Nature and Concept

of a Constitution

CONSTITUTION
It is a body of rules and maxims in accordance with
which the powers of sovereignty are habitually exercised
(Cooley)

It is a written instrument enacted by direct action of the

people by which the fundamental powers of the
government are established, limited and defined, and by
which those powers are distributed among the several
departments for their safe and useful exercise, for the
benefit of the body politic.
[Malcolm]
ESSENTIAL QUALITIES OF A WRITTEN
CONSTITUTION
1. Broad – because it is through it that the
fundamental powers of government are
THE 1987 CONSTITUTION established, limited and defined, and by which
those powers are distributed among the several
departments of government for their safe and
useful exercise and for the benefit of the body
politic
2. Brief – it must be brief because it is not intended
to go into details of organization. The details are
PREAMBLE left to Congress.
3. Definite – to prevent ambiguity in its provisions
which could result in confusion and divisiveness
We, the sovereign Filipino people, among the people.
imploring the aid of Almighty god, in
order to build a just and human
society, and establish a government Amendments and Revisions
that shall embody our ideals and
1. Proposal – adoption of the suggested change in the
aspirations, promote the common Constitution
good, conserve and develop our a. Congress as a Constituent Assembly – vote of ¾
of ALL its members
patrimony, and secure to ourselves b. Constitutional Convention – called into existence
and posterity, the blessings of by: 2/3 of ALL members of Congress; or The
electorate, in a referendum called for by the majority
independence and democracy of the members of Congress (Art. XVII, Sec. 3)
under the regime of truth, justice,
freedom, love, equality and peace,
do ordain and promulgate this
Constitution.

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 c. People’s Initiative – a petition of at least 12% LEGAL TESTS
of the total number of registered voters, and 1. Quantitative Test – The court examines the
every legislative district must be represented number of provisions affected and does not
by at least 3% of the registered consider the degree of change;
● No amendment in this manner shall be 2. Qualitative Test – The court inquires into the
authorized within 5 years following the qualitative effects of the proposed change in the
ratification of the 1987 Constitution nor Constitution. The main inquiry is whether the
more often than once every 5 years. change will “accomplish such far-reaching
● Constitutional provision on changes in the nature of our basic governmental
amendments via people’s initiative not plan as to amount to a revision” (Lambino v.
self-executory. Two essential elements COMELEC, 2006)
must be present:
1. The people must author and sign
DOCTRINE OF PROPER SUBMISSION
the entire proposal; no agent or
A plebiscite may be held on the same day as a regular
representative can sign in their
election No “piecemeal submission” is allowed. The
behalf.
entire Constitution must be submitted for ratification at
2. As an initiative upon a petition,
one plebiscite only. The people must have a proper
the proposal must be embodied
frame of reference (Gonzales v. COMELEC, 1967,
in the petition. (Defensor-Santiago
Lambino; Tolentino v. COMELEC, 1971)
v. COMELEC; Lambino, 1997)
JUSTICIABILITY
2. Ratification – proposed amendment shall be
Although the question of whether a Constitution was
submitted to the people and shall be deemed
validly ratified is a justiciable question, the question of
ratified by the majority of votes cast in a plebiscite,
whether a Constitution has come into force and effect is
held not earlier than 60 days nor later than 90 days
a political question which is beyond the competence of
after:
the Court to decide. (Javellana v. Executive Secretary,
a. Congress by the Constitutional Convention;
1973)
b. Certification by the COMELEC of the
sufficiency of the petition of the people
Methods of Interpreting the
Legislative power reserved to the people by the Constitution
PROVISION on initiative and referendum.
VERBAL LEGIS
Amendment v. Revision Whenever possible, the words used in the Constitution
must be given their ordinary meaning, except where
Amendment technical terms are employed.
Amendment Revision Revision
RATIO LEGIS EST ANIMA
Broadly refers to a change Broadly implies a change that Where there is ambiguity, the words of the Constitution
that adds, reduces, deletes, alters a basic principle in the should be interpreted in accordance with the intent of
without altering the basic Constitution, like the principle the framers
principle involved. of separation of powers,
system of checks and
balances, or if the change
UT MAGIS VALEAT QUAM PEREAT
alters the substantial entirety The Constitution has to be interpreted as a whole.
of the Constitution

Affects only specific Affects several provisions of

provisions being amended. the Constitution

2
 Declaration Of Principles
And State Policies

ARTICLE II, SECTION 1

SOVEREIGNTY
The Philippines is a democratic and republican State.
Sovereignty resides in the people and all government
authority emanates from them.

ARTICLE II, SECTION 2

RENUNCIATION OF WAR
The power to wage a defensive war is of the very
essence of sovereignty.

ADOPTION OF INTERNATIONAL LAW

PRINCIPLES
Nothing more than a formal acceptance of a principle to
BASIC CONCEPTS which all civilized nations must conform.

DOCTRINE OF INCORPORATION
Generally accepted principles of international law are
made part of the law of the land either by express
provision of the Constitution or by means of judicial
declaration or fiat.
● Applied whenever municipal tribunals or local
courts are confronted with a conflict between a
rule of international law and the provisions of the
Constitution or statute of a State. (PCAP v.
Duque, 2007)
● Efforts should first be exerted to harmonize them
so as to give effect to both. In case of conflict,
municipal law shall prevail.
● However, rules of international law are given
equal standing with, and are not superior to,
national legislative enactments.
● Generally accepted principles of international law
via the incorporation clause of the Constitution
form part of the laws of the land even if they do
not derive from treaty obligations.

DOCTRINE OF TRANSFORMATION
Requires that an international law be transformed into a
domestic law through a constitutional mechanism such
as local legislation (Bernas)

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ARTICLE II, SECTION 3 ARTICLE II, SECTION 6
CIVILIAN SUPREMACY CLAUSE The State should not use its money and coercive power
Installation of the President as the highest civilian to establish religion. It should not support a particular
authority, as the commander-in-chief of the AFP — an religion. The State is prohibited from interfering with
external manifestation that civilian authority is supreme purely ecclesiastical affairs. However, it does not mean
over the military. (Sec. 18, Art. VII, in relation to Sec. 3, that there is total or absolute separation. The better rule
Article II) is symbiotic relations between the church and State. (Re:
Letter of Tony Q. Valenciano, Holding of Religious Rituals
at the Hall of Justice Building in Quezon City, 2017)
ARTICLE II, SECTION 4
POSSE COMMITATUS ARTICLE II, SECTION 7
It is the power of the state to require all able-bodied
citizens to perform civic duty to maintain peace and
INDEPENDENT FOREIGN POLICY
order.
ARTICLE II, SECTION 8
The Supreme Court upheld the validity of the National POLICY OF FREEDOM FROM
Defense Act in Lagman on the basis of the compulsory
military and civil service provision of the 1935 NUCLEAR WEAPONS
Constitution. It said that: “The duty of the Government to The ban is on nuclear arms - that is, the use and
defend the State cannot be performed except through stockpiling of nuclear weapons, devices, and parts
an army. To leave the organization of an army to the will thereof. Includes:
of the citizens would be to make this duty to the ● possessing, controlling and manufacturing nuclear
Government excusable should there be no sufficient weapons,
men who volunteer to enlist therein. The right of the ● nuclear test in our territory,
Government to require compulsory military service is a ● use of our territory as dumping ground for
consequence of its duty to defend the State and is radioactive waste.
reciprocal with its duty to defend the life, liberty, and
property of the citizen.” (People v. Lagman, 1938) However: provision not a ban on the peaceful uses of
nuclear energy. Nor is it a ban on all “nuclear-capable
vessels.”
ARTICLE II, SECTION 5
RIGHT TO BEAR ARMS ARTICLE II, SECTION 9
It is a statutory and not a constitutional right. The license
to carry a firearm is neither a property nor a property JUST AND DYNAMIC SOCIAL ORDER
right. Neither does it create a vested right. (Chavez v.
Romulo, 2004)
ARTICLE II, SECTION 10
RECOGNITION OF HIERARCHY OF RIGHTS SOCIAL JUSTICE
1. Life Equalization of economic, political and social
2. Liberty opportunities with special emphasis on duty of the state
3. Property to tilt balance of social forces by favoring the
(Philippine Blooming Mills Employees Organization v. disadvantaged.
Philippine Blooming Mills Co. Inc, 1973)

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ARTICLE II, SECTION 11 ARTICLE II, SECTION 16
PERSONAL DIGNITY AND HUMAN RIGHT TO A BALANCED AND
RIGHTS HEALTHFUL ECOLOGY
The minors who filed an action for themselves as
representing “their generation as well as generations yet
ARTICLE II, SECTION 12 unborn,” had a valid cause of action in questioning the
grant of Timber Licensing Agreements (TLAs) for
THE FAMILY AS BASIC SOCIAL commercial logging purposes on the ground of the right
INSTITUTION to a balanced and healthful ecology and the correlative
The declaration of family autonomy accepts that the duty to refrain from impairing the environment. This is
family is anterior to the State and is not a creature of the based on the concept of intergenerational responsibility.
State. It protects the family from instrumentalization by (Oposa v. Factoran, 1993)
the State.
Precautionary principle
When there is a lack of full scientific certainty in
ARTICLE II, SECTION 13 establishing a causal link between human activity and
VITAL ROLE OF THE YOUTH IN environmental effect, the court shall apply the
precautionary principle in resolving the case before it.
NATION BUILDING ● The constitutional right of the people to a
balanced and healthful ecology shall be given
the benefit of the doubt.
ARTICLE II, SECTION 14
EQUALITY OF WOMEN AND MEN ARTICLE II, SECTION 17
The policy of not accepting or considering as Persons who desire to engage in the learned professions
disqualified from work any woman worker who contracts requiring scientific or technical knowledge may be
marriage, runs afoul of the test of, and the right against, required to take an examination as a prerequisite to
discrimination, which is guaranteed all women workers engaging in their chosen careers. This regulation
under the Constitution. While a requirement that a assumes particular pertinence in the field of medicine, in
woman employee must remain unmarried may be order to protect the public from the potentially deadly
justified as a “bona fide occupational qualification” effects of incompetence and ignorance. (PRC v. De
where the particular requirements of the job would Guzman, 2004)
demand the same, discrimination against married
women cannot be adopted by the employer as a general ARTICLE II, SECTION 19
principle. (PT&T Co. v. NLRC, 1997) The Magna Carta for Disabled Persons mandates
that qualified disabled persons be granted the same
ARTICLE II, SECTION 15 terms and conditions of employment as qualified able-
bodied employees; thus, once they have attained the
RIGHT TO HEALTH status of regular workers, they should be accorded all
the benefits granted by law, notwithstanding writer or
verbal contracts to the contrary. This treatment is rooted
not merely in charity or accommodation, but in justice
for all. (Bernardo v. NLRC, 1999)

ARTICLE II, SECTION 25

Even as we recognize that the Constitution guarantees
autonomy to LGUs, the exercise of local autonomy
remains subject to the power of control by Congress and
the power of general supervision by the President. The
President can only interfere in the affairs and activities of
an LGU if found the latter had acted contrary to law, but
not when the concerned LGU acts within the parameters
of the law and the Constitution. (Judge Dadole v. COA,
2002)

5
 IMPLIED CONSENT
Sovereignty 1. When the state commences litigation, it
becomes vulnerable to a counterclaim;
2. State enters into a business contract in the
It means independence from outside control. It is the
exercise of its proprietary functions;
capacity to enter into relations with other states. It is,
3. When it would be inequitable for the state to
however, dependent on recognition of other states.
invoke immunity; and
(Montevideo Convention; Bernas)
4. When the state exercises the power of eminent
domain

State Immunity WHEN A SUIT IS AGAINST THE STATE

A suit is against the state regardless of who is named
the defendant if:
General Rule: The State cannot be sued without its 1. It produces adverse consequences to the public
consent. (Sec. 3 Art XVI) treasury in terms of disbursement of public
funds and loss of government property
Exception To The Exception 2. It cannot prosper unless the state gives consent
The State/public officer may be sued without prior
consent: WHEN A SUIT IS NOT AGAINST THE STATE
1. To compel him to do an act required by law; 1. The purpose is to compel an officer charged
2. To restrain him from enforcing an act claimed to with the duty of making payments pursuant to
be unconstitutional; an appropriation made by law in favor of the
3. To compel the payment of damages from an plaintiff, since the suit is intended to compel
already appropriated assurance fund or to performance of a ministerial duty
refund tax over-payments from a fund already 2. From the allegations in the complaint, it is clear
available for the purpose; that the respondent is a public officer sued in a
4. To secure a judgment that the officer impleaded private capacity;
may satisfy himself without the State having to 3. The action is not in personam with the
do a positive act to assist him; government as the named defendant, but an
5. Where the government itself has violated its own action in rem that does not name the
laws (Sanders v. Veridiano, 1988) government in particular

MANNER BY WHICH CONSENT IS State immunity may be invoked where it is found that the
U.S. military vessel was performing a governmental
GIVEN function during the incident (Arigo v. Swift, 2014)

EXPRESS CONSENT
1. General law
a. Money claims arising from contracts
express or implied (Act. No. 3083: An
Act Defining the Conditions under which
the Government may be Sued)
b. Torts
i. Liability of LGUs (Art. 2189, Civil
Code)
ii. Vicarious liability for special
agents (Art. 2180(6), Civil Code)
2. Special law

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SPECIFIC RULES Post-enactment measures which govern the areas of
project identification, fund release and fund realignment
are not related to functions of congressional oversight
SUITS AGAINST GOVERNMENT AGENCIES and, hence, allow legislators to intervene and/or assume
1. Incorporated has a separate charter) – If the
duties that properly belong to the sphere of budget
charter provides that the agency can sue, then
execution. As such, legislators have been authorized to
the suit will lie. The provision in the charter
participate in the various operational aspects of
constitutes express consent. (SSS v. Court of
budgeting, including evaluation of work and financial
Appeals, 1983)
plans for individual activities and regulation and release
2. Unincorporated (no separate personality) –
of funds, in violation of the separation of powers
Suit will lie, because when the state engages in
principle. (Belgica v. Ochoa, 2013)
principally proprietary functions, it descends to
the level of a private individual, and may,
PRINCIPLE OF BLENDING POWERS
therefore, be vulnerable to suit. State may only
Instances when powers are not confined exclusively
be liable for proprietary acts or jure gestoni, and
within one department but are assigned to or shared by
not for sovereign acts or jure imperii (Civil
several departments. (Cruz)
Aeronautics Administration v. CA, 1988)

SCOPE OF CONSENT
Suability depends on the consent of the state to be Checks And Balances
sued, liability on the applicable law and the established
facts. The circumstance that a state is suable does not
This allows one department to resist encroachments
necessarily mean that it is liable; on the other hand, it
upon its prerogative or to rectify mistakes or excesses
can never be held liable if it does not first consent to be
committed by the other departments.
sued. Liability is not conceded by the mere fact that the
1. Power of the President to veto any particular
state has allowed itself to be sued. When the state does
item in an appropriation or tariff bill. (Article VI,
waive its sovereign immunity, it is only giving the plaintiff
Sec. 27 (2))
the chance to prove, if it can, that the defendant is liable.
2. Power of the president to grant reprieves,
(US v. Guinto, 1990)
commutations, pardons, and remit fines except
in impeachment cases. (Article VII, Sec. 19).
3. Power of the Judiciary to resolve cases involving
Separation Of Powers the constitutionality of a treaty, international or
executive agreement or law. (Article VIII, Sec. 4
(2))
Separation of powers means the legislation belongs to
Congress, execution to the Executive, settlement of legal
controversies to the Judiciary. Each is prevented from
invading the domain of the others. But the separation is Test In Determining Whether
not total. The system allows for “checks and balances” A Given Power Has Been Validly
the net effect of which being that, in general, no one Exercised By A Particular Department
department is able to act without the cooperation of at
least one of the other departments. This principle
General rule: The first and safest criterion to determine
operates as an implicit limitation on legislative powers as
whether a given power has been validly exercised by a
on the two other powers.
particular department is whether or not the power has
been constitutionally conferred upon the department
PURPOSE claiming its exercise – since the conferment is usually
To prevent concentration of powers in one department done expressly.
and thereby to avoid tyranny. The purpose was not to
avoid friction, but to save the people from autocracy. Exception: Even in the absence of express conferment,
the exercise of the power may be justified under the
doctrine of necessary implication. The grant of
express power carried with it all other powers that may
be reasonably inferred from it.

7
Congressional oversight is not per se violative, but is 3. Certain TAXING powers of the President. The
integral, to separation of powers. However, for a Congress may authorize the President to fix,
post-enactment congressional measure to be valid, it within specified limits, and subject to such
must be limited to: limitations and restrictions as it may impose,
1. Scrutiny – Congress’ power of appropriation tariff rates, import and export quotas, tonnage
(budget hearings, and power of confirmation) and wharfage dues, and other duties or imposts
2. Investigation and monitoring of within the framework of the national
implementation of laws – using its power to development program of the Government.
conduct inquiries in aid of legislation (Abakada v. 4. Subordinate legislation made by
Purisima, 2008) ADMINISTRATIVE agencies. These
administrative agencies have the power to fill up
General rule: The Court deems it a sound judicial policy the details of a statute passed by Congress in
not to interfere in the conduct of preliminary the course of its implementation.
investigations, and to allow the Executive Department, 5. Delegated LEGISLATIVE power to local
through the Department of Justice, exclusively to governments.
determine what constitutes sufficient evidence to Local governments may be allowed to legislate
establish probable cause for the prosecution of on purely local matters.
supposed offenders
REQUISITES OF VALIDITY
Exception: Judicial review may be allowed where it is 1. Issued under authority of law – There must be
clearly established that the public prosecutor committed a valid delegation of legislative power.
grave abuse of discretion, that is, when discretion has 2. Within the scope and purview of legislative
been exercised in an arbitrary, capricious, whimsical or authority – The regulation must be germane to
despotic manner by reason of passion or personal the purposes of the law. It must not contradict
hostility, patent and gross enough as to amount to an but must conform to the standards prescribed
evasion of a positive duty or virtual refusal to perform a by law. (Public Schools District Supervisors
duty enjoined by law. (Ampatuan, Jr. v. De Lima, 2013) Association v. De Jesus, 2006)
3. Promulgated in accordance with the
JUSTICIABLE QUESTION prescribed procedure
Implies a given right, legally demandable and
enforceable, an act or omission violative of such right, TESTS OF VALID DELEGATION
and a remedy granted and sanctioned by law for said
breach of right. (Casibang v. Aquino, 1979)
COMPLETENESS TEST
The law must be complete in all its terms and conditions
when it leaves the legislature so that when it reaches the
Delegation Of Powers delegate, the delegate will have nothing to do but
enforce it. (U.S. v. Ang Tang, 1922)
General rule: Potestas delegate non delegari – what has
been delegated can no longer be delegated. Based on SUFFICIENT STANDARD TEST
the principle that delegated power constitutes not only a The law must offer a sufficient standard to specify the
right but a duty to be performed by the delegate through limits of the delegate’s authority, announce the
the instrumentality of their own judgement and not legislative policy, and specify the conditions under which
through the intervening mind of another. it is to be implemented

Exceptions (P-E-T-A-L):
1. Legislative power reserved to the people by the
PROVISION on initiative and referendum.
2. EMERGENCY power delegated to the
Executive during State of War or National
Emergency.

8
 Fundamental Powers Of The State SUPERIORITY OF POLICE POWER
Police Power cannot be bargained away through the
medium of a contract or a treaty.
POLICE POWER 1. Contract – The impairment clause must yield to
The power vested in the legislature by the Constitution the police power whenever the contract deals
to make, ordain, and establish all manner of wholesome with a subject affecting public welfare (Stone v.
and reasonable laws, statutes, and ordinances, either Mississippi)
with penalties or without, not repugnant to the 2. Treaty – The treaty is always subject to
Constitution, as they shall judge to be for the good and qualification and amendment by a subsequent
welfare of the commonwealth, and of the subjects of the law; it can never curtail or restrict the scope of
same.” (Bernas) police power (Ichong v. Hernandez, 1957)

NATURE AND PURPOSES REQUISITES FOR VALID EXERCISE

An inherent and plenary power which enables the State 1. Lawful subject or purpose – The interests of
to prohibit all that is hurtful to the comfort, safety, and the public generally, as distinguished from those
welfare of the society. (Ermita-Malate Hotel v. Mayor of of a particular class, require the exercise of the
Manila, 1967) police power
2. Lawful means – The means are reasonably
JUSTIFICATION necessary for the accomplishment of the
1. Salus populi est suprema lex – The welfare of the purpose, and not unduly oppressive upon
people is the supreme law. individuals. (US v. Toribio, 1910)
2. Sic utere tuo ut alienum non laedas – So use your
own property as not to injure another’s property. General Rule: Police power primarily lodged in the
(Cruz) Legislative

GENERAL SCOPE Exception: Valid delegation to the President and

The most essential, insistent, least limitable, and most administrative bodies as well as the lawmaking bodies of
demanding of the three powers, extending as it does to municipal corporations or LGUs. Once delegated, the
all the great public needs. (Ichong v. Hernandez, 1957) agents can exercise only such legislative powers as are
conferred on them by the lawmaking body. (MMDA v.
Police power rests upon public necessity and upon the Bel-Air, 2000)
right of the State and of the public to self-protection. For
this reason, its scope expands and contracts with Through the general welfare clause, the lawmaking
changing needs. (Churchill v. Rafferty, 1915) bodies on all municipal levels, including the barangay,
exercise police power. (Cruz)
PARTICULAR ASPECTS
The pervasive reach of police power has been used to The power of eminent domain may be used as an
justify measures: (H-M-S-W) implement of Police Power (Association of Small
1. Public Health Landownders in the Philippines v. Secretary of Argrarian
2. Public Morals Reform, 1989)
3. Public Safety
4. Public Welfare The power of taxation may be used as an implement of
Police Power, particularly in discouraging business or
LIMITATIONS undertaking sought to be restricted by the government
Due process and Equal protection – No person shall (Lutz v. Araneta, 1955)
be deprived of life, liberty or property without due
process of law, nor shall any person be denied of equal The rigidity of the theory of separation of governmental
protection of law (Art III, Sec. 1) powers has, to a large extent, been relaxed by
permitting the delegation of greater powers by the
legislative and vesting a larger amount of discretion in
administrative and executive officials, not only in the
executions of laws, but also in the promulgation of
certain rules and regulations, to promote public
interest.”. (Calalang v. Williams, 1940)

9
POWER OF EMINENT DOMAIN 5. The utilization of the property for public use
It is the power of the state to take or condemn private must be in such a way as to oust the owner and
property for public use upon payment of just deprive him of beneficial enjoyment of the
compensation. (Bernas) property. (Republic v. Castellvi, 1974)

TWO STAGES OF EMINENT DOMAIN CASES CONSTRUCTIVE TAKING

1. The determination of the authority of the plaintiff When there is destruction, restriction, diminution or
to exercise the power of eminent domain and interruption of the rights of the ownership or of the
the propriety of its exercise in the context of the common and necessary and enjoyment of the property
facts involved in the suit in a lawful manner, lessening or destroying its value
2. The determination by the court of the just (NPC v. Heirs of Macabangkil Sangkay, 2011).
compensation for the property sought to be
taken. (Republic v. Lim, 2005) PUBLIC USE
Means public usefulness, utility, or advantage, or what is
WHO MAY EXERCISE productive of general benefit. As long as public has right
It is lodged primarily in the national legislature, but its of use, whether exercised by one or many members of
exercise may be validly delegated to other governmental the public, a public advantage or public benefit accrues
entities and, in fact, even to private corporations: sufficient to constitute a public use (Mañosca v. CA,
1. Congress 1997).
2. President of the Philippines
3. Municipal governments and other government If the public necessity disappears, then there is no more
entities cogent point for the government’s retention of the
4. Certain public corporations (NHA) expropriated land (Vda. de Ouano v. Republic, 2011).
5. Quasi-public corporations operating public
utilities When exercised by the Congress, the question of
genuine necessity is a political question which the courts
REQUISITES FOR THE EXERCISE OF THE cannot resolve. When it is delegated, the grant of such
POWER OF EMINENT DOMAIN special authority for special purpose is still a political
1. Taking of private property question. Hence, it is a justifiable question that can be
2. Said taking must be for public use resolved by the courts (City of Manila v. Chinese
3. Payment of just compensation Community of Manila, 1919).

MEANING OF TAKING (AD-MI-C-O) EXPANSIVE CONCEPT

1. The owner is actually deprived or disposed of Public use has now acquired an expansive meaning to
the property. include any use that is of usefulness, utility, or
2. There is practical destruction or material advantage, or what is productive of general benefit to
impairment of the value of their property the public (Vda. de Ouano v. Republic, 2011)
3. The owner is deprived of jurisdiction,
supervision, and control of their property JUST COMPENSATION
4. The owner is deprived of the ordinary use of The just and complete equivalent of the loss which the
their property. (Republic v. Sandiganbayan, owner of the thing expropriated has to suffer by reason
2005) of the expropriation (Bernas).

REQUISITES OF TAKING FOR PURPOSE OF The compensation given to the owner is just if it was a
EMINENT DOMAIN sum equivalent to the property’s market value.
1. The expropriator must enter a private property.
2. The entrance into private property must be for While market value may be one of the bases in
more than a momentary period. determining just compensation, the same cannot be
3. The entry into the property should be under arbitrarily arrived at without considering the factors to be
warrant or color of legal authority. appreciated in arriving at the fair market value of the
4. The property must be devoted to public use or property. e.g. cost of acquisition, the current value of like
otherwise informally appropriated or injuriously properties, size, shape, location, tax declaration
affected. (Landbank v. Wycoco, 2004).

