was vitiated


3. Irregular procedures or violations of DP
4. Agency went beyond issues of case
[shoddy fact-finding]
5. Inferences made are manifestly mistaken or impossible
6. Misapprehension of facts
7. Findings grounded on speculations/conjectures
8. Findings not supported by substantial evidence

ELECTION LAW

voters and permanent DQ from absentee

General Principles

What are covered by the right to suffrage?


o 1. Election
o 2. Plebiscite
o 3. Initiative and referendum
What are the theories re: election?
o It is a privilege and a right
o Follow strict secrecy
What is the election period?
o 90 days before election and until 30 days after elections
N.B. Please read the COMELEC part of CCs again to review regarding

stationed in places other than where they are

Qualifications for suffrage?


o 1. At least 18 years old
o 2. Resided in the Philippines for at least 1 year

What is the exception in Sec 5(d) of RA 9189

foreign country is entitled to vote if:


1. He/she executes an affidavit declaring that

later than 3 years from approval of

vote?

They must swear oath of allegiance


Contrast with running for public office must

renounce foreign citizenship


Contrast with being appointed to public office

allegiance
3. Resided in the place where they intend to vote at least six

permanent residence in the Philippines not

abroad
N.B. this replaces the residence

4) voluntary
For dual citizens, what act must they perform to

months preceding the election

What if a person transfers residence due to

he/she shall resume actual physical

Filipinos abroad
What is the meaning of residence here?

It means domicile: 1) physical presence, 2)

must renounce AND swear oath of

(Overseas Absentee Voting Act)?

Even a Filipino immigrant or resident in a

registration as an absentee voter


2. He/she hasnt applied for citizenship

registered can vote in this place of work


2. Overseas absentee voting qualified

animus manendi, 3) animus non revertendi,

Voters qualification and registration

voting
What are the two types of absentee voting?

1. Domestic absentee voting public officials


like policemen and public school teachers

jurisdiction of the COMELEC, COMELEC en banc, and lower courts

What is the consequence of failure to return?

Removal of names from registry of absentee

occupation?

Not deemed to have lost original residence


What is the meaning of residence here?

At least temporary residence, but can also


be domicile obviously

requirements in the enumeration

101

4. Not disqualified

What are the disqualifications?

1. Person sentenced by final judgment of

imprisonment for not less than 1 year


o When is the right reacquired?

Upon expiration of 5 years

after service of sentence


2. Person adjudged by final judgment of
having committed a crime involving disloyalty
to the government or crime against national

security
o When is the right reacquired?

Upon expiration of 5 years

of service
3. Insane or incompetent persons declared

Challenge of registration

What is the nature of registration?


o It does not confer the right to vote; it is just a condition

Election Officers
o 2. Most senior public school official
o 3. LCR or city/municipal treasurer
Differentiate challenge of registration from inclusion/exclusion and

remedies

by competent authority
o 5. Philippine citizen
What cannot be imposed as requirement for suffrage?
o Literacy, property, substantive requirement

of consanguinity or affinity
What is the composition of Election Registration Boards?
o 1. Election Officer (chairman)

N.B. as many ERBs in a city/municipality as there are

annulment of book of voters?


o Challenge of registration is pre-approval remedy
o Inclusion, exclusion, and annulment are post-approval

Registration

May be assisted by relative within 4th degree

precedent to the exercise of the right


What is the prevailing system of registration?

It is general and continuing


When is the only period when registration is not allowed?

120 days before regular election

90 days before special election

N.B. compare with election period (90 for regular)


Who are not disqualified to register and instead are

assisted in their registration by election officer, member of


citizens arms?

1. Illiterate person

2. Disabled person

Who may challenge registration?


o Any voter, candidate, representative of a registered PP
Where is the challenge posed?
o Election Registration Board
What must be included in the challenge?
o 1. Statement of grounds for challenge, either:

Not qualified

Fictitious
o 2. Under oath, attached the application
o 3. Proof of notice of hearing to the challenger and applicant
What is the time table of challenges?
o Before second Monday of the month Oppositions
o Third Monday of the month hearing
o Before end of the month decision
Whose registration can be deactivated by the ERB?
o See above disqualifications #1-3 (imprisonment of at least
o

one year, disloyalty, insane/incompetent)


4. Person who did not vote in two successive preceding regular
elections (regular elections do not include SK elections)

102

o 5. Court order of exclusion


o 6. Person who has lost Filipino citizenship
When is a registration reactivated?
o Submit a sworn application for reactivation with the Election

Officer
o N.B. this must also respect the registration ban period (120/90)
When must the voters list be posted?
o 90 days before regular election, 60 days before special election
o Posted alongside deactivated voters list
o Where posted?
Office of the Election Officer
Bulletin board of the municipal or city hall

What are the post-approval remedies?


o 1. Petition for inclusion
o 2. Petition for exclusion
o 3. Annulment of book of voters

application was filed solely to harass.


Who may intervene?
o Any voter, candidate, political party affected by the proceedings
What is the basis of the decision?
o Must be based on evidence presented and NEVER on
fictitious, non-appearance in hearing is prima facie evidence of

non-existence
Time tables?
o Heard and decided within 10 days after filing
o ALL cases, decision must come out not later than 15 days
before the election

What court has jurisdiction over inclusion and exclusion cases?


o ALWAYS the MTC has original and exclusive jurisdiction
o Appealable to the RTC within 5 days of receipt of decision

Annulment of book of voters

(RTC must decide within 10 days of receipt of appeal)


o Is an MR allowed?
No MRs are allowed
What is the period to file petition for inclusion?
o Anytime after registration is denied or name is excluded except

105 days before regular election/75 days before special

members and challenged voter upon filing


o 2. Petition must refer to one precinct only
o 3. Implead the ERB as respondents
Are costs awarded?
o Usually none, against either party. The exception is when the

stipulation of facts. If the question is w/n the voter is real or

Inclusion and exclusion proceedings

o Decided within 10 days of filing


Rules on the petition:
o 1. Notice of place, date, time of hearing served upon ERB

election
o Decided within 15 days of filing
o N.B. 105/75 the registration ban minus 15 days
What is the period to file petition for exclusion?
o Anytime except 100 days prior to regular elections or 65 days

When can a book of voters be annulled?


o 1. Not prepared according to law
o 2. Prepared through irregularity/vitiation
o 3. Found to contain statistically improbable data
Who files?
o A voter, election officer, or PP may file a verified petition
To whom is this petition filed?
o COMELEC en banc (since its an admin procedure)
When is the last day for release of ruling/decision annulling a book
of voters?
o Within 90 days before an election

before special elections

103

Is annulment of book of voters a ground for pre-proclamation


contest?
o No.

Table of periods

Election

Rego

Rego

Incl.

Incl.

Excl.

Excl.

period

ban

ban

ban

ban

ban

ban

(regular)

(special)

(reg)

(sp)

(reg)

(sp)

120

days
105
days
100
days
90 days

Last day
to
release
decision

on book
75 days
65 days
Electio
n day
30 days

majority of cities and provinces in a region


o Sectoral party
When are votes in favor of political parties valid?
o Only for those registered under Party List (PL) system.
What are the rights of parties registered under the PL system?
o 1. Appoint poll watchers
o 2. Occupy 20% of seats in the HOR
When must registration of a political party be done?
o Not later than 90 days before the election
What cannot be political parties?
o 1. Religious denominations/sects
o 2. Those advocating violence or unlawful means
o 3. Refuse to uphold and adhere to the Constitution
o 4. Supported by foreign governments
What are the grounds to cancel registration of political parties?
o 4 mentioned above, plus:
o 5. Violation of election laws
o 6. Declaration of untruthful statements in its petition
o 7. Ceased to exist for at least 1 year
o 8. Fails to participate in the last two preceding elections [or fails
to obtain at least 2% of votes cast under PL system in two

after

Political parties

Top 3 can appoint principal watcher; get COC copy

Bottom 3 can appoint principal watcher


National party

Constituency spread across majority of regions


Regional party

Constituency spread over geographical territory of

preceding elections] declared unconstitutional


What is the power of the COMELEC?
o To ascertain the identity of the political party and its legitimate
officers

What are the types of political parties?


o 1. Non-registered parties
o 2. Registered parties

Dominant majority and majority entitled to ER copy

Candidates/certificate of candidacy

104

When must qualifications be possessed?

From the start (proclamation and oath) of his term, until the end

of the term
What are the grounds for substitution of candidate?
o 1. Death
o 2. Withdrawal

N.B. no candidate who has withdrawn his

allowed; or candidate accepts more than 1


o

COC can be eligible as substitute candidate


o

for any other position


3. Disqualification

But if the COC is illegally filed from the beginning, he

nomination
Exception?

Candidate for elective barangay office can be


substituted by spouse.
For substitution, do votes cast for substituted candidate
count for the replacement?

No, these are considered stray. Unless same

cannot be substituted. He was deemed to never have

surname.
Up until can there be substitution?

Up to mid-day of Election Day.


What are the two aspects of DQ cases?
o 1. Electoral

Summary

Disqualified upon preponderance of evidence


o 2. Criminal

Prosecuted by the COMELEC

Filed with court, and subject to full blown hearing

Penalties include criminal conviction and possible DQ


o

filed the COC at all (from Atty. Agra)


Contra, from Nachura: X filed his COC for vice-

mayor, but withdrew it after the last day of filing of


COC. Y, from the same party, filed application as
substitute for X. X was found to have been
unqualified to run in the first place (too young).
Should Y be DQ?

No. The duty to accept substitution is


ministerial if the substitute is found to have

from future public office

complied with all requirements,


notwithstanding DQ of the person the
o

Disqualifications:

substitute is replacing.
What is the general rule?

No substitution for independent candidates. Only


those with political parties and are nominated by such

can be substituted.
Who are independent candidates?

Not members of political party, members of

Nominated by party in excess of what is

unregistered PPs
Even if member, not validly nominated by PP

Omnibus Election Code

Local Government Code

Declared insane or incompetent


Sentenced by final judgment for

Insane or feeble-minded
Sentenced by FJ for offense

rebellion, subversion, insurrection or

punishable by one year or more of

any offense where penalty is more

imprisonment, within 2 years after

than 18 months; or by final

serving sentence

judgment for crime involving moral


turpitude

N.B. One under probation may run


because the probation suspends the
accessory penalty of DQ as well

105

Permanent resident or immigrant of

Permanent resident or immigrant of

foreign country
Election offenses (vote buying, acts

foreign country
Dual citizenship (actually, dual

of terrorism, unlawful expenditure,

allegiance)

bridges, clinics, etc.


Who is a nuisance candidate?
o One with no bona fide intent to run and would thus prevent a

solicited or made prohibited


contributions, prohibition against

For natural dual citizens, mere filing

release of public funds, unlawful

of COC is enough.

campaign)
For repatriated persons, filing of
N.B. if other election offenses not

COC and renunciation of foreign

enumerated are committed, file with

citizenship must concur.

RTC as election offense, but not


ground for DQ
Nuisance candidate

Convicted by FJ for violating oath of

Material misrepresentation
No valid certificate of candidacy

allegiance to the Philippines


Fugitive from justice
Removed from office due to

administrative case

Cannot contribute to churches, school buildings, roads,

faithful determination of the will of people


Factors to consider?

Political capacity to wage nationwide campaign,

slate, organization/machinery, PP support


Track record performance in prior elections,

platform, political exposure


Background Popularity, properties, education,

profession, income, qualifications

Intent bona fide intent to run, similarity in name


What are the requisites for a false and material representation?
o 1. False
o 2. Material
o 3. Deliberate
o The following are not material and false representation:

1. Stating false job or using surname of common law

spouse
2. Candidate is actually qualified even if the COC

shows hes not


3. No intent to deceive; candidate believed in GF that

Filing two COCs for different offices


(DQ from both)

What are prohibited campaign contributions and expenditures that

he is qualified
Who is a candidate?
o 1. Filed COC
o 2. Is seeking public office
o 3. Campaign period has started

N.B. this is important, because he is not liable for

may be a ground to DQ?


o Transportation, food, drinks
o Form public/private financial institutions, public
utilities/exploitation of natural resources, public contractors,
franchise holders from government, educational institutions

unlawful acts and omissions before becoming a

with government grants, officials of civil service or AFP,


o

candidate
How must a COC be filed?
o Personally or through representative. Cannot be by mail or fax.
What is the effect of a formal defect in the COC?

foreigners or foreign corporations


Raise funds through lotteries, cockfights, bingo, boxing, beauty

contests, etc.

106

Not enough to annul the election of a candidate

Ex. Improperly sworn COC, defective notarization, etc.

not sufficient to DQ a candidate


What is the effect of withdrawal of COC?

DQ of the one who filed the COC.

When must withdrawal of a withdrawal be made?

Within period for filing COC. (NOTE:

This power is merely permissive, not

obligatory.
Should the votes casted in favor of the
disqualified candidate be rendered null and void?

No, because this disenfranchises the voters.


What is the exception?

When the electorate knows in fact and law

withdrawal of withdrawal)
What is the effect of filing two COCs for different offices?

DQ for both offices, unless he withdraws one before

that the candidate was disqualified, but still


voted for him this is tantamount to
notoriously misapplying or throwing away

the end of the period for filing COC.


What is the effect of DQ?

1. Cannot be voted for in the election

2. If there is no FJ yet before election, and he receives

votes. These must not be counted.


Ground

Where filed

When filed

remedy, if

highest votes, the COMELEC will still retain

primary remedy

jurisdiction and hear the trial. If the evidence of guilt

not availed of

is strong there can be suspension of proclamation

ordered by COMELEC.
What is the scope of powers of the COMELEC as to filing of COC?
o It is ministerial. Can only deny upon matters appearing upon
the face of the COC. See exceptions below
When can the COMELEC go beyond the face of the COC?
o 1. Nuisance candidates
o 2. Material misrepresentation
o 3. DQ under BP 881

What is the power of the COMELEC to suspend


proclamation?

When there is no final judgment in the DQ

Lacking

COMELEC

Before

qualifications or

division

proclamation

with DQ
Election offenses

COMELEC

Before

Election protest or

division

proclamation

charge with
election offense
None

Nuisance

COMELEC

Within 5 days of

candidate

division

last day of filing

Material

COMELEC

COC
Within 25 days

misrepresentatio

division

from filing COC

case yet, and the challenged candidate

Secondary

receives the highest number of votes.


The evidence of guilt must be strong,

N.B. this can

justifying the COMELEC to suspend

motu propio;

proclamation of the candidate.

must be from

never be

107

Quo warranto

None

COC (ex. Lucy Torres has a Bench billboard and she ran

petition

for Congress)?

They may be removed when the person becomes a

Campaign, propaganda, contributions, expenses

candidate, because otherwise, it is premature

When is the campaign period?


o Under Sec. 3 of the OEC: 90 days for P/VP, 45 days for

Congress and local officials, 15 days for barangay


What is election campaign or partisan political activity?
o Act designed to promote the election or defeat of a particular
o

candidate to public office


What if it is done for the purpose of enhancing the

chances of aspirants for candidacy to be nominated?

It is not election campaign.


What is the prohibition on election campaign?

It cannot be done except during campaign period

Note that early campaigning can only be done when a

campaigning.
What is the limit on expenses?
o P and VP P10 per voter
o Other candidates P3 per voter

But if no political party P5 per voter


o Political parties P5 per voter
What is a statement of contributions and expenses?
o That statement submitted by candidates and treasurers of
parties within 30 days from election itemizing all contributions

person is already deemed a candidate for office (there


are cases of this, when a candidate hasnt filed his

COC yet when he prematurely campaigned; this is not

early campaigning because he is not yet a candidate)


What is the rule on public rallies?
o 1. The candidate or party must notify election registrar that they
o

intend to organize and hold within the city/municipality


2. Submit to election registrar a statement of expenses in

connection therewith
What justifies the COMELECs power to determine prohibited

been filed
2. Administrative offense involving fines and perpetual

disqualification to hold office

Does not apply to barangay officials


Does this cover those who withdrew candidacies after

filing COC?

Yes, because the law does not distinguish


What is rule on contributions and gifts?
o No person or organization may solicit or accept gifts,
contributions, food, transportation, or donation (cash/kind) from

election propaganda?
o Police power, to avoid perversion of electoral apparatus
o Does this apply to plebiscites?

No, because the electorate is voting for issues, not


o

and expenses

Filed in duplicate with the offices of the COMELEC


What is the consequence of non-filing?

1. Cannot enter upon duties of the office until it has

candidates
What happens to print advertisements, media campaigns,

or other propaganda existing before the candidate filed his

election period until election day


What is the exception?

Normal and customary religious stipends, tithes,

collections
What are prohibited means of raising funds?
o Cinema or theatre performances, boxing, beauty contests,
dances

108

o
o

[grantees of government privileges or loans]


6. Grantees of franchises, incentives, exemptions, or

allocations by government
7. Persons who have been granted loans of more than 100K by

areas or in private areas without consent of owner


2. Non-removal of premature campaign materials within 3 days

the government within 1 year prior to election day


8. Persons with contracts to supply government with goods or

from notice
3. Print, publish, or broadcast election propaganda donated to

service, or perform construction


9. Educational institutions which have received grant of public

o
o
o
o

candidate without written acceptance of candidate


4. Foreign intervention
5. Campaigning outside campaign periods
6. Removal or destruction of lawful election propaganda
7. Removal, confiscation, or destruction of prohibited

propaganda other than by COMELEC or its officers


8. Written or broadcast materials that do not bear inscription

o Cockfights, lotteries, bingo, entertainment and games


What invalid forms of campaigning?
o 1. Display of materials outside authorized common poster

funds of at least 100K by government


Canvassing

political advertisement paid for and the name/address of


o
o

benefiting candidate or party


9. Advertisements beyond allowed time/space
10. Transportation, food, drinks during and 5 hours before and

o
o

after public meetings


11. Movie or video on candidate
12. Cinematography or documentary portraying life or

What is the composition of the Board of Canvassers?

Chair

Vice
Member

biography of candidate
What about media personalities?

Will be deemed resigned or LOA, as required by

employer, during campaign period


Who are prohibited contributors?
o [Public officers or entities]
o 1. Public utilities or those exploiting natural resources of nation
o 2. Public or private financial institutions

Except loans to parties or candidates


o 3. Members of AFP
o 4. Officials/employees of civil service
o [foreigners]
o 5. Foreigners, foreign corporations

Provincial BOC

City BOC

Municipal BOC

Provincial election

City election

Election registrar

supervisor or

supervisor or

or COMELEC

COMELEC regional

COMELEC

representative

office lawyer
Provincial fiscal

lawyer
City fiscal

Municipal

Provincial

City

treasurer
Most senior

superintendent of

superintendent

district school

schools

of schools

supervisor (or
school principal,

109

Substitut

1. Provincial auditor

1. City auditor

if absent)
1. Municipal

2. Registrar of deeds

2. Registrar of

administrator

members

3. Clerk of court

deeds

2. Municipal

, in order

nominated by executive

3. Clerk of court

assessor

judge

nominated by

3. Clerk of court

4. Other available

executive judge

nominated by

appointive provincial

4. Other

executive judge

officer

available

4. Other available

appointive city

appointive

officer

municipal officer

Who is the Board of Canvassers for President and Vice President?


o Congress

Will determine authenticity and due execution of

certificates of canvass for P and VP


Must prove:

1. Each certificate of canvass was executed,

signed, thumb-marked by the Chair and

Who is the Board of Canvassers for Senatorial Elections?


o The COMELEC en banc
o Not the provincial board
What is the duty of a Board of Canvassers?
o Purely ministerial: to compile and add results as appearing in

transmitted to Congress
2. Each certificate contains the names of all

candidates and votes in words and figures

3. No discrepancy in authentic copies


What if incomplete?

The Senate President must require the Board of

over the Board of Canvassers?

No.
What is the nature of proceedings?
o Administrative and summary in nature
o What vote is needed to render a decision?

Majority vote of all its members (it is a collegial body)


o What if there are written objections to the returns?

It can only be filed during this stage. It is only at this


time that inclusion or exclusion of any return is in
o

Canvassers (local) to transmit by personal delivery the


o

result of election?

Upon request of the P/VP candidate or his party,

candidate himself can be present

But cannot touch canvass

Can file challenges


Military or police officers, or special forces, etc. cannot
enter the canvassing room or within 50 meters from

Congress shall count the votes as appearing just to

verify the actual number of votes cast for P/VP


Can Congress delegate preliminary determination of

such room
Can the COMELEC order annulment of certificates of
canvass by only examining copies of the return of the
municipal judge and COMELEC, and not the Municipal

authenticity and due execution of the certificates to a Joint

issue
Who can be there and who cannot?

Parties or coalition can have a representative, or the

missing election returns


What if there appears to be alterations or erasures which
cast doubt in veracity of number of votes and may affect

the results transmitted to it


Does the COMELEC have direct control and supervision

Congressional Committee?

Yes.
What if Congress had adjourned its regular session?

It may continue canvassing even without call for a

special session

110

Board of Canvassers?

Yes, because all copies are original copies


Proclamation
o When does proclamation occur?

After canvass of election returns, in the absence of a

perfected appeal to COMELEC, the Board of

Canvassers declares winning candidates


Is the petition to restrain canvass and

fide intention to run for office


Compare with petition for DQ?
o There is substitution in petition for DQ (the candidate officially

proclamation or suspend proclamation the appeal

contemplated here?

No.
Is an incomplete canvass of votes valid?

No. A canvass must include all returns. Any

deemed to have been a candidate)


Compare with petition for quo warranto?
o In petition for QW, it is based on 1) ineligibility or 2) disloyalty to
RP.

the remedy is not election protest because there was


no valid proclamation in the first place. The

COMELEC still has jurisdiction.


What is the reglementary period to file petition to annul
election when there is no proclamation yet?

None.

misrepresented in the COC.

Before elections
What if the one who filed the COC and was denied due course filed

for and proclaimed. In this case, the jurisdiction transfers to the

Petition to Deny Due Course to COC

Within 10 days after proclamation of results


It petition to deny due course, the qualifications are

an MR?
o The COMELEC decision is not yet final. He can still be voted

Remedies and Jurisdiction under Election Law

became one, but violation OEC/LGC)


There is no substitution in petition to deny due course
(because the candidate materially misrepresented and was not

proclamation stemming from this is null and void. So

3. Other circumstances showing that candidate has no bona

ETs.

What is the period?


o 25 days from filing COC
Can the COMELEC decide motu propio?
o No: Sec. 78 of BP 881 provides that it must be upon a verified

Postponement or Failure of Elections

petition of any interested party.


What is the remedy sought in this action?
o To refuse to give due course to or cancel a COC.
o N.B. notice that the grounds indicate this is how you declare

Where
Initiation
Common

COMELEC en banc
Petition or motu propio
Force majeure, violence,

COMELEC en banc
Petition only
Force majeure, violence,

grounds
Unique

terrorism, analogous cases


Loss or destruction of

terrorism, analogous cases


Fraud

grounds
Condition

election paraphernalia
Serious and impossible to

Failure to elect and it affects

have free and orderly

results of election

Postponement of

Failure of elections

elections

someone a nuisance
What are the grounds?
o 1. COC filed to put election in mockery or disrepute
o 2. Causes confusion among voters due to similarity of names

111

elections

Illegality must affect more


than 50% of votes cast

Grounds must exist before

When

voting

Election not held or


suspended, after
voting, during
preparations or
transmission of
returns, or
canvassing

When the returns do not appear to be authentic and

duly accomplished on their face


What if the returns appear authentic and duly

accomplished, on their face, what is the remedy?

Regular election protest


Who has jurisdiction over pre-proclamation cases?
o The COMELEC
o But I thought that the COMELEC only has appellate
jurisdiction over election contests for municipal offices?

Yes, but thats for election contests.

For pre-proclamation cases, the COMELEC always


has original jurisdiction.

Pre-proclamation controversy

of the grounds for pre-proclamation cases have been rendered moot. The

What is a pre-proclamation controversy?


o Any question pertaining to or affecting the proceedings of the

o
o

At this point, it must be noted that with the automated election system, most
two usual grounds are (1) questioning proceedings and composition of BOC,

Board of Canvassers which may be raised by any candidate or

and (2) questioning election returns. Obviously, ground 1 is still available,

registered political party, or coalition


To whom may it be raised?

To the BOC or the COMELEC itself


On what matters?

Relating to preparation, transmission, receipt, custody,

Grounds still available in light of automation:

but ground 2 is barely applicable.

and appreciation of election returns


What is the difference between pre-proclamation case from an

Objections allowed

Objections not allowed

During voting

1. Proceedings and

Rules on appreciation of

and couting

composition of Board of

ballots

action for annulment of election results or declaration of failure of

Inspectors

elections?
o For pre-proclamation cases: COMELEC is restricted to

2. Voters related

examination of election returns on their face


For action for annulment of election results or declaration of

failure of elections, the COMELEC can go beyond returns


What is the exception to the general rule that the

3. Poll watchers related

COMELEC cannot go beyond and behind the face of the

During

4. Marked ballots
1. Proceedings and

election returns?

canvassing

composition of Board of

112

1. Material defects,
material errors under

Canvassers (N.B. BOC

automated system

and COMELEC have


concurrent jurisdiction)

2. Rules of appreciation,

COMELEC
What issues may be raised (GROUNDS FOR PPC for non-national
positions)?
o 1. Illegal composition or proceedings before the Board of

violence, voting
2. Poll watchers related

procedure, eligibility of

Canvassers

When must it be filed?

As soon as the Board begins to act

Petition filed beyond five days from

voters
3. Data storage delayed,
destroyed, falsified

For academic purposes, here is the discussion under manual counting:

President, VP, Senator, and HOR


What are the two exceptions? I.E. WHAT ARE THE ONLY

GROUNDS FOR PPC FOR NATIONAL OFFICIALS?

1. Manifest errors in the certificate of canvass or

composition of the Board

N.B. also applies to national positions


2. Canvassed returns are incomplete, contain material defects

A. ERs are delayed, lost, destroyed

In this case, the Board can use any of the

election returns before it

Canvassing body may act motu propio or

upon written complaint of interested person


Those appearing on the face of the

certificate of canvass or the election returns


The objections must be made before the

authentic copies
Or terminate canvass if the missing returns

will not affect the results anyway


B. Missing requisites

Board calls for members of the BEI to


complete or correct the return. DONT

Board of Canvassers and specifically noted

proclamation of the Board is out of time


What if the petitioner has participated in the
proceedings?

Deemed to have acquiesced to the

Do pre-proclamation controversies apply to national officials?


o No. No pre-proclamation controversies apply to elections for
o

Filed either with BOC or directly to

in the minutes
2. Questions affecting the composition or proceedings

EXCLUDE, if correctable
C. ERs are tampered, falsified, altered after these left
the hands of BEI, not authentic, prepared under
duress, force, intimidation, etc.

Resort to other ERs

If all are tampered, can have ballot boxes

of the Board

What is the period for questions


pertaining to illegal composition or wrong
proceedings of the Board?
o Within 3 days from ruling thereon

reopened and counted


D. Discrepancies in other authentic copies of the
returns or discrepancies in the votes of any candidate

113

in words/figures and these would affect results of

the election

Order opening of ballot boxes for recount


3. ERs prepared under duress, threats, coercion, intimidation,

within 48 hours, the losing party files a written and

doctrine of statistical improbabilities


Statistically improbable data
4. Substitute or fraudulent returns in controverted polling places

along with records


Can there be a proclamation in the interim?

No. No proclamation can be made from incomplete

canvass
Exception to this?

Partial proclamation of candidates not affected by the

candidates
Where do you raise a pre-proclamation question?
o 1. If it involves contested composition/proceedings of the Board
o

verified notice of appeal to the BOC


And then the notice will be elevated to the COMELEC,

obviously manufactured

When is it obviously manufactured?