10
FAIR MARKET VALUE DUE PROCESS
The price that may be agreed upon by the parties who Property owned must be given an opportunity to be
are willing but are not compelled to enter into a contract heard in the determination of the fair market value of the
of sale. Otherwise stated, it is the price prepared to be property (Sec 3, Rule 67, ROC).
paid by a party who is willing, but not compelled to
purchase the property, and the price that the seller is REQUISITES OF EXERCISE OF EMINENT
willing to par with, but not compelled, to sell the property DOMAIN BY LGUs (O-OU-JC-O)
(NPC v. Dela Cruz, 2007). 1. Ordinance by the local legislative council
authorizing the local chief executive to exercise
General Rule: The value of the property sought to be the power of eminent domain
taken at the time of the filing of the complaint for 2. For public use, purpose or welfare or for the
expropriation which generally coincides with the taking benefit of the poor and of the landless
shall be the basis for just compensation. 3. Payment of just compensation; and
4. Valid and definite offer has been previously
Exceptions: made to the owner of the property sought but
1. When filing of the case comes later than the such offer was refused (Municipality of
taking and the value of the property has Paranaque v. VM Realty Corp, 1998)
increased because of the use which the
expropriator has put it, the value is that of the
time of the earlier taking. POWER OF TAXATION
2. If the value increases independently of what the It is the power by which the sovereign, through its
expropriator did, the value is that of the later law-making body, raises revenue to defray the necessary
filing. expenses of government. It is a way of apportioning the
costs of government among those who in some measure
EFFECT OF DELAY IN PAYMENT are privileged to enjoy its benefits and must bear its
The government is expected to immediately pay as burdens.
directed. The trial court is directed to seize any
patrimonial property or cash savings of the province in NATURE
the amount necessary to implement the decision Enforced proportional contributions from persons and
(Sorsogon v. Villaroya, 1987). property, levied by the State by virtue of its sovereignty,
for the support of government and for all public needs
CONSEQUENTIAL DAMAGE (Cooley, Taxation, 4th ed.)
It consists of injuries directly caused on the residue of
the private property taken by the reason of expropriation EXTENT
(Cruz). The extent of the taxing power is as broad as the
purpose for which it is given (Bernas). It reaches every
Consequential damages, being a component of just trade or occupation, to every object of industry, use or
compensation, should be determined based on the value enjoyment, to every species of possession (Cooley).
of the properties "as of the date of the taking or the filing
of the complaint for expropriation, whichever came first." So pervasive is the power of taxation that it reaches
(Schulze v. NAPOCOR, 2020) even the citizen abroad and income earned from sources
outside their State (Cruz).
EFFECT OF NON-PAYMENT
PURPOSE
General Rule: The non-payment of just compensation
1. To raise revenue
does not entitle the private landowner to recover
2. Tool for regulation
possession of expropriated lots.
3. Protection/ power to keep alive
Exception: In cases where the government failed to pay
just compensation within 5 years from the finality of the INHERENT LIMITATIONS
judgment in the expropriation proceedings, the owners 1. Public purpose
concerned shall have the right to recover possession of 2. Non-delegability
their property (Republic v. Lim). 3. Exemption of government from taxation
4. Situs of taxation
5. International comity

11
CONSTITUTIONAL LIMITATIONS RATIONALE TO STRICT CONSTRUCTION OF
1. Taxes should be uniform and equitable (Section. TAX EXEMPTIONS
28(1), Art. VI) Tax exemptions should not be lightly extended since
2. Power to tax exists for the general welfare; they will represent a loss of revenue to the government.
should be exercised only for a public purpose
(Section. 28(2), Art. VI) Where tax exemption is granted gratuitously, it may be
3. Might be justified as for public purpose even if validly revoked at will, with or without cause.
the immediate beneficiaries are private
individuals If the exemption is granted for valuable consideration, it
4. Tax should not be confiscatory: If a tax measure is deemed to partake of the nature of a contract and the
is so unconscionable as to amount to obligation thereof is protected against impairment.
confiscation of property, the Court will invalidate (Sec. 28(4), Art. VI)
it. But invalidating a tax measure must be
exercised with utmost caution; otherwise, the ENTITIES AND MATTERS EXEMPT FROM SOME
State’s power to legislate for the public welfare KIND OF TAXES BY THE CONSTITUTION
might be seriously curtailed.
1. Charitable institution, churches, and personages
or convents appurtenant thereto, mosques,
IMPAIRMENT OF OBLIGATION OF CONTRACTS non-profit cemeteries, and all lands, building,
The State’s inherent power of taxation may validly limit and improvements actually, directly, and
the impairment clause. exclusively used for religious, charitable or
educational purposes (Sec. 28(3), Art. VI)
Generally, the imposition of a tax does not alter the
relationship between the parties but only the relationship A gift tax is not a property tax, but an excise
between the parties and the State who may not be a tax imposed on the transfer of property by
party to the contract. way of gift inter vivos, the imposition of which
a property used exclusively for religions
It has been held that a lawful tax on a new subject, or an purpose does not constitution impairment of
increased tax on an old one, does not interfere with a the constitution (Lladoc v. CIR, 1965)
contract or impairs its obligation within the meaning of
the Constitution. 2. All revenues and assets of non-stock, non-profit
educational institution used actually, directly and
TAX EXEMPTION exclusively for educational purposes shall be
May either be constitutional or statutory in nature. exempt from taxes and duties (Sec 4(3), Par 1,
Art. XIV)
LIMITATIONS TO CREATING TAX EXEMPTIONS
Inherent to the power to tax is the power to exempt from 3. Proprietary educational institution including
tax. Hence, the same general and specific limitations on those cooperatively owned may likewise be
the power to tax also apply to the power to create entitled to such exception subject to the
exemptions (Bernas). limitation provided by the law (Sec 4(3), Art. XIV)

Unlike the ordinary legislation, tax measures require 4. All grants endowments donation or contributions
absolute majority of the entire composition of both used actually, directly and exclusively for
houses of congress, voting separately. The former educational purpose shall be exempt from tax
requires only majority of members present as long as subject to conditions prescribed by law (Sec.
there is a quorum 4(4), Art. XIV)

RA 9304 which exempts minimum wage

earners from paying income tax, increases
tax exemption for all earners and allows
additional exemptions for all earners and
allows additional exemptions for individuals
with dependents or children.

12
 THE ARCHIPELAGIC DOCTRINE
A body of water studded with islands, or the islands
surrounded with water, is viewed as a unity of islands and
waters together forming one integrated unit (n.b. embodied
in Art. II specifically by the mention of “philippine
archipelago” plus the specification on internal waters)

STRAIGHT BASELINE METHOD

Consists of drawing straight lines connecting appropriate
points on the coast without departing to any appreciable
extent from the general direction of the coast, in order to
delineate the internal waters from the territorial waters of an
archipelago. (Republic Act 9522; amended R.A. no. 3046
entitled “An Act to Define the Baselines of the Territorial Sea
of the Philippines)

COMPONENTS OF TERRITORY
1. The Philippine archipelago with all the islands and
waters embraced therein.

Internal waters - waters around, between, and

connecting the islands of the archipelago,
NATIONAL TERRITORY regardless of breadth and dimension

2. All other territories over which the Philippines has

sovereignty or jurisdiction

THE PHILIPPINE ARCHIPELAGO

The Philippine Archipelago is that body of water studded
with islands which is delineated in the Treaty of Paris of
December 10, 1988, as modified by the Treaty of
Washington of November 17, 1900 and the Treaty with
Great Britain of January 2, 1930.

OTHER TERRITORIES OVER WHICH THE

PHILIPPINES EXERCISES JURISDICTION
Includes any territory which presently belongs or might in
the future belong to the Philippine through any of the
internationally accepted modes of acquiring territory.

R.A. N0. 9522 specified that baselines of Kalayaan Group of

Islands, and Bajo de Masinloc (Scarborough Shoal) shall be
determined as “Regime of Islands” under the Republic of
the Philippines, consistent with the UNCLOS.

R.A. No. 9522 is not unconstitutional. It is a statutory tool to

demarcate the maritime zone and continental shelf of the
Philippines under UNCLOS III and does not alter the
national territory. The law does not abandon the country’s
claim to Sabah, as it does not expressly repeal the entirety
of R.A. No. 5446 (Magallona v. Ermita, 2011)

13
 Kinds Of Citizenship, Purpose Of
Distinguishing Citizenship
CLASSIFICATION OF CITIZENS
1. Natural-born citizens
2. Naturalized citizens

NATURAL BORN CITIZENS

1. Citizens of the Philippines from birth without having
to perform any act to acquire or perfect their
Philippine citizenship (Sec. 1(1) and Sec. 1(2), Art.
IV)
2. Those who elect Philippine citizenship in
accordance with Sec. 1(3), Art. IV.

Having the status of a natural-born citizen is important for

the purpose of certain political and economic rights open
only to such citizens.

FOUNDLINGS
As a matter of law, foundlings are as a class, natural-born
citizens. While the 1935 Constitution's enumeration is silent
CITIZENSHIP as to foundlings, there is no restrictive language which
would definitely exclude foundlings either. No such intent or
language permits discrimination against foundlings. On the
contrary, all three Constitutions (1935, 1973, and 1987)
guarantee the basic right to equal protection of the laws. All
exhort the State to render social justice. (Poe-Llamanzares
v. COMELEC, 2016)

POLITICAL RIGHTS
Must be a natural-born:
1. President (Sec. 2, Art. VII)
2. Vice-President (Sec. 3, Art. VII)
3. Congress members (Sec. 3 and 6, Art. VI)
4. Supreme Court Justices and lower collegiate courts
(Sec. 7(1), Art. VIII)
5. Ombudsman and deputies (Sec. 8, Art. XI)
6. Constitutional Commission members
a. Civil Service Commission (Sec. 1(1), Art.
IX-B)
b. COMELEC (Sec.1, Art. IX-C)
c. Commission on Audit (Sec. 1(1), Art. IX-D)
7. Members of the central monetary authority (Sec. 20,
Art. XII)
8. Members of the Commission on Human Rights
(Sec. 17(2), Art. XIII)

ECONOMIC BENEFITS
A natural-born citizen of the Philippines who has lost his
Philippine citizenship may still be a transferee of private
lands, subject to limitations provided by law (Sec. 8, Art. XII)

14
NATURALIZED CITIZENS
Those who are naturalized in accordance with the law Modes of Acquiring Citizenship
(Sec. 1 (4), Art. IV)

ACQUIRING CITIZENSHIP BY BIRTH

1. Jus soli – “Right of soil”; person’s nationality is
Who Are Citizens based on the place of birth
2. Jus sanguinis – “Right of blood”; person’s
1. Citizens of the Philippines at the time of the nationality follows that of his/her natural parents.
adoption of this Constitution; This is the principle adhered to by the
2. Those whose fathers or mothers are citizens of Philippines.
the Philippines;
3. Those who elected to be citizens. This applies Modes Of Losing And
only to:
● Those born before Jan 17, 1973 to
Reacquiring Citizenship
Filipino mothers; and
● Elect Philippine citizenship upon GROUND FOR LOSS
reaching the age of majority 1. Naturalization in a foreign country;
4. Those naturalized in accordance with law 2. Express renunciation or expatriation
5. Foundlings 3. Taking an oath of allegiance to another country
upon reaching the age of majority;
4. Marriage by a Filipino woman to an alien, if by
Who Can Be Citizens the laws of her husband’s country, she becomes
a citizen thereof
5. Accepting a commission and serving in the
NATURALIZATION armed forces of another country, unless there is
Process by which a foreigner is adopted by the country an offensive/ defensive pact with the country, or
and clothed with the privileges of a native-born citizen. it maintains armed forces in RP with RP’s
The applicant must prove that he has all of the consent;
qualifications and none of the disqualifications for 6. Denaturalization;
citizenship. (C.A. 473) 7. Being found by final judgment to be a deserter
of the AFP
PETITION FOR JUDICIAL DECLARATION OF
PHILIPPINE CITIZENSHIP GROUNDS FOR REACQUISITION
The petitioner believes he is a Filipino citizen and asks a 1. Naturalization
court to declare or confirm his status as a Philippine 2. 21 years of age
citizen. 3. Be a resident for 6 months
4. Have good moral character
PETITION FOR JUDICIAL NATURALIZATION OF 5. No disqualification
CA 473 6. Repatriation- results in the recovery of the
The petitioner acknowledges he is an alien and seeks original nationality
judicial approval to acquire the privilege of becoming a 7. Legislative Act
Philippine citizen based on requirements required under
CA 473.

DENATURALIZATION
Process by which grant of citizenship is revoked.

15
 Dual Citizens And Dual Allegiance

DUAL ALLEGIANCE
Where a person simultaneously owes, by some positive
act, loyalty to 2 or more states. It is not equivalent to
dual citizenship. (Sec. 5, Art IV)

Examples:
a. Aliens who are naturalized as Filipinos but
remain loyal to their country of origin
b. Public officers who, while serving the
government, seek citizenship in another country

Such are disqualified from running for any elective local

position (Sec. 40(d), LGC)

DUAL CITIZENSHIP IN RE. DUAL ALLEGIANCE

Once candidates file their candidacy, they are deemed
to have renounced their foreign citizenship (Mercado v.
Manzano, 1999)

In dual citizenship, such is not an automatic

disqualification. Filing of the Certificate of Candidacy is
sufficient to renounce foreign citizenship to the effect
that one declares under oath of maintenance, true faith
and allegiance to the Constitution of the Philippines
(Valles v. COMELEC, 2000)

R. A. NO. 9189 – OVERSEAS VOTING LAW

There is no provision in the dual citizenship law (R.A.
9225) requiring "duals" to actually establish residence
and physically stay in the Philippines first before they
can exercise their right to vote.

On the contrary, R.A. 9225, in implicit acknowledgment

that "duals" are most likely non-residents, grants under
its Section 5(1) the same right of suffrage as that granted
an absentee voter under R.A. 9189. It cannot be
overemphasized that R.A. 9189 aims, in essence, to
enfranchise as much as possible all overseas Filipinos
who, save for the residency requirements exacted of an
ordinary voter under ordinary conditions, are qualified to
vote. (Nicolas- Lewis v. COMELEC, 2006)

16
 Legislative Power

SCOPE
Legislative power is vested in the Congress which shall
consist of a Senate and a House of Representatives.
Congress may delegate legislative powers to the President
in times of war or in other national emergencies (Art. VI Sec.
23)

PEOPLE’S INITIATIVE ON STATUTES

The power of initiative and referendum is the power of the
people to propose and enact laws or approve or reject any
act or law or part thereof passed by the Congress or local
legislative body. This is valid for laws, ordinances, and
resolutions, but not for amendments to the Constitution.
This provision is not-self executing. The executing Law is
R.A. 6735 (Santiago v. COMELEC, 1997)

LEGISLATIVE LIMITATIONS

DEPARTMENT EXPRESS LIMITATIONS

1. The exercise of general powers of the state (Bill of
Rights);
2. Limitations on the power of taxation;
3. Requisites to pass an appropriation bill;
4. Limitation on the appellate jurisdiction of the SC;
and
5. No law granting title of royalty or nobility shall be
passed

LIMITATIONS ON REVENUE, APPROPRIATIONS,

AND TARIFF MEASURES

General rule:
1. Appropriations must be for a public purpose
2. The appropriation must be by law
3. Cannot appropriate public funds or property,
directly or indirectly, in favor of:
a. Any sect, church, denomination, or
sectarian institution or system of religion;
b. Any priest, preacher, minister, or other
religious teacher or dignitary as such.

Exceptions
If the religious teacher or dignitary is assigned to the Armed
Forces, any penal institution, government orphanage or
leprosarium

Government is not prohibited from appropriating money for

a valid secular purpose, even if it incidentally benefits a
religion.

17
SPECIFIC LIMITATIONS LIMITATIONS ON THE POWER OF TAXATION
1. Congress may not increase the appropriations 1. Power to tax should be exercised only for a public
recommended by the President for the operation purpose.
of the Government specified by the President for 2. Taxes to be imposed must be uniform and equitable.
the operation of the Government as specified in 3. Power to tax must operate with the same force and
the budget. effect in every place where the subject of it is found.
2. Form, content and manner of preparation of the 4. Classification for the purpose of taxation is not
budget shall be prescribed by law. prohibited per se, but it must comply with the Test of
3. No provision or enactment shall be embraced in Valid Classification
the general appropriations bill unless it relates
specifically to some particular appropriation CONSTITUTIONAL TAX EXEMPTIONS
therein. 1. Religious, charitable, educational institutions and
4. Procedure in approving appropriations for the their properties.
congress shall strictly follow the procedure for 2. All revenues and assets of non-stock, non-profit
approving appropriations for other departments educational institutions are exempt from taxes and
and agencies. duties provided that such revenues and assets are
5. No law shall be passed authorizing any transfer actually, directly and exclusively used for
of appropriations. educational purposes (Art. XIV, Sec. 4 (3))
3. Grants, endowments, donations or contributions
EXCEPTIONS used actually, directly and exclusively for
The following may, by law, be authorized to augment any educational purposes shall be exempt from tax,
item in the general appropriations law for their respective subject to conditions prescribed by law (Art. XIV,
offices from savings in other items of their respective Sec. 4(4)
appropriations:
1. President;
2. Senate President;
3. Speaker of the House;
4. Chief Justice; and
5. Chairs of Constitutional Commissions.

SPECIAL APPROPRIATION BILLS LIMITATIONS

1. Shall specify the purpose for which it is
intended;
2. Shall be supported by funds:
a. Actually available as certified by the
National Treasurer; or
b. To be raised by corresponding revenue
proposal therein.

USE OF PUBLIC FUNDS

LIMITATIONS
General Rule: No money shall be paid out of the
National Treasury.

Exception: In pursuance of an appropriation made by

law. However, this rule does not prohibit continuing
appropriations, e.g. for debt servicing, for the reason
that this rule does not require yearly or annual
appropriation.

18
 2. Proportional representation based on number of
Chamber Of Congress; inhabitants:
Composition; Qualifications a. Each city with a population of at least
250,000 shall have at least 1
SENATE representative;
b. Each province, irrespective of the
number of inhabitants, shall have at
COMPOSITION
least 1 representative; and
24, elected at large by qualified voters of the Philippines,
c. Each legislative district shall comprise,
as may be provided by law.
as far as practicable, contiguous,
compact, and adjacent territory.
QUALIFICATIONS 3. Re-apportionment by Congress within 3 years
1. Natural-born citizen of the Philippines; after the return of each census
2. At least 35 years of age on the day of the
election; The use of a comma to separate the phrase “each city
3. Able to read and write; with a population of at least two hundred fifty thousand”
4. Registered voter; from the phrase “or each province” point to no other
5. Resident of the Philippines for not less conclusion than that the 250,000 minimum population is
than 2 years immediately preceding the day of only required for a city, but not for a province. (Aquino III
the election. (Art. VI, Secs. 2-4) and Robredo v. COMELEC, 2010).

HOUSE OF REPRESENTATIVES For Congress to delegate validly the power to create a

province or city, it must also validly delegate at the same
COMPOSITION time the power to create a legislative district. The
Not more than 250 members unless otherwise provided threshold issue then is, can Congress validly delegate to
by law, consisting of: the ARMM Regional Assembly the power to create
1. District Representatives – Elected from legislative districts for the House of Representatives?
legislative districts apportioned among the The answer is in the negative (Sema v. COMELEC,
provinces, cities and the Metropolitan Manila 1997).
area (Sec. 5(1), Article VI).
2. Party-List Representatives – Constitutes 20% LEGISLATIVE APPORTIONMENT
of the total number of representatives elected The determination of the number of representatives
through a party-list system of registered which a State, county or other subdivision may send to a
national, regional and sectoral parties or legislative body. It is the allocation of seats in a
organization. legislative body in proportion to the population; the
drawing of voting district lines so as to equalize
QUALIFICATIONS population and voting power among the districts.
1. Natural-born citizen of the Philippines; (Black’s Law Dictionary)
2. At least 25 years of age on the day of the
election; REAPPORTIONMENT
3. Able to read and write; The realignment or change in legislative districts brought
4. A registered voter in the district to be elected, about by changes in population and mandated by the
except the party-list representatives; and constitutional requirement of equality of representation
5. Resident of the district for a period of not less (Bagabuyo v. COMELEC, 2008).
than 1 year immediately preceding the day of the
election. GERRYMANDERING
Gerrymandering is the formation of a legislative district
RULES ON APPORTIONMENT OF LEGISLATIVE out of separate territories so as to favor a particular
DISTRICTS candidate or party.
1. Apportionment of legislative districts must be
through a law:
a. General Appropriation Law;
b. Special Laws

19
PARTY-LIST SYSTEM (R.A 7941) DISQUALIFIED PARTIES
Registered, regional and sectoral parties or organizations 1. Religious sects;
aims to democratize political power by encouraging 2. Foreign organizations
growth of a multi-party system while at the same time 3. Advocating violence or unlawful means;
giving power to those who traditionally do not win in the 4. Receiving support from any foreign government,
elections. foreign political party, foundation, organization,
whether directly or through any of its officers or
ATONG PAGLAUM V. COMELEC GUIDELINES members or indirectly through third parties for
1. Three different groups may participate in the partisan election purposes;
party-list system: 5. Violates or fails to comply with laws, rules, or
a. National regulations relating to elections;
b. Regional 6. Declares untruthful statements in its petition;
c. Sectoral 7. Ceased to exist for at least one 1 year; or
2. National parties or organizations and regional 8. Fails to participate in the last 2 preceding
parties or organizations do not need to organize elections or fails to obtain at least 2% of the
along sectoral lines and do not need to votes cast under the party-list system in the 2
represent any “marginalized and preceding elections for the constituency in
underrepresented” sector. which it has registered
3. Political parties can participate in party-list
elections provided: PARAMETERS OF THE PARTY-LIST SYSTEM
a. National 1. 20% allocation – 20% of the membership of the
b. Do not field candidates in legislative House must be given to the party-list
district elections. organizations.
● A political party, whether major or not, 2. 2% threshold – To be guaranteed a seat, a
that fields candidates in legislative party-list organization needs to garner at least
district elections can participate in 2% of the total votes cast.
party-list elections only through its 3. Additional Seats – The additional seats, which
sectoral wing. refers to the remaining seats after the allocation
● The sectoral wing is by itself an of the guaranteed one seats, shall be distributed
independent sectoral party and is linked accordingly.
to a political party through a coalition.
4. Purely sectoral parties/organizations may either First, the percentage is multiplied by the
be: remaining available seats, which is the difference
a. Marginalized and underrepresented; or between the maximum seats reserved under the
b. Lacking in well-defined political Party-List System and the guaranteed seats of
constituencies the two-percenters. The whole integer of the
5. A majority of the members of sectoral parties or product of the percentage and of the remaining
organizations” must: available seats corresponds to a party’s share in
a. Belong to the “marginalized and the remaining available seats. Second, one
underrepresented” sector they party-list seat is assigned to each of the parties
represent; or next in rank until all available seats are
b. Must have a track record of advocacy completely distributed. Finally, the three-seat
for their respective sectors. The cap is applied to determine the number of seats
nominees of national and regional each qualified party-list candidate is entitled.
parties or organizations must be (BANAT v. COMELEC, 2009)
bona-fide members of such parties or
organizations. 4. 3-Seat Cap – Intended to prevent any party
6. National, regional, and sectoral parties or from dominating the party-list system. The
organizations shall not be disqualified if some of Constitution does not require absolute
their nominees are disqualified, provided that proportionality
they have at least one nominee who remains
qualified. RATIONALE
The continued operation of the 2% thresholds is
unconstitutional because this mathematically and
physically impossible.