According to the SC, when it follows the

are canvassed, and the results materially affect the standing of

After all the uncontested ERs have been canvassed,

To the COMELEC
2. For the contested ERs (the four under #2 above) To the

pre-proclamation controversy
Usually, in cases what has been held as not a proper subject to

raise in pre-proclamation controversies?


o Misappreciation of ballots, which is not a ground included
What is the effect on the reglementary period to file an election
protest when a candidate, party, or coalition files a petition to

BOC at first instances


What is the nature of these proceedings?
o Summary decide within 7 days, and final and executory

suspend or annul a proclamation?


o It gets suspended
Election Contests

within 7 days
How do dispute contested ERs?
o Two objection rule

A. Candidate, PP, or coalition raises oral objections

Jurisdiction over election contests:

during presentation of the ER, and the Board of


Canvassers logs it in the minutes

The Board will defer canvass of the return

and proceed to other ERs


B. Then submit written objections + evidence within
24 hours of objection

Board summarily rules upon it. The losing

Position elected

Original jurisdiction

Appellate jurisdiction

President, VP
Senator
Congressman
Regional, provincial, or

SC as PET
SET
HRET
COMELEC

SC, rule 65
SC, rule 65
SC, rule 65
SC, rule 65

city official
Municipal official

RTC

COMELEC (5 day
period, MR does not

party can inform the Board if it intends to


o

appeal the decision


What is the period and to whom must appeal be made?

Barangay official

MTC

toll) SC, rule 65


COMELEC (5 day
period, MR does not

114

toll) SC, rule 65

What are the exceptions to the rule that when the ET obtains
jurisdiction, it precludes the COMELEC from exercising powers

over PPC?
o [Grounds where there was no valid proclamation]
o 1. BOC was improperly constituted
o 2. Proclamation was null and void
o [Wrong remedy]
o 3. Quo warranto is not the proper remedy
o 4. What was filed was a petition to annul a proclamation, and

What are the two actions that may be filed?


o 1. Election protest
o 2. Quo warranto

Election Protest

What are the requisites for an Election Protest?


o 1. Filed by candidate who has filed a COC and has been voted

upon for the same office

What is the special rule for PET?

Only the 2nd or 3rd placer may file the protest


2. Filed within 10 days from proclamation of results

Except P/VP, which is 30 days

Period to file EP is suspended during pendency of

it was made ad cautelam (cautionary)


When can there be simultaneous adjudication of PPC and

COMELEC that exercises PPC and EP powers. Note,

PPC
A counter-protest must also comply with the

however, that the case that upheld this doctrine


involved facts that similarly treaded both the PPC and

irregularities or illegal acts before, during, or after casting and


counting of votes

So the usual prayer is a setting aside of count based

not QW or Election Protest


[Express]
5. Election contest expressly made without prejudice to PPC or

Election protests?

Elective provincial offices, because it is both the

reglementary period
3. On grounds of: 1) election fraud/terrorism, and 2)

o
o

EP.
What is the effect of a successful election protest?
o Not only is the proclaimed winner unseated, but the challenger
is installed into the office (but sometimes, even a non

on returns in favour of a revision and recount of ballots


What can be considered:

Ballots, ERs, COCs, data-storage devices


When an election protest is filed, it abandons a prior

pre-proclamation controversy filed with the COMELEC


and bars subsequent ones. Once the tribunal has
acquired J over an election, the COMELEC loses its
jurisdiction.

115

protestant [a third candidate] wins)


(Whereas in quo warranto, the petition may or may not be

claiming the office for himself)


What are the additional requirements for election protest?
o 1. Payment of docket fee

Failure to pay is ground to dismiss the case

Exception estoppel by the other party, by raising it


too late
o 2. CNFS
What if the protestant dies?
o Unlike ordinary civil actions, this does not terminate the action.

The successor becomes the real party in interest for the

continuation of the proceedings.


How does the role of the COMELEC shift from PPC to ECs?
o In PPC it is exercising admin/QJ powers
o After proclamation and EC is filed, it exercises QJ powers
o (This is for provincial, city, and regional officials where both

Quo Warranto

prolong the contest tactic.


When is motion for execution pending appeal filed?

During period to file the appeal.


Can damages be awarded in QW or EP cases?
o Yes.
o When can there be indemnification for expenses for the

attributable to the losing party


What if the election case has become moot (ex. The right
to office no longer exists because it has taken so long)?

There can still be award of damages

In this case, can there be indemnity for damage


suffered by the other party due to the execution
pending appeal?

No. It is damnum absque injuria.

Election offenses

and the electorate is fully aware of this fact but they


still voted for him (meaning, they threw away their

votes)
What is the rule for an appointive office?

The court can determine who among the parties has

When are election offenses committed?


o Only as soon as campaign period starts. Any supposed
premature campaigning cannot be prosecuted before start of

legal title to the office.


Is execution pending appeal allowed?
o Yes, the court may grant a motion to that effect. But it must be
o

of remaining term alone as reason


This is to prevent abuses through the grab the proclamation,

second placer be declared the winner?


o No. He has no mandate.
o What is the exception?

When the one who got highest votes has been DQ

election case as spent by the winner?

When there is a wrongful act or omission clearly

What are the requisites of Quo Warranto?


o 1. Filed by any registered voter in the constituency
o 2. Grounds:

a) Ineligibility

b) Disloyalty to the RP (ex. Having a greencard)


o 3. Within 10 days from proclamation of results
When a proclaimed officer was DQ by Quo Warranto, can the

A combination of any 2 will grant the petition, but not shortness

PPC and EC is lodged with COMELEC)

for urgent reasons.


What are some allowable reasons?

1. Public interest involved

2. Shortness of remaining term

3. Length of time that the contest is pending

campaign period.
What are some of the prohibited acts?
o 1. Vote-buying or vote-selling
o 2. Wagering upon result of the election
o 3. Threats, intimidation, terrorism, use of fraudulent devise,
o

116

forms of coercion
4. Appointment of new employee

Except when there is urgent need

What is required?

Notice given to COMELEC within 3 days

from appointment, creation of new positions,


o

promotion, or granting salary increase


5. Carrying deadly weapon within radius of 100 meters from
precinct

Must the weapon be seized within the prohibited

COMELEC approval

When will it not be penalized?

If done to promote efficiency in government


service
What are the elements of the violation?

1. Fact of transfer or detail within election

period
2. Transfer or detail made without prior
approval of COMELEC

Is good faith a defense?


o No. Offenses are mala prohibita.
Who has jurisdiction over election offenses?
o 1. COMELEC has exclusive jurisdiction to investigate and

o
o

candidate
9. Using threat, intimidation, terrorism, fraudulent, devises
10. Soliciting votes or electioneering during registration day

and election day within polling place or within 30 m radius


11. Public official or employee who releases, disburses, or
expends public funds 45 days before election or 30 days before

prosecute cases involving violation of election laws.

It may validly delegate to the Provincial Prosecutor.


2. Trial and decision the RTC has exclusive original
jurisdiction to try and decide election laws

What is the exception?

MTC over offenses relating to failure to

COMELEC
2. Courts also give preference to disposition of election cases

Except over habeas corpus


What is the full list of election offenses under Sec. 68 of the OEC
(N.B. these are grounds for DQ too)?
o 1. Vote-buying
o 2. Acts of terrorism
o 3. Spending in excess of allowable limit
o 4. Soliciting, receiving, or making prohibited contributions
o 5. Campaigning outside period
o 6. Tamper with election propaganda
o 7. Prohibited election propaganda
o 8. Coercing subordinates to aid, campaign, or vote for a

radius anytime during the period


6. Transfer or detail of government official or employee without

executory
What is the rule on preferential disposition?
o 1. Investigation and prosecution given priority by the
o

radius?

No, as long as he entered the prohibited


o

From the date the judgment becomes final and

register or to vote
What is the prescriptive period for election offenses?
o 5 years from date of commission
o What if the offense is discovered during an election

special election
12. PP holds political conventions or meetings to nominate

official candidates earlier than allowed period


13. Destroying or cancelling a COC which has not been

cancelled
14. Misleading BEI by submitting false or spurious COC to

detriment of a candidate
15. Receiving COC out of allowed time and making it appear it

was filed on time; or coercing the officer to perform this act


16. Interference with radio or TV broadcast of lawful political
program

contest proceeding, when does prescription start?

117

o 17. Soliciting votes on election day


What are other offenses laid out in RA 6646?
o 1. Causing printing of official ballots and ERs by printing

o
o
o

establishments not on contract with COMELEC or undertaking


o

unauthorized printing
2. Tampering, increasing, decreasing votes received by

candidate (or refusing to correct the votes even after proper


o

verification and hearing)


3. Refusing to issue certificate of voters to accredited watchers

o
o

(committed by BEI member)


4. Prohibited forms of election propaganda
5. Failure to give notice of meetings to other members of the

board, candidate, or PP (by chairman of board of canvassers)


6. Person declared as nuisance candidate continues to

to initiate recall elections

N.B. but RA 9244 removed the power of the

induce or abet such misrepresentation


7. Chairman of BEI fails to affix his signature at the back of the

Preparatory Recall Assembly in the LGC to initiate

ballot to the voter

LOCAL GOVERNMENT

recall elections
What is the supervisory power of the President?
o 1. General supervision over all LGUs

Can only interfere if the LGU acted against law

Power of general supervision includes power to


o

Constitutional provisions

resolutions
Recall juridical entities may also initiate recall elections
under the LGC. It is not an exclusive prerogative for the people

official ballot, in the presence of the voter, before giving the

government authority
What is given to autonomous regions?

Political autonomy
Congress can change government structure; except what is

provided by the Constitution


What does the LGC provide?
o Initiative and referendum can cover both ordinances and

misrepresent himself as a candidate and public officers who


o

Decentralization there is a hierarchy only


Autonomy can make decisions without going up
What is given to LGUs?

Administrative autonomy/decentralization of

What are the territorial and political subdivisions?


o Provinces, cities, municipalities, barangays
o Autonomous regions: Cordillera, Muslim Mindanao
o What if you want to change the subdivisions?

There must be a constitutional amendment

Ex. Adding a third autonomous region


Autonomy versus decentralization:

o
o

suspend and remove


2. But in particular, President exercises direct supervision over:

Provinces

Autonomous regions

Independent cities
3. Provinces exercise direct supervision over:

Component cities

Municipalities
4. Cities and municipalities exercise direct supervision over:

Barangays
Can the Secretary of Justice pass judgment over
constitutionality of local tax measures?

118

Yes. This is NOT power of control, but supervision

because he is checking compliance with laws.


What is the power over the MMDA?

Also of general supervision, since it is part of local

development plan development or infrastructure


o

projects
President can make adjustments in IRA upon

recommendation of:

1. DOF Secretary

2. DILG Secretary

3. DBM Secretary
Is the IRA included in considering whether an LGU has

governments
Council of MMDA consists of mayors, although some
members are department secretaries, they do not

have voting power merely advisory


What is the nature of taxing power of local governments?
o Now constitutional; before, it was statutory
o What can limit taxing power of local governments?

Only statutes. So it cannot be limited by EOs or AOs.


o This provision removed tax immunities of certain companies.

complied with the income requirement for conversion into


another political subdivision (ex. Municipality to city)?

Yes.

NOTE, however, that RA 9009 expressly excludes IRA

Local governments could tax them. If the charter is changed to


o

form counting w/n a municipality is qualified to be a

exempt them again, then they are exempt.


How is the power of LGUs to tax interpreted?

Liberally interpreted in its favor as against the State

Strictly interpreted against it as against taxpayers


QC v. ABS-CBN: ABS-CBN pays franchise tax equivalent to

city
League of Cities v. COMELEC: Cityhood Laws
were first deemed violative of EPC, because 16
municipalities were allowed to convert into cities in
spite not meeting the requisite income requirement.

3% of all gross receipts in lieu of all taxes. This exemption

But it was REVERSED on MR. The 16 municipalities

does not clarify against which the exemption applies. Settled:

had pending cityhood bills prior to the passage of RA

ABS-CBN pays income tax and franchise tax. But whether this

9009 which increased the income requirement from

exemption applies to local tax: unclear. ABS-CBN has burden

20M to 100M. The 16 were the only ones left among

to prove this. They did not.

Smart v. Davao: In lieu of all taxes must expressly

At least 20% must be spent according to local

the more than 50 who had simultaneously pending

mention local taxes for the exemption to extent to this.


LGUs have share in national taxes (IRA Internal Revenue

cityhood bills, and were unfairly left behind.


What is the right of LGUs over the national government utilizing
and developing national wealth in their areas?
o 1. Equitable share in the proceeds of such; or
o 2. Direct benefits to inhabitants
o What is the particular LGC provision?

LGUs get 40% share of collection within territory

Allotment):
o But national government has no share in local taxes
o Share is national taxes is automatically and fully released
o Cannot place conditions or provide that release is gradual
o What is required in appropriation of its annual IRA?

derived by national government from mining taxes,


royalties, forestry and fishery chares, other taxes,

119

fees, and charges, and share in co-production, JV, or

production-sharing agreement
In sum, what are the sources of income of an LGU?
o 1. Local taxes, fees, charges
o 2. IRA
o 3. Share in proceeds of utilization of local natural resources
o 4. Other sources of revenue in its public or proprietary capacity
What is the term of elective local officials?
o No elective official shall serve for more than 3 consecutive

terms
TWO requisites:

1. Must be elected three consecutive terms

2. Must have fully served three consecutive terms


What is not an interruption:

1. Voluntary renunciation

2. Suspension
X served 3 terms fully then ran in recall election. The

interruption was just 2 months. Valid?

The interruption was sufficient.


Does changing of municipality to city constitute

P20M to P100M (which was the root of the cityhood


o
o

laws controversy)
2. By act of congress
3. And subject to approval by majority of votes in plebiscite in

directly affected political units

Town to city in city

Province split into two in whole province

Province included in another in both


Special Metropolitan political subdivision:
o Retain basic autonomy
o Have own local executives and legislative assemblies
o Jurisdiction limited to basic services needing cooperation
o What is needed to form this?

Assembly and plebiscite


o Does the MMDA fall under this provision?

No. MMDA is not under the above section. It was not

interruption?

No, because there is no change in the constituency or


o

Ex. RA 9009 increased requirement of income from

territory
X, a municipal councillor was by operation of law elevated
to vice-mayor. Was there interruption?

Yes, there was interruption in his term as councillor.


What is the rule for barangays?