20
 Legislative Privileges, Inhibitions DISQUALIFICATIONS
And Disqualifications
INCOMPATIBLE OFFICE
No Senator or member of the House of Representatives
PRIVILEGES may hold any other office or employment in the
Government, or any subdivision, agency, or
SALARIES instrumentality thereof, including government-owned or
The salaries of Senators and Members of the House of controlled corporations or their subsidiaries, during his
Representatives shall be determined by law. No increase term without forfeiting his seat (Art. VI, Sec. 13)
in said compensation shall take effect until after the
expiration of the full term of all the Members of the Forfeiture of the legislator’s seat, or cessation of his
Senate and the House of Representatives approving tenure, shall be automatic upon holding of the
such increase (Art. VI, Sec. 10) incompatible office (Adaza v. Pacana, 1985)

FREEDOM FROM ARREST RATIONALE

A Senator or Member of the House of Representatives Purpose is to prevent him from owing loyalty to another
shall, in all offenses punishable by not more than 6 years branch of the government, to the detriment of the
imprisonment, be privileged from arrest while the independence of the legislature and the doctrine of
Congress is in session. No Member shall be questioned separation of powers.
nor be held liable in any other place for any speech or
debate in the Congress or in any committee thereof. (Art, EXCEPTION
VI, Sec. 11) Prohibition is not absolute, what is not allowed is the
simultaneous holding of that office and the seat in the
PARLIAMENTARY PRIVILEGE OF SPEECH Congress. A legislator may hold another office or
1. No member shall be questioned nor be held employment in the government provided he forfeits his
liable in any other place for any speech or position in the Congress.
debate in the Congress or any committee
thereof
2. Protection is only against forums other than the
Congress; it does not protect the assemblyman
FORBIDDEN OFFICE
No Senator or member of the House of Representatives
against disciplinary authority of Congress
shall be appointed to any office, which may have been
3. It is an absolute protection against suits for libel.
created, or the emoluments thereof increased during the
4. This refers to utterances made by
term for which he was elected. (Art. VI, Sec. 13)
Representatives in the performance of their
official functions. Such as
Even if the member of the Congress is willing to forfeit
a. Speeches delivered, statements made,
his seat therein, he may not be appointed to any office in
and votes cast in the halls of Congress,
the government that has been created or the
while the same is in session;
emoluments thereof have been increased during his
b. Bills introduced in Congress, whether in
term. However, after such term, and even if the legislator
session or not;
is reelected, the disqualification no longer applies, and
c. Other acts performed by
he may therefore be appointed to the office.
Representatives, either in Congress or
outside the premises housing its offices,
in the official discharge of their duties as
RATIONALE
members of Congress and of Purpose is to prevent trafficking in public office.
Congressional Committees duly
authorized to perform its functions as EXCEPTION
such, at the time of the performance of Provision does not apply to elective offices.
the acts in question (Jimenez v.
Cabangbang, 1966)

21
CONFLICT OF INTEREST Exceptions
All members of the Senate and the House of
Votes of ALL Members of 2/3 of both Houses,
Representatives shall, upon assumption of office, make
Congress voting separately
a full disclosure of their financial and business interests.
They shall notify the House concerned of a potential
conflict of interest that may arise from the filing of a 1. Overriding 1. Determining
proposed legislation of which they are author. Presidential Veto (2/3 President’s
of both Houses, disability
voting separately); 2. Declaring a
They cannot appear as counsel before any court or 2. Grant of Tax State of War
before the Electoral Tribunals, quasi-judicial or other exemptions (majority);
administrative bodies. 3. Electing President in
case of a tie (majority,
They shall not, directly or indirectly, be financially voting separately);
interested in any contract with, franchise or special 4. Confirming
appointment of VP
privilege granted by the government.
(majority, voting
separately);
They shall not intervene in any matter before any office 5. Revoking or
in government for his pecuniary benefit or where he may extending Martial Law
be called upon to act on account of his office. (Art. VI, or the suspension of
Sec. 12) the writ of habeas
corpus (majority,
voting jointly);
6. Submitting question
calling a
Quorum And Voting Majorities Constitutional
Convention to the
electorate (majority);
7. Call for Constitutional
Convention (2/3 vote);
QUORUM and
Majority of each House shall constitute a quorum, 8. Propose
although a smaller number may adjourn from day to day Amendments to the
and may compel the attendance of absent members. In Constitution (3/4 vote)
computing a quorum, only those within the House’s
coercive jurisdiction are included.

MAJORITY
The number of members within the jurisdiction of the
Congress. There is a difference between a majority of
“all the members of the House” and a majority of “the
House” (Avelino v. Cuenco, 1949)

DOCTRINE OF SHIFTING MAJORITY

For each House of Congress to pass a bill, only the
votes of the majority of those present in the session,
there being a quorum, is required.

22
 The rationale behind the enrolled bill doctrine rests on
Discipline of Members the consideration that the respect due to coequal and
independent departments requires the Judiciary to act
upon that assurance, and to accept, as having passed
Each house may punish its members for disorderly Congress, all bills authenticated in the manner stated.
behavior, and, with concurrence of 2/3 of all its (COTESCUP v. Secretary of Education, 2018)
members, suspend (for not more than 60 days) or expel
a member. ONE-SUBJECT, ONE-TITLE RULE
Every bill passed by the Congress shall embrace only
DISORDERLY BEHAVIOR one subject which shall be expressed in the title. This is
Prerogative of the House concerned and cannot be to eliminate rider clauses: those not embraced within the
judicially reviewed (Sec. 16(3), Art. VI). title.

The determination of the acts which constitutes NO BILL PASSED BY EITHER HOUSE SHALL
disorderly behavior is within the full discretionary BECOME LAW UNLESS IT HAS PASSED THREE
authority of the House concerned (Osmeña v. Pendatun) READINGS ON SEPARATE DAYS
1. On the first reading, the title and the bill number
The suspension contemplated in the Constitution is are read.
different from the suspension prescribed in the 2. On the second reading, periods of sponsorship,
Anti-Graft and Corrupt Practices Act (RA 3019). The debates, amendments, and voting on the
former is punitive in nature, while the latter is preventive amendments, take place.
(Defensor-Santiago v. Sandiganbayan, 1995). 3. On the third reading, the title and the bill number
are the only things read and voting on the
entirety of the bill takes place.
Process Of Law Making
General rule: Whenever a President certifies to the
necessity of its immediate enactment to meet a public
BILLS ARE PASSED calamity or emergency, a bill may be passed within one
1. Jointly – In a joint session; required by the day.
Constitution in special cases
2. Separately – Each house takes up the bill on Exception: Presidential certification dispenses with the:
their own 1. Printing requirement; and
2. Requiring the submission of the proposed bill to
BICAMERAL CONFERENCE COMMITTEE three readings on separate days
The mechanism for compromising differences between 3. All appropriation, revenue or tariff bills, bills
the Senate and the House – capable of producing authorizing increase of the public debt, bills of
unexpected results – bill will have to be sent back to local application, and private bills, shall originate
both houses and subject to voting exclusively in the House of Representatives, but
the Senate may propose or concur with
ENROLLED BILL DOCTRINE amendments.
It is one duly introduced and finally passed by both
houses, authenticated by the proper officer of each, and
approved by the President. It is conclusive upon the
courts as regards the tenor of the measure passed by
Congress and approved by the President.

Once the bill becomes an enrolled bill, it is conclusive

upon the court of its due enactment. Courts may no
longer validly inquire into the bill because of the doctrine
of separation of powers.

23
 ACQUISITION OF JURISDICTION
Electoral Tribunals And The 1. There is an election contest
Commission On Appointments 2. Only after the proclamation of the candidate

In the absence of election contest, and before

SENATE HOUSE OF proclamation, jurisdiction remains with COMELEC.
REPRESENTATIVES (Lazatin v. COMELEC, 1988)

Senate Electoral Tribunal (SET) House of Representative THE ELECTORAL TRIBUNAL ACQUIRES
Electoral Tribunal (HRET) JURISDICTION ONLY AFTER
1. A petition is filed before it
COMPOSITION RULES 2. A candidate is already considered a member of
the house. To be considered a member, in turn,
there must be a concurrence of the following:
Composed of 3 Supreme Composed of 3 Supreme Court
Court Justices and 6 Senators Justices and 6 members of the
a. A valid proclamation;
Congress (Art. VI, Sec. 17) b. Proper oath before the Speaker and in
open session; and
c. Assumption of office
The Electoral Tribunals shall be Members chosen enjoy security
constituted within 30 days of tenure and cannot be
after the Senate and the House removed by mere change of INDEPENDENCE
shall have been organized with party affiliation. (Bondoc v. To be able to exercise exclusive jurisdiction, the House
the election of the President Pineda) Electoral Tribunal must be independent. Its jurisdiction
and the Speaker to hear and decide congressional election contests is
not to be shared by it with the Legislature nor with the
SELECTION courts. (Bondoc v. Pineda)

The Constitution explicitly confers on the Senate and on the

House the authority to elect among their members those who
COMMISSION ON APPOINTMENTS
would fill the 12 seats for Senators and 12 seats for House
members in the Commission on Appointments. COMPOSITION
1. Senate President as Ex Officio Chairman
Each chamber of Congress exercises the power to choose, within 2. 12 Senators
constitutionally defined limits, who among their members would
3. 12 Congressmen
occupy the allotted 6 seats of each chamber’s respective electoral
tribunal. (Pimentel v. HRET)
Election is based on proportional representation from the
political parties and party-list representatives. It is not
JURISDICTION mandatory to elect 12 Senators to the Commission
before it can discharge its functions. What the
Sole judge of all contests relating to the election, returns, and Constitution requires is at least a majority of the
qualifications of their respective members. Since party-list membership (Guingona v. Gonzales, 1992)
nominees are elected members of the House of Representatives
no less than the district representatives are, the HRET has
jurisdiction to hear and pass upon their qualifications.

24
JURISDICTION 3. Taxation and expropriation
The Commission on Appointments shall confirm the a. The rule of taxation shall be uniform and
appointments by the President with respect to the equitable. The Congress shall evolve a
following positions: progressive system of taxation.
1. Heads of Executive Departments, except the b. The Congress may, by law, authorize the
Vice President President to fix within specified limits,
2. Ambassadors, other public ministers or consuls; and subject to such limitations and
3. Officers of the AFP from the rank of Colonel or restrictions as it may impose, tariff rates,
Naval Captain import and export quotas, tonnage and
4. Other officers whose appointments are vested in wharfage dues, and other duties or
him by the Constitution (e.g. members of the imposts within the framework of the
constitutional commissions, JBC) national development program of the
5. All other government whose appointments are Government.
not otherwise provided by law c. Charitable institutions, churches and
parsonages or convents appurtenant
LIMITATION thereto, mosques, non-profit cemeteries,
Congress cannot require that the appointment of a and all lands, buildings, and
person to an office created shall be subject to improvements, actually, directly, and
Commission of Appointments confirmation. exclusively used for religious, charitable,
or educational purposes shall be exempt
AD-INTERIM APPOINTMENTS from taxation.
Appointments extended while Congress is not in d. No law granting any tax exemption shall
session, shall only be effective until: be passed without the concurrence of a
1. Disapproval by the Commission on majority of all the Members of the
Appointments; or Congress. (CONST. Art. VI, Section 28)
2. Next adjournment of Congress. 4. Legislative investigations and inquiries in aid
of legislation
The Senate or the House of Representatives or
any of its respective committees may conduct
Power Of Congress inquiries in aid of legislation in accordance with
its duly published rules of procedure. The rights
of persons appearing in or affected by such
LEGISLATIVE INQUIRIES AND OVERSIGHT inquiries shall be respected. (CONST. Art. VI,
FUNCTIONS Section 21)
The power to conduct inquiries in aid of legislation or the 5. Question Hour
investigatory power is not absolute; subject to judicial The heads of departments may upon their own
review in view of the expanded power of the court to initiative, with the consent of the President, or
determine whether there has been grave abuse of upon the request of either House, as the rules of
discretion amounting to lack or excess of jurisdiction. each House shall provide, appear before and be
heard by such House on any matter pertaining
LEGISLATIVE POWERS to their departments. Written questions shall be
1. General Plenary Power submitted to the President of the Senate or the
The legislative power shall be vested in the Speaker of the House of Representatives at
Congress of the Philippines which shall consist least three days before their scheduled
of a Senate and a House of Representatives, appearance. Interpellations shall not be limited
except to the extent reserved to the people by to written questions, but may cover matters
the provision on initiative and referendum. related thereto. When the security of the State or
(CONST. Art. VI, Section 1) the public interest so requires and the President
2. Specific power of appropriation so states in writing, the appearance shall be
All appropriation, revenue or tariff bills, bills conducted in executive session. (CONST. Art. VI,
authorizing increase of the public debt, bills of Section 22)
local application, and private bills shall originate
exclusively in the House of Representatives, but
the Senate may propose or concur with
amendments. (CONST. Art. VI, Section 24)

25
 b. The President shall have the power to
Legislative Investigation v. Question Hour grant amnesty with the concurrence of a
Legislative Investigation majority of all the Members of the
LEGISLATIVE QUESTION HOUR Congress (CONST. Art. VII, Section 4,
V. Question Hour
INVESTIGATION par. 2)
7. Propose constitutional amendments (assembly
Section 21 Section 22 as a constituent);
8. Decide the disability of President because
1. Any person may 1. Only department majority of the Cabinet disputes his assertion
appear. heads may appear that he is able to discharge his duties;
2. Committee 2. The entire body 9. Revoke or extend proclamation of suspension of
conducts the will conduct the privilege of writ of habeas corpus or declaration
investigation. investigation. of martial law; and
3. The subject 3. Subject matters 10. Set the rules regarding the utilization of natural
matter is any matter for are matters related to
the purpose of the department only.
resources.
legislation. 4. Appearance is
4. Appearance is discretionary POWER OF IMPEACHMENT
mandatory 1. Filing by:
a. Any member of the HOR; or
b. Any citizen, by a verified complaint or
resolution, upon endorsement by a
Non-legislative Powers member of the HOR; followed by referral
to the proper HOR Committee.
c. Filled by 1/3 of all the members of the
INFORMING FUNCTION HOR. Thereafter, Senate Trial will
1. Conduct of legislative inquiries is intended to proceed.
benefit not only Congress but citizenry who are 2. Committee Report by the HOR Committee on
equally concerned with the proceedings (Sabio Justice, which either favorably or unfavorably
v. Gordon, 2006) resolves the complaint.
2. Canvass presidential election; 3. 1/3 of all members of the House votes by
3. The Congress, by a vote of 2/3 of both houses in resolution to affirm or override, if unfavorable.
joint session assembled, voting separately, shall
have the sole power to declare the existence of TRIAL
a state of war; Senate has sole power to try and decide all cases of
4. Exercise delegation of emergency powers; In impeachment. Judicial review extends over justiciable
times of war or other national emergency, the issues arising from the impeachment proceedings
Congress may, by law, authorize the President, (Francisco v. House of Representatives, 2003)
for a limited period and subject to such
restrictions as it may prescribe, to exercise A question whether the Impeachment Rules were
powers necessary and proper to carry out a followed is a political question (Corona v. Senate, 2012)
declared national policy. (CONST. Art. VI,
Section 23, par. 2) NON-EXCLUSIVITY OF IMPEACHMENT
5. Call special election for President and VP PROCEEDINGS TO REMOVE IMPEACHABLE
6. Give concurrence to treaties and amnesties; OFFICERS
a. All existing treaties or international Quo warranto is now available as an alternative remedy
agreements which have not been ratified to remove an impeachable officer. For impeachment
shall not be renewed or extended proceedings, the grounds are impeachable offenses
without the concurrence of at least while for quo warranto, the basis would be the invalidity
two-thirds of all the Members of the of a public officer’s appointment into office (Republic v.
Senate. (CONST. Art. XVIII, Section 4) Sereno, 2018)

26
A quo warranto may be dismissed for these reasons: REFERENDUM
1. Being the wrong remedy; The power of the electorate to approve or reject
2. Failure to pay docket and other legal fees; legislation through an election called for that purpose
3. Lack of verification and certification on (Sec. 3(c), R.A. No. 6735)
non-forum shopping as required by Section 1,
Rule 66, and Section 5, Rule 7, respectively,
1997 Rules of Civil Procedure as, amended;
CLASSES OF REFERENDUM
4. Lack of proof of service (e. g. a written 1. Referendum on statutes – Petition to approve or
admission of the party served, or an affidavit of reject an act or law, or part thereof, passed by
the party serving and registry receipts) of the Congress;
petition on the adverse party, as required by 2. Referendum on local laws – Legal process
Section 13, Rule 13, same rules; whereby the registered voters of the LGUs may
5. Failure to indicate petitioner’s contact details; approve, amend, or reject any ordinance enacted by
6. Failure to submit a verified declaration that the the Sanggunian (Sec. 126, Local Government Code)
petition and annexes submitted electronically are
complete and true copies of the completed LIMITATIONS
document and annexes filed with the Supreme The following cannot be the subject of an initiative or
Court (Petition for Certiorari on Appointment, referendum petition:
Intrusion, or Fraud v. A.J. Delos Santos) 1. No petition embracing more than one subject shall
be submitted to the electorate; and
2. Statutes involving emergency measures, the
enactment of which is specifically vested in
Congress by the Constitution, cannot be subject to
Initiative And Referendum referendum until 90 days after effectivity (Sec. 10,
R.A. No. 6735)

INITIATIVE
LOCAL INITIATIVE VOTER REQUIREMENTS
1. Not less than 2000 registered voters for
autonomous regions;
2. 1,000 for provinces;
3. 100 for municipalities;
4. 50 for barangays.

VENUE FOR FILING

Regional Assembly or local legislative body (Sec. 13,
R.A. No. 6735)

LIMITATIONS
Cannot be exercised more than once a year. Extends
only to subjects or matters which are within the legal
powers of the local legislative bodies to enact; and if at
any time before the initiative is held, the local legislative
body should adopt in toto the proposition presented, the
initiative shall be cancelled.

INDIRECT INITIATIVE
The exercise of initiative by the people through a
proposition sent to Congress or the local legislative body
for action. (Sec. 3(b), R.A. No. 6735)

27
 Qualifications, Election, And Term Of
The President And Vice President

PRESIDENT VICE PRESIDENT

Qualifications

1. Natural born citizen;

2. Registered voter;
3. Able to read and write;
4. At least 40 years of age on the day of
election; and
5. Resident of the Philippines for at least 10
years immediately preceding the election

Term of Office

6 years
EXECUTIVE DEPARTMENT
Disqualifications

1. Not eligible for Shall not serve for

any re-election; more than 2
2. No person who consecutive terms
has succeeded
as President
and has served
as such for
more than 4
years shall be
qualified for
election to the
same office at
any time

Canvassing Board

Congress in case of tie, Congress by majority

vote shall select.

Electoral Tribunal

Supreme Court (en banc)

Removal

Impeachment and quo warranto

(Republic v. Sereno)

28
PRESIDENTIAL ELECTORAL TRIBUNAL TOPICS WITHIN SCOPE OF PRIVILEGE
A constitutionally created body and has a distinct 1. Conversation and correspondence between
mandate from the Supreme Court, but it is not separate president and the public official covered by the
from the judicial department. (Macalintal v. Presidential executive privilege
Electoral Tribunal, 2011) 2. Military, diplomatic and other national security
matters which in the interest of national security
should not be divulged
Privileges, Inhibitions and 3. Information between inter-government agencies
Disqualifications prior to the conclusion of treaties and executive
agreements
4. Discussion in close door cabinet meetings
PRIVILEGES 5. Matters affecting national security and public
order (Section 2(a), EO 464)
1. Official Residence – Malacanang (for the
President only) KINDS OF EXECUTIVE PRIVILEGE
2. Salary – shall be determined by law. Shall not The following cannot be the subject of an initiative or
be decreased during tenure. No increase shall referendum petition:
take effect until the expiration of the incumbent 1. Presidential Communications Privilege –
term Communications are presumptively privileged;
3. Immunity from Suit president must be given freedom to explore
4. No need for Commission on Appointment – alternatives in policymaking
for the Vice President’s Cabinet post 2. Deliberative Process Privilege (Executive
5. Executive privilege Officials) – Materials that comprise part of a
process by which governmental decisions and
RATIONALE FOR IMMUNITY FROM SUIT policies are formulated.
To assure that the exercise of presidential duties and
functions is free from any hindrance or distraction. REQUISITES FOR VALIDITY OF CLAIM OF
However, there is nothing in our laws that prevent the PRIVILEGE
President from waiving such right. The following cannot be the subject of an initiative or
referendum petition:
Chief Executive cannot invoke immunity from suit from 1. Quintessential and non-delegable
civil damages after tenure. The validity of acts can be presidential power
tested by an action against other executive officials. The power subject of the legislative inquiry must
Immunity is co-extensive with tenure and covers only be expressly granted by the Constitution to the
official duties President
2. Operational proximity test
This privilege of immunity from suit pertains to the The power subject of the legislative inquiry must
President by virtue of the office and may be invoked only be expressly granted by the Constitution to the
by the holder of the office; not by any other person in the President
President's behalf. Thus, an accused in a criminal case 3. No adequate need
in which the President is complainant cannot raise the The privilege may be overcome by a showing of
presidential privilege as a defense to prevent the case adequate need such that the information sought
from proceeding against such accused (Soliven v. “likely contains important evidence” and by the
Makasiar) unavailability of the information elsewhere by an
appropriate investing authority.
EXECUTIVE PRIVILEGE
Right of the President and high-level executive branch
officials to withhold information from Congress, the
courts and ultimately, the public.

29
PROHIBITIONS AND INHIBITIONS Congress cannot appoint a specific person into a public
1. Shall not receive any other emolument from the office. The appointing power is the exclusive prerogative
government or any other source; of the President, upon which no limitations may be
2. Shall not hold any other office or employment imposed by Congress, except those resulting from the
unless otherwise provided in the Constitution, need of securing the concurrence of the Commission on
i.e. ex-officio member – This is provided by law Appointments and from the exercise of the limited
and they are not given additional compensation legislative power to prescribe the qualifications to a
for this (National Amnesty Commission v. COA, given appointive office (Manalang v. Quitoriano, 1954)
2004)
3. Shall not practice any other profession; DESIGNATION
4. Shall not participate in any business; Simply means imposition of additional duties on a
5. Shall not be financially interested in any contract person already in the public service.
with, or in any franchise, or special privilege
granted by the Government, including GOCCs; When a person is merely designated and not appointed,
6. Shall avoid conflict of interest in conduct of the implication is that he shall hold office in a temporary
office; capacity and may be replaced at will of the appointing
7. Shall avoid nepotism. authority. In this sense, a designation is considered only
an acting or temporary appointment which does not
confer security of tenure on the person named. (Binamira
Powers of the President v. Garrucho)

LIMITATIONS ON APPOINTING POWER

EXECUTIVE AND ADMINISTRATIVE POWERS IN 1. Prohibition against nepotism – The spouse and
GENERAL relatives by consanguinity or affinity within the
It is the legal and political functions of the President 4th civil degree of the President shall not during
involving the exercise of discretion. It is vested in the his tenure be appointed as Members of the
President of the Philippines. It is the power to enforce Constitutional Commissions, or the Office of
and administer laws. bureaus or offices, including government-owned
or controlled corporations and their subsidiaries.
POWER OF ADMINISTRATIVE 2. Appointments extended by an Acting President –
REORGANIZATION shall remain effective unless revoked by the
The President, subject to the policy of the Executive elected President within 90 days from his
Office and in order to achieve simplicity, economy and assumption of office.
efficiency, shall have the continuing authority to 3. The presidential power of appointment may also
reorganize the administrative structure of the Office of be limited – by Congress through its power to
the President (Sec. 31, Book III, E.O. 292) prescribe qualifications for public office.
4. The judiciary may annul an appointment made
FAITHFUL EXECUTION CLAUSE by the President – if the appointee is not
The President shall have control of all the executive qualified or has not been validly confirmed by
departments, bureaus, and offices. He shall ensure that the Commission on Appointments
the laws be faithfully executed. 5. Midnight Appointments

POWER OF APPOINTMENT CONFIRMATION AND BY-PASSED

It is the selection, by the authority vested with the APPOINTMENTS
power, of an individual who is to exercise the functions Not all appointments made by the President need CA
of a given office. confirmation. Only those enumerated in paragraph 1 of
Section 16, Article VII need confirmation of the
Appointing power is executive in nature. It is vested in Commission on Appointments (Sarmiento v. Mison)
the President. The power carries with it the power to
remove except in some cases like Justices of the
Supreme Court, the President appoints them, but cannot
remove them. They can only be removed through
impeachment and quo warranto (Republic v. Sereno,
2016).

30
WHEN CONFIRMATION IS NOT REQUIRED AD INTERIM APPOINTMENT IN ACTING
1. When the President appoints other government CAPACITY
officers whose appointments are not otherwise
provided by law; 1. Congress not 1. Made any time when
2. Those officers whom he may be authorized by in session there is vacancy,
law to appoint (e.g. Chairman and members of 2. Requires whether or not
the Commission on Human Rights) confirmation of Congress is in session
3. When Congress creates inferior offices but omits CA 2. Does not require CA
to provide for appointment thereto, or provides 3. Permanent in confirmation
in an unconstitutional manner for such nature 3. Temporary in nature; no
appointments 4. Appointee security of tenure
4. When the Vice-President is appointed as enjoys security
member of the Cabinet of tenure
5. Appointments under the recommendation of the
Judicial and Bar Council (Members of the
Supreme Court, Ombudsman and Deputies)
6. Appointments solely by the President POWER OF REMOVAL
General Rule: This power is implied from the power to
appoint.
MIDNIGHT APPOINTMENTS
General Rule: Two months immediately before the next Exceptions: Those appointed by where the Constitution
presidential elections and up to the end of his term, a prescribes certain methods for separation from public
President or Acting President shall not make services.
appointments (Section 15, Article VII)
President may be removed in the case of inability to
Exceptions: Temporary appointments to executive discharge official functions. There must be a written
positions when continued vacancies therein will declaration from the President transmitted to the Senate
prejudice public service or endanger public safety. The President and Speaker of the House. Majority of the
prohibition against midnight appointments applies only Members of the Cabinet may transmit the written
to positions in the executive department. (De Castro v. declaration.
JBC, 2010)
POWER OF CONTROL AND
AD-INTERIM APPOINTMENTS SUPERVISION
AD INTERIM REGULAR CONTROL
Power to alter or modify or nullify or set aside what a
1. Takes effect 1. Does not take subordinate had done in the performance of his duties
immediately effect immediately and to substitute the judgment of the former for that of
2. Appointee 2. Appointee the latter.
assumes office assumes office
immediately and only after SUPERVISION
later on the confirmation by the Overseeing, or the power or authority of an officer to see
appointment Commission on that subordinate officers perform their duties, and if the
should be Appointments latter fail or neglect to fulfill them, then the former may
confirmed by the 3. Made when take such action or steps as prescribed by law to make
Commission on Congress is in them perform these duties.
Appointments session
3. Made while DOCTRINE OF QUALIFIED POLITICAL AGENCY
Congress is not The acts of the secretaries of the executive department,
in session performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the
Chief Executive, presumptively the acts of the Chief
Executive (Vilena v. Secretary of Interior, 1939)

31
The rule which has thus gained recognition is that “under As Commander-in-Chief, his powers are broad enough
our constitutional setup the Executive Secretary who to include his prerogative to address exigencies or
acts for and in behalf and by authority of the President threats that endanger the government, and the very
has an undisputed jurisdiction to affirm, modify, or even integrity of the State (Lagman v. Medialdea).
reverse any order” (Lacson-Magallanes Co., v. Paño,
1967) DECLARATION OF MARTIAL LAW
The constitutional validity of the President’s
The doctrine of qualified political agency could not be proclamation of martial law or suspension of the writ of
extended to the acts of the Board of Directors of habeas corpus is first a political question in the hands of
TIDCORP despite some of its members being Congress before it becomes a justiciable one in the
themselves the appointees of the President to the hands of the Court. (Fortun v. Macapagal-Arroyo, 2012)
Cabinet (Manalang-Demigillo v. TIDCORP, 2013)
If in the actual theater of war civil courts, in fact, are
EXECUTIVE DEPARTMENTS AND OFFICERS unable to function, then the military commander is
The President shall have control and supervision over authorized to give jurisdiction even over civilians to
executive departments, bureaus and its offices. (Sec. 17, military courts precisely because the civil courts are
Art. VII) closed in that area. (Lagman v. Medialdea, 2017)

The President’s power to conduct investigations to aid in CONSTITUTIONAL SAFEGUARDS

ensuring the faithful execution of laws – in this case, 1. There must be actual invasion or rebellion
fundamental laws on public accountability and 2. The duration of the proclamation shall not
transparency – is inherent in the President’s powers as exceed 60 days
the Chief Executive. That the authority of the President 3. Within 48 hours, the President shall report the
to conduct investigations and to create bodies to action to Congress. If Congress is not in
execute this power is not explicitly mentioned in the session, it must convene within 24 hours
Constitution or in statutes does not mean that he is 4. Congress may, by majority vote of all its
bereft of such authority. (Biraogo v. Philippine Truth members voting jointly, revoke the proclamation,
Commission, 2010) and the President cannot set aside the
revocation
LOCAL GOVERNMENT UNITS 5. By the same vote and manner, upon initiative of
The Constitution vests the President with the power of the President, Congress may extend the
supervision, not control, over local government units. proclamation if the invasion or rebellion
Such power enables to see to it that LGUs and their continues and public safety requires it
officials execute their tasks in accordance with law. 6. The Supreme Court may review, in an
appropriate proceeding filed by any citizen, the
EMERGENCY POWERS sufficiency of the factual basis of the
proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus or the
GRADUATED POWERS extension thereof
1. Calling out power 7. The Supreme Court must promulgate its
2. Power to suspend the privilege of the writ of decision thereon within 30 days from its filing;
habeas corpus such power to review may be exercised
3. Power to declare martial law (Art. VII, Sec. 18) simultaneously with, and independently from,
the power to revoke by Congress (Lagman v.
In the exercise of the latter two powers, the Constitution Medialdea)
requires the concurrence of two conditions: 8. The proclamation does not suspend the
1. An actual invasion or rebellion, and operation of the Constitution, nor supplant the
2. That public safety requires the exercise of such functioning of the civil courts or legislative
power assemblies, nor authorize the confinement of
jurisdiction on military courts and agencies over
The power to choose which among these extraordinary civilians where civil courts are able to function,
powers to wield in a given set of conditions is a nor automatically suspend the privilege of the
judgment call on the part of the President. writ.

32
SUSPENSION OF THE PRIVILEGE OF CONDITIONAL PARDON
In the nature of a contract between the sovereign power
THE WRIT OF HABEAS CORPUS or the Chief Executive and the convicted criminal to the
effect that the former will release the latter subject to the
GROUNDS condition that if the terms of the pardon are not
1. Invasion complied, he will be recommitted to prison to serve the
2. Rebellion unexpired portion of the sentence or an additional one.
3. When public safety requires it
A conditional pardon has no force until accepted by the
DURATION condemned. The reason is obvious. The condition may
Not to exceed 60 days, following which it shall be lifted be less acceptable to him than the original punishment,
unless extended by Congress and may in fact be more onerous (Cabantag v. Wolfe,
1906)
DUTY OF THE PRESIDENT
To report action to Congress within 48 hours, personally ABSOLUTE PARDON
or in writing The grant of absolute pardon restores the person to his
full civil and political rights. (Risos-Vidal v. COMELEC,
DUTY OF CONGRESS 2015)
1. Congress may revoke or extend, on request of
the President, the effectivity of proclamation by PAROLE
a majority vote of all its Members, voting jointly. Release from imprisonment, but without full restoration
2. Suspension applies only to persons judicially of liberty, as parolee is in custody of the law although
charged for rebellion or offenses inherent in or not in confinement
directly connected with invasion.
3. During the suspension of the privilege of the writ LIMITATIONS ON AMNESTY
of habeas corpus, any person thus arrested or 1. Cannot be granted in cases of impeachment;
detained shall be judicially charged within three 2. Cannot be granted in violations of election laws
(3) days, otherwise he shall be released. without favorable recommendations of the
COMELEC;
EXECUTIVE CLEMENCY 3. Can be granted only after conviction by final
judgment (except amnesty);
4. Cannot be granted in cases of legislative
SCOPE
contempt or civil contempt;
1. Pardoning power – An act of grace which
5. Cannot absolve convict of civil liability;
exempts the individual on whom it is bestowed
6. Cannot restore public offices forfeited; and
from punishment which the law inflicts for a
7. Amnesty must be with the concurrence of a
crime he has committed.
majority of all the members of Congress.
2. Reprieves – Postponement of sentence or stay
of execution
3. Commutations – reduction or mitigation of DIPLOMATIC POWER
penalties The Enhanced Defense Cooperation Agreement is not a
4. Amnesty – Act of grace, concurred in by the treaty but only an Executive Agreement.
Legislature, usually extended to groups of
persons who committed political offenses, which To hold that the Enhanced Defense Cooperation
puts into oblivion the offense itself. Agreement cannot take effect without Senate ratification
5. Remit fines is to render the Mutual Defense Treaty, the sole mutual
6. Forfeitures (Sec. 19, Art. VII) self-defense treaty, totally inutile to meet the grave, even
existentialist, national security threat (Carpio, J.,
General Rule: It is exercised by the President, concurring opinion).
discretionary, and may not be controlled by the
legislature or reversed by the courts.

Exception: If there is violation of the Constitution.

33
DELEGATED POWERS 2. Executive impoundment – Refusal of the
1. To exercise powers necessary and proper to President to spend funds already allocated by
carry out a declared national policy in times of Congress for specific purpose. It is the failure to
war or other national emergencies; spend or obligate budget authority of any type.
2. Fix within specified limits, and subject to such This power is derived from Section 38 of the
limitations and restrictions as Congress may Administrative Code of 1987 on suspension.
impose, tariff rates, import and export quotas, 3. Legislative veto – A congressional veto is a
tonnage and wharfage dues, and other duties or means whereby the legislature can block or
imposts within the framework of the national modify administrative action taken under a
development program of the Government statute. It is a form of legislative control in the
implementation of particular executive action.
The form may either be: a. Negative - subjecting
VETO POWERS the executive action to disapproval by Congress;
or b. Affirmative - requiring approval of the
PRESIDENT’S OPTIONS executive action by Congress
1. Sign, and the bill becomes a law
2. Vetoes the bill, it does not become a law
3. Inaction - The bill automatically becomes a law Powers of the President
within 30 days upon receipt of the bill from Rules of Succession
Congress (lapses into law).
VACANCY AT THE BEGINNING OF THE TERM
CONGRESSIONAL OVERRIDE 1. If death or permanent disability of the
Congress can override a presidential veto by 2/3 votes President-elect: Vice President-elect shall
of all its Members. become President.
2. If the President-elect fails to qualify: Vice
WHEN POCKET VETO OCCURS President-elect shall act as President until the
1. The President fails to act on the bill President-elect shall have qualified
2. The reason the President does not return the bill 3. President shall not have been chosen: Vice
to the Congress is that Congress is not in President-elect shall act as President until a
session. President shall have been chosen and qualified.
4. No President and Vice President chosen nor
PRESIDENTIAL VETO shall have qualified, or both shall die or become
1. General veto of the President permanently disabled: The President of the
2. Item or line veto of the President Senate, or in case of his disability, the Speaker
of the House of Representatives, shall act as
General Rule: Selective or partial veto is not allowed. President until a President or a Vice President
The President may not veto a provision of the bill without shall have been chosen and qualified.
vetoing the whole/entire bill itself. 5. In the event of inability of the officials
mentioned, Congress shall, by law, provide for
Exception: Item or line veto. An item refers to the the manner in which one who is to act as
particulars, the details, the distinct and severable parts of President shall be selected until a President or
the bill. It is an indivisible sum of money dedicated to a Vice President shall have qualified.
stated purpose.
At 10 o’clock in the morning of the 3rd day after the
ITEM OR LINE VETO IS ALLOWED IN vacancy occurs, Congress shall convene without need
1. Appropriation; of a call, and within 7 days enact a law calling for a
2. Revenue; and special election to elect a President and a Vice President
3. Tariff Bills. to be held not earlier than 45 or later than 60 days from
the time of such call.
EXCEPTIONS TO THE EXCEPTION
1. Doctrine of inappropriate provisions – A The bill shall be deemed certified and shall become a
provision that is constitutionally inappropriate for law upon its approval on 3rd reading by Congress.
an appropriation bill may be singled out for veto
even if it is not an appropriation or revenue item.

34
The convening of the Congress cannot be suspended,
nor the special election postponed. No special election
shall be called if the vacancy occurs within 18 months
before the date of the next presidential election

VACANCY DURING THE TERM

Death, permanent disability, removal from office, or
resignation of the President: Vice President shall become
the President (Estrada v. Arroyo, 2001)

ELEMENTS OF A VALID RESIGNATION

1. Intent to resign;
2. Act of relinquishment.

TEMPORARY DISABILITY
The President may transmit to the Senate president a
voluntary written declaration that he is unable to
discharge his functions. In this case, the Vice President
will assume his duties and functions.

VOTE OF THE MAJORITY OF THE CABINET

If the majority of the Cabinet transmits to the Senate
President that the President is unable to discharge his
functions, the Vice-President shall assume his functions.

The President may once again assume his functions

after transmitting to the Senate President that he is not
unable to discharge his functions.

Should the Cabinet believe that the President is still

incapable, the members may send a written declaration
to the Senate President within 5 days.

In this case, Senate shall convene if in session or within

12 days if not in session. The Congress may determine
that the President is incapable of exercising his functions
by a 2/3 vote of both houses voting separately.

VACANCY IN THE OFFICE OF THE

VICE-PRESIDENT
Whenever there is vacancy in the Office of the Vice
President during the term for which he was elected, the
President shall nominate a Vice President from among
the Members of the Senate and the House of
Representatives who shall assume office upon
confirmation by a majority vote of all the Members of
both Houses of the Congress, voting separately (Sec. 9,
Art. VII).

35
 Concepts

JUDICIAL POWER
The judicial power shall be vested in one Supreme Court,
and in such lower courts as may be established by law.

TRADITIONAL CONCEPT
The duty of the courts of justice to settle actual
controversies involving rights which are legally
demandable and enforceable.

EXPANDED POWER
To determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction (GADALEJ) on the part of any branch or
instrumentality of the Government.

JURISDICTION
The power to hear and decide cases.

JUDICIAL DEPARTMENT FACIAL CHALLENGE

The only instance where a facial challenge to a statute is
allowed is when it operates in the area of freedom of
expression. In such instance, the overbreadth doctrine
permits a party to challenge the validity of a statute
even though as applied to him it is not unconstitutional,
but it might be if applied to others not before the Court
whose activities are constitutionally protected (Cruz v.
DENR)

DOCTRINE OF JUDICIAL SUPREMACY

The judiciary is vested with the power to annul the acts
of either the legislative or the executive or of both when
not conformable to fundamental law (Association of
Small Landowners v. Secretary of Agrarian Reform,
1989).

JUDICIAL REVIEW
Power of courts to test the validity of executive and
legislative acts in light of their conformity with the
Constitution and to declare a law, treaty, international or
executive agreement, presidential decree, proclamation
order, instruction, ordinance or regulation
unconstitutional. This is to assure that the supremacy of
the Constitution is upheld.

WHO MAY EXERCISE

1. Supreme Court, to decide question on
constitutionality.
2. Authority of lower courts to decide questions
involving constitutionality of laws, treaties,
international agreements, etc. (Art. VIII, Sec. 5(2))

36
FUNCTIONS LIBERAL APPROACH TO LEGAL STANDING
1. Checking – Whether or not there has been grave 1. Case involves constitutional issues
abuse of discretion 2. Taxpayers – There must be a claim of illegal
2. Legitimating – Rule on Double Negative, uses disbursement of public funds or tax measure is
the term “not unconstitutional”. Courts cannot unconstitutional
declare a law constitutional because it already 3. Voters – There must be a showing of obvious
enjoys a presumption of constitutionality interest in the validity of election law in question.
3. Symbolic – Educating the bar and bench and the 4. Concerned Citizens – Issues raised are of
people on the extent of protection given by the transcendental importance which must be settled
constitutional guarantees early
5. Legislators – Claim that the official action
REQUISITES FOR JUDICIAL REVIEW complained of infringes their prerogatives as
1. Actual case or controversy; legislators
2. The constitutional question must be raised by
the party having legal standing; EARLIEST OPPORTUNITY
3. The constitutional question must be raised at the The constitutional question must be raised at the earliest
earliest opportunity; and opportunity
4. The decision on the constitutional question must
be the very lis mota of the case. General Rule: The question must be raised in the
pleadings at the earliest opportunity
General Rule: A party can question the validity of a
statute only if, as applied to him, it is unconstitutional. Exceptions:
1. In criminal cases, the question can be raised at
Exceptions: any time at the discretion of the court
1. Facial Challenge – The statute is absolutely 2. In civil cases, the question can be raised at any
unconstitutional under no circumstance. But the stage of the proceedings if necessary for the
only time a facial challenge to a statute is allowed determination of the case itself
is when it operates in the area of freedom of
expression. Exception to the exception: Where there is estoppel, it
2. Overbreadth Doctrine – Permits a party to can be raised at any stage if it involves the jurisdiction of
challenge the validity of a statute even though as the court
applied to him, it is not unconstitutional, but it
might be if applied to others not before the
Courts whose activities are constitutionally LIS MOTA
protected. The decision on the constitutional question must be the
● Invalidation of the statute “on its face”, very lis mota of the case. Courts cannot recognize
rather than “as applied” is permitted in question of constitutionality if the case can be dispensed
the interest of preventing a chilling effect of on some other grounds, such as application of a
on freedom of expression. statute or a general law. Every law has in its favor the
presumption of constitutionality
A CITIZEN MAY BE ALLOWED TO RAISE
CONSTITUTIONAL QUESTION IF EFFECTS OF THE DECLARATION OF
1. He has personally suffered some actual or UNCONSTITUTIONALITY
threatened injury as a result of the allegedly illegal 1. Orthodox view – Unconstitutional act is not a
conduct of the government (Direct Injury Test - law, confers no act, imposes no duty, affords no
Interest means “material interest”) protection, creates no office and inoperative as if
2. Injury is fairly traceable to the challenged action it had not been passed.
3. Injury is likely to be redressed by a favorable 2. Modern view – Courts simply refuse to recognize
action. the law and determine the rights of the parties
as if the statute prior to its declaration of
unconstitutionality may be recognized

37
REQUISITES OF PARTIAL JUSTICIABLE QUESTION
UNCONSTITUTIONALITY A given right, legally demandable and enforceable, an
1. Legislature must be willing to retain the valid act or omission violative of such right, and a remedy
portions usually shown by the presence of a granted by law for said breach of right.
separability clause; and
2. Valid portion can stand independently as a law. MOOT QUESTIONS
General Rule: Courts will not decide questions that
OPERATIVE FACT DOCTRINE have become moot and academic.
General Rule: The interpretation (or declaration) of
unconstitutionality is retroactive in that it applies from Exceptions:
the law’s effectivity. 1. There is a grave violation of the Constitution;
2. The situation is of exceptional character and
Exception: Subsequent declaration of paramount public interest is involved;
unconstitutionality does not nullify all acts exercised in 3. The constitutional issue raised requires
line with the law. The past cannot always be erased by a formulation of controlling principles to guide the
new judicial declaration. (Municipality of Malabang v. bench, the bar and the public; and
Benito, 1969) 4. The case is capable of repetition yet evading
review. (David v. Macapagal-Arroyo, 2006)
5. The case is of transcendental importance to the
POLITICAL QUESTION DOCTRINE public in which the necessity for them to be
1. Matters to be exercised by the people in their
settled promptly and definitely, brushing aside
primary political capacity; or
technicalities of procedure, arise (Araneta v.
2. Those specifically delegated to some other
Dinglasan, 1949)
department or particular office of the
government, with discretionary power to act. It
is concerned with issues dependent upon the
wisdom, not legality, of a particular measure
Judicial Independence and
(Tañada v. Cuenco, 1957) Autonomy
General Rule: The court will not take cognizance of the
CONSTITUTIONAL SAFEGUARDS
case. 1. The Supreme Court is a constitutional body and
may not be abolished by law.
Exception: When grave abuse of discretion is 2. The members of the Supreme Court are
committed even by the highest executive authority, the removable only by impeachment
judiciary should not hide behind the political question 3. The members of the judiciary are not subject to
doctrine. confirmation by the Commission on
Appointments.
4. The Supreme Court may not be deprived of
GUIDELINES FOR DETERMINING WHEN A
minimum original and appellate jurisdiction;
QUESTION IS POLITICAL appellate jurisdiction may not be increased
1. There is a textually demonstrable constitutional without its advice and concurrence.
commitment of the issue to a political 5. The appellate jurisdiction of the Supreme Court
department; may not be increased by law without its advice
2. Lack of judicially discoverable and manageable and concurrence.
standards for resolving it; 6. The Supreme Court has administrative
3. The impossibility of deciding without an initial supervision over all inferior courts and
policy determination of a kind clearly for personnel;
non-judicial discretion; 7. The Supreme Court has the exclusive power to
4. Impossibility of a court’s undertaking discipline judges/justices of inferior courts.
independent resolution without expressing lack 8. The members of the Judiciary have security of
of the respect due coordinate branches of tenure.
government; 9. The members of the Supreme Court may not be
5. An unusual need for unquestioning adherence designated to any agency, performing
to a political decision already made; and quasi-judicial or administrative functions.
6. Potential embarrassment from multifarious 10. Salaries of judges may not be reduced; the
pronouncements by various departments on Judiciary enjoys fiscal autonomy.
one question. (Baker v. Carr)
38
11. The Supreme Court alone may initiate Rules of POSITION QUALIFICATION
Court.
12. The Supreme Court alone may order temporary Citizenship Age Others
detail of judges.
13. The Supreme Court can appoint all officials and SC JUSTICES Natural-born 40 Constitution
employees of the Judiciary. Citizen prescribes
14. The judiciary shall enjoy fiscal autonomy.
CA JUSTICES Natural-born Congress may
FISCAL AUTONOMY Citizen prescribe other
The Judiciary shall enjoy fiscal autonomy. qualifications
Appropriations for the Judiciary may not be reduced by
the legislature below the amount appropriated for the RTC JUDGES Citizen 35 Has been
previous year and, after approval, shall be automatically engaged in the
MTC, METC, Citizen 30 practice of law
and regularly released. (Sec. 3, Art. VIII)
MCTC for at least 5
JUDGES years or has
The Supreme Court may submit to the Department of held public
Budget and Management reports of operation and office in the
income, current plantilla of personnel, work and Philippines
financial plans and similar reports only for recording requiring
purposes. The submission thereof concerning funds admission to
the practice of
previously released shall not be a condition precedent
law
for subsequent fund releases (A.M. No. 92-9-029-SC).

TENURE OF JUSTICES AND JUDGES

Judicial Independence and Autonomy 1. Supreme Court – Hold office until they reach the
Appointments to the Judiciary age of 70 or become incapacitated to discharge
their duties; they may be removed only through
impeachment.
QUALIFICATIONS OF MEMBERS OF THE 2. Lower Courts – Hold office during good behavior
JUDICIARY (C-I-P-I) until they reach the age of 70 or become
1. Proven Competence incapacitated to discharge their duties
2. Proven Integrity
3. Proven Probity
PROCEDURE FOR APPOINTMENT
4. Proven Independence
1. Appointed by the President from among a list of
at least 3 nominees prepared by the Judicial and
Bar Council for every vacancy.
2. For lower courts, President shall issue the
appointment 90 days from submission of the list.

39
JUDICIAL AND BAR COUNCIL CASES TO BE HEARD BY THE SUPREME
COURT EN BANC
COMPOSITION 1. Cases in which the constitutionality or validity of
1. Chief Justice of the Supreme Court, as ex-officio any treaty, international or executive agreement,
chair law, executive order, or presidential decree,
2. Secretary of Justice, as an ex-officio member proclamation, order, instruction, ordinance, or
3. Representative from Congress, as an ex-officio regulation in question
member. One representative for both the Senate 2. Cases raising novel questions of law;
and the House of Representatives 3. Cases affecting ambassadors, other public
4. Clerk of the Supreme Court, as the Secretary de ministers and consuls;
Officio 4. Cases involving decisions, resolutions or orders
5. Four regular members, with a term of 4 years, of the Civil Service Commission, Commission on
appointment by the President subject to Election, and Commission on Audit;
confirmation by the Commission on 5. Cases where the penalty to be imposed is
Appointments: the dismissal of a judge, officer or employee of
a. Representative from the Integrated Bar the judiciary, disbarment of a lawyer, or either
of the Philippines the suspension of any of them for a period of
b. Representative from the private sector more than 1 year or a fine exceeding P10,000 or
c. Retired Supreme Court Justice both;
d. Professor of law 6. Cases where a doctrine or principle laid down by
the court en banc or in division may be modified
or reversed;
POWERS
7. Cases assigned to a division which in the
1. Recommend appointees to the Judiciary;
opinion of at least 3 members thereof merit the
2. Recommend appointees to the Office of the
attention of the court en banc and are
Ombudsman and his 5 Deputies; and
acceptable to a majority of the actual
3. May exercise such other functions as may be
membership of the court en banc; and
assigned by the Supreme Court.
All other cases as the court en banc by a majority of its
actual membership may deem of sufficient importance
The Supreme Court to merit its attention

PROCEDURAL RULE-MAKING
COMPOSITION
1. Protection and enforcement of constitutional
Chief Justice and 14 Associates Justices. Any vacancy
rights;
shall be filled within 90 days from occurrence thereof.
2. Pleading, practice, and procedure in all courts;
3. Admissions to the practice of law;
MAY SIT
4. IBP; and
1. En Banc; or
5. Legal assistance to the underprivileged.
2. In its discretion, in divisions of 3, 5, or 7
members.
LIMITATIONS ON RULE-MAKING POWER
1. Provide a simplified and inexpensive procedure
for speedy disposition of cases;
2. Uniform for all courts of the same grade;
3. Shall not diminish, increase or modify
substantive rights

40
ADMINISTRATIVE SUPERVISION OVER LOWER The Sandiganbayan has 3 months to decide on its
COURTS cases because it is considered as a trial court. (Art. VIII,
The Supreme Court shall have administrative Sec. 15(1))
supervision over all courts and personnel thereof.
OTHER POWERS
Administrative proceedings before the Supreme Court 1. Electoral Tribunal for Presidential and
are confidential in nature in order to protect the Vice-Presidential Tribunal over all contests
respondent therein who may turn out to be innocent of relating to the election, return and qualification
the charges; it can take years to build a reputation and of the President or Vice- President
only a single accusation, although unfounded, to 2. Temporary assignment of judges of lower courts
destroy it. (Godiñez v. Alano). to other stations as public interest may require
not to exceed 6 months without the consent of
ORIGINAL JURISDICTION OF THE SUPREME the judge concerned
COURT 3. Order change of venue or place of trial, to avoid
1. Cases affecting ambassadors, other public miscarriage of justice
ministers and consuls; 4. Power of appointment – The Supreme Court
2. Petition for certiorari; appoints all officials and employees of the
3. Petition for prohibition; Judiciary in accordance with Civil Service law
4. Petition for mandamus; 5. Yearly report – Within 30 days from the opening
5. Petition for quo warranto; and of each regular session of Congress, the
6. Petition for habeas corpus Supreme Court shall submit to the President
and Congress an annual report on the operation
APPELLATE JURISDICTION and activities of the Judiciary (Section 16, Art.
1. Cases involving the constitutionality or validity of VIII).
any treaty, international or executive agreement,
law, presidential decree, proclamation, order,
instruction, ordinance, or regulation;
2. Cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in
relation thereto;
3. Cases in which the jurisdiction of any lower court
is in issue;
4. Criminal cases where the penalty imposed is
reclusion perpetua or higher; and
5. Cases where only a question of law is involved.
(Art. VIII, Sec. 5(2))

Period For Deciding Cases

SUPREME LOWER OTHER

COURT COLLEGIATE LOWER
COURTS COURTS

24 months 12 months, 3 months,

unless reduced unless
by the SC reduced by
the SC

41
 INDEPENDENT CONSTITUTIONAL
COMMISSIONS
1. Civil Service Commission (Art IX-B)
2. Commission on Elections (Art. IX-C)
3. Commission on Audit (Art. IX-D)

Common Provisions
1. They are constitutionally created; may not be
abolished by a statute;
2. Each is conferred certain powers and functions
which cannot be reduced by statute;
3. Each expressly described as independent;
4. Chairmen and members are given fairly long
term of office for 7 years;
5. Chairmen and members cannot be removed
except by impeachment;
6. Chairmen and members may not be reappointed
CONSTITUTIONAL or appointed in an acting capacity
7. Salaries of chairmen and members are relatively
COMMISSIONS high and may not be decreased during
continuance in office;
8. Commissions enjoy fiscal autonomy;
9. Each commission may promulgate its own
procedural rules;
10. Chairmen and members are subject to certain
disqualifications calculated to strengthen their
integrity; and
11. Commissions may appoint their own officials
and employees in accordance with Civil Service
Law.