The Congress determines the length of their term. It

subject to plebiscite
MMDA is not a local government entity. Thus it has

no police power, power to expropriate, or tax


What are the three kinds of cities?
o 1. Highly Urbanized city (HUC)

As determined by law
o 2. Independent component cities

Non-HUC but charters prohibit voters from voting in

provincial elections
3. Component cities

Still under provincial control


Which do not vote in provincial elections?
o HUCs and independent component cities
o Neither can their residents run for provincial office
Local governments may group themselves voluntarily; no need for

legislation
What are regional development councils?

can also be 3 years (and it is)


LGU creation, division, merger, abolition, substantial alteration of

boundary:
o 1. Must be according to criteria in LGC

120

Composed of:

1. LG officials

2. Regional heads of departments and other


government offices

3. Representatives of NGOs within region


Purposes:

1. Administrative decentralization

2. Strengthen local autonomy

3. Accelerate economic and social growth

Only two allowed (Cordillera, MM)


o Anymore and you amend the Constitution
Creation of organic act does not create the autonomous region; there

Classify corporations according to purpose:


o Public for the government of a portion of the State
o Private for some private purpose or aim
o Quasi-public private corporation that renders public service
What are the two types of public corporations?
o 1. Quasi-corporation created by the State for a narrow
purpose
2. Municipal corporation body politic and corporation
constituted by the incorporation of the inhabitants for the

national government
What powers remain with national government?
o 1. National defense and security remains with national

government
o 2. Foreign relations
o 3. Monetary affairs
Pandi v. CA: Ordinary statute cannot amend an organic act. It must be

by plebiscite.
Sema v. COMELEC: Only Congress can create provinces and cities,

because creation of such will lead to creation of legislative districts too.

representative legislative assembly and executive department


2. Special courts with jurisdiction over personal law, family law,

must be another plebiscite involving all


o What if only 1 province approved the law in a plebiscite?

It fails. There has to be at least 2 provinces.


President has general supervision over autonomous regions
Powers of A.R. are enumerated. Those not enumerated remain with

Public corporations

must be a voting
o Those who voted against may still join in the future, but there

1. Basic structure of government must have elective and

and property law

Autonomous regions

So ARMM Regional Assembly cannot create provinces and cities.


What does the organic act contain?

purpose of local government


What are the elements of municipal corporations?
o 1. Legal creation or incorporation by law
o 2. Corporate name
o 3. Inhabitants
o 4. Territory
What is the dual nature of municipal corporations?
o 1. Political subdivision
o 2. Corporate entity representing inhabitants
What is their dual function?
o 1. Public/governmental

Agent of the State to govern territory and inhabitants


o 2. Private/proprietary

Agent of community in administration of local affairs


Who may create municipal corporations?
o Congress.
o It may also abolish, merge, create, and divide them by law.
o Can Congress delegate to the ARMM the power to create
provinces, cities, barangays, and municipalities?

121

There is no provision that prevents delegation of

power to create municipalities and barangays


But the power to create provinces and cities may not
be delegated because it necessarily entails the

creation of legislative districts which only congress

undertaken?
o It must be direct, through quo warranto or any other direct

can do.
What are the rules for creation/conversion?
o See discussion above (re: plebiscite, etc.)

Income

Population

Land area

Barangay
Barangay (in

N/A
N/A

2k
5k

N/A
N/A

MM or HUC)
Municipality
City

2.5 M
100 M (amended

25k
15k

50 sq. km
100 sq. km

HUC
Province

by RA 9009)
50 M
20 M

200k
250k

N/A
2000 sq. km

proceeding
What if the challenge was raised too late (ex. 30 years, 16
years)?

The corporation can be treated as de jure, due to

What are the current indicators to meet?

If the basis is an E.O., there is no valid law


o 2. Attempt in GF to organize
o 3. Colourable compliance with law
o 4. Assumption of corporate powers
How must an attack against validity of incorporation be

estoppel

Distinguish between municipal corporation by


prescription from de facto municipal
corporation:
o De facto needs valid law
o For prescription, just passage of time

N.B. So there can be municipal


corporations without charters (prescription)

Powers of LGUs

What is rule for division/merger?


o Same, but the new units must not go below the minimums set

above
When can there be abolition?
o When the income, population, or land has been reduced to an

What is devolution?
o Transfer of power from National government agencies to local
government, to perform specific functions and responsibilities

It is power-specific and expressly mentioned. If not

irreversible extent.
o Must provide which LGU it will be incorporated with.
When is the beginning of its corporate existence?
o Upon election and qualification of chief executive and majority

devolved, then it still belongs to the national

of sangguinian members
o Unless provided otherwise by the law/ordinance making it
Requisites for a de facto municipal corporation?
o 1. Valid law authorizing incorporation

government.
o Covers people, assets, services, regulatory powers
o Political decentralization
What is de-concentration/decentralization?
o Transfer of powers from National Government Agencies to their
respective regional offices

Need not be expressly provided in the LGC

122

o Covers just powers/functions


o Administrative decentralization
Is power to expropriate a devolved power?
o No. It is a delegated power.
o Example of devolved powers:

Approval of subdivision plans

Franchising tricycles

Regulating cockfighting

Primary health care


In case of doubt, how is a law interpreted if it can be resolved in

o
o

GWC?

Power to zone

Abatement of nuisance per se

Power to issue business permits


Curbing vagrancy
Basic Services and Facilities

favor of higher or lower LGU?


o The lower LGU, in case there is doubt (favouring devolution)

General Welfare Clause

government or expropriated
What about public works and infrastructures funded by the
national government?
o Not covered by Sec. 17, except when the LGU is tasked to
implement such projects

carry out duties


2. Police power proper

To enact ordinances as necessary and proper to

Power to generate and apply resources

provide for health, safety, prosperity, improvement of

Where are these basic service and facilities found?


o LGC, Sec. 17
Can the LGU use funds to widen and improve sidewalks in
subdivisions?
o No. Subdivision streets are private until donated to the

What is the General Welfare Clause?


o It is the statutory grant of police power to LGUs
o So its not inherent; its granted by law.
What are the branches of the GWC?
o 1. General legislative power

To enact ordinances and regulations necessary to


o

Imposition of curfew on minors. This is actually PP.


Which fall under the general legislative branch of the

morals, peace, good order, etc.


What are the limitations to exercise of GWC?
o 1. Only within territorial limits of the LGU

Except: for protection of water supply


o 2. EPC
o 3. Due process clause
o 4. Must not be contrary to Constitution and the laws
Authority over police units is provided by law.
Which of the following does not fall under general legislative

This is discussed above (sources of LGU revenue)


What are the principles in LGU taxation?
o 1. Taxation must be uniform
o 2. Taxes, fees, charges are equitable and based as far as
practicable on ability to pay; levied and collected for public
purposes; not unjust, excessive, oppressive or confiscatory, not
o
o

branch of the general welfare clause?

123

contrary to law, PP
3. Collection must not be let to any private person
4. Revenue must solely inure to the benefit of the LGU, unless

provided in the LGC


o 5. Progressive system of taxation, as far as practicable
What is the relationship of LGU power to tax vis-a-vis Congress?

Congress can limit this power of LGCs, but cannot take away

the power to tax

residential, commercial, or industrial purposes

Limited by percentages of allowable agricultural land

Eminent Domain

Check the general provisions on eminent domain


What are the additional limitations?
o 1. Exercised by local chief executive, acting pursuant to valid
o

ordinance
2. For public use/purpose/welfare, for benefit of poor or

landless
3. Only after a valid and definite offer is made to and not

accepted by the owner


Can the Provincial Government disapprove the municipalitys act

HUC and ICC


CC and 1st to 3rd class

15%
10%

municipalities
4th to 6th municipalities

5%

under the LGC.


Can expropriation be through resolution?
o No, it must be an ordinance.
Differentiate procedure between local expropriation and national

Closure and Opening of Roads

assessed value of the property

Reclassification of lands
Done by a city or municipality through ordinance passed after

conducting public hearings


When can agricultural lands be reclassified and their utilization

municipality to exceed the limits set here


What if there is need for approval by a national agency for

months from receipt is deemed as approval

of FMV of property based on tax declaration


National 1) file complaint, 2) deposit amount equivalent to

What cannot be reclassified?


o Those distributed through CARL
What is the power of the President?
o With NEDA recommendation, can authorize a city or

reclassification?
o Failure to act on a proper and complete application within 3

expropriation:
o Local 1) file complaint, 2) deposit amount equivalent to 15%
o

to be reclassified

Even DAR has to comply with these percentages


What is the limitation on percentages of reclassified agricultural
land:

of expropriating a parcel of land for government use?


o No. The power of eminent domain belongs to the municipality,

2. Land has substantially greater economic value for

and disposition be provided for?


o 1. When the land ceases to be economically feasible and
sound for agricultural purposes (determined by DOA)

124

How is this done?


o Through ordinance, approved by at least 2/3 of the members of
the sanggunian
o And when necessary, an adequate substitute is provided
Can be temporary or permanent
o What cannot be permanently closed?

National road

Public plaza

Freedom park unless there is a substitute

A national road can be temporarily closed for a local fiesta,

public rally, agricultural or industrial fair, or undertaking of


o

sanggunian itself, exercised by the local CE; second, by a

public works and highways


A national road cannot be temporarily closed for athletic,

governments?
o 1. Within 3 days of approval, the secretary forwards the

or approved by the LGU


Additional limitations?
o 1. Adequate provisions for public safety
o 2. Property may be used or conveyed for any purpose for which

approved ordinance or resolution to the sanggunian

other real property may be lawfully used and conveyed

EXCEPT freedom parks, which must be transferred or

relocated elsewhere
Includes parks, markets, etc.

Legislative power

higher sanggunian (power of supervision)


What is the review system of the provincial government over
ordinances/resolutions of the municipal or component city

cultural, or civic activities not officially sponsored, recognized,

Remember: there are two kinds of veto first, within the

panlalawigan.
2. It has 30 days to disapprove it, if it is beyond the power

o
o

conferred upon the component city or municipality.


3. If there is no action within 30 days, it is deemed approved.
N.B. Since this is pursuant to the power of supervision, it can

only check the legality of the subordinate legislation


What is the review system of the municipal or component city
governments over ordinances/resolutions of the barangay?
o Same as above, except there is no veto. The higher

Distinguish ordinance from resolution:


o Ordinance permanent rule of conduct
o Resolution temporary character or expresses sentiment
What are the requisites for validity?
o 1. Not contravene Constitution or law
o 2. Not unfair or oppressive
o 3. Not partial or discriminatory
o 4. Not prohibit, but may regulate trade
o 5. Not unreasonable
o 6. General in application and consistent with PP
Note: there is a veto (local CE) and 2/3 veto-override (sanggunian)

sanggunian can only recommend revisions and the barangay

ordinance will be suspended until the revision is made.


What if the subordinate local government unit still enforces the
ordinance/resolution notwithstanding veto by the province or

system here too, between the local chief executive and the members of

suspension by the municipality or component city?


o It is a ground for disciplinary action
When do ordinances/resolutions take effect?
o 10 days after posting in entrance of the LGU capitol + in 2
o

sanggunian. This is akin to the national legislative process.


o What is the exeception?

The punong barangay has no veto power. He has no

conspicuous public places


What about publication?

Publish main features in a newspaper of GC in the


province of that local legislative body. If there is none,
post ordinance in all the municipalities/cities in the

choice but to sign the ordinances enacted by the

province.

sanggunian Barangay

125

For HUC and Independent Component Cities, main

legislative body concerned in a public place


o

in the LGU
4. After period, the COMELEC certifies whether the required

number of signatures were met


5. After certification, COMELEC sets initiative date where

registered voters approve/reject the proposition:

Within 90 days for autonomous regions

Within 60 days for provinces and cities

Within 45 days for municipalities

Within 30 days for barangays


6. Initiative itself, on the date set, where results are certified

features published in a newspaper of GC within the

city. If none, then any newspaper of GC.


What is the procedure for local initiative?
o 1. File petition with local legislative body to enact, adopt,
repeal, or amend any law, ordinance, or resolution

At least 2000 for autonomous regions, 1000 for


provinces and cities, 100 for municipalities, 50 for
o

barangays
2. If the body takes no action within 30 days, then the people
can give notice to the body that they are invoking their power of

initiative
3. Proponents attempt to get required number of signatures:

120 days for autonomous regions

90 days for provinces and cities

60 days for municipalities

30 days for barangays

How many signatures are needed?

Province or city: at least 10% of registered

voters, including 3% for each legislative


district
o

and proclaimed by the COMELEC


When do local propositions become effective?
o 15 days after certification of the COMELEC of its passing
What are limitations on local initiative?
o Power of local initiative only exercisable once a year
o Only on matters within legal powers of the local bodies

If there is only one legislative

the proposition in toto, the initiative is cancelled


What are the limitations on local bodies?
o 1. Cannot repeal, modify, or amend ordinance or resolution
passed through initiative within 6 months from date thereof

district, the 3% requirement applies


to municipalities (for province) or

barangays (for city)


Municipality: at least 10% of registered

(absolute prohibition)
2. Can only repeal, modify, or amend it within 3 years by a vote
of 3/4 of all its members (stricter repeal in certain period)

N.B. for barangays within 1 year from expiration of

voters, including 3% for each barangay

concerned
If any time before the initiative is held, the local body adopts

therein
Barangay: at least 10% of registered voters
Where is it signed?

Before the election registrar, and in the

first 6 months
What is the procedure for local referendum?
o Any local body can submit to the registered voters the question
o

presence of a representative of the


proponent and representative of the

126

of whether to approve or reject any ordinance or resolution


When is the referendum held?

Within 60 days for provinces and cities

Within 45 days for municipalities

Within 30 days for barangay


Certified by the COMELEC

Corporate Powers

1. Continuous succession
2. To sue and be sued
o Who can sue?

In general, local executive with authority of

Sanggunian
Except when City Councillors bring action to prevent

be legal.
What is the rule on procurement of supplies?

Must be by public bidding.

If the amount is minimal, then it can be by personal

canvass of at least three responsible merchants.


5. To enter into contracts
o What are the requisites?

A. LGU has the power to enter into that contract

B. It must be entered into by the proper department,


board, committee, officer, or agent.

Local chief executive must have sanggunian

unlawful disbursement of city funds


Who must represent the municipality?

The provincial fiscal or municipal attorney.

Can only employ a private attorney if the two above

provided. There are several cases on this.


3. To have and use a corporate seal
4. To acquire and convey real or personal property
o Through any manner provided by law.
o What can it alienate?

Only patrimonial property


o What is the presumption on character of property?

If there is no proof that it was acquired through

o
o

corporate or private funds, it is presumed to have

concurrence
C. Contract complies with certain substantive
requirements:

Ex. Actual appropriation and availability of

are disqualified and the reasons for such are

The donation can be subject to conditions, which must

come from the State upon creation of the municipality.

Thus, it is governmental/public property.


What is the character of public plazas?

Public, and is beyond commerce of man. It cannot be

funds

D. Comply with formal requisites of contracts


What if there is non-compliance with #1 or 3?

Ultra vires and void. Cannot be ratified, because they


are acting beyond jurisdiction.
What if there is non-compliance with #2 or 4?

Can be ratified. (Only formal or procedural matters)


When can a contract be impaired?

Exercise of police power.


Can the local chief executive negotiate and secure grants?

Yes, with authority from the sanggunian, from local

leased or subjected to contractual undertakings.

Same with public streets.


What is the rule on open spaces in a subdivision?

They should be donated to LGU where the subdivision

and foreign assistance agencies.


No need to secure clearance from national
government, unless there are national security
implications.

Municipal liability

is found.

127

What is the general rule?


o LGUs and officials are not exempt from liability for death or

injury to persons or damage to property.


o But see qualifications below.
What are the specific provisions of law in the NCC?
o 1. LGU is liable in damages for death or injury due to defective

with a private entity, it can be held liable


2. State is responsible when it acts through a special agent
3. LGU liable in damages for injuries suffered due to failure or
o

danger to life or property.


When is the LGU liable for tort?
o 1. If the LGU is engaged in governmental function, it is not

authority of the municipal corporation as re: contracts.


Does estoppel apply to municipal corporations?

Ordinarily, no.

Estoppel cannot make an ultra vires contract valid,


because that effectively would make the municipal

refusal of police force to render aid and protection in case of

ultra vires, it is not.


What is the expectation from private individuals who deal
with municipal corporations?

The private person knows the extent of power or

supervision over the road.


So even if it enters into managing contract
o
o

pay minimum wage, failure to abide by TRO


What is the LGUs liability for contracts?
o Like an ordinary person, liable for contracts, if intra vires. If
o

condition of streets, public buildings, or other public works

Does the city have to own that road?


No. As long as it exercises control or

Yes. Ex.: failing to indemnify persons in expropriation, failure to

corporation do what it cannot do.


But what is the doctrine of implied municipal liability?

The LGU is obligated to pay reasonable value of the


benefits accepted or appropriated by it as to which it
has the general power to contract. This is an implied

liable for tort.

Ex. Prosecution of crimes

Ex. Public works, like usage of dump truck


2. If the LGU is engaged in proprietary function, it is liable.

Ex. Granting of proprietary ferry service franchise to

contract.
Illustrate:

The LGU cannot set up the plea that the contract was
ultra vires and still retain benefits under it.

another, notwithstanding prior grant to an entity

Ex. Town fiestas

Ex. Operation of public cemetery


Is the municipality liable for illegal dismissal of its

Local Officials

What are the prohibited interests of both elective officials and


appointive officials?
o 1. Business transactions with his own LGU and where money

employees?

Yes.
When is a local official personally liable?
o When they act in a malicious and wanton manner and injure
individuals rather than discharge a public function
Can an LGU be held liable for violation of law?

128

o
o
o

or anything of value is given


2. Hold interests in cockpit or other games licensed by LGU
3. Purchase other property forfeited in favour of LGU
4. Be a surety for a person doing business with LGU when one

is required
5. Cant possess or use public property for private purposes

6. Prohibitions in RA 6713:

A. Financial or material interest with office transaction

B. Outside employment and other related activities

like recommending persons to positions in private

appointive officials?
o Governors, mayors (whether city or municipality) cannot

where adverse party is the LGU


o N.B. so they can defend the LGU
2. Cannot appear as counsel in criminal case

What are the qualifications of elective officials?


o 1. Citizen of Philippines

When must one be a citizen?

Upon proclamation

X filed his certificate of candidacy. After, his


application for repatriation was granted. And
then, he won and took his oath. Is this allowed?

Yes, because you only need to possess

where any public officer, national or local, is

accused of offense related to office


o N.B. this is any public officer
3. Cannot collect any fee for appearance in
administrative proceedings involving LGU
where he is an official
o N.B. so they can appear in admin

proceedings, but not charge


4. Cannot use property and personnel of
government, except when the sanggunian
member is defending interest of the

functions of office
2. Lame duck provision applies

Except for losers in barangay elections

Elective officials

practice profession or any other occupation


Sanggunian members:

May practice occupation except during session hours

For those who are lawyers

1. Cannot appear as counsel in civil case

compensation from it
What are the two prohibitions re: appointment applicable to
elective and appointive officials?
o 1. Cannot be appointed or designated in any public office

Except for positions that are allowed by law or primary

enterprises transacting with him

C. Disclosure or misuse of confidential information

D. Solicitation or acceptance of gifts


What is the rule on practice of profession by elective and

But they should not derive monetary

government
For doctors of medicine

May practice even during official hours of

qualifications upon proclamation

And repatriation retroacts


2. Registered voter in the LGU (or for sanggunian member, in

the district) where he intends to be elected


3. Resident therein for at least 1 year immediately preceding

o
o

election
4. Can read and write Filipino or local language
5. On election day, must be at least:

23 years old

21 years old

18 years old

15 years old

Governor

Mayor of ICC

City sanggunian

Sangguniang

(non-HUC)

Kabataan
(until 21 years

work for emergencies

old)

129

Vice Governor

Vice Mayor of

Municipality

Provincial

ICC
Mayor of CC

sanggunian
Punong

sanggunian
Mayor of HUC

Vice Mayor of CC

Barangay
Barangay

Vice Mayor of

Mayor of

HUC
City sanggunian

municipalities
Vice Mayor of

of HUC

municipalities

Mayor
Vice Governor or Vice Mayor

member, in order (according to

sanggunian

Vice Mayor
Highest ranking sanggunian

Who are disqualified from running for office?


o 1. Sentenced by FJ for offense involving moral turpitude or

Barangay captain
Sanggunian member in province,

number of votes in elections)


Highest ranking sanggunian member
Appointed by President

HUC, or ICC
Sanggunian member in CC or

Appointed by Governor

municipality
Sanggunian member in barangay
SK member

Appointed by city or municipal mayor


Official next in rank

What are the two rules that must be complied with for appointed
replacements?
o 1. There must be recommendation by the sanggunian

o
o
o

offense punishable by one year or more of imprisonment

Within two years of serving sentence


2. Removed from office as result of administrative case
3. Convicted by FJ for violating oath of allegiance to RP
4. Dual citizens (in fact, dual allegiance. See citizenship

section)
5. Permanent residents in foreign country with desire to

Rules on succession for temporary vacancies:

continue staying abroad


6. Fugitives from justice in criminal or non-political cases here

Rank

Temporary official in charge

Governor
Mayor
Barangay Captain

Vice Governor
Vice Mayor
Highest ranking sanggunian member

one replaced, if there is one

or abroad

No need to have actually been convicted

Note that political offenses are excluded


o 7. Insane or feeble-minded
When are elections?
o 2nd Monday of May every 3 years

Rules on succession for permanent vacancies:


Rank

Replacement

Governor

Vice Governor

concerned
2. The replacement must be from the same political party of the

130

For which positions does this provision apply?


o Local Chief Executives (Governor, city or municipal mayor, or
punong barangay)
o For what situations?

LOA, travel abroad, suspension, etc.


What powers can they not exercise?

o
o

Appoint, suspend, terminate, or dismiss


What is the exception?

When temporary incapacity lasts for more than 30

o
o

1. Disloyalty to RP
2. Application for or acquisition of foreign citizenship or

working days
What is the rule for travel within the country but outside

o
o
o

residence/status as immigrant
3. Culpable violation of Constitution
[violating acts]
4. Dishonesty, oppression, misconduct in office, gross

LGU jurisdiction for period up to 3 days?

The LCE appoints an officer-in-charge, and specifies

negligence, dereliction of duty

Case: Acts of lasciviousness not a ground to

powers, which does not cover appointment,

suspend per se; the official must be convicted in

suspension, termination, dismissal


What if the LCE fails to appoint an OIC?

The Vice (governor/mayor) or highest

ranking sanggunian member (brgy. Capt.)

can take over from the fourth day.


How is resignation effected?
o Only upon the acceptance by the following authorities:

Rank

Who accepts resignation

Governor, Vice Governor; Mayor and

President

Vice Mayor of HUC or ICC


Mayor and Vice Mayor of CC or

Governor

municipality
Sanggunian member
Barangay official

Sanggunian concerned
City or municipal mayor

criminal action
5. Commission of any offense involving moral turpitude or

offense punishable by at least prision mayor


6. Abuse of authority
7. Unauthorized absence for 15 consecutive working days

Except for members of sanggunians


o [catch basin]
o 8. Other grounds in the LGC and laws
Who has jurisdiction over the complaint?
o 1. Elective officials of provinces, HUCs, or ICCs President

How does the Constitution and the LGC divide


o
o

powers among branches as re: discipline?

The Constitution gives the President power

specify provisions for removal of officials


o In the LGC Congress effectively

When is it deemed accepted?


o If not acted upon within 15 working days
o For sanggunian members, if presented before an open session

and entered into records

delegates this to the President


The President thereafter validly delegated in
AO 23 to the DILG Secretary the
investigation (just investigation, not power to

Discipline of Local Officials

to supervise LGUs
The Constitution gives Congress power to

What are grounds for disciplinary action against elective officials?


o [disloyalty provisions]

discipline per se).


The elective official has a right to a formal
investigation (confront witness, right to appear and
defend self in person, to counsel, etc.)

131

2. Elective municipal or CC officials Sanggunian


panlalawigan

How is appeal done?

To the Office of the President

Does appeal suspend execution of the decision?

Generally, no

But it can be suspended by the President

(AO 18)
3. Elective barangay officials Sanggunian panlungsod or

ONLY THE COURTS. The sanggunians, and other officials

have no power to impose removal from office.


What is the nature of suspension as penalty?

1. It may not exceed 6 months or the remaining period

of his term

2. It is not a bar to subsequent re-election


What is the effect of re-election into office as regards an
administrative case that is pending?
o It is tantamount to a condonation by the people of the past

Sangguniang bayan (municipality)

What is the nature of the decision?

Immediately final and executory

But this does not mean it cannot be

offense. It bars the continuation of the investigation. (Doctrine


o

appealed
Where is appeal made?

To sanggunian panglalawigan concerned


Preventive suspension
o Grounds:

1. evidence of guilt is strong

2. given gravity of offense, continuance in office could

of condonation)
What if there is a decision already but an MR was filed?

Its not yet final so re-election condones the offense.

How are appointive local officials and employees disciplined?


o In accordance with CS law and rules.
o Is there preventive suspension too?

Yes, for period of not more than 60 days.

What are the grounds?

1. Charge involves dishonesty, oppression,

influence witnesses or pose threat to safety/integrity of


o
o

evidence or records
Who can suspend?

President, governor, or mayor


How long?

60 days maximum per suspension

And no more than 90 days in a single year

charges, that would warrant removal from

for the same ground

After which, automatically reinstated


What about the OMB?

The OMB can concurrently exercise power of


preventive suspension, but under RA 6770 it can be

grave misconduct
2. There is reason to believe he is guilty of

up to 6 months
Who may remove an elected LG official from office?

office
What is disciplinary jurisdiction over acts of appointive officials?
o Local Chief Executive may impose penalty of:

Removal from service

Demotion of rank

Suspension of at most 1 year without pay

Fine in amount not exceeding 6 months salary

Reprimand

N.B. Note that for appointive officials, the LCE is the


one that exercises jurisdiction, and then appeal is to
the CSC. Meanwhile, elective officials its usually the

132

higher legislative body (except Congress, which

component city

Sanggunian

delegated to the President punishment of officials in


o

o
o

Panlalawigan and

Provinces, ICCs, and HUCs)


When is the decision final?

When the suspension without pay is not more than 30

Sanggunian
HUC

days
What if the penalty is heavier?

It is appealable to the Civil Service Commission


What is the special rule for City Revenue Officers?

It is the City Treasurer, not the City Mayor that has

HUC

Sanggunian
panlungsod of both
Municipality

ICC in the same

Why: because the LGC


missed this particular

Recall

situation, so the default

See public officers part

rule that cases are filed


in the RTC applies

Settlement of boundary disputes

(Kananga v. Madrona)

What is the first principle for boundary disputes among LGUs?


o It must be settled amicably as much as possible
Where must disputes be referred to:

First disputant

Second disputant

Where referred to

Barangay

Barangay in same city

Sanggunian

of municipality

panglungsod or

Municipality

Municipality in same

pangbayan
Sanggunian

Municipality or

province
Municipality or

panlalawigan
Jointly referred to

component city

component city in

respective Sanggunian

different province

panlalawigans of both

HUC

provinces
Jointly referred to

What is the power of the sanggunian panlalawigan in boundary


disputes?
o Not just amicable settlement but hearing and deciding the case

Sanggunian

Municipality or

cities
RTC of the province

province

jurisdiction over them

panlungsod
Jointly referred to

according to law.
o N.B. it cannot alter boundaries must base decision on law
How long does the sanggunian have to decide the case?
o 60 days from referral try to arrive at amicable settlement
o If it cannot, it issues certification to this effect, and decides

within 60 days of certification


Which has appellate jurisdiction?
o To the RTC, within 15 days (because it says within time
prescribed in ROC)

133

NATIONAL ECONOMY AND PATRIMONY AND OTHER PROVISIONS

National Economy and Patrimony

What is the three-fold goal of national economy?


o 1. Equitable distribution of wealth
o 2. Increase of wealth
o 3. Increased productivity
What is the relationship between agriculture and industrialization?
o There is synergy between the two

State which is appropriately embraced in sovereignty


Dominium capacity of State to own and acquire

ownership transferred to private individual.


Forest lands until reclassified into alienable lands, they are
public lands
Can the PEA dispose reclaimed lands?

Yes, but only after they have been made alienable.


(Chavez v. PEA)

property. Refers to lands held in proprietary character


What are State-owned?