Institutional Independence
Safeguards
1. They are constitutionally created and may not be
abolished by statute.
2. Each commission is vested with powers and
functions which cannot be reduced by statute.
3. Expressly defined in the Constitution as
independent constitutional bodies.
4. Fixed term of office of 7 years for all members.
5. The Chair and members may not be removed
except by impeachment.
6. The Chair and members may not be appointed
in an acting capacity.
7. The salaries of the Chairmen and members may
not be decreased during their tenure.

42
 8. The Commissions enjoy fiscal autonomy. 5. Deputize, with concurrence of President, law
9. Each Commission may promulgate its own enforcement agencies and instrumentalities for
procedural rules, provided they do not diminish, exclusive purpose of insuring free, orderly,
increase or modify substantive rights honest, peaceful and credible elections.
10. The Commission may appoint their own officials 6. Register, after sufficient publication, political
and employees in accordance with Civil Service parties, organizations or coalitions which must
Law. present their platform or program government;
7. Accredit citizen’s arms
8. File upon verified complaint or motu proprio
Powers and Functions petitions in court for inclusions or exclusions of
voters; investigate and, where appropriate,
prosecute cases of violations of election laws;
CIVIL SERVICE COMMISSION 9. Recommend to Congress effective measures to
1. Central personnel agency of the Government minimize election spending, limitation of places
2. Establish a career service and adopt measures and prevent and penalize all forms of election
to promote morale, efficiency, integrity, frauds, offenses, malpractice, and nuisance
responsiveness, progressiveness, and courtesy candidates; and
in the civil service 10. Submit to the President and Congress,
3. Strengthen the merit and rewards system, comprehensive reports on conduct of each
integrate all human resources development election, plebiscite, initiative, referendum or
programs for all levels and ranks recall.
4. Institutionalize a management climate conducive
to public accountability COMMISSION ON AUDIT
5. Hear and decide administrative cases instituted 1. Examine, audit and settle all accounts pertaining
or appealed before it to revenue and receipts of, and expenditures or
6. Implement R.A. 6850 – An Act to Grant Civil uses of funds and property owned or held in
Service Eligibility Under Certain Conditions to trust or pertaining to government;
Government Employees Appointed Under 2. Keep general accounts of government and
Provisional or Temporary Status Who Have preserve vouchers and supporting papers;
Rendered A Total of Seven (7) Years of Efficient 3. Authority to define scope of its audit and
Service, and for Other Purposes examination, establish techniques and methods
required therefore; and
4. Promulgate accounting and auditing rules and
COMMISSION ON ELECTIONS regulations, including those for preservation and
1. Enforce and administer law and regulations disallowance.
relative to the conduct of elections, plebiscite,
initiative, referendum or recall; ON POST-AUDIT BASIS
2. Exclusive original jurisdiction over all contests 1. Constitutional bodies, commissions and offices;
relating to election, returns and qualifications of 2. Autonomous state colleges and universities;
all elective regional, provincial, and city officials; 3. GOCCs with no original charters and their
3. Exclusive appellate jurisdiction over all contests subsidiaries;
involving elective municipal officials decided by 4. Non-governmental entities receiving subsidy or
the RTC, or involving elective barangay officials equity, directly or indirectly from or through the
by MTC; Government, which are required by law or the
4. Decide, except those involving right to vote, all granting institution to submit such audit as a
questions affecting elections, including the condition of subsidy or equity. (Art. IX-D, Sec.2)
determination of number and location of polling
places, appointment of election officials and
inspectors and registration of voters;

43
 Compositions and Qualification of COMMISSION ON AUDIT
Members
COMPOSITION Chairperson
CIVIL SERVICE COMMISSION 2 Commissioners

COMPOSITION Chairperson ● Natural-born citizen;

2 Commissioners ● At least 35 years of age at the
time of appointment;
● Natural-born citizen; ● CPA with at least 10 years
● At least 35 years of auditing experience, or
age at the time of members of the Philippine
appointment; Bar with at least 10 years
QUALIFICATIONS
● With proven practice of law; at no time
capacity for public shall all members belong to
QUALIFICATIONS the same position;
administration; and
● Not a candidate for ● Not a candidate for any
any elective position elective position in the
in the election election immediately
immediately preceding
preceding
TERM 7 years, without reappointment
TERM 7 years, without
reappointment

Prohibited Offices and Interests

SCOPE
Embraces all branches, subdivisions, instrumentalities
and agencies of the Government, including
1. Hold any other office or employment;
government-owned and controlled corporations with
2. Engage in the practice of any profession;
original charters (Section 2(1), Article IX-B)
3. Engage in the active management and control of
any business which in any way may be affected
COMMISSION ON ELECTIONS by the functions of his office; and
4. Be financially interested, directly or indirectly, in
COMPOSITION Chairperson other contract with, or in any franchise or
6 Commissioners privilege granted by the government, any of its
subdivision, agencies or instrumentalities,
including GOCCs or their subsidiaries. (Sec. 2,
● Natural-born citizen;
Art. IX)
● At least 35 years of age at the
time of appointment;
● With proven capacity for
public administration; and
● Not a candidate for any
elective position in the
QUALIFICATIONS
election immediately
preceding
● Majority, including the
Chairman, must be members
of the Philippine Bar who have
been engaged in the practice
of law for at least 10 years

TERM 7 years, without reappointment

44
 Concept of Bill of Rights

PRIVACY AND AUTONOMY

The Bill of Rights is a declaration and enumeration of a
person’s fundamental civil and political rights. It also
imposes safeguards against violations by the
government, by individuals, or by groups of individuals.

The Bill of Rights serves both individual and public or

collective rights.

The Bill of Rights is designed to preserve the ideals of

liberty, equality and security "against the assaults of
opportunism, the expediency of the passing hour, the
erosion of small encroachments, and the scorn and
derision of those who have no patience with general
principles.” (PH Blooming Mills v. PH Mills Co., Inc.,
1973)

The Bill of Rights is self-executing. For if they are not

BILL OF RIGHTS treated as self-executing, the mandate of the
fundamental law ratified by the sovereign people can be
easily ignored and nullified by Congress. (Gamboa v.
Teves, 2011)

BASES
1. Importance accorded to the dignity and worth of
the individual
2. Protection against arbitrary actions of
government and other members of society

PURPOSE
1. To preserve democratic ideals
2. To safeguard fundamental rights
3. To promote the happiness of an individual

APPLICATION TO PRIVATE INDIVIDUALS

The Bill of Rights governs the relationship between the
individual and the State. Its concern is not the relation
between private individuals. What it does is to declare
some forbidden zones in the private sphere inaccessible
to any power holder. (People v. Marti, 1991)

The Bill of Rights is not meant to be invoked against acts

of private individuals. (Yrasuegui v. PAL, 2008)

While the Bill of Rights generally cannot be invoked

against the acts of private individuals, the same may
nevertheless be applicable if such individuals act under
the color of a state-relation function. (Dela Cruz v.
People, 2016)

45
RELATION TO HUMAN RIGHTS
RIGHT TO LIFE
DOCTRINE OF HIERARCHY OF RIGHTS The right to security of person is a guarantee of the
While the Bill of Rights also protects property rights, the secure quality of life. In a broad sense, the right to
primacy of human rights over property rights is security of person emanates in a person’s legal and
recognized, because these freedoms are “delicate and uninterrupted enjoyment of his life, his limbs, his body,
vulnerable, as well as supremely precious in our society” his health, and his reputation. It includes the right to
and the “threat of sanctions may deter their exercise exist, and the right to enjoyment of life while existing.
almost as potently as the actual application of (Sec. of National Defense v. Manalo, 2008)
sanctions,” they “need breathing space to survive,”
permitting government regulation only “with narrow RIGHT TO LIBERTY
specificity.” (PH Blooming Mills Employees Organization The right to liberty includes the right to exist and the
v. PH Mills Co., supra) right to be free from arbitrary personal restraint or
servitude. The term cannot be dwarfed into mere
CIVIL RIGHTS freedom from physical restraint of the person of the
Rights that belong to an individual by virtue of his citizen but is deemed to embrace the right of man to
citizenship in a state or community (e.g. rights to enjoy the faculties with which he has been endowed by
property, marriage, freedom to contract, equal his Creator, subject only to such restraints as are
protection, etc.) necessary for the common welfare. (Capin-Cadiz v.
Brent Hospital and Colleges, 2016)
POLITICAL RIGHTS
Rights that pertain to an individual’s citizenship vis-à-vis The constitutional right to liberty includes the concept of
the management of the government (e.g. right of privacy. (Morfe v. Mutuc, 1968)
suffrage, right to petition government for redress, right to
hold public office, etc.) RIGHT TO PROPERTY
A mere reasonable or rational relation between the
SOCIAL AND ECONOMIC RIGHTS means employed by the law and its object or purpose –
Rights which are intended to insure the well-being and that the law is neither arbitrary nor discriminatory nor
economic security of the individual oppressive – would suffice to validate a law which
restricts or impairs property rights. (PH Blooming Mills
Employees Organization v. PH Mills Co., supra)
RIGHTS OF THE ACCUSED
Civil rights intended for the protection of a person
accused of any crime
Due Process of Law

Due Process is a guaranty against any arbitrariness on

the part of the government, whether committed by the
legislature, the executive, or the judiciary. (Cruz)

Due process has two main components:

1. Right to notice
2. Right to be heard

46
KINDS OF DUE PROCESS JUDICIAL PROCEEDINGS
SUBSTANTIVE DUE PROCESS REQUISITES
Substantive due process inquires whether the 1. An impartial court or tribunal clothed with
government has sufficient justification for depriving a judicial power to hear and determine the matter
person of life, liberty, or property. (White Light Corp. v. before it;
City of Manila, 2009) 2. Jurisdiction must be lawfully acquired over the
person of the defendant or over the property
Requisites which is the subject of the proceedings;
1. The interests of the public in general, as 3. The defendant must be given notice and
distinguished from those of a particular class, opportunity to be heard; and
require the intervention of the state. 4. Judgment must be rendered upon lawful
2. The means employed are reasonably necessary hearing. (Banco Español v. Palanca, 1918)
for the accomplishment of the purpose and not
unduly oppressive upon individuals. IMPARTIALITY
The Supreme Court has repeatedly and consistently
Publication of Laws demanded “the cold neutrality of an impartial judge” as
Before a person may be bound by law, he must be the indispensable imperative of due process. To bolster
officially and specifically informed of its contents. All that requirement, the Supreme Court held that the judge
statutes, including those of local application and private must not only be impartial but must also appear to be
laws, shall be published as a condition for their impartial as an added assurance to the parties that his
effectivity, which shall begin fifteen days after decision will be just. (Javier v. COMELEC, 1986)
publication unless a different effectivity date is fixed by
the legislature. Publication must be full, or there is none ADMINISTRATIVE PROCEEDINGS
at all.
REQUISITES
Interpretative regulations and internal regulations issued
1. The right to a hearing, which includes the right to
by administrative agencies need not be published.
present one’s own case and submit evidence in
(Tañada v. Tuvera, 1985)
support thereof;
2. The tribunal must consider the evidence
Void-for-vagueness Doctrine
presented;
A law is facially invalid if men of common intelligence
3. The decision must have something to support
must necessarily guess at its meaning and differ as to its
itself;
application. A vague statute is unconstitutional because:
4. The evidence must be substantial;
1. It violates due process for failing to accord
5. The decision must be based on the evidence
persons fair notice of what conduct to avoid;
presented at the hearing, or at least contained in
2. It leaves law enforcers unbridled discretion in
the record and disclosed to the parties affected;
carrying out its provisions. (Sps. Romualdez v.
6. The tribunal or body or any of its judges must
COMELEC, 2008)
act on its own independent consideration of the
law and facts of the controversy, and not simply
PROCEDURAL DUE PROCESS accept the views of a subordinate;
Relates chiefly to the mode of procedure which 7. The board or body should, in all controversial
government agencies must follow in the enforcement questions, render its decision in such manner
and application of laws. The heart of procedural due that the parties to the proceeding can know the
process, whether in judicial or administrative various issues involved, and the reason for the
proceedings, is the need for notice and an opportunity to decision rendered. (Ang Tibay v. Court of
be heard. Industrial Relations, 1940)
It is “a law which hears before it condemns; which
proceeds upon enquiry and renders judgment only after
trial.”

47
QUANTUM OF PROOF LEVELS OF SCRUTINY
The quantum of proof in administrative proceedings in 1. Strict Scrutiny Test
substantial evidence. Substantial evidence means “such 2. Intermediate Scrutiny Test
reasonable evidence as a reasonable mind might accept 3. Rational Basis Test
as adequate to support a conclusion. In administrative
proceedings, technical rules of procedure and evidence STRICT SCRUTINY TEST
are not strictly applied, and administrative due process Scrutiny test is a standard of judicial review for laws
cannot be fully equated with due process in its strict dealing with freedom of the mind or restricting the
judicial sense. (Samalio v. CA, 2005) political process, focuses on the presence of compelling
governmental interest and on the absence of less
DEPORTATION PROCEEDINGS restricting means for achieving such interest. (White
Although deportation proceedings are not criminal in Light Corporation v. City of Manila, supra)
nature, the consequences can be as serious as those of
a criminal prosecution. The provisions of the Rules of Applies When The Classification
Court for criminal cases are applicable. (Lao Gi v. Ca, 1. Interferes with the exercise of fundamental
1989) rights, including the basic liberties guaranteed
under the Constitution; or
WHEN HEARINGS NOT NECESSARY 2. Burdens suspect classes.
1. When administrative agencies are exercising
their quasi-legislative functions A legislative classification which impermissibly interferes
2. Abatement of nuisance per se with the exercise of a fundamental right or operates to
3. Granting by courts of provisional remedies the peculiar disadvantage of a suspect class is
4. Cases of preventive suspension presumed unconstitutional. Thus, the government has
5. Removal of temporary employees in the the burden of proving that the classification:
government service 1. Is necessary to achieve a compelling state
6. Issuance of warrants of distraint and/or levy by interest; and
the BIR Commissioner 2. It is the least restrictive means to protect such
7. Cancellation of the passport of a person interest.
charged with a crime
8. Suspension of a bank’s operations by the Considering that the right to travel is a fundamental right,
Monetary Board upon prima facie finding of the strict scrutiny test is the applicable test. The fact that
liquidity problems in such bank the State has broader authority over minors than adults
does not trigger the application of a lower level of
scrutiny. (SPARK v. Quezon City, 2017)
STUDENT DISCIPLINE
PROCEEDINGS The Court has employed the standard of strict judicial
Student discipline proceedings may be summary and scrutiny in reviewing the constitutionality of a provision
cross-examination are not an essential part thereof. containing a suspect classification based on salary
grade. (Central Bank Employees Association v. BSP,
REQUISITES 2004)
1. Written notification sent to the student/s
informing the nature and cause of any INTERMEDIATE SCRUTINY TEST
accusation against him/her; Intermediate scrutiny test, or middle tier test, applies
2. Opportunity to answer the charges, with the when a classification does not involve suspect classes
assistance of a counsel, if so desired; or fundamental rights, but requires heightened scrutiny,
3. Presentation of one’s evidence and examination such as in classifications based on gender and
of adverse evidence; legitimacy. It extensively examines governmental
4. Evidence must be duly considered by the interest and the availability of less restrictive measures
investigating committee or official designated by is considered. (White Light Corporation v. City of Manila,
the school authorities to hear and decide the 2009)
case;
5. The penalty imposed must be proportionate to
the offense. (Guzman v. NU, 1986)

48
The government must show that the challenged EXAMPLES OF VALID CLASSIFICATION
classification serves as an important state interest and 1. R.A. No. 9262 (VAWC) is not violative of the
that the classification is at least substantially related to equal protection clause because there is a valid
serving that interest. (Bernas) classification. The unequal power relationship
that women are more likely to be victims of
RATIONAL BASIS TEST violence and the widespread gender bias and
The rational basis test applies to all other subjects not prejudice against women make for real
covered by the first two tests. Rational basis differences justifying the classification. (Garcia v.
examination is a standard of judicial review for economic Drilon, 2013)
legislation. Using the rational basis examination, laws or 2. The RH Law is not violative of the equal
ordinances are upheld if they rationally further a protection clause when it provided that the poor
legitimate governmental interest (White Light are to be given priority in the government’s
Corporation v. City of Manila, 2009) reproductive health care programs. Pursuant to
Sec. 11, Art. XIII, which recognizes the distinct
The rational basis test was properly applied to gauge the necessity to address the needs of the
constitutionality of the assailed law in the face of an underprivileged by providing that they be given
equal protection challenge. Under this test, it is sufficient priority in addressing the health development of
that the legislative classification is rationally related to the people. It should be noted that Section 7 of
achieving some legitimate state interest. (British RH Law prioritizes poor and marginalized
American Tobacco v. Camacho, 2009) couples who are suffering from fertility issues
and desire to have children. (Imbong v. Ochoa,
2014)
3. There can be no dispute about the dissimilarities
Equal Protection of Laws between land-based and sea-based Filipino
overseas workers in terms of work environment,
CONCEPT safety, dangers and risks to life and limb, and
The guarantee of equal protection means that no person accessibility to social, civic, and spiritual
or class of persons shall be deprived of the same activities. (Conference of Maritime Manning
protection of laws enjoyed by other persons or other Agencies v. POEA, 1995)
classes in the same place and in like circumstance.
(Tolentino v. Board of Accountancy, 1951)

All persons or things similarly situated must be similarly Right Against Unreasonable
treated both as to rights conferred and responsibilities Searches and Seizures
imposed. It guarantees equality, not identity of rights.
(Ichong v. Hernandez, 1957) CONCEPT OF PRIVACY
Zones of privacy are recognized and protected in our
However, it does not require the universal application of laws. Within these zones, any form of intrusion is
laws to all persons or things without distinction. What it impermissible unless excused by law and in accordance
simply requires is equality among equals as determined with customary legal process.
according to a valid classification. (Biraogo v. Philippine
Truth Commission, 2010) In assessing the challenge that the State has
impermissibly intruded into these zones of privacy, a
REQUISITES FOR VALID CLASSIFICATION court must determine whether a person has exhibited a
1. It must rest on substantial distinctions; reasonable expectation of privacy and, if so, whether
2. It must be germane to the purposes of law; that expectation has been violated by unreasonable
3. It must not be limited to existing conditions only; government intrusion. (Disini v. Sec. of Justice, 2014)
4. It must apply equally to all members of the same
class. (People v. Cayat, 1939)

49
TWO-FOLD REQUIREMENT TO INVOKE REQUISITES OF A VALID SEARCH WARRANT
PROTECTION FROM UNREASONABLE 1. It must be issued upon probable cause;
SEARCHES AND SEIZURES 2. Probable cause must be determined personally
1. That a person has exhibited an actual by the judge;
expectation of privacy 3. After examination, under oath or affirmation, of
2. That the expectation be one that society is the complainant and witnesses that may be
prepared to recognize as reasonable. (Katz v. produced;
US, 1967) 4. The warrant issued must particularly describe
the place to be searched and the persons or
CONCEPT OF A SEARCH things to be seized; (Pasion vda. de Garcia v.
What constitutes a reasonable or unreasonable search Locsin, 1939)
and seizure in any particular case is purely a judicial 5. The warrant must refer to one specific offense.
question, determinable from a consideration of the
circumstances involved. (Valmonte v. de Villa, 1989) IT MUST BE ISSUED UPON
A reasonable search and a warrantless search are
PROBABLE CAUSE
mutually exclusive. While both State intrusions are valid
even without a warrant, the underlying reasons for the FOR AN ARREST WARRANT
absence of a warrant are different. In order that there be probable cause, the facts and
circumstances must be such as would warrant a belief
A reasonable search arises from a reduced expectation by a reasonably discreet and prudent man that the
of privacy, for which reason Sec. 2 of Art. III of the accused is guilty of the crime which has just been
Constitution finds no application. Examples include committed. (Allado v. Diokno, 1994)
searches done at airports, seaports, bus terminals,
malls, and similar public places. FOR A SEARCH WARRANT
Such facts and circumstances which would lead a
In contrast, a warrantless search is presumably an reasonably discreet and prudent man to believe that an
"unreasonable search," but for reasons of practicality, a offense has been committed and that the objects sought
search warrant can be dispensed with. Examples are in connection with the offense are in the place sought to
search incidental to a lawful arrest, search of evidence in be searched. (Burgos v. Chief of Staff, 1984)
plain view, consented search, and extensive search of a
private moving vehicle. (Saluday v. People, 2018) PROBABLE CAUSE MUST BE DETERMINED
PERSONALLY BY THE JUDGE
Searches and seizures are normally unreasonable, In determining probable cause, the examining judge
unless authorized by a validly issued search warrant or must make a probing and exhaustive examination, not
warrant of arrest. (People v. Aruta, 1998) merely routine or pro forma, of the applicant and the
witnesses. (Nala v. Judge Barroso, Jr., 2003)
TYPES OF WARRANTS
1. Arrest Warrant – a written order issued and PROCEDURE
signed by a judge stating the substance of the 1. The judge shall personally evaluate the report
complaint, directed to a proper officer, and the supporting documents submitted by the
commanding him to arrest the defendant. fiscal regarding the existence of probable cause
(Brown v. State, 1869) and, on the basis thereof, issue a warrant of
2. Search Warrant – an order in writing, issued in arrest; or
the name of the People of the Philippines, 2. If on the basis thereof the judge finds no
signed by a judge, and directed to a peace probable cause, the judge may disregard the
officer, commanding him to search for personal fiscal’s report and require the submission of
property described therein and bring it before supporting affidavits and witnesses to aid in
the court. (Rule 126, Sec. 1) arriving at a conclusion on the existence of
probable cause.

50
AFTER EXAMINATION, UNDER OATH OR Even if the search warrant used by the police did not
AFFIRMATION, OF THE COMPLAINANT AND contain the correct name of the accused, that defect did
WITNESSES THAT MAY BE PRODUCED not invalidate it because the place to be searched was
The testimony offered by the complainant and his described properly. Besides, the authorities conducted
witnesses should be based on their own personal surveillance and a test-buy operation before obtaining
knowledge and not on mere information or belief. the search warrant and subsequently implementing it.
Hearsay is not allowed. (Nala v. Judge Barroso, Jr. 2003) Thus, they can be presumed to have personal
knowledge of the identity of the persons although they
may not have specifically known the names of the
THE WARRANT ISSUED MUST PARTICULARLY
accused. (People v. Tiu Won Chua, 2003)
DESCRIBE THE PLACE TO BE SEARCHED AND
THE PERSONS OR THINGS TO BE SEIZED A “John Doe warrant” satisfies the requirement of
General warrants are prohibited by the Constitution. It particularity of description when it contains a descriptio
would place the sanctity of the domicile and the privacy personae such as will enable the officer to identify the
of communication and correspondence at the mercy of accused. (People v. Veloso, 1925)
the whims, caprice, or passion of peace officers.
(Stonehill v. Diokno, 1967) THE WARRANT MUST REFER TO ONE SPECIFIC
OFFENSE
SUFFICIENCY OF DESCRIPTION This rule does not apply if the offenses are closely
A description of the place to be searched is sufficient if related or under the same category.
the officer serving the warrant can, with reasonable effort
ascertain and identify the place intended and distinguish The Court upheld the validity of a search warrant issued
it from other places in the community. A designation or for “Violation of RA 6425” without specifying what
description that points out the place to be searched to provisions were violated. In this case, the accused
the exclusion of all others, and on inquiry unerringly theorized that 3 separate search warrants for illegal
leads the police officers to it, satisfies the constitutional possession of shabu, marijuana, and paraphernalia were
requirement of definiteness. (People v. Tee, 2003) necessary. However, the Court rejected this theory
holding that the seized articles were closely related and
Exception: A description of the property to be seized belonged to the same class or species. (People v.
need not be technically accurate nor necessarily precise; Dichoso, 1933)
and its nature will necessarily vary according to whether
the identity of the property, or its character, is the matter
of concern. (Kho v. Hon. Makalintal, 1999) WARRANTLESS SEARCHES

DETAILED DESCRIPTION OF THE ARTICLES TO UNVERIFIED, ANONYMOUS TIP

BE SEIZED IS NOT NECESSARY WHEN Law enforcers cannot act solely on the basis of
1. The nature of the article to be seized is general confidential or tipped information. A tip is still hearsay no
in description; and matter how reliable. It is not sufficient to constitute
2. A technical description of such article is not probable cause in the absence of any other suspicious
required. (Alvarez v. CFI, 1937) circumstances. (People v. Sapla, 2020)

DESCRIPTION OF PERSONS EXCEPTIONS TO THE REQUIREMENT OF A

The failure to correctly state the first name in the search VALID WARRANT
and seizure warrant does not invalidate the warrant. 1. Search incident to a lawful arrest
What is prohibited is a warrant against an unnamed 2. Seizure of evidence in “plain view”
party, and not one which contains a descriptio personae 3. Search of a moving vehicle
that will enable the officer to identify the accused 4. Consented warrantless search (waiver of right)
without difficulty. (Nala v. Judge Barroso, Jr., 2003) 5. Search in violation of customs laws (customs
search)
6. Stop-and-frisk / Terry searches
7. Drug, Alcohol, and Blood Tests
8. Exigent and emergency circumstances
9. Inspection of building and other premises for the
enforcement of fire, sanitary and building
regulations

51
SEARCH INCIDENT TO A LAWFUL ARREST Reasonable Search Of A Bus While In Transit
It is a general rule that, as an incident of an arrest, the 1. The manner of search must be least intrusive;
place or premises where the arrest was made can also 2. The search must not be discriminatory;
be searched without a search warrant. (Nolasco v. Paño, 3. As to the purpose of the search, it must be
1985) confined to ensuring public safety; and
4. The Courts must be convinced that
SEIZURE OF EVIDENCE IN “PLAIN VIEW” precautionary measures were in place to ensure
Objects falling in the plain view of an officer who has a that no evidence was planted against the
right to be in the position to have that view may be accused. (Saluday v. People, 2018)
seized and introduced in evidence. (Harris v. US, 1968)
CONSENTED WARRANTLESS SEARCH
Requisites Of Plain View Doctrine (WAIVER OF RIGHT)
1. The law enforcement officer in search of the Silence or lack of resistance can hardly be considered as
evidence has a prior justification for an intrusion consent to the warrantless search. Although the right
or is in a position from which he can view a against unreasonable searches and seizures may be
particular area; waived, the prosecution must prove that the waiver was
2. The discovery of evidence in plain view is “unequivocal, specific, intelligently given and unattended
inadvertent; by duress or coercion.” Otherwise, it is only an implied
3. It is immediately apparent to the officer that the acquiescence, which amounts to no consent at all.
item he observes may be evidence of a crime, (Veridiano v. People, 2017)
contraband or otherwise subject to seizure
(People v. Go, 2003) Requirements For Waiver
1. The right exists;
SEARCH OF A MOVING VEHICLE 2. The person involved had actual or constructive
It is not practicable to secure a warrant because the knowledge of the existence of such right;
vehicle can be quickly moved out of the locality or 3. The said person had an actual intention to
jurisdiction in which the warrant must be sought. relinquish the right.