Lands of PD, waters

Minerals, coals, petroleum, sources of potential

Exploration, development, utilization of natural resources

What is the manner of development and exploitation of natural


resources now?
o 1. Developed and exploited directly by the State, OR
o 2. Co-production, JV, or production sharing with Filipinos or

energy

Fisheries and forests/timber

Wildlife, flora, fauna, natural resources


Does the Regalian Doctrine imply that when colonizers arrived,

Filipino Corporations (60% owned)

N.B. they do not become agents of the State; they are

they took away properties from Filipinos?


o No. There is recognition of native title. Original Filipinos have

ecological needs.
Can public land become private land?
o Yes. But only agricultural land can become private land, when
o

through the State


What is imperium? Dominium?

Imperium government authority possessed by the

seas, and EEZ


o Reserve use and enjoyment exclusively to Filipino citizens
What is the nature of timber licenses, permits, and other such

due process clause. They can be modified according to

What is the Regalian doctrine?


o Everything belongs to the State; anyone claiming must go
o

prescription, because it is inalienable.


What is the special provision on marine wealth?
o State protects marine wealth in archipelagic waters, territorial

privileges?
o They yield to police power. They are not contracts under the

Regalian doctrine

Unclassified forested area cannot be acquired by acquisitive

this. (Carino v. Insular Government)


Can natural resources be alienated?
o Generally, no. With the exception of agricultural lands, all other

co-contracting parties
Basic principle: always under full control and supervision of

the State
May the State enter into service contracts with foreign
owned corporations?

natural resources cannot be alienated.

134

Yes, but only for financial and technical agreements

with respect to large scale development of minerals,


o

petroleum, and other mineral resources


When service contract is entered into by the State with a
powers given to the latter?

Yes, but only to the extent necessary to carry out the

technical and financial agreement


What is the period on all such arrangements?

Period cannot exceed 25 years, renewable up to 25

more years
What is the limit on water rights, water supply, fisheries, and

industrial uses of water?


o Beneficial use of such is the measure and limit of grant.
o N.B. Limitation not applicable to development of water power
La Bugal:
o Constitution still allows service contracts
o Financial and technical assistance allowed but only for the

A) provided resources, and it must be B) LARGE SCALE


Can a foreign corporation buy shares in excess of 40% of a
corporation?
o Yes. But when this happens, the corporation is no longer

purpose
2. Forest or timber
3. Mineral
4. National parks
What determines classification?

Legal nature, and not actual nature


Where are we now (referring to Ateneo Rockwell)?
o Constitutionally, agricultural land
o Statutorily, public commercial land
May a private corporation acquire alienable public lands?
o No. May NOT acquire land from public domain
But may a private corporation lease alienable public lands?
o Yes, it MAY lease lands of public domain
o What is the period for lease?

Not exceeding 25 years, renewable for 25 years


o Area: only up to 1,000 hectares
May a private corporation acquire private lands?
o Yes, because they are qualified to hold lands of the public
o
o
o
o

completely foreign corporation, can there be management

domain (by lease), as required by the Constitution


o So the corporation must wait for the land to become private
What is the limitation for acquisition or lease of alienable public
lands by Filipino citizens?
o Can lease up to 500 hectares only
o Can acquire up to 12 hectares only (by purchase, homestead,

Filipino.
What is the rule on aliens?
o 1. Aliens are excluded from acquiring private land.

See exceptions below (ex. intestate succession)


o 2. But an alien may buy a house or a condominium unit (so

they may own real property, just not lands)

or grant)
Who classifies land into agricultural, mineral, etc.?
o The President. It is an executive power.

But this power is already delegated. Strictly speaking,


it is Congress that must do it; but Congress delegated

Classification of lands

Further sub-qualified into various types, depending on

How are lands of public domain classified?


o 1. Agricultural

it to the President.
Except that once the Congress has set the limits on forest
lands and national parks, the limits may be changed only by
Congress as well, not by the President.

135

Chavez v. NHA: There can be implied classification of land to

alienable and disposable. For instance, when the President


issued MO 415 conveying Smokey Mountain to NHA for

reclamation and distribution as housing. If it were not impliedly


o

reclassified, then there can be no distribution.


Apex Mining v. Southeast Mindanao Gold: Reclassification

Private lands

from forest reserves into non-forest reserves now exclusively

a DENR prerogative; no need to wait for Congressional

IPRA
o Declared as constitutional by the SC
o Because the voting was 7-7 err in favor of constitutionality
Use of property bears social function: must be for common good

concurrence.
How does land of public domain become private land?
o 1. Acquired from government by purchase or grant
o 2. Uninterrupted possession by occupant and his

To whom can private lands be conveyed to?


o 1. Filipino citizens
o 2. Domestic corporations with at least 60% Filipino capital

Both incorporation and control test


What are the exceptions to these two?
o 1. Aliens may only acquire private land through intestate
succession

Thus, it is not correct to say aliens may not OWN

predecessors-in-interest since time immemorial

The presumption is that the land was never part of the


o

private land. Many own private lands before the

public domain
3. Open, exclusive, undisputed possession of alienable public

Constitutional prohibition. But new acquisitions are

land for period of 30 years (imperfect title)

After lapse of period, the land becomes private

property ipso jure without need for judicial sanction


Count from when it was converted into public

of private land

AS LONG AS it is just used for residential purposes

alienable land, not when it was still forest land


Rights of indigenous cultural communities

hereby prohibited.

Prior to 1935 Constitution, aliens could acquire land.


2. NBC who has lost Philippine citizenship may be a transferee

(derivative title)
3. Foreign states, but embassy and staff residence only

NOT for Non-Filipino religious institutions


No conveyance or transfer of land except to those qualified to hold lands
o

Ancestral domain and ancestral lands


o Ancestral domain refers to lands which are considered as

of public domain
o An alien gave money to his Filipino wife to purchase land, with

pertaining to a cultural region


o Includes lands not actually occupied like deep forests
Both are considered PRIVATE land
Ancestral domain
o Larger area, that is generally assigned to the community
o Not owned by anybody, but considered PRIVATE land
Ancestral land
o Those which are actually owned by individuals

the understanding that they become co-owners. The


relationship soured. HELD: Not co-owned because there is

prohibition on alien acquisition of land.


What is the curing provision
o Transfer to a Filipino of land illegally held by an alien before
cures the prior illegality. Same if the alien becomes Filipino.

136

What are the limitations on the capacity to acquire private lands?


o Depends if the land is urban or rural land.
o If it is urban land, the limit is 3000 sqm
o If it is rural land, 3 hectares
o RA 8179 the limit now is only on the size, nothing else
What if the Filipino citizen lost his citizenship after acquiring the

land?
o No adverse effect; he can still hold the land
Aliens cannot acquire private land, in general. What rights can

shares. The Malaysian bidder gave a higher bid, but the SC


o

public utility corporation


o No franchise granted except to citizens of the Philippines
May a foreigner own the ASSETS of a public utility corporation?
o Yes. What is not allowed is the grant of the franchise.
What are the caveats?
o Up to 50 years only
o NOT exclusive in character
Franchise subject to modification, amendment, repeal by Congress

when public need dictates


o Exception to the general non-impairment of contracts rule
State should encourage equity participation
May foreigners participate in the governing body of public utility

Ownership and Investment restrictions

headed by the President


o Now, this is the NEDA
When national interest dictates, may limit ownership of certain
enterprises to 60% Filipino owned corporations or Filipino citizens
o Upon recommendation of NEDA
o But Congress MAY impose such limit even without NEDA

What are public utilities?


o Corporations rendering service to the public in general, for
compensation

If only for certain select segments or areas, it is not a

aliens?
o 1. Escheat proceedings
o 2. Action for reversion under Public Land Act

N.B. only the State can file action for reversion


o 3. Action by former Filipino owner to recover land

Congress may establish independent economic planning agency

in the GATT, notwithstanding this provision


Exercise authority over foreign investments over national jurisdiction

Sec 11 Filipinization of public utility franchise

foreclosure)
What are remedies to recover private lands from disqualified

held that it must go to the Filipino, because of this provision


This decision is oft-criticized. The SC has been retreating from
Manila Prince. Tanada v. Angara case: we respect preferences

they have?
o 1. Usufruct or lease
o 2. Mortgagee (but cannot acquire possession or bid in

Manila Prince case Manila Hotel was selling some of its

corporations?
o Yes, to the extent of their participation in the ownership
o So maximum is 40% participation
o What is the absolute prohibition?

From being appointed as executive and managing

recommendation
In the grant of rights, privileges, concessions covering national
patrimony: State gives preferential right to qualified Filipinos

officers because these positions are only for Filipino

137

citizens
Can the Congress delegate power to grant franchises?

Yes, such as Congress empowerment of the Toll Regulatory

Board to issue road toll projects


But subject to Constitutional grants, such as the 50 year

maximum
Exploitation of natural resources

Filipino citizens

Operation of public utilities

60% Filipino corporations


Filipino citizens

Practice of all professions

60% Filipino corporations


Filipino citizens only

Mass media

(Congress may prescribe otherwise)


Filipino citizens

Advertising

100% Filipino corporations


Filipino citizens

Educational institution

70% Filipino corporations


Filipino citizens

what branch is acting?

Congress
If for instance, Aquino declares State of Emergency due to flood.

over operation of public utilities can only occur if Congress

Exception? Schools established by

gives to the President emergency powers.


Contrast with expropriation:
o Just compensation is required

Ex. As in transfer to public ownership of vital


o

religious groups/mission boards.


(Congress may increase

requirements for all education


institutions)
Congress may by law prescribe to

(60% or more investment as


o

requirement)

industries the government seeks to nationalize


But for temporary takeover, there is no such requirement of just

compensation
State shall regulate or prohibit monopolies when public interest requires.
o So in general, monopolies are NOT prohibited. But they may

Filipinos or Filipino corporations

State may temporarily take over the operation of:

any privately owned public utility

or those with public interest


When it says the State may take over private businesses,

Can he take over the operation of transportation facilities?


o No. Apply by analogy, David v. Ermita. This power to take

60% Filipino corporations

Other economic activities

National emergency
o When public interest requires, under reasonable terms, the

But public corporations may be created by special law

be prohibited when public interest requires.


So what is actually prohibited?

1. Unfair competition

2. Restraint of trade
Avon v. Luna: Exclusivity contracts per se are not void. They
must be viewed vis--vis all circumstances surrounding the

Practice of professions limited to Filipinos


o But this can be opened up by law to foreigners
Congress cannot by law create private corporations
o Must incorporate under the general Corporation law.
o Cannot be created by special law.

agreement to see whether there will be unfair competition.


Independent Central Monetary Authority:
o Monetary Board of BSP.
Foreign loans may only be incurred according to law and with
concurrence of monetary authority

138

Social justice and Human Rights

Social Justice

What is social justice in a nutshell?


o Those who have less in life should have more than law
Are these immediately executory provisions?
o No. These provisions have to be implemented by Congress
What is the provision on treatment of OFWs?
o Rights of OFWs cannot be less than those working in the
Philippines
Can selected sectors of labor be prohibited from striking?
o Yes, ex. Policemen, firemen, public school teachers
Do laborers have right to participate in policy making of

corporation?
o Yes, but only to matters affecting the workers and their welfare.
o But not for example, with respect to how the business must be

form of stock shares


So 7000 farmers own 1/3 of shares of Luisita corp. 2/3 still

belongs to Cojuangco family


What is required is just compensation to compensate for transfer of land
o Just compensation involves not just value of loss to the owner,
but prompt payment
o But a lot of owners have not yet been paid
Size of land to be given: determined by Congress
May agricultural land held by the Church in trust be subject to land
reform?
o Yes. Archbishop v. Secretary. The land reform law does not
make a distinction between the various forms of ownership,

run.
Agrarian reform
o What are the aims of agrarian reform?

1. Efficient production

2. Equitable distribution of land recognizing right of

giving just compensation


Luisita issue:
o Farmers get share in the corporation instead
o 1/3 of agricultural land of Luisita equivalent value given in
o

2. Eminent domain depriving owners of excess land and

farmers and landless


3. Just share of other or seasonal farm workers in

fruits of the land


Two types of agrarian workers:

Regular (tenants)

Others (seasonal)

N.B. Only regulars can be beneficiaries in land

whether in trust or absolute title.


When does ownership transfer?
o Upon full payment
Must compensation be in cash?
o No need.
What is the right of urban or rural poor dwellers?
o Cannot be evicted except according to laws
o Who can be evicted: (DIC)

1. Persons occupying dangerous areas

2. When government infrastructure projects with

reform; others, only shares


Agricultural lands those used for agricultural production can

be subject to land reforms


What is the nature of agrarian reform powers?
o 1. Police power prescribing retention limits for landowners

allocated funding are going to be implemented


3. When there is court order for eviction and

demolition
Maglakas v. NHA: NHA has authority to order relocation of persons and
demolition of their property as part of its mandate to improve blighted

139

areas.
Peoples organizations:

o Covered by right to form associations not contrary to law


Roma Drug v. RTC: Third person private parties now can import drugs,

o
o

and these will not be considered counterfeit under the Cheaper Meds

or documents are necessary or convenient to determine the

Act.

Human rights
Commission on Human Rights (CHR)

What is the status of the CHR?


o Not on the same level as the 3 independent commissions

What is the composition?


o 1 Chair, 4 members
o Qualifications?

NBC

Members of Bar

Provision on budget?
o Automatically and regularly released

Is appointment subject to CONA?


o No need for confirmation

What are the powers of the CHR?


o A. Just investigatory and recommendatory

What can it investigate?