Limitations SEARCH IN VIOLATION OF CUSTOMS LAWS

1. Where the officer merely draws aside the curtain (CUSTOMS SEARCH)
of a vacant vehicle which is parked on the public Under the R.A. 10863 (Act Modernizing the Customs and
fair grounds; Tariff Administration) any person exercising police
2. Where the officer simply looks into a vehicle; authority has the power and duty to seize any vessel,
3. Where the officer flashes a light therein without aircraft, cargo, goods, animal or any other movable
opening the car’s doors; property when the same is subject to forfeiture or when
4. Where the occupants are not subjected to a they are subject of a fine imposed (Sec. 216, R.A. 10863)
physical or body search;
5. Where the inspection of the vehicles is limited to Duty Of Officer To Disclose Official Character
a visual search or visual inspection; and For the proper exercise of police authority, any
6. Where the routine check is conducted in a fixed authorized person shall disclose the nature of the
area. (People v. Manago, 2016) authority being questioned at the time of exercise
thereof and shall exhibit the corresponding written
Extensive Search, When Allowed authority issued by the Commissioner. (Sec. 217, R.A.
An extensive search of a vehicle is permissible only 10863)
when the officers made it upon probable cause that a
vehicle contains an item, article, or object which by law
is subject to seizure and destruction.

52
Authority To Search Persons Arriving From Foreign Probable Cause Not Required, But There Must Be A
Countries Genuine Reason
Upon reasonable cause, travelers arriving from foreign While probable cause is not required to conduct a “stop
countries may be subjected to search and detention by and frisk,” it nevertheless holds that mere suspicion, or a
the customs officers. The dignity of the person under hunch will not validate a “stop and frisk.” (Malacat v. CA,
search and detention shall be respected at all times. 1997)
Female inspectors may be employed for the examination
and search of persons of their own sex. (Sec. 223, R.A. A genuine reason must exist, in light of the police
10863) officer’s experience and surrounding conditions, to
warrant the belief that the person detained has weapons
STOP-AND-FRISK / TERRY SEARCHES concealed about him. (Bernas)
When an officer is justified in believing that the individual
whose suspicious behavior, he is investigating at close DRUG, ALCOHOL, AND BLOOD TESTS
range is presently dangerous to him or to others, he may The Court held that Randomized Drug Testing (RDT) for
conduct a limited protective search for concealed students and employees does not violate the right to
weapons. (Terry v. Ohio, 1968) privacy in the Constitution. Students do not have rational
expectation of privacy since the school is in loco
Two-fold Interest Of Stop-and-frisk Rule parentis. Employees and students in universities, on the
1. The general interest of effective crime prevention other hand, voluntarily subject themselves to the
and detection, which underlies the recognition intrusion because of their contractual relation to the
that a police officer may, under appropriate company or university.
circumstance and in an appropriate manner,
approach a person for purposes of investigating However, it is unconstitutional to subject persons
possible criminal behavior even without accused of crimes to mandatory drug testing. The
probable cause; operative concepts in the mandatory drug testing are
2. The more pressing interest of safety and “randomness” and “suspicion less.” In case of persons
self-preservation which permit the police officer charged before the prosecutor’s office, a mandatory
to take steps to assure himself that the person drug testing can never be random or suspicion less.
with whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be It is also unconstitutional to subject public officials
used against the police officer. whose qualifications are provided for in the Constitution
to drug testing. Subjecting them to drug testing would
Test For Validity Of A Stop-and-frisk Search amount to imposing an additional qualification not
1. There must be specific and articulable facts provided for in the Constitution. (SJS v. Dangerous
which, taken together with rational inferences, Drugs Board, 2008)
reasonably warrant the intrusion;
2. The officer must identify himself and make EXIGENT AND EMERGENCY CIRCUMSTANCES
reasonable inquiries; Under the urgency and exigency of a military coup d’
3. The “frisk” is permitted to search for weapons etat, a search warrant could lawfully be dispensed with.
for the protection of the police officer, where he (People v. de Gracia, 1994)
has reason to believe that he is dealing with an
armed and dangerous individual, regardless of
probable cause for a crime;
4. The scope of the search is limited to the outer
surface of the subject’s clothing.

53
WARRANTLESS ARRESTS AND The arrest after 2 days had lapsed from the alleged sale
of marijuana does not justify a warrantless arrest. At the
DETENTION time the accused was arrested, he was not committing
or attempting to commit a crime. (People v. Kimura,
General Rule: A warrant is needed in order to validly 2004)
effect an arrest.
ESCAPED PRISONER
Exceptions When the person to be arrested is a prisoner who has
1. In Flagrante Delicto escaped from a penal establishment or place where he
2. Hot Pursuit is serving final judgment or temporarily confined while
3. Escaped Prisoner his case is pending or has escaped while being
transferred from one confinement to another.
IN FLAGRANTE DELICTO
The person to be arrested has executed an overt act
indicating that he has just committed, is actually
EXCLUSIONARY RULE
committing, or is attempting to commit a crime;
FRUIT OF THE POISONOUS TREE DOCTRINE
In the presence of the arresting officer. (People v. If the arrest without a warrant is unlawful at the time it
Mengote, 1992) was made, generally nothing that happened or was
discovered afterwards can make it lawful. The fruit of the
The person making the arrest himself witnesses the poisonous tree is necessarily also tainted. The
crime and has personal knowledge of the commission of Constitution itself mandates that any evidence obtained
the offense. (People v. Villareal, 2013) in violation of the right is inadmissible in evidence.
Consequently, testimonies of the arresting officers as to
The “objective test” in a buy-bust operation demands the admission made by the appellant cannot be used
that the details of the purported transaction must be against him. (People v. Burgos, 1968)
clearly and adequately shown. The manner by which the
initial contact was made, whether or not through an WAIVER OF THE ACCUSED
informant, the offer to purchase the drug, the payment of Nevertheless, failure to timely object to the illegality of an
the "buy-bust" money, and the delivery of the illegal arrest does not preclude an accused from questioning
drug, whether to the informant alone or the police the admissibility of evidence seized. 61 The
officer, must be the subject of strict scrutiny by courts to inadmissibility of the evidence is not affected when an
insure that law-abiding citizens are not unlawfully accused fails to question the court's jurisdiction over his
induced to commit an offense. (People v. Consada, or her person in a timely manner. Jurisdiction over the
2017) person of an accused and the constitutional
inadmissibility of evidence are separate and mutually
HOT PURSUIT exclusive consequences of an illegal arrest. (Veridiano v.
1. An offense has just been committed; People, 2017)
2. The person making the arrest has personal
knowledge of the facts indicating that the EFFECT OF BAIL
person to be arrested has committed it. An application or admission to bail is not a bar to
challenge the legality of the arrest or warrant, or from
It does not require the arresting officer or person to assailing the absence of a preliminary investigation.
personally witness the commission of the offense. (Rule 114, Sec. 26)
However, there must be immediacy between the time of
the commission of the crime and the time of the arrest.
(People v. Del Rosario, 1999)

The warrantless arrest after 3 hours had lapsed after the

killing was held valid since the policemen had personal
knowledge of the facts indicating that the accused killed
the victim. If they had postponed his arrest until they
could obtain a warrant, the accused would have fled the
law as his two companions did. (People v. Gerente,
1993)

54
EFFECTS OF UNREASONABLE PRIVATE AND PUBLIC
SEARCHES AND SEIZURES COMMUNICATIONS

WHO MAY CONTEST TEST OF REASONABLE EXPECTATION OF

The legality of the seizure can be contested only by the PRIVACY
party whose rights have been impaired thereby, and the 1. Subjective Test – A person has exhibited an
objection to an unlawful search and seizure is purely actual expectation of privacy; and
personal and cannot be availed of by third parties. 2. Objective Test – The expectation be one that
(People v. Benny Go, 2003) society is prepared to recognize as reasonable.
(Pollo v. Constantino-David, 2011)
CONSEQUENCES
1. The articles obtained from an unlawful search COVERAGE
and seizure will be excluded from evidence. It covers letters, messages, telephone calls, telegrams,
2. The searching officer will be liable for civil and the like. It covers both tangible and intangible things
damages. (New Civil Code, Art. 32) (Bernas).
3. The use of self-help in the form of resistance to
the unlawful search and seizure may be justified. THREE STRANDS OF THE RIGHT TO PRIVACY
4. The officer may face criminal prosecution. 1. Locational or Situational – refers to the privacy
5. The officer may face disciplinary action by his that is left in physical space, such as that which
administrative officers. (Bautista, Basic Criminal may be violated by trespass and unwarranted
Procedure, 2010) search and seizure;
2. Informational – right of individuals to control
EFFECTS OF ILLEGAL DETENTION information about themselves; and
Only the court or judge is authorized to issue a warrant 3. Decisional – usually defined as the right of
of commitment or provisional detention of the person individuals to make certain kinds of fundamental
arrested pending the trial of the case of the accused. choices with respect to their personal and
Without such warrant of commitment, the detention of reproductive autonomy (Vivares v. St Theresa’s
the person arrested for more than six hours would be College, 2014)
illegal and in violation of the Constitution. (Sayo v. Chief
of Police, 1948) WHEN INTRUSION ALLOWED
1. Upon lawful order of the Court
2. When public safety or order requires as
Privacy of Communications and otherwise prescribed by law
Correspondence 3. When the intrusion into the privacy of
communication and correspondence is made
RIGHT TO PRIVACY without judicial order, it would have to be based
The Right to Privacy has been concisely defined as the upon a non-judicial government official’s
right to be left alone. It has also been defined as the right assessment that public safety and order
of a person to be free from unwarranted publicity and demands such intrusion (Bernas).
the right to live without interference by the public in
matters with which the public is not necessarily Exception: The right of privacy or "the right to be let
concerned (De Leon, Phil. Constitutional Law 1, p. 433) alone," like the right of free expression, is not an
absolute right. A limited intrusion into a person's privacy
has long been regarded as permissible where that
BASIS
person is a public figure and the information sought to
The right to privacy, or the right to be let alone, was
be elicited from him or to be published about him
institutionalized in the 1987 Constitution as a facet of the
constitute of a public character. Succinctly put, the right
right protected by the guarantee against unreasonable
of privacy cannot be invoked to resist publication and
search and seizure. (Morfe v. Mutuc, 1968)
dissemination of matters of public interest. The interest
sought to be protected by the right of privacy is the right
The right to privacy exists independently of its
to be free from unwarranted publicity, from the wrongful
identification with liberty; it is, in itself, fully deserving of
publicizing of the private affairs and activities of an
constitutional protection. (Disini v. Secretary of Justice,
individual which are outside the realm of legitimate
2014).
public concern (Ayer Productions v. Capulong, 1988)

55
REASONABLE EXPECTATION OF PRIVACY TEST The Anti-Wiretapping Act only protects letters,
1. Whether, by their own conduct, the individual messages, telephone calls, telegrams and the like.
has exhibited an expectation of privacy; and
2. This expectation is one that society recognizes The law does not distinguish between a party to the
as reasonable. private communication or a third person. Hence, both a
party and a third person could be held liable under R.A.
RIGHT TO PRIVACY IN SOCIAL MEDIA 4200 if they commit any of the prohibited acts under
A Facebook user who opts to make use of a privacy tool R.A. 4200 (Ramirez v. CA, 1995)
to grant or deny access to their post or profile detail
should not be denied the informational privacy right A peace officer, who is authorized by a written order of
which necessarily accompanies said choice. the Court, may execute any of the acts declared to be
unlawful in R.A. 4200 in cases involving:
Otherwise, using these privacy tools would be a feckless 1. Treason
exercise, such that if, for instance, a user uploads a 2. Espionage
photo or any personal information to his or her Facebook 3. Provoking war and disloyalty in case of war
page and sets its privacy level at “Only Me” or a custom 4. Piracy and mutiny in the high seas
list so that only the user or a chosen few can view it, 5. Rebellion (conspiracy and proposal and inciting
said photo would still be deemed public by the courts as to commit included)
if the user never chose to limit the photo’s visibility and 6. Sedition (conspiracy, inciting included)
accessibility. 7. Kidnapping
8. Violations of CA 616 (punishing espionage and
Such position, if adopted, will not only strip these other offenses against national security) (Sec. 3,
privacy tools of their function but it would also disregard R.A.4200)
the very intention of the user to keep said photo or
information within the confines of his or her private The use of telephone extension is not a violation of RA
space (Vivares v. St. Theresa’s College, 2014) 4200. The use of a telephone extension to overhear a
private conversation is neither among those devices, nor
PROHIBITED ACTS UNDER THE ANTI-WIRE considered as a similar device, prohibited under the law
TAPPING LAW (R.A. 4200) (2009 BAR) (Gaanan v. IAC, 1986)
1. To tap any wire or cable, or by using any other
device or arrangement, to secretly overhear, Freedom of Speech and
intercept, or record such communication or
spoken word by using a device commonly Expressions
known as a dictaphone or dictagraph or
detectaphone or walkietalkie or tape recorder, or SCOPE
however otherwise described by any person, not 1. Freedom of speech
being authorized by all the parties to any private 2. Freedom of the press
communication or spoken word 3. Freedom of assembly
2. To knowingly possess any tape record, wire 4. Freedom to petition
record, disc record, or any other such record, or 5. Freedom of religion
copies thereof, of any communication or spoken 6. Right of association
word secured either before or after the effective 7. Right to access to information on matters of
date of this Act in the manner prohibited by this public concern
law; or 8. Right not to be detained solely by reason of
3. To replay the same for any other person or one’s political beliefs and aspirations
persons; or
4. To communicate the contents thereof, either FREEDOM OF SPEECH AND PRESS
verbally or in writing, or Speech, expression, and press include every form of
5. To furnish transcriptions thereof, whether expression whether oral, written, tape or disc recorded.
complete or partial, to any other person. It also includes movies as well as what is referred to as
symbolic speech, such as the wearing of an armband as
a symbol of protest.

56
Peaceful picket has also been included within the Any system of prior restraints of expression come to the
meaning of speech. Court bearing a heavy presumption against its
constitutional validity. (New York Times v. United States,
Freedom of expression is available only insofar as it is 1971)
exercised for the discussion of matters affecting the
public interest. Purely private matters do not come within SUBSEQUENT PUNISHMENT
the guaranty. (Cruz) Primarily protects speech which The State imposes punishment after the dissemination
communicates political, social, or religious ideas. or publication of speech.

The freedom to speak includes the right to be silent. This TESTS

freedom also includes the right to an audience. The right 1. Dangerous Tendency
to listen also includes the right to not listen. 2. Clear and Present Danger
3. Balancing of Interests
FREEDOM OF ASSEMBLY AND PETITION 4. Intermediate Approach Test
The right of peaceable assembly is a right cognate to
those of free speech and free press and is equally DANGEROUS TENDENCY TEST
fundamental. The standards for allowable impairment of Speech may be curtailed or punished when it creates a
speech and press are also those for assembly and dangerous tendency which the State has the right to
petition. prevent. For speech to be punishable, all it requires is
that there be a rational connection between the speech
PRIOR RESTRAINT and the evil apprehended. It is not necessary to create
Refers to official government restrictions on the press or evil; a mere tendency towards evil was enough (Cruz).
other forms of expression in advance of actual
publication or dissemination. The prohibition of “prior If the words uttered create a dangerous tendency which
restraint” is not absolute. Forms of prior restraint the State has a right to prevent, then such words are
includes (but is not limited to): licenses and permit as punishable. (Cabansag v. Fernandez, 1957)
prerequisites to publication; censorship; judicial prior
restraint; license taxes; flat license fees CLEAR AND PRESENT DANGER RULE
In determining whether a circumstance constitutes clear
PRESUMPTION OF INVALIDITY and present danger, the court must inquire whether in
Any system of prior restraint of expression bears a heavy each case the gravity of the evil, discounted by its
presumption against its constitutional validity. The improbability, justifies an invasion of free speech to
Government thus carries the burden of showing avoid the danger.
justification for the enforcement of such restraint. (NY
Times v. US, 1971) The question in every case is whether the words used
are used in such circumstances and are of such a nature
LIMITATIONS ON IMMUNITY FROM PREVIOUS as to create a clear and present danger that they will
RESTRAINT OF THE PRESS (W-O-I) bring about substantive evils that the State has a right to
1. When a nation is at war prevent. It is a question of proximity and degree. (Schenk
2. Obscene publications v. United States,1919)
3. Incitements to acts of violence and the
overthrow of force of orderly government (Near Requisites
v. Minnesota, 1931) 1. That the evil consequence of the comment or
utterance must be extremely serious and the
Prior restraint on speech, including religious speech, degree of imminence extremely high before the
cannot be justified by hypothetical fears but only by the utterance can be punished. (Cabansag v.
showing of a substantive and imminent evil which has Fernandez,1957)
taken the life of a reality already on ground. (Iglesia ni 2. The danger must not only be clear but also
Cristo v. Court of Appeals, 1996) present. (Gonzalez v. COMELEC,1969)

57
BALANCING OF INTEREST TEST Content-based & Content Neutral Regulations
It is the courts function to balance public interest and the
freedoms affected by it, and to arrive at a judgment
where the greater weight shall be placed. CONTENT NEUTRAL CONTENT BASED
REGULATION RESTRAINT
When a particular conduct is regulated in the interest of
public order, and the regulation results in an indirect,
conditional, partial abridgment of speech, the duty of the Merely concerned with The restriction is based
courts is to determine which of the two conflicting the incidents of the on the subject matter of
interests demands the greater protection under the speech, or one that the utterance or speech.
particular circumstances presented. (American merely controls the time, The cast of the
Communications Association v. Douds, 1950) place, or manner, and restriction determines
under well-defined the test by which the
INTERMEDIATE APPROACH TEST standards. challenged act is
Used when the speech restraints take the form of a assailed with.
content-neutral regulation. Only a substantial
governmental interest is required for its validity. Because No presumption of There is a presumption
regulations of this type are not designed to suppress any unconstitutionality of unconstitutionality
particular message, they are not subject to the strictest
form of judicial scrutiny but an intermediate approach The burden of proof to
–somewhere between the mere rationality that is overcome the
required of any other law and the compelling interest presumption of
standard applied to content-based restrictions. The test unconstitutionality is
is called intermediate because the Court will not merely with the government
rubberstamp the validity of a law but also require that
the restrictions be narrowly tailored to promote an Test to be used is the Test to be used is Clear
important or significant governmental interest that is Intermediate Approach and Present Danger
unrelated to the suppression of expression (Chavez v.
Gonzales, 2008) If unpaid, the business or If unpaid, the business
activity does not become or activity itself can
illegal. become illegal

FACIAL CHALLENGE
Facial challenge to a statute is allowed only when it
operates in freedom of expression. Invalidation of the
statute on its face, rather than as applied, is permitted in
the interest of preventing a chilling effect on freedom of
expression. (Separate opinion of Justice Mendoza in
Cruz v. Secretary of DENR, 2000)

OVERBREADTH DOCTRINE
A statute is overbroad where it operates to inhibit the
exercise of individual freedoms guaranteed by the
constitution, such as the freedom of religion or speech.
When the statute includes within its coverage not only
unprotected activity but also activity protected by the
constitution.

58
SPEECH REGULATION IN RELATION UNPROTECTED SPEECH
TO MEDIA Both historically and doctrinally, freedom of expression
has never been understood to be an absolute right
(Bernas).
LIVE MEDIA COVERAGE OF COURT
PROCEEDINGS There are certain and narrowly limited classes of speech,
An accused has a right to a public trial, but it is a right the prevention and punishment of which have never
that belongs to him, more than anyone else, where his been thought to raise any Constitutional problem. These
life or liberty can be held critically in balance. A public include the lewd and obscene, the profane, the libelous,
trial aims to ensure that he is fairly dealt with and would and the insulting or “fighting” words - those which, by
not be unjustly condemned and that his rights are not their very utterance, inflict injury or tend to incite an
compromised in secret conclaves of long ago. A public immediate breach of the peace. (Chaplinsky v. New
trial is not synonymous with publicized trial; it only Hampshire, 1942)
implies that the court doors must be open to those who
wish to come, to sit in the available seats, to conduct
themselves with proper decorum and to observe the trial OBSCENE MATERIAL
process. (Secretary of Justice v. Estrada, 2001) Those which deals with sex in a manner appealing to
prurient interest. Obscenity is not within the area of
protected speech or press. (Roth v. United States, 1957)
REGULATING MEDIA TO PROTECT CHILDREN’S
RIGHTS TEST FOR OBSCENITY (PI-SD-LV)
The Court, using the balancing of interest test, ruled that 1. Whether the average person, applying
the government’s interest to protect the and promote the contemporary community standards, would find
interests and welfare of the children adequately that the work, taken as a whole, appeals to the
buttresses the reasonable curtailment and valid restraint prurient interest.
on and offensive or obscene language uttered on 2. Whether the work depicts or describes, in a
prime-time television broadcast to which children have patently offensive way, sexual conduct
clear access to. (Soriano v. MTRCB, 2009) specifically defined by the applicable state law;
and
COMMERCIAL SPEECH 3. Whether the work, taken as a whole, lacks
Communication which no more than that which serious literary, artistic, political, or scientific
proposes a commercial transaction. Commercial speech value. (Miller v. California, 1973)
does not enjoy the same degree of protection as the
“core” speech (i.e., political, social or religious ideas). COMMUNITY STANDARDS
(Bernas) Does not mean that there are, or should or can be, fixed
uniform national standards of precisely what appeals to
General Rule: the “prurient interest” or is “patently offensive. These are
1. Must not be false and misleading (truthful) essentially questions of fact. (Miller v. California, 1973)
2. Should not propose an illegal transaction (lawful)

Exceptions: LIBEL
1. Government has substantial interest to protect; A libel is a public and malicious imputation of a crime, or
2. The regulation directly advances that interest; of a vice or a defect, real or imaginary, or any act,
3. It is not more extensive than is necessary to omission, condition, status, or circumstance tending to
protect their interest. cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is
dead. (Art. 353, RPC)

59
PUBLICITY 6. Levy tax in any amount to support any religious
Making the defamatory matter, after it has been written, activity or institution to teach or practice religion;
known to someone other than the person to whom it has 7. Openly or secretly participate in the affairs of
been written. (Bernas) any religious organization or group and
vice-versa. (Everson v. Board of Educators,
The evil which the law on libel seeks to punish is its 1947)
tendency to injure the person defamed, regardless of its
effect upon the public. (People v. del Rosario, 1999) The What the non-establishment calls for is government
constitutional guarantee requires a rule that prohibits a neutrality in religious matters. The evils against which the
public official from recovering damages for a defamatory Establishment Clause was intended to afford protection:
falsehood relating to his official conduct unless he 1. sponsorship,
proves that the statement was with actual malice - that 2. financial support, and
is, with knowledge that it was false or with reckless 3. active involvement of the sovereign in religious
disregard of whether it was false or not. (NY Times v. activity.
Sullivan, 1964)
Exceptions:
1. Art. VI, Sec. 29 – Prohibition on appropriation of
Freedom of Religion public money or property for the use, benefit or
support of any religion
2. Art. 6, Sec. 28 (3) – Exemption from taxation of
PRINCIPAL PARTS OF ART. III, SEC. 5 properties, directly and exclusively used for
1. Non-establishment clause religious purposes
2. Free exercise clause 3. Art. 14, Sect. 3 (3) – Optional religious
instruction in public elementary and high
A profession of faith to an active power that binds and schools
elevates man to his Creator. (Aglipay v. Ruiz, 1937)
LEMON TEST
CRITERIA TO QUALIFY AS A RELIGION Test to determine the constitutionality of policies
1. There must be belief in God or some parallel challenged under the Establishment Clause.
belief that occupies a central place in the 1. Statute must have a secular legislative purpose.
believer’s life. 2. Primary effect must be one that neither
2. The religion must involve a moral code advances nor inhibits religion.
transcending individual belief (can’t be purely 3. Must not foster excessive entanglement
subjective). between government and religion. (Peralta v.
3. Demonstrable sincerity in belief is necessary but Philpost, 2018)
the court must not inquire into the truth or
reasonableness of the belief. RELIGIOUS INSTRUCTIONS IN PUBLIC
4. There must be associational ties. (U.S. v. Seager, SCHOOLS
1965) 1. At the option of parents/guardians expressed in
writing
NON-ESTABLISHMENT CLAUSE 2. Within the regular class hours by instructors
The State cannot do the following: designated or approved by religious authorities
1. Setup a church; of the religion to which the children belong
2. Pass laws which aid one religion, aid all religion, 3. Without additional costs to the government
or prefer one religion over another; 4. Art. XIV, Sec. 4 (2) – Citizenship requirement of
3. Force nor influence a person to go to or remain ownership of educational institutions, except
away from church against his will; those established by religious groups and
4. Force him to profess a belief or disbelief in any mission boards)
religion; 5. Art. 6, Sec. 29 (2) – Appropriation allowed where
5. Punish a person for entertaining or professing ecclesiastic is employed in armed forces, in a
religious beliefs or disbeliefs, for church penal institution, or in a government-owned
attendance or non-attendance; orphanage or leprosarium Statute must have a
secular legislative purpose