1. Violations committed by public officers,

truth in an HR issue
What can the CHR not do?
o 1. Prosecute the cases by itself
o 2. Issue TROs or injunctions against HR violators. Regular
courts must issue these
Hodgepodge of powers:
o 1. Visit, research, monitor government compliance;
o 2. Recommend to Congress, request assistance from branch
or institution of government;
o 3. Appoint officers and employees,
o 4. Other functions and duties
What is its jurisdiction?
o Only over human rights, not economic rights
o This can be expanded by law

Education, Family, Other Provisions

civilians, or rebels
2. Violations of civil or political rights
o Not social rights
o Not situations where no rights are

violated (Ex. There is no right to

2. Recommend prosecution of HR violators,


3. Grant immunity from prosecution to person whose testimony

squat)
N.B. Cannot adjudicate cases involving HR violations

(only investigation and recommendation)


o B. Adopt guidelines, procedures
o C. Cite for contempt violations of rules according to ROC
What can the CHR do?
o 1. Initiate court proceedings on behalf of HR violation victims

140

What is the duty of the State as regards education?


o Duty to provide education accessible to all
o While private schools do so voluntarily
What are the twin values to be obtained for public education?
o 1. Quality
o 2. Accessibility
What is the rule on standards in school?
o Students must meet standards set by school
o As long as reasonable and not arbitrary
Due process rules for disciplinary action by schools:
o 1. Students informed of charge in writing and nature and cause
o 2. Allowed to answer charges
o 3. Informed of evidence against them
o 4. Allowed to adduce evidence on their behalf
o 5. Evidence must be considered

What is the power to dismiss students?


o Schools may dismiss students, after due process, for
o

disciplinary reasons
Acts committed outside the school may be ground for

disciplinary action if:

1. Involves violations of school policies connected with

school-sponsored activities
2. Misconduct affects the students status, or the good

and back. So this means there is the same program


Elementary education is compulsory

N.B. but cannot be subject to penal sanction; it is a

moral, not legal compulsion


o Free education:

1. Elementary

2. HS
All educational institutions must include study of Constitution in its

curriculum (this obviously failed, according to Fr. Bernas)


What are the requirements for the teaching of religion during class

dependents

2. And other foreign temporary residents


What is the special exemption for NSNP educational institutions?
o All revenues and assets of non-stock, non-profit educational
EXEMPT FROM taxes and duties
N.B.: in Article 6, buildings dedicated exclusively to education are
exempt from property tax
o Here, all. But there are requirements:

1) it must be non-stock, non-profit; so no dividends


distributed
2) Must be a school

Note: YMCA is not.


Basis for exemption is USE and not the source. So the income

can be from cafeteria, etc. but if used for education, it is

authorities
4. No additional cost to government (else it would violate non-

establishment)
Filipinization:
o Educational schools must be owned solely by citizens of

Dean

But the faculty members may be foreigners


No school established exclusively for aliens and aliens cannot

institutions used actually, directly, and exclusively for education:

hours of public schools?


o 1. At option expressed in writing by parents or guardians
o 2. Taught within regular class hours
o 3. Instructors designated and approved by the proper religious
o

boards
Control and administration vested in Philippine citizens

This covers line positions like the President and

constitute more than 1/3 of enrolment in any school

1. EXCEPT for schools for foreign diplomats and their

name/reputation of the school


Integrated system of education:
o Free movement from one school to another; or public to private
o

Schools established by religious groups or mission

Philippines or at least 60% Filipino corporations

Congress may increase this


What is the exception?

141

exempt.
What about proprietary schools?
o They are exempted under Article 6, but only for buildings. May
be granted exemption by statutes
Academic freedom
o Enjoyed by institutions
o What does this freedom mean?

1. Who may teach

2. What may be taught

3. How it shall be taught

o
o

4. Who may be admitted to study


Professors also enjoy academic freedom
Students also enjoy academic freedom:

You may choose your own course, but thats just

about it
o What are the limitations?

1. Dominant police power of State

2. Social interest of the community


Highest budgetary priority does not mean education always gets the

biggest slice of the pie. It just must be considered and given priority.
Freedom of expression is not absolute within school grounds. So one

recognized as domestic law in the US

Solution: it is irrelevant because the VFA is being


o

National language is Filipino.


Official language is used for official communication. Official

PUBLIC INTERNATIONAL LAW

languages are Filipino and English

Common though: English version will prevail in case

Concepts

of conflict
N.B. Spanish and Arabic on voluntary optional basis

Transitory Provisions

Sec. 3 important
o All existing laws, EOs, proclamations, etc. not inconsistent with
o

implemented here.
Only Americans are allowed, under this provision. Its not in
the text, but that is the intent of the Constitution.

may be dismissed for sexually explicit material in school newspaper.


What is the national and official language?
o National language must be expressive of Filipino soul.
o

o But as an administrative agency


Private armies:
o Dismantled
o Must be under Dept. of Defense or Military to be legitimate
Visiting Forces Agreement:
o In effect, affirmed, and is valid
o Argument: it should be seen as invalid because it is not

the Constitutional remain effective


UNLESS repealed, amended, or declared unconstitutional

So Marcos and Aquinos legislations when they still

Obligation erga omnes:


o Obligation owed to the community of all States as a whole. All

States thus have a legal interest in the protection of that right.


Jus cogens:
o Peremptory norm of International Law from which no

derogation is allowed
Ex aequo et bono:
o Decide according to equity

International Law and National Law

had legislative power are effective

Aquino had until July 27, 1987


o Any treaty either renewal or completely new

Needs concurrence of 2/3 of senate


Metropolitan Authority:
o Not as a political subdivision

142

Dualist:
o
o
Monist:
o
o

Two different spheres of law


International law has no role in domestic conflicts
Belong to only one system
International law is superior to domestic law

How international law becomes municipal law for dualists:


o 1. Transformation
o 2. Incorporation

Law of nations adopted as part of the law of the land

Followed by the Philippines, in light of dualist theory


Conflicts:
o International rule: cannot invoke domestic provisions, unless

violation was manifest and concerned rule of internal law of


o

fundamental importance
Municipal law (when before domestic court):

Usually given construction consistent with

since they are of same rank


But the SC can declare a treaty

Norwegian Fisheries)
A State joining the system after the practice has

become law: bound


Martens Clause: laws of humanity and dictates of public

domestic matters. It is still good international

conscience placed on same level as usages of States thus

law

no need for thousands of civilians to be killed before ban

Sources of PIL

opinio juris
What is the rule on dissenting States?

Still bound by custom except if they were persistent


objectors since formation of the rule (Anglo-

unconstitutional but this only applies to

states or even just two countries


2. Opinio juris sive necessitates

Belief that certain behavior is obligatory

UN Resolutions are not sources of


International Law per se but may evince

international law
If there conflict between law and treaty:

The one passed on a later date prevails,

o Exception: instant custom


B. Consistency
C. Generality
o But possible to bind only several

Article 38, ICJ Statute:


o 1. International conventions, whether general or particular,
o

establishing rules expressly recognized by contesting states


2. International custom, as evidence of a general practice

o
o

accepted as law
3. General principles of law recognized by civilized nations
4. Judicial decisions and teachings of most highly qualified

becomes effective
Treaties:
o Pacta sunt servanda obligation to honor agreement

Party may not invoke provisions of internal law

Except: violated laws of fundamental importance


o Conflict between treaties and custom:

Whichever is later should prevail

Although there must be effort to reconcile


them to comply with pacta sunt servanda

publicists (subsidiary means)


Custom:
o Basic elements:

1. State practice

A. Duration

143

(esp. If the treaty is earlier)

But if treaty contradicts jus cogens custom prevail


General principles of Law:
o Principles of municipal law common to legal system
o Equity may either fall under this source or ex aequo
o Different kinds of equity:

1. Intra legem within law

2. Praeter legem beyond law

3. Contra legem against law


Judicial decisions and teachings of highly qualified publicists:
o There is no stare decisis in PIL (ICJ, Art 59) but highly

persuasive

derecognized
Recognition of government:
o If ordinary constitutional procedure recognition of new
o

Differentiate:
o Subjects: entities endowed with rights and obligations and
o

capacity to take certain actions


Objects: indirectly have rights, or beneficiaries

Elements of a State: (Montevideo)


o 1. Permanent population
o 2. Defined territory

Even if boundaries not finally settled


o 3. Government

Temporary absence of government does not terminate


o

existence of the State


4. Capacity to enter into relations with other States
(sovereignty)

Independence from outside control

Dependent on recognition (an entity may possess all

private rights (Upright v Mercury Business Machines)


o Mere recognition of a government does not mean approval
o Recognition of de facto governments:

1. Control government

2. Not confronted with active resistance

3. Live up to international obligation


State Succession
o Methods:

1. Decolonization

2. Dismemberment

3. Secession

4. Annexation

5. Merger
o Territory: rights, capacities, duties of predecessor as to that
o

elements but if some States do not recognize it, it

cannot establish relations)


Recognition of States:
o A. Declaratory view recognition is merely declaratory of the
o

origin non-recognition loses weight (Tinoco)


Just because a State doesnt recognize the existence of a
government, a de facto government still exits and can create

States

government is just a matter of course


If recognition is withheld not because of inquiry into its de facto
sovereignty and government control but because of its irregular

Subjects of PIL

As long as State meets requirements of State it cannot be

personality to a State

144

receives
Public debts: remain with predecessor, except:

rights and obligations under the contract are part of

succeeded territory
Treaties:

Clean slate rule

Except territorial boundaries (uti possidetis juris)


Fundamental rights of States:
o

possession of required elements


B. Constitutive theory recognition is what confers legal

territory assumed and continued


State property: successor gets property in the territory it

o 1. Independence
o 2. Equality legal equality (one state, one vote)
o 3. Peaceful co-existence (non-interference, non-aggression)
State may not be sued without its consent (par in parem non habet

imperium) based on equality of States


o Immunity only for acts jure imperii (governmental acts)
Act of State doctrine:
o Courts of one country will not sit in judgment on the acts of
o

government of another, done within its own territory


But does not apply for purely commercial transactions

International organizations

document)
o Only states are members of IOs
IOs can bring forth claims against governments established by
necessary implication from Charter (Reparations case)
BUT powers are not unlimited
o Limited by constituent document
Immunities:
o To extent of exercise of functions
o Immunities come from constituent document (ex. IRRI and

Before, mere object; but now, can have individual criminal responsibility
o Under ICC:

1. Genocide,

2. CAH,

3. War crimes,

4. Aggression
Still rely on states for diplomatic protection, but now can petition to
international bodies in light of violations

Diplomatic and Consular Law

ADB)
United Nations:
o Enjoined from intervening in matters essentially within
o

votes, plus no veto from permanent 5


Secretariat:

Sec-Gen 5 year term

Elected by GA, recommended by SC, subject to veto

Chief administrator

Individuals

Created through treaty among two or more states (constituent

Other questions majority


Security Council:

15 member states

5 permanent (US, UK, Russia, China, France

Others elected for 2 year terms

Vote for non-procedural matters: 9 affirmative

Diplomats

domestic jurisdiction (Art 2(7) of UN Charter)


International Constitutional Supremacy Clause: conflicts

Purpose of diplomatic immunity: functional so they can perform duties

between obligations under UN Charter and other IOs UN

properly
Actions that give or remove authority to send/accept envoys:
o 1. Agrement (not agreement ha): official approval by a

Charter prevails
General Assembly:

Plenary powers: can discuss any matter w/n scope of

charter
Important questions decided by 2/3rds majority

145

government of a proposed envoy from a foreign government


o 2. Persona non grata
What are the diplomatic immunities?
o 1. Premises of mission:

Premises inviolable from search, requisition,

execution, taxes
Archives and documents, official correspondence,

and their family


3. Service staff, for acts in course of duties
4. Private servants, from taxes and dues on emoluments
Which family members are not exempt?

Those who are nationals of the receiving State


When immunities begin and end:
o From entry into territory of receiving State or upon receipt of
o
o
o

diplomatic bag, couriers also protected


2. Diplomatic agents person: inviolable

Cannot be arrested or detained

Immunity from criminal action

Immunity from civil and administrative action, except:

1. Real action re: personally-owned private

notice of appointment of receiving State until he leaves the


country or expiration of reasonable period

immovable property in receiving States

o
o

territory

2. Hereditary or testamentary succession

3. Private professional/commercial activity

Cannot be obliged to give evidence as witness


3. Private residence of diplomatic agent also inviolable
4. Agent exempt from social security of receiving States

Extends to private servants, as long as not

Consuls

nationals/residents of receiving State and covered by


o

2. Administrative and technical staff for acts in course of duties,

SS of sending State
5. Agent exempt from all taxes, except:

VAT, private immovable property taxes, transfer taxes,

What is the equivalent of the agrement for consuls?


o Exequatur by receiving State
o Also, persona non grata rule applies
What are the freedoms and immunities of consuls?
o 1. Freedom of movement
o 2. Freedom of communication, protection of official
o

taxes from private commercial activity


6. Exempt from customs:

Official articles

Personal items and articles of agent


Who may waive the immunity?
o Sending State
o Nature of waiver:

Must be express

Waiver from immunity from proceedings separate

correspondence and consular bag


3. Communication and contact with nationals of sending state

Receiving state informs consul of sending state if


national of latter state is arrested or imprisoned or in

from waiver from execution of judgment


To whom else does the immunity extend to?
o 1. Family members of agent forming part of household

146

custody pending trial


Consular officers must be able to visit the detainee

without delay
4. Immune from arrest or detention

EXCEPT for grave crimes (not complete, like


diplomats)
5. Immunity from jurisdiction

For acts done in exercise of official consular functions

EXCEPT:

1. Contracts entered into privately

receiving State by vehicle, vessel, aircraft


6. Liability to give evidence

May be called upon to attend as witnesses in course

2. By third party, for damage from accident in


o

of judicial/admin proceedings
Cannot decline to give evidence; but if they decline,

no penalty/coercive measure allowed


Who may waive the privileges and immunities?
o Sending State

Signing of document authenticates it

Adoption: 2/3rds vote of States present and voting


3. Expressing consent to be bound

How to express consent to treaty:

1. Signature

2. Exchange of instruments

3. Ratification, acceptance, approval, or

State signs and ratifies a treaty?

State required not to engage in acts which

Treaties

Elements of treaty:
o 1. International agreement between States
o 2. Written
o 3. Governed by PIL
o 4. Single instrument/two or more related instruments
No particular form prescribed, so the following are treaties too:
o Exchange of notes between heads of State (Qatar v Bahrain)
o Unilateral declaration concerning legal or factual situations

o
o

full powers:

1. Heads of State, Heads of Government,

negotiation)
What are reservations?
o Unilateral statement made by State excluding or modifying

representing the State for such purpose


Who represent the State w/o having to produce

can defeat treatys purpose


What follows ratification?

Bilateral: exchange of ratification

Multilateral: deposit of ratification


4. Accession (for States which did not participate in initial

(Nuclear Test cases)


Making a treaty:
o 1. Negotiation

Who can negotiate with full powers?

1. He who produces appropriate full powers

2. Practice of State: consider that person as

accession
What the RP follows: ratification
What is the obligation between the time when the

Ministers for Foreign Affairs


2. Heads of diplomatic missions for States

certain provisions of treaty in application to itself


N.B. only applies to multilateral treaties. If bilateral, there must
be renegotiation.
When there can be no reservation?

1. Prohibited by treaty

2. Treaty only allows specified reservations

3. Reservation incompatible with object and purpose


of treaty
Who must consent to reservation?

1. Reservation allowed by treaty: none needed from

their duties pertain too

3. Representatives to IO or conference
2. Authentication of text

other States
2. Reservation defeats object and purpose of treaty:
consent of all parties required

147

3. Reservation to treaty which s constituent instrument

Amendment is in negotiation stage of the treaty and binds all

of IO: requires IOs organs consent


N.B. Reservation deemed accepted if no rejection in

parties to it
Modification is after treaty has come to effect, involving only
some of the parties and only if not disallowed by the treaty and

period of 12 months
When does the reservation take effect?

As soon as one other contracting States accepts

Effect: Modifies application of the treaty to another

party, as mentioned, but it doesnt affect relations with

other parties
When treaties enter into force:
o 1. On date agreed upon
o 2. If none, when consent is given
o 3. Usually, multilateral treaties provide specific number of

may be terminated by:

All, as to the breaching party

Specially affected party, who may suspend

Any party, if it radically changed everyones

States for it to come into effect


Priority of rules on interpreting treaties:
o 1. Objective: ordinary meaning, in light of object and purpose
o 2. Teleological: context

Instruments/agreements relating to its conclusion

Preamble and annexes


o 3. Subjective (subsequent agreement, subsequent practice,
o

wont defeat the others rights.


How do treaties terminate?
o 1. Consent of parties
o 2. Treaty has period
o 3. Purpose has been achieved
o 4. Material breach

If bilateral, it entitles the other to terminate

If multilateral, other parties by unanimous agreement

PIL rules)
4. Special meaning given to terms

Supplementary sources only for ambiguities

Different languages of text particular text prevails as

position as regards obligations


o 5. Impossibility
o 6. Rebus sic stantibus
How is a treaty terminated?
o 1. Notify other parties in writing
o 2. If no one objects in 3 months, party may carry out action
o 3. If there is objection, settle dispute through peaceful means

Nationality and Statelessness

agreed upon
When are treaties invalid?
o 1. Error of fact
o 2. Fraud (induced)
o 3. Corruption of State representative
o 4. Coercion of State representative
o 5. Coercion by State through threat/force
o 6. Violates jus cogens
What is the difference between amendment and modification of

States have jurisdiction over its nationals, even those outside the State
o Ex. can tax citizens or subpoena them abroad
Nationality gained by:
o 1. Jus sanguinis
o 2. Jus soli
o 3. Naturalization
BUT there must be a reasonable connection or effective link between
the State and the national consent alone is not enough for him to be

treaty?

recognized by other States as a national (Nottebohm)

148

To determine which of two states has right to give diplomatic

protection of person of dual nationality


Maritime vessels State has jurisdiction over vessels flying its flag
o
Flags of convenience: may be challenged for lack of

courts, gross deficiency in processes, failure to provide

sufficient link (where nationality of owner is different from

country of registration)
Stateless persons:
o De jure stateless lost their nationality and have not acquired
o

a new one
De facto stateless those with nationality but protection denied

by their state when they are out of it


Still covered by protections of IHRL (UDHR, etc.)

When are States obliged to admit aliens?


o 1. There is treaty requiring it
o 2. Treaty imposes legal standards for admission
How are aliens protected by their own States?
o Through diplomatic protection, under the theory that injury to a

national abroad is injury to his State. This power is

treaties (double criminality requirement)


o 3. Religious and political offenses are non-extraditable
An extradition treaty does not prohibit all means of gaining presence of
an individual outside of its terms (US v Alvarez-Machain)
Due process:
o No need for notice and hearing, because he might flee when
given notice,
Not a criminal proceeding but an executive process
Just prima facie not beyond reasonable doubt
Bail is now available in extradition cases (HK v Olalia)

International Human Rights Law

protection
Neer Claim: This standard applies if the treatment of

What is IHRL?
o Inalienable and fundamental rights essential for life as human
o

the alien constitutes an outrage readily recognizable

a crime/where he was convicted of crime


Unlike deportation, which need not be pursuant to a request by

another State
Principles of extradition:
o 1. No State is obliged to extradite unless in a treaty
o 2. Differences in legal system can be an obstacle in interpreting

o
o
o

discretionary.
o Recall: effective link doctrine
Two standards for protection of aliens:
o 1. National treatment/equality of treatment

Treat aliens in same manner as nationals


o 2. Minimum international standard (more widely accepted)

Imposes certain minimum standards of humane

indispensable guarantees, or manifestly unjust judgment


o N.B. mere error w/o manifest injustice is not denial of justice
What is extradition?
o Surrender of an individual by the State within whose territory he
is found and under whose laws he is alleged to have committed

Treatment of aliens

When there is unwarranted delay, obstruction of access to

by every reasonable/impartial person


What is denial of justice?

beings
The way nations treat people is no longer a domestic concern

but one that calls for attention of international community


Remember: non-intervention clause in Art. 2 Sec 7 of the UN Charter
(cannot intervene in matters essentially within domestic jurisdiction of
member nations)

149

Although human rights are now not within exclusive domestic

sphere of nations
What is the nature of the UDHR?
o Not a law but a common standard (moral and political)
o Moral rules which are not self-executory
o Contra: covenant imposes specific duties and obligations,

according to these obligations


What does the ICCPR cover?
o 1. Protection of life, liberty, and property

Bias for abolition of the death penalty; but it allows its

socio-cultural development, and to freely dispose of natural


o

imposition but only for the most serious crimes

Although nothing in the article can be used to

delay or prevent abolition of death penalty


No DP for minors and pregnant women
Second additional protocol requires

party
No publicity of criminal proceedings where there is

guardianship of children
Anyone unlawfully arrested or detained must have
enforceable right to compensation and victim of

miscarriage of justice shall be compensated


2. No torture, ill-treatment, and prison conditions must be good
3. Freedom of movement

Limit: public health, safety, morals, order, etc.

Right to return cannot be deprived arbitrarily

Exile is now prohibited by customary law

Right of aliens not be expelled without due process


4. Legal personality guaranteed but capacity to act may be

limited
5. Thought, conscience, religion, expression, political freedoms

o
o

territorial integrity except for those here


What is the optional protocol to the ICCPR?
o Enables private parties who are victims of HR violations to file
complaints against States that have ratified the Protocol to the

interest of juvenile persons, matrimonial disputes, or

wealth and resources for own ends


External SD for those under colonial domination or racist
government

Generally: no right to secede because this disrupts

abolition of death penalty, but RP is not a

rights of others
6. No war propaganda
7. Associations and unions

But silent on right of govt employees to form unions


o 8. Minorities can enjoy own culture, own religion, own language
What are the two aspects of self determination?
o Internal SD: Right to freely determine political status and ecoo
o

and places parties on position to bring laws and practices

Limit: public safety, order, health, morals, fundamental

150

Human Rights Commission


o RP is a party to this
What rights does the ICESCR cover?
o 1. To work and favorable conditions of work
o 2. To form free trade unions
o 3. To social security and insurance
o 4. Special assistance for families
o 5. To adequate standard of living
o 6. To highest standard of physical and mental health
o 7. To education including compulsory primary education
o 8. Enjoyment of cultural and scientific benefits and international
contacts
What is the duty to implement ICESCR rights?
o 1. Bring laws and practices into accord
o 2. Not to introduce new laws or practices contrary to these
o 3. Provide remedies to enforce these
Contrast rules of implementation of ICCPR and ICESCR:

o
o

ICCPR: immediate implementation


ICESCR: implemented gradually and dependent on

o
o

development conditions (progressive realization)


What are the two different procedures under the Human Rights

Commission?
o 1. Confidential consideration

Working group of not more than 5 members meet in


private to consider all reports which revolve patterns

of gross and reliably attested violations of HR

CHR submits report/recommendation to ECOSOC


2. Public debate

Annual public debates where governments and NGOs

can identify situations that deserve attention


Methods of implementation:
o 1. Name and shame
o 2. Pressure on governments
o 3. Appointment of Special Rapporteur to examine/report
o 4. Request to Security Council to take up issue

Law that governs hostilities of war


Results in cutting of all normal relations, except treaties of

humanitarian character (so IHRL can still apply subsidiarily)


Who are protected under the Geneva Conventions?
o 1. Wounded and sick in the field
o 2. Wounded, sick, and shipwrecked at sea
o 3. Prisoners of War (POWs)
o 4. Civilians
What are categories of armed conflict?
o 1. International armed conflict

Between States

Apply GCs (and Common Article 3) and Additional

Protocol I (AP I)

Grants combatant status to those participating


2. Internal or non-international armed conflict

Between States and non-state armed groups or


insurgents engaged in protracted armed violence (not

mere internal disturbance)


Apply Common Article 3 and Additional Protocol II

(AP II) if applicable


To which groups does AP II apply (insurgent

IHL and neutrality

Distinguish:
o Jus ad bellum law governing use of force outside of armed
conflict

Ex. self-defense, counter-measures, etc.

N.B. Self defense is usually just against States that

engage in unlawful armed attack, and is attended by


proportionality and necessity. However, the ICJ in the
Palestinian Wall advisory opinion (Sep. Op., Higgins)

recognized that there can be self-defense against


o

non-State actors (some say this is instant custom)


Jus in bello law governing conduct of armed conflict (laws of

war)
What is IHL?

151

groups)?

1. With responsible command, and

2. Control over territory, and

Insurgent groups have treaty making capacity


3. Wars of national liberation

Between States and those fighting against colonial

domination or racist regimes

Apply rules on international armed conflict


What is guaranteed by Common Article 3?
o No violence to life and person
o No taking of hostages
o No outrages against personal dignity
o No passing of sentences/executions without prior judgment

What is the law on neutrality?


o Belligerents must respect rights of neutral parties
o Neutrals must not interfere with belligerents
o In civil wars, governments can ask for help from other States,
o

What is the sovereign right over territorial sea?


o Same as sovereignty over land, but subject to right of innocent
o

but States generally cant aid rebels


But for insurgent groups governed by AP II, other States must
maintain neutrality

Law of the Sea

What is the nature of the sea, in general?


o Res communis (open to all)
Sovereignty of State extends to:
o 1. Internal waters
o 2. Archipelagic waters
o 3. Territorial sea
What is the territorial sea?
o Maritime belt by littoral states, as indivisible part of their

right of innocent passage.


Bays are considered internal waters.

Merely an indentation if it is NOT larger than the semicircle whose diameter is a line drawn across the

mouth of the indentation


If distance between low water marks between natural
entrance points of bay X exceed 24 nautical miles:

equidistant from opposite baselines


Differentiate baselines:
o Normal follows curvature of coast
o Straight collecting selected points on coast without

appreciable departure from general shape

Length must not exceed 100 n.m. (except 3% of total

functions
2. Load/unload commodity contrary to customs, fiscal,

immigration, sanity laws

3. Fishing activities

4. Research/survey
What are internal waters?
o These are all waters landward from the baseline. There is no

domain
What is the extent of the territorial sea?

Baseline until 12 nautical miles

If there is overlap with adjacent State: dividing line is median

passage in territorial sea and straits (Corfu Channel)


What is NOT innocent passage:

1. Threat/use of force, exercising defense/security

may enclose and treat as internal


If more than 24 straight baseline of 24 n.m. may be

drawn to enclose maximum area of water


Exception to the 24 rule: historic bays, which are

treated as internal waters based on historic rights


What is the rule on archipelagic waters?
o When straight baselines enclose as internal waters those not
previously considered internal waters right of innocent

baselines may go up to125 n.m.)

Cannot cut off high seas or EEZ of another State

Give due publicity


From where do you count the baseline?

Count from low-water-mark


What does the RP follow?

Straight baselines

passage remains
But the RP considers archipelagic waters as internal waters,
contrary to 1982 Convention on Law of the Sea

N.B. Although since we did this in 1973, it preceded


1982 Convention, which only talked about waters not
previously considered internal

152

What is the extent of the contiguous zone?


o 12-24 n.m. from baseline
o N.B. contiguous zone is already part of the high seas
Authority of coastal State within contiguous zone?
o To prevent and punish infringement of customs, fiscal,

immigration, or sanitation (CFIS) laws


What is the extent of the Exclusive Economic Zone (EEZ) or
patrimonial Sea?
o 24-200 n.m from baseline
What is the right over the EEZ?
o 1. Right over economic resources in the sea, seabed, subsoil
o 2. Not affect right of navigation and over-flight of other states
o What is the reciprocal obligation?

Must ensure proper conservation and management,

maximize allowable catch, or else, grant other States

this right
What are the areas covered by the continental/archipelagic shelf?
o 1. Seabed and subsoil adjacent to coastal state but outside
territorial sea
o 2. Seabed and subsoil adjacent to islands
Rights over the shelf:
o 1. Explore and exploit natural resources
o 2. Erect installations
o 3. Erect safety zone
What about the deep seabed?
o It is beyond any national jurisdiction and cannot be

EEZ) can be pursued to the high seas.


o Stopped when the ship enters another States territorial sea.
o The pursuing State cannot sink the ship.
How are disputes settled?
o Compulsory peaceful settlement
o If it fails, submit to tribunal clothed with jurisdiction (choose):

1. International Tribunal for Law of the Sea

2. ICJ

3. Arbitral tribunal constituted under convention

International Environmental Law

appropriated
What is the rule on islands?
o It must be naturally formed (not artificial). Follow usual
o

waters. Includes CZ and EEZ.


What are the freedoms in the high seas?
o 1. Navigation
o 2. Over-flight
o 3. Fishing
o 4. Laying submarine cables/pipelines
o 5. Constructing artificial islands/structures
o 6. Scientific research
What is the rule on hot pursuit?
o A ship which has violated law or regulations of the coastal
State (or CFIS, if in the contiguous zone, or EEZ rights if the

and optimum utilization of living resources (must

All parts of the sea not included in the territorial sea or internal

What is Principle 21 of the Stockholm Declaration?


o 1. States have sovereign right to exploit their own resources
o

pursuant to their own environmental policies, and


2. The responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment
of other States or of areas beyond the limits of national

provisions.
For rocks which cannot sustain human habitation or economic

jurisdiction.

life, it just has a territorial sea and not CZ or EEZ.


What is covered by the high seas?

153

154