60
FREE EXERCISE CLAUSE LEMON TEST
1. Freedom to believe Used to determine if a law violates the Establishment
Clause. It has the following requisites:
2. Freedom to act on one’s belief
1. The statute must have a secular legislative
purpose;
FREEDOM TO BELIEVE 2. Its principal or primary effect must be one that
It is absolute as long as the belief is confined within the neither advances nor inhibits religion;
realm of thought (Cruz). 3. The statute must not foster an excessive
government entanglement with religion. (Lemon
The absoluteness of the freedom to believe carries with v. Kurtzman, 1971)
it the corollary that the government, while it may look
into the good faith of a person, cannot inquire into a The Government should not be embarrassed in its
person’s religious pretensions (Bernas). activities simply because of incidental results, more or
less religious in character, if the purpose had in view is
FREEDOM TO ACT ON ONE’S BELIEF one which could legitimately be undertaken by
appropriate legislation. (Aglipay v. Ruiz, 1937)
Subject to regulation where the belief is translated into
external acts that affect the public welfare (Cruz). The
Not every governmental activity which involves the
moment belief flows over into action, it becomes subject
expenditure of public funds, and which has some
to government regulation. The Constitutional guaranty of
religious tint is violative of the constitutional provisions
the free exercise and enjoyment of religious profession
regarding separation of church and state, freedom of
and worship carries with it the right to disseminate
worship and banning the use of public money or
religious information. (American Bible Society v. City of
property. (Garces v. Estenzo, 1981)
Manila, 1957)

COMPELLING STATE INTEREST TEST

BENEVOLENT NEUTRALITY APPROACH
Used to determine if the interests of the State are
It allows these breaches in the wall of separation to
compelling enough to justify infringement of religious
uphold religious liberty, which after all is the integral
freedom
purpose of the religion clauses (Estrada v. Escritor, 2003)

THE THREE-STEP PROCESS

CONSCIENTIOUS OBJECTOR TEST
1. Has the statute or government action created a
A conscientious objector is individual who has claimed
burden on the free exercise of religion? – Courts
the right to refuse to perform military service on the
often look into the sincerity of the religious
grounds of freedom of thought, conscience, and/or
belief, but without inquiring into the truth of the
religion (International Covenant on Civil and Political
belief since the free exercise clause prohibits
Rights, Art. 18).
inquiring about its truth.
2. Is there a sufficiently compelling state interest to
Requisites
justify this infringement of religious liberty? – In
1. The person is opposed to war in any form
this step, the government must establish that its
2. He must show that this opposition is based
purposes are legitimate for the State and that
upon religious training and belief
they are compelling.
3. And he must show that this objection is sincere
3. Has the State in achieving its legitimate
(Clay v. United States, 1971)
purposes used the least intrusive means
possible so that the free exercise is not infringed
CLEAR AND PRESENT DANGER TEST any more than necessary to achieve the
The test can be applied with regard to the Freedom of
legitimate goal of the State? – The analysis
Religion when what is involved is religious speech as this
requires the State to show that the means in
is often used in cases of freedom of expression.
which it is achieving its legitimate State objective
is the least intrusive means, or it has chosen a
way to achieve its legitimate State end that
imposes as little as possible intrusion on
religious beliefs.

61
 Liberty of Abode and Freedom of HOLD DEPARTURE ORDER (HDO)
It is an order in writing issued by a court, commanding
Movement the Bureau of Immigration to prevent any attempt by a
SCOPE person suspected of a crime to depart from the
1. Freedom to choose and change one’s place of Philippines which shall be issued ex-parte in cases
abode involving crimes where the minimum of the penalty
2. Freedom to travel within the country and outside prescribed by law is at least six years and one day or
when the offender is a foreigner regardless of the
imposable penalty. (Rules of Court, Sec. 1)
RIGHT LIMITATION
It is filed by a prosecutor with any RTC within whose
territorial jurisdiction the alleged crime was committed
LIBERTY OF Limited upon lawful order of the
ABODE court and within the limits
prescribed by law. Exceptions:
It can be filed with ANY RTC within the judicial region
where the crime was committed if the place of the
RIGHT TO May be curtailed even by
commission of the crime is known.
TRAVEL administrative officers in the
interest of national security,
The RTCs in the City of Manila, Quezon City, Cebu City,
public health, or public safety,
Iloilo City, Davao City and Cagayan de Oro City shall
as may be provided by law.
also have the authority to act on the applications filed by
the prosecutor based on complaints instituted by the
NBI, regardless of where the alleged crime was
RIGHT TO RETURN TO ONE’S COUNTRY
committed. (Rules of Court Sec. 2)
The right guaranteed to return to one’s own country
guaranteed under International Law is separate and
distinct from the constitutional right to liberty of abode
and travel. The Bill of Rights makes no mention of the Eminent Domain
right to return to one’s own country. Such guarantees are
not inflexible and may be subject to limitation should the
It is the power of the State to forcibly take private
paramount interest so require. The President possesses
property for public use upon payment of just
residual powers inherent in her duty to protect the
compensation. It is a power inherent in sovereignty.
general welfare. The extent of their powers is not limited
to those expressly conferred by the Constitution.
The right of eminent domain is usually understood to be
(Marcos v. Manglapus, 1989)
the ultimate right of the sovereign power to appropriate,
not only the public but the private property of all citizens
A person facing criminal charges may be restrained by
within the territorial sovereignty, to public purpose.
the Court from leaving the country or, if abroad,
compelled to return. Article II, Sec. 6 of the 1987
Constitution should be interpreted to mean that while WHO MAY EXERCISE
liberty of travel may be impaired even without Court 1. The Congress
Order, appropriate executive officers or administrative 2. The President of the Philippines
authorities are not armed with arbitrary discretion to 3. The various local legislative bodies
impose limitations. They can impose limitations only 4. Certain public corporations, like the Land
based on “national security, public health, or public Authority and the National Housing Authority
safety” and “as may be provided by law. 5. Quasi-public corporations like the PNR, PLDT,
and MERALCO

Power of eminent domain is lodged primarily in the

national legislature, but its exercise may be validly
delegate to other governmental entities (Cruz)

62
Requisites But this must be use concerning the whole community
1. Necessity of exercise – Improvements for public as distinguished from individuals. But each member of
use society need not be equally interested in such use or be
2. Private property – Anything that can come under personally and directly affected by it; if the object is to
the dominion of man is subject to expropriation. satisfy a great public want or exigency, that is sufficient.
It may be real, personal, tangible, intangible. It may be limited to the inhabitants of a small or
a. Except money and choses in action restricted locality, but must be in common, and not for a
b. May be a franchise, since this is a particular individual.
property right and may therefore be
expropriated If the expropriator does not use the property for a public
c. May be property already used for public purpose, the property reverts to the owner in fee simple.
use provided it is done directly by the (Heirs of Moreno v. Mactan-Cebu International Airport,
Legislature as specific grant by authority 2005)
to the delegate.
3. Taking – This imports a physical dispossession The right of expropriation is not an inherent power in a
of the owner. Trespass without actual eviction, municipal corporation, and before it can exercise the
including material impairment of the value of the right some law must exist conferring the power upon it.
property or prevention of the ordinary uses for When the courts come to determine the question, they
which the property was intended. must only find (a) that a law or authority exists for the
exercise of the right of eminent domain, but (b) also that
the right or authority is being exercised in accordance
REQUISITES OF TAKING
with the law. If the court, upon trial, finds that neither of
1. The expropriator must enter private property.
these conditions exists or that either one of them fails,
2. The entry must be for more than a momentary
certainly it cannot be contended that the right is being
period.
exercised in accordance with law. (City of Manila v
3. The entry must be under warrant or color of legal
Chinese Community, 1919)
authority.
4. The property must be devoted to public use or
otherwise informally appropriated or injuriously JUST COMPENSATION
affected. It is described as the full and fair equivalent of the
5. The utilization of the property for public use property taken from the private owner by the
must be in such a way as to oust the owner and expropriator. Compensation is just if the owner receives
deprive him of beneficial enjoyment of the a sum equivalent to the market value of his property.
property. Market value is generally defined as the fair value of the
6. Public Use property as between one who desires to purchase and
7. Just Compensation one who desires to sell. The power of eminent domain is
not an unlimited power. Section 9, Article III of the 1987
The repository of eminent domain powers is the Constitution sets down the essential limitations upon
legislature, i.e., exercised through the enactment of laws. this inherent right of the State to take private property,
But power may be delegated to LGUs and other namely: (a) that the taking must be for a public purpose;
government entities (via charter); still, the delegation and (b) that just compensation must be paid to the
must be by law. (Manapat v. CA, 2007) owner. The State must first establish that the exercise of
eminent domain is for a public purpose. The owner is
entitled to legal interest from the time of the taking of the
CONCEPT OF PUBLIC USE property until the actual payment to place the owner in a
Public use as a requirement for the valid exercise of the position as good as, but not better than, the position he
power of eminent domain is now synonymous with was in before the taking occurred. (PEZA v Pulido, 2011)
public interest, public benefit, public welfare, and public
convenience. It includes the broader notion of indirect
public benefit or advantage. Public use as traditionally
understood as “actual use by the public” has already
been abandoned.

63
 Delay entitles the respondents to the payment of legal
FAIR MARKET VALUE CONSIDERATIONS
interest (12% per annum if counting of non-payment
1. Cost of acquisition
was on or before June 30, 2013; 6% per annum if
2. Current value of like properties
counting of non-payment was on and after July 1, 2013)
3. Actual or potential uses
from the time the property was taken by the government
4. And, in lands, their size, shape or location and
or when the landowner was deprived of the use and
the tax declarations. Determination of just
benefit of his property up to the time the Government
compensation is a judicial function. (NPC v. Sps.
paid the respondents. (LBP v. Spouses Avacena, 2016;
Florimon, 2012)
DAR v. Sta. Romana, 2014; BSP-MB Circular No. 799,
series of 2013)
Determination of just compensation is a judicial function.
(NPC v. Sps. Floriimon, 2012)
CONSEQUENTIAL DAMAGES
Findings of court appointed commissioners regarding If as result of the expropriation, the remaining lot suffers
the determination of just compensation are not binding from an impairment or decrease in value, consequential
on courts. damages may be awarded by the trial court, provided
that the consequential benefits which may arise from the
The court may substitute the estimated value of the expropriation do not exceed said damages suffered by
property by court appointed commissioners with its own the owner of the property. (Republic v. Sps. Salvador,
estimate of the value only for valid reasons: 2017)
1. The commissioners have applied illegal
principles to the evidence submitted to them; EXPROPRIATION BY LOCAL GOVERNMENT
2. They have disregarded a clear preponderance of UNITS (O-PU-JC-O)
evidence; or 1. Ordinance by the local legislative council
3. Where the amount allowed is either grossly authorizing the local chief executive to exercise
inadequate or excessive. (NPC v. De la Cruz, the power of eminent domain
2007) Title to the property shall not be 2. For public use, purpose, or welfare or for the
transferred until after actual payment of just benefit of the poor and of the landless
compensation is made to the owner (Visayan 3. Payment of just compensation; and
Refining Co. v. Camus, 1919) 4. Valid and definite offer has been previously
made to the owner of the property sought but
WHEN DETERMINED such offer was refused (Municipality of
At the time of the filing of the case Paranaque v. VM Realty Corp, 1989)

Exception: The exercise of the power of eminent domain affects a

If the value of the property increased because of the use landowner's right to private property, which is a
to which the expropriator has put it, the value is that of constitutionally protected right necessary for the
the time of the taking. (NPC v. CA, 1996) preservation and enhancement of personal dignity and
intimately connected with the rights to life and liberty.
EFFECT OF DELAY
It must undergo a painstaking scrutiny when eminent
Just compensation means not only the correct amount
domain is exercised by a local government considering
to be paid to the owner of the land but also payment
that it merely has a delegated power of eminent domain.
within a reasonable time from its taking (Eslaban v. De
(City of Manila v. Prieto, 2019)
Onorio, 2001)
The power of the eminent domain may be exercised by
If there is delay in payment or non-payment of just
LGUs for urban and reform purposes, but expropriation
compensation, the remedy is to demand for the payment
of privately-owned lands must be resorted to only after
of the fair market value of the property and not the
all other lands has been exhausted (Sec 10, RA 7279).
recovery of possession of the expropriated lots.
(Republic v. CA, 2002)

64
 Mere technical change which does not change the
Non-Impairment of Contracts substance of the contract, and which still leaves an
efficacious remedy for enforcement does not impair the
The rationale for the constitutional proscription is that obligation of contracts. A valid exercise of police power
legislative discretion as to the substantive contents of is superior to obligation of contracts.
the law cannot be delegated. What can be delegated is
the discretion to determine how the law may be APPLICABILITY OF THE PROVISION
enforced, not what the law shall be. The ascertainment This constitutional provision is applicable only if the
of the latter subject is a prerogative of the legislature. obligation of contract is impaired by legislative act
(Vivas v Monetary Board, 2013) (statute, ordinance, etc.). The act need not be by a
legislative office; but it should be legislative in nature.
Furthermore, the impairment must be substantial.
PURPOSE
(Philippine Rural Electric Cooperatives Assoc. v. DILG
To safeguard the integrity of valid contractual
Secretary, 2003)
agreements against unwarranted interference by the
State.
INAPPLICABILITY OF THE PROVISION
CONTRACT 1. Franchises, privileges, licenses, etc. – These
Any lawful agreement on property or property rights, are subject to amendment, alteration, or repeal
whether real or personal, tangible or intangible. Parties by Congress when the common good so
may be private persons only, natural, or artificial, or requires.
private persons on the one hand and the government or 2. There is neither public interest involved nor a
its agencies on the other hand. law that supports the claim – It can only be
invoked if it is against the government or when
the government (Pacific Wide Realty and
LAW (AS USED IN THIS ARTICLE) Development Corp. v Puerto Azul Land, Inc.,
Includes statutes enacted by the national legislature,
2009)
executive orders and administrative regulations
promulgated under a valid delegation of power, and
MUTUALITY OF CONTRACTS
municipal ordinance passed by local legislative bodies. It
Valid contracts should be respected by the legislature
does not include judicial decisions or adjudications
and not tampered with by subsequent laws that will
made by administrative bodies in the exercise of their
change the intention of the parties or modify their rights
quasi-judicial powers (Cruz).
and obligations.
IMPAIRMENT The will of the parties to a contract must prevail. A later
Anything that diminishes the efficacy of the contract law which enlarges, abridges, or in any manner changes
(Clements v. Nolting, 2012) the intent of the parties to the contract necessarily
impairs the contract itself and cannot be given
General Rule: Non-impairment of contracts retroactive effect without violating the constitutional
prohibition against impairment of contracts (Sangalang v.
Exception: A contract valid at the time of its execution IAC, 1988)
may be legally modified or even completely invalidated
by a subsequent law. If the law is a proper exercise of
the police power, it will prevail over the contract.

THE LAW IMPAIRS THE OBLIGATION OF

CONTRACTS IF
1. It changes the terms and conditions of a legal
contract either as to the time or mode of
performance
2. It imposes new conditions or dispenses with
those expressed if it authorizes for its
satisfaction something different from that
provided in its terms

65
 Adequate Legal Assistance and
Right Against Self-Incrimination
Free Access to Courts
The courts of justice should be as available to the What is prohibited is the use of physical or moral torture
pauper as to the affluent in the protection of their to extort information, not inclusion of his body or
respective rights. (Cruz) substances from it, in evidence. Physical examination is
not prohibited. (US v. Tan Teng, 1912)
The Integrated Bar of the Philippines provides free legal
assistance to deserving indigents, including HANDWRITING
representation in court, and similar services are available Since witnesses in a preliminary investigation are
from the Department of Justice to litigants who cannot protected by the prohibition, they may not be compelled
afford retained counsel, like the accused in a criminal to take a dictation to compare their handwriting with that
case who can ask for the assistance of counsel de found in a supposedly falsified document (Beltran v.
officio. Samson, 1929).

INDIGENT PERSONS DOCUMENTS AND RECORDS

Indigent litigants exempt from payment of legal fees: A compulsory production of the private books and
1. Whose gross income and that of their immediate papers of the owner is compelling him to be a witness
family do not exceed four thousand (P4,000.00) against himself.
pesos a month if residing in Metro Manila, and
three thousand (P3,000.00) pesos a month if Exception:
residing outside Metro Manila. The privilege which exists as to private papers cannot be
2. Who do not own real property with an assessed maintained in relation to ‘records required by law to be
value of more than fifty thousand (P50,000.00) kept in order that there may be suitable information of
pesos shall be exempt from the payment of legal transactions which are the appropriate subjects of
fees. governmental regulations and the enforcement of
restrictions validly established. (Shapiro v. United States,
The legal fees shall be a lien on any judgment rendered 1948)
in the case favorably to the indigent litigant unless the
court otherwise provides. To be entitled to the INCRIMINATING QUESTION
exemption herein provided, the litigant shall execute an The privilege against self-incrimination is not
affidavit that he and his immediate family do not earn a selfexecuting or automatically operational. It must be
gross income above mentioned, nor they own any real claimed. It follows that the right may be waived,
property with the assessed value, supported by an expressly, or impliedly, as by a failure to claim it at the
affidavit of a disinterested person attesting to the truth of appropriate time.
the litigant's affidavit.
The privilege against self-incrimination can be claimed
Any falsity in the affidavit of a litigant or disinterested only when the specific question, incriminatory in
person shall be sufficient cause to strike out the character, is addressed to the witness. It cannot be
pleading of that party, without prejudice to whatever claimed at any other time. It does not give a witness the
criminal liability may have been incurred. (Rules of Court, right to disregard a subpoena, to decline to appear
Rule 141, Section 19) before the court at the time appointed (Rosete v. Lim,
2006).
Payment of the additional docket fee, or the motion for
exemption therefrom due to indigence, must be made The right includes a right to refuse to testify to a fact
within a reasonable period. A party who was assessed a which would be a necessary link in a chain of evidence
minimal amount in filing fees may opt pay the same to prove the commission of a crime by a witness
although he may qualify as a pauper litigant. He is not, (Fernando v. Maglanoc, 1954).
by such initial payment, estopped from claiming
indigence should he subsequently be required to pay
additional fees. (Ayala land v. Heirs of Lactao, 2018)

66
 The Immunity Agreement was the result of a
APPLICATION TO PERSONS
long-drawn-out process of negotiations with each party
The right applies only to natural persons. The accused, a
trying to get the best concessions out of it. The Republic
witness, and a witness who is also an accused, may
did not have to enter that agreement. It was free not to.
avail of this right.
But when it did, it needs to fulfill its obligations. (Disini v.
● Accused – May refuse to be a witness
Sandiganbayan, 2010)
altogether.
● Witness – Cannot refuse to take the stand. He
The Public prosecutor should not hesitate to recommend
may invoke the right when an incriminating
to the court the accused’s acquittal if the evidence in his
question is asked.
possession shows that the accused is innocent. If on
appeal by the accused from a conviction by the trial
APPLICATION TO PROCEEDINGS court finds no legal basis to sustain the conviction, he
The right may be invoked in criminal proceedings and can recommend that the accused be acquitted. (Trieste
administrative investigations in or analogous to a v. Sandiganbayan, 1986)
criminal proceeding.
IMMUNITY
An accused in a criminal case may refuse, not only to
The Solicitor General may grant immunity from criminal
answer incriminatory questions, but, also, to take the
prosecution to any person who testifies to the unlawful
witness stand." If petitioner would be compelled to
manner in which the respondent has acquired any of the
testify against himself, he could suffer not the forfeiture
property in question in cases where such testimony is
of property but the revocation of his license as a medical
necessary to prove violations of this Act. (RA 1379)
practitioner. The constitutional guarantee protects the
right as well to silence: "The accused has a perfect right
to remain silent and his silence cannot be used as a EXCLUSIONARY RULE
presumption of his guilt." It is the right of a defendant "to No torture, force, violence, threat, intimidation, or any
forego testimony, to remain silent, unless he chooses to other means which vitiate the free will shall be used
take the witness stand — with undiluted, unfettered against him. Secret detention places, solitary,
exercise of his own free genuine will." (Pascual Jr. v. incommunicado, or other similar forms of detention are
Board of Medical Examiner, 1969) prohibited (Sec. 12(2), Article III)

IMMUNITY STATUTES
Rights of Persons Under Custodial
USE IMMUNITY Investigation
Under Section 18 (8), Article XIII, the provision on use
immunity prohibits the use of the witness’ compelled Questioning initiated by law enforcement officers after a
testimony and its fruits in any manner connected with person has been taken into custody or otherwise
the criminal prosecution of the witness. The witness may deprived of his freedom of action in any significant way.
still be prosecuted but his compelled testimony is (Miranda v. Arizona)
dispensed with. The provision grants the CHR the right
to grant this immunity to persons whose documents RIGHTS ARE NOT AVAILABLE WHEN:
were compelled to be submitted in evidence. 1. Before government investigators become
involved;
TRANSACTIONAL IMMUNITY 2. The confession or admission is made to a
RA 1379: An Act Providing for Forfeiture in Favor of the private individual;
State any Property found to have been Unlawfully 3. The person is undergoing audit (Bernas)
Acquired by any Public Officer or Employee:
RIGHTS AVAILABLE TO A PERSON UNDER
PROTECTION AGAINST SELF-INCRIMINATION INVESTIGATION
To allow the Republic to revoke the Agreement at this 1. The right to remain silent;
late stage will run afoul of the rule that a party to a 2. The right to be informed of such rights
compromise cannot ask for a rescission after it had 3. The right to competent and independent counsel
enjoyed its benefits. preferably of his own choice;

67
The rights begin to be available where the investigation Sec. 12(1) guarantees an accused the right to counsel
is no longer a general inquiry into an unsolved crime but not only at his trial but at any critical confrontation by the
has begun to focus on a particular suspect, the suspect prosecution at pretrial proceedings where the results
has been taken into police custody, the police carry out might well determine his fate and where the absence of
a process of interrogation that lends itself to eliciting counsel might derogate from his right to a fair trial. (e.g.,
incriminating statements. (Escobedo v. Illinois, 1964) post-indictment lineup) (US v. Wade, 1967)

The rights in this section are available to any person INAPPLICABILITY OF MIRANDA RIGHTS
under investigation for the commission of an offense. When the inquiry is no longer under the control of police
officers, the Miranda rights no longer apply
The accused has in his favor the presumption of
innocence which the Bill of Rights guarantees. Unless Exception: The Miranda rights may still apply even after
his guilt is shown beyond reasonable doubt, he must be charges are filed when the police might still attempt to
acquitted. This reasonable doubt standard is demanded extract confessions or admissions from the accused
by the due process clause of the Constitution which outside of judicial supervision (Bernas).
protects the accused from conviction except upon proof
beyond reasonable doubt of every fact necessary to UNAVAILABILITY OF MIRANDA RIGHTS
constitute the crime with which he is charged. The 1. During a police line-up, unless admissions or
burden of proof is on the prosecution, and unless it confessions are being elicited from the suspect
discharges that burden the accused need not even offer (Gamboa v. Cruz, 1988)
evidence in his behalf, and he would be entitled to an 2. During administrative investigations (Sebastian,
acquittal. (Melky Concha v. People, 2018) Jr. v. Garchitorena, 2000)
3. Confessions made by an accused at the time he
RIGHT TO REMAIN SILENT voluntarily surrendered to the police or outside
A person under investigation has the right to refuse to the context of a formal investigation; (People v.
answer any question. His silence may not be used Baloloy, 2002)
against him. 4. Statements made to a private person (People v.
Tawat, 1985)
5. Forensic investigation is not tantamount to
RIGHT TO BE INFORMED OF THE RIGHTS
custodial investigation; therefore, Miranda rights
It must be presumed to contemplate the transmission of
is not applicable (People v. Tranca, 1994)
meaningful information rather than just a ceremonial and
perfunctory recitation of an abstract constitutional
principle. EXCLUSIONARY RULE
Covers every form of confession tainted with
It is not sufficient for a police officer just to repeat to the involuntariness. It is a manifestation of the care with
person under investigation the provisions of the which the law wishes to insure the voluntariness of
Constitution. He must also explain their effects in confessions. The protection covers confessions and
practical terms. There must be an effective admissions. (Sec. 12(3), Art. III)
communication that results in understanding what is
conveyed. (People v. Rojas) CONFESSION
Declaration of an accused acknowledging his guilt of the
RIGHT TO COUNSEL offense charged, or of any offense necessarily included
Under the 1987 Constitution, counsel must be therein. (Rule 130, Sec. 33)
“competent and independent” and “preferably of his own
choice”. If the accused never raises an objection to ADMISSION
counsel given to him, he is deemed to have been Act, declaration, or omission of party as to a relevant
properly counseled. fact. (Rule 130, Sec. 26)

“Preferably of his own choice” does not mean that the

choice of lawyer by a person under investigation is
exclusive as to preclude other equally competent and
independent attorneys from handling the defense
(Bernas).

68
RIGHTS THAT MAY BE WAIVED Rights of the Accused
1. Right to remain silent
2. Right to counsel
SCOPE UNDER THE CONSTITUTION
The right of the accused to be informed of these rights is 1. Criminal Due Process
not subject to waiver 2. Presumption of Innocence
3. Bail
4. Right to be Heard
REQUISITES FOR VALID WAIVER
5. Right to be Informed
1. Made voluntarily, knowingly, and intelligently
6. Right to Speedy, Impartial, and Public Trial
2. In writing
3. With the presence of counsel (People v. Galit,
1985) CRIMINAL DUE PROCESS
ADMISSIBILITY AS EVIDENCE OF REQUISITES
CONFESSIONS GIVEN TO NEWS REPORTERS 1. Accused is heard by a court of competent
AND/OR MEDIA AND VIDEOTAPED jurisdiction;
CONFESSIONS 2. Accused is proceeded against under the orderly
Confessions given in response to a question by news processes of law;
reporters, not policemen, are admissible. Where the 3. Accused is given notice and opportunity to be
suspect gave spontaneous answers to a televised heard;
interview by several press reporters, his answers are 4. Judgment rendered was within the authority of a
deemed to be voluntary and are admissible. constitutional law (Mejia v. Pamarn, 1988)

Videotaped confessions are admissible, where it is

shown that the accused unburdened his guilt willingly, OTHER RIGHTS IN ALL CRIMINAL
openly, and publicly in the presence of the newsmen. PROSECUTIONS
Such confessions do not form part of confessions in 1. Presumed innocent until the contrary is proved,
custodial investigations as it was not given to policemen and
but to media in attempt to solicit sympathy and 2. Shall enjoy the right to be heard by himself and
forgiveness from the public. counsel,
3. To be informed of the nature and cause of the
However, due to inherent danger of these videotaped accusation against him,
confessions, they must be accepted with extreme 4. To have a speedy, impartial, and public trial,
caution. They should be presumed involuntary, as there 5. To meet the witnesses face to face,
may be connivance between the police and media men. 6. To have compulsory process to secure the
(People v. Endino, 2001) attendance of witnesses and
7. The production of evidence in his behalf. (Art. III,
What the Constitution bars is the compulsory disclosure Sec. 14)
of the incriminating facts or confessions. The rights
under Sec. 12 are guarantees to preclude the slightest TRIAL MAY PROCEED EVEN IN THE ABSENCE
use of coercion by the State, and not to prevent the OF THE ACCUSED AFTER HE HAS BEEN
suspect from freely and voluntarily telling the truth. ARRAIGNED
(People v. Andan, 1997) However, after arraignment, trial may proceed
notwithstanding the absence of the accused: Provided,
that he has been duly notified and his failure to appear is
unjustifiable. (Sec. 14, Art. III)

CRIMINAL DUE PROCESS AND PUBLICITY

The basic ingredient of criminal due process is a trial
conducted in accordance with the rudiments of fair play.
Hence, the accused has a right to complain if the judge
has a personal or pecuniary interest in the outcome of
the case

69
Sec. 14(1) is restricted to criminal cases only and purely HEARING
to their procedural requirements. The rights enumerated The constitutional right to bail necessarily includes the
in Sec. 14 (2), including the right to impartiality, are right to a hearing. When bail is denied without a hearing,
protected only during the trial. (Cruz) a fundamental right is violated (Beltran v. Diaz, 1946).

The hearing need not be separate and distinct from the

BAIL trial itself. And it need only be summary. The right to a
All persons, except those charged with offenses prompt hearing is waived by agreeing to postponements
punishable by reclusion perpetua when evidence of guilt (Munoz v. Rilloraza, 1949)
is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as Hearing on the petition for bail is required to satisfy due
may be provided by law. The right to bail shall not be process, but this may be summary in nature or held in
impaired even when the privilege of the writ of habeas the course of the trial itself. A separate hearing is not
corpus is suspended. Excessive bail shall not be indispensable (Gerardo v. CFI, 1950)
required. (Art. III, Sec. 13)
EXCESSIVE BAIL
General Rule: All persons are entitled to bail, provided
The right to bail can be rendered useless by a bail bond
that they give sufficient securities and be made before
set at an exorbitant amount. Hence, the Constitution
conviction; or be released on recognizance as may be
prohibits excessive bail. (Bernas)
provided by law. Only persons under detention may
petition for bail, for the purpose of such bail is to secure
their provisional release. PRESUMPTION OF INNOCENCE
It is the responsibility of the prosecution to establish the
Exception: Those charged with offenses punishable by defendant’s guilt beyond reasonable doubt; otherwise,
reclusion perpetua when evidence of guilt is strong. If he is entitled to acquittal. Conviction will depend not on
the person commits any offenses which, under the law the weakness of his defense but on the strength of the
existing at the time of its commission and at the time of prosecution.
the application for bail, may be punished by reclusion
perpetua, even if a lesser penalty may be imposed upon The presumption of innocence is overcome only by
conviction. proof beyond reasonable doubt. Every circumstance
favoring the innocence of the accused must be taken
The national commitment to uphold the fundamental into account. The proof against him must survive the test
human rights as well as value the worth and dignity of of reason; the strongest suspicion must not be permitted
every person has authorized the grant of bail not only to to sway judgment (People v. Austria, 1991)
those charged in criminal proceedings but also to
extraditees upon a clear and convincing showing: (1) REASONABLE DOUBT
that the detainee will not be a flight risk or a danger to It is that doubt engendered by an investigation of the
the community; and (2) that there exist special, whole proof and an inability after such investigation to let
humanitarian and compelling circumstances. (Enrile v. the mind rest upon the certainty of guilt. Absolute
Sandiganbayan, 2015) certainty of guilt is not demanded by the law to convict a
criminal charge, but moral certainty is required as to
FORM OF BAIL every proposition of proof requisite to constitute the
1. Corporate surety offense (Mupas v. People, 2008)
2. Property bond
3. Cash deposit PROOF BEYOND REASONABLE DOUBT
4. Recognizance It does not mean such a degree of proof as, excluding
possibility of error, produces absolute certainty. Only
ENTITLED TO BAIL moral certainty is required, or that degree of proof which
1. Persons charged with offenses punishable by produces conviction in an unprejudiced mind. (Rule 133,
death, reclusion perpetua or life imprisonment, Sec. 2)
when evidence of guilt is not strong
2. Persons convicted by the trial court pending
their appeal
3. Persons who are members of the AFP facing a
court martial

70
EQUIPOSE RULE DUTIES OF THE COURT WHEN THE
That where the evidence of the parties in a criminal case DEFENDANT APPEARS WITHOUT COUNSEL
is evenly balanced, the constitutional presumption of 1. It must inform the defendant that it is his right to
innocence should tilt the scales in favor of the accused. have attorney before being arraigned;
2. After giving him such information, the court must
Clearly, however, there is no equipoise if the evidence is ask him if he desires the aid of an attorney;
not evenly balanced. The equipoise rule cannot be 3. If he desires and is unable to employ attorney,
invoked where the evidence of the prosecution is the court must assign counsel de oficio to
overwhelming (Malana v. People, 2008) defend him;
4. If the accused desires to procure an attorney of
his own the court must grant him a reasonable
RIGHT TO BE HEARD time therefor.
The right to be heard can be understood to mean the
totality of the rights embodied in an adequate criminal Where duly authorized members of the bar are not
procedure system, which can be viewed as expressing available, the court may appoint any person resident of
both the qualities of the hearer and the manner of the province and of good repute for probity and ability.
hearing. (Bernas)

QUALITIES OF THE HEARER RIGHT TO BE INFORMED OF THE

The qualities demanded of the hearer are fairness and NATURE AND CAUSE OF
impartiality. Lit is demanded that judge may not play the
double role of prosecutor and judge in one and the same ACCUSATION
case. He must maintain an attitude of neutrality in regard The defendant is entitled to know the nature and cause
to the prosecution and the accused (People v. of the accusation against him so he can adequately
Castaneda, 1963) prepare for his defense (Cruz)

THE RIGHT TO PRESENT EVIDENCE AND TO BE REQUISITES

PRESENT AT THE TRIAL INCLUDES 1. Information must state the name of the accused
1. The right to testify in one’s favor and 2. Designation given to the offense by statute
2. The right to be given time to call witnesses 3. Statement of the acts or omission so
3. The right to compulsory process to compel complained of as constituting the offense
4. the attendance of witnesses in his behalf. (US v. 4. Name of the offended party
Chueco, 1917) 5. Approximate time and date of commission of the
offense
6. Place where offense was committed
ASSISTANCE OF COUNSEL 7. Every element of the offense must be alleged in
The right of the accused to counsel in criminal the complaint or information
proceedings has never been considered subject to
waiver. (Flores v. Ruiz, 1979)
RIGHT TO SPEEDY, IMPARTIAL,
The right to be assisted by counsel is deemed so AND PUBLIC TRIAL
important that it has become a constitutional right and it The right to speedy trial particularly refers to criminal
is so implemented that under our rules of procedure it is prosecutions which are at the trial stage. (Art. III, Sec. 14
not enough for the Court to apprise an accused of his (2))
right to have an attorney, it is not enough to ask him
whether he desires the aid of an attorney, but it is SPEEDY TRIAL
essential that the court should assign one de oficio if he One free from vexatious, capricious and oppressive
so desires and he is poor grant him a reasonable time to delays and is intended to relieve the accused of
procure an attorney of his own (People v. Holgado, 1950) needless anxieties and inconveniences before sentence
is pronounced upon him (Flores v. People, 1974)

The denial of the right to speedy trial is a ground for

acquittal and may be remedied through a mandamus.

71
FACTORS TO BE CONSIDERED COMPULSORY PROCESS
1. Length of delay;
2. Reason for the delay; REQUIREMENTS
3. Defendant’s assertion of his right; and 1. The witness is really material
4. Prejudice to the defendant. 2. The attendance of the witness was previously
obtained
The concept of speedy disposition is relative or flexible. 3. The witness will be available at the time desired
A mere mathematical reckoning of the time involved is 4. No similar evidence could be obtained
not sufficient. Particular regard must be taken of the
facts and circumstances peculiar to each case. Thus, Right to cross-examine is demandable only during trials.
the prolonged termination of the preliminary investigation Thus, it cannot be availed of during preliminary
alone should not be a cause for an unfettered abdication investigations.
by the Sandiganbayan of its duty to try and determine
the case. (Salcedo v. Sandiganbayan, 2019) Exception:
1. Admissibility of dying declarations and all
IMPARTIAL TRIAL exceptions to the hearsay rule
Accused is entitled to cold and neutrality of an impartial 2. Trial in absentia
judge 3. Child testimony

PUBLIC TRIAL The subpoena duces tecum shall contain a reasonable

A trial is public when anyone interested in observing the description of the books, documents or things
manner a judge conducts the proceedings in his demanded which must appear to the court as prima
courtroom may do so. There is no ban on such facie relevant.
attendance. His being a stranger to the litigants is of no
moment. No relationship to the parties need be shown TRIAL IN ABSENTIA
(Garcia v. Domingo, 1973) Trial in absentia is mandatory upon the court whenever
the accused has been arraigned, notified of the date/s of
Exception: The general public may be excluded when hearing, and his absence is unjustified (People v. Judge
the evidence to be presented in the proceeding may be Salas, 1986)
characterized as offensive to decency or public morals
(Rule 119, Sec. 13).
REQUISITES
1. The accused has already been arraigned;
Exception to the exception: However, if the trial held in
2. He has been duly notified of the trial; and
the judge’s chambers is not for the reason that the
3. His failure to appear is unjustified
proceeding may be characterized as offensive to
decency or public morals, then any evidence of an
This is mandatory upon the court whenever the accused
attempt to exclude the public (trial held in judge’s
has been arraigned, notified of the dates of the hearing,
chambers) is violative of the constitutional command.
and his absence is unjustified.

RIGHT OF CONFRONTATION VOLUNTARY WAIVER OF THE ACCUSED’S

Right of confrontation is recognized during preliminary RIGHT TO BE PRESENT
investigation proper but not during preliminary 1. After arraignment he may be compelled to
examination. A preliminary examination is generally a appear for the purpose of identification by the
proceeding ex parte in which the person charged has no witnesses of the prosecution, or
right to participate or be present (Marinas v. Siochi, 2. He unqualifiedly admits in open court after his
1981) arraignment that he is the person named as
defendant in the case on trial (Carredo v. People,
TWO-FOLD PURPOSE 1990)
1. To afford the accused an opportunity to test the
testimony of the witness by cross-examination,
and
2. To allow the judge to observe the deportment of
the witness (US v. Anastacio, 1906)

72
 Right to the Speedy Disposition of Rights Against Fines and Cruel,
Cases Degrading, Inhuman Punishments
The right to a speedy disposition of cases extends to all
parties in all cases, be it civil or administrative in nature, CRUEL, DEGRADING, AND INHUMANE
as well as all proceedings, either judicial or PUNISHMENTS
quasi-judicial; Punishment is cruel and inhumane if it involves torture or
lingering death; but the punishment of death is not cruel.
In contrast with the right to a speedy trial under Section The constitutional limit is based on the mode and nature
14 of the Constitution which is limited to the accused in of the punishment in terms of the physical pain (Legarda
criminal prosecutions which are at the trial stage. In this v. Valdez, 1902)
accord, any party to a case may demand expeditious
action to all officials who are tasked with the A penalty is cruel and unusual if it is flagrantly
administration of justice. disproportionate to the offense no matter under what
circumstances the offense may be committed. The
The right to speedy disposition of cases should be punishment imposed by the Legislature exceeded the
understood to be a relative or flexible concept such that limits of its discretionary power (Bernas).
a mere mathematical reckoning of the time involved
would not be sufficient. The right is deemed violated FOUR BASIC PRINCIPLES FOR JUDGING
only when the proceedings are attended by vexatious, SEVERE PUNISHMENT
capricious, and oppressive delays; or when unjustified 1. The punishment must not be so severe as to be
postponements of the trial are asked for and secured; or degrading to the dignity of human beings.
even without cause or justifiable motive, a long period of 2. It must not be applied arbitrarily.
time is allowed to elapse without the party having his 3. It must not be unacceptable to contemporary
case tried. (Coscolluela v. Sanbiganbayan, 2013) society
4. It must not be excessive, or it must serve a
FACTORS TO BE CONSIDERED penal purpose more effectively than a less
1. The length of delay; severe punishment would (Furman v. Georgia,
2. The reasons for the delay; 1972)
3. The assertion or failure to assert such right by
the defendant; and The accused cannot be convicted of the crime to which
4. The prejudice caused by the delay. the punishment is attached if the court finds that the
punishment is cruel, degrading or inhuman. The reason
Considering that fact-finding investigations are not yet for this is without a valid penalty, the law is not a penal
adversarial proceedings against the accused, the period law. (Bernas)
of investigation will not be counted in the determination
of whether the right to speedy disposition of cases was EXCESSIVE FINES
violated. Thus, in determining if inordinate delay exists, a A fine is considered excessive when it is clearly shown
case is deemed commenced from the filing of the formal that the nature of the violation compared with the fine is
complaint and the subsequent conduct of the disproportionate, or if it exceeds the utmost limit of the
preliminary investigation. (Tumbocon v. Sandiganbayan, punishment which the vindication of the law demands
2018) (U.S. v. Valera, 1914)

DEATH PENALTY
1. RA 7659, Death Penalty Law
2. RA 9346, Suspending Death Penalty Law

The Constitution prohibits imposing capital punishment,

but Congress has discretion to revive it under
circumstances of heinous crimes. The penalty was
abolished altogether, but left the matter open for
Congress to revive capital punishment at its discretion
“for compelling reasons involving heinous crimes”

73
HEINOUS CRIMES POLL TAX OR CEDULA TAX
Crimes are heinous for being grievous, odious, and It is a tax imposed on all persons of a certain age. At
hateful offenses and which, by reason of their inherent or present it is the tax one pays for his or her residence
manifest wickedness, viciousness, atrocity and certificate which generally serves as a personal
perversity are repugnant and outrageous to the common identification instrument (Bernas)
standards and norms of decency and morality in a just,
civilized and ordered society. (People v. Echagaray, A specific fixed sum levied upon every person belonging
1997) to a certain class without regard to his property or
occupation (Cruz)
REQUIREMENTS FOR RESTORING DEATH
PENALTY NONPAYMENT OF POLL-TAX IS THE
1. Congress define or describe what is meant by EXCEPTION TO NON-IMPRISONMENT FOR
heinous crimes; FAILURE TO PAY DEBT
2. Congress specify and penalize death only Since a tax is not a debt but arises from the obligation of
crimes that qualify as heinous as defined or the person to contribute his share in the maintenance of
described, and/or designate crimes punishable the government, failure to pay the same can be validly
by reclusion perpetua to death in which the latter punished with imprisonment. This exception is adopted
case, death can only be imposed upon pursuant to the social justice policy (Cruz)
attendance of circumstances duly proven in
court;
3. Congress, in enacting the death penalty bill, be Rights Against Double Jeopardy
singularly motivated by “compelling reasons
involving heinous crimes”.
The right against double jeopardy prohibits the
CUSTODIAL CRUELTIES AND INADEQUATE prosecution of any person for a crime of which he has
PENAL FACILITIES previously been acquitted or convicted.
Unless facilities of the penitentiary are brought up to a
level of constitutional tolerability, they should not be The rule protects the accused not against the peril of
used for the confinement of prisoners at all (Bernas). second punishment, but against being again tried for the
same offense. (People v. Ylagan, 1933)

PURPOSE
Non-Imprisonment for Debts To set the effects of the first prosecution forever at rest,
assuring the accused that he shall not thereafter be
subjected to the dangers and anxiety of a second
charge against him for the same offense (Cruz)
DEBT
Refers to any civil obligation arising from contract,
expressed or implied. Debt includes even debts ELEMENTS FOR VALID CLAIM OF DOUBLE
obtained through fraud since no distinction is made in JEOPARDY
the Constitution. (Cruz) 1. A first jeopardy must have attached prior to the
second;
As long as the obligation to pay arises ex contractu, it is 2. The first jeopardy must have been validly
considered a private matter between the creditor and the terminated; and
debtor and the punitive arm of the State cannot be 3. The second jeopardy must be for the same
employed in a criminal action to enforce the former’s offense as that in the first (Canceran v. People,
right. The remedy in this case is a civil action only for the 2015)
recovery of the unpaid debt.
WHEN FIRST JEOPARDY TERMINATES
1. By acquittal;
2. By final conviction;
3. By dismissal without express consent of the
accused; and
4. By dismissal on merit

74
DOUBLE JEOPARDY ATTACHES ONLY WHEN MOTION TO QUASH
1. There has been a valid indictment; Dismissal on motion to quash prevents jeopardy,
2. Before a competent court; because it does not amount to acquittal on merits since
3. After arraignment; it is directed at the insufficiency of the first information.
4. A valid plea having been entered; and The defendant is deemed not to have been charged.
5. The case was dismissed or otherwise terminated (Cañiza v. People, 1988)
without the express consent of the accused
(Icasiano v. Sandiganbayan, 1992) DISMISSAL ON DEMURRER
The Court has held that a dismissal on demurer is
equivalent to an acquittal on the merits, and
CRIMES COVERED BY THE RULE AGAINST
consequently, a bar to a subsequent prosecution for the
DOUBLE JEOPARDY same offense or an offense which necessarily includes
1. For the original offense charged
or is necessarily included in the offense charged in the
2. For any attempt to commit the same or
former complaint but dismissal was predicated either on
frustration thereof
the failure of the prosecution to prove the guilt of the
3. For any offense which necessarily includes or is
accuse beyond reasonable doubt, or on the right of the
necessarily included in the offense charged
accused to a speedy trial. (People v. Mogol, 1984)
SUPERVENING EVENT
WAIVER OF PROTECTION
The accused may be prosecuted for another offense if a
The protection against double jeopardy may be waived
subsequent development changes the character of the
by the accused. Thus, when the accused himself files or
first indictment under which he may have already been
consents to the filing of a motion for reconsideration or
charged or convicted.
modification, double jeopardy cannot be invoked
because the accused waived his right not to be placed
Where after the first prosecution a new fact supervenes
therein by filing such motion. This is because a motion
for which the defendant is responsible, which changes
for reconsideration or modification filed by or with
the character of the offense and, together with the facts
consent of the accused renders the entire evidence open
existing at the time, constitutes a new and distinct
for the review of the trial court without, however,
offense, the accused cannot be said to be in second
conducting further proceedings, such as the taking of
jeopardy if indicted for the new offense. (People v. City
additional proof. (People v. Astudillo, 2003)
Court of Manila, Br. XI, 1983)

DOUBLE JEOPARDY FOR THE SAME ACT Rights Against Involuntary

The constitutional protection against double jeopardy is
available only where an identity is shown to exist
Servitude
between the earlier the subsequent offense charged.
ILLEGAL DETENTION
The provision on illegal detention is an added security to
The identity of offenses does not require on-to-one
the due process clause, and to the guarantee of freedom
correspondence between the facts and law involved in
of speech, press and expression.
one offense is completely included in the other (Bernas)

An offense penalized by municipal ordinance, is by INVOLUNTARY SERVITUDE

definition, different from an offense under a statute. The A condition of enforced or compulsory service of one to
two offenses would never constitute the same offense another no matter under what form such servitude may
having been promulgated by different rule-making be disguised (Rubi v. Provincial Board, 1919)
authorities and the plea of double jeopardy would never
lie. (People v. Relova, 1987) Exceptions:
1. Punishment for a crime for which the party has
been duly convicted.
2. Personal military or civil service in the interest of
national defense.

75
 3. In naval enlistment: a person who enlists in a ELEMENTS
merchant ship may be compelled to remain in 1. There must be a law;
service until the end of the voyage. 2. The law imposes a penal burden on a named
4. Posse comitatus for the apprehension of individual or easily ascertainable members of a
criminals group;
5. Return to work order issued by the DOLE 3. The penal burden is imposed directly by the law
Secretary or the President. without judicial trial.
6. Minors under patria potestas are obliged to obey
their parents. TWO KINDS OF BILL OF ATTAINDER
1. Bill of attainder proper (legislative imposition of
the death penalty)
Ex Post Facto Laws and 2. Bill of pains and penalties (imposition of a lesser
Bill of Attainder penalty)

The elimination of the requirement of notice at the time

EX POST FACTO LAWS when the bank inquiry order is applied for, by itself, is
1. Makes an action done before the passing of the
not a removal of any lawful protection to the account
law and which was innocent when done
holder because the AMLC is only exercising its
criminal, and punishes the action; or
investigative powers at this stage. Indeed, the AMLA, in
2. Aggravates a crime or makes it greater than
recognition of the ex post facto clause of the
when it was committed; or
Constitution, provides that the penal provisions shall not
3. Changes the punishment and inflicts a greater
apply to acts done prior to its effectivity. (Estrada v.
punishment than the law annexed to the crime
Sandiganbayan, 2018)
when it was committed; or
4. Alters the legal rules of evidence and receives
less or different testimony than the law required
at the time of the commission of the offense in
order to convict the defendant.
5. Assumes to regulate civil rights and remedies
only but in effect imposes a penalty or
deprivation of a right which when done was
lawful.
6. Deprives a person accused of a crime of some
lawful protection to which he has become
entitled, such as the protection of a former
conviction or acquittal, or a proclamation of
amnesty (Bernas).

The ex-post facto clause only prohibits retrospective

penal laws. A law on criminal procedure can be an
ex-post facto law when it alters the legal rules of
evidence or mode of trial unless the changes operate
only in a limited and unsubstantial manner to the
disadvantage of the accused.

A law shortening the prescriptive period for a crime is

ex-post facto law.

BILL OF ATTAINDER
A legislative act that inflicts punishment without trial, its
essence being the substitution of legislative fiat for a
judicial determination of guilt (Cruz)

76
 General Principles

A public office is the right, authority and duty, created and

conferred by law, by which, for a given period, either fixed
by law or enduring at the pleasure of the creating power,
an individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the
benefit of the public. The individual so invested is a public
officer. (Laurel v. Desierto, 2002)

CHARACTERISTICS
1. Public office is public trust
2. Public office is personal to the incumbent and is
not a property which passes to his heirs.
3. There is no such thing as a vested interest or an
estate in an office, or even an absolute right to hold
it.

LAW ON PUBLIC Mode of Acquiring Title to Public

OFFICERS Office
1. Appointment
2. Election
3. Designation
4. Other Modes such as through succession by
operation of law and by direct provision of law.

APPOINTMENT
Appointment is an essentially discretionary power and
must be performed by the officer in which it is vested
according to his best lights, the only condition being that
the appointee should possess the qualifications required
by law. If he does, then the appointment cannot be faulted
on the ground that there are others better qualified who
should have been preferred (Luego v. CSC, 1986)

REQUISITES FOR VALID APPOINTMENT

1. The position should be vacant
2. The appointing authority is vested with the power
to appoint when the appointment was made
3. The appointment was accepted by taking an oath
and discharging his duties.

HOW PUBLIC OFFICERS ARE APPOINTED

Appointments in the civil service shall be made only
according to merit and fitness to be determined, as far as
practicable, and, except to positions which are
policy-determining, primarily confidential, or highly
technical, by competitive examination. (Art. IX B, Sec. 2 (2))

77
 Modes and Kinds of Appointments Eligibility and Qualifications

Those eligible are persons who obtained a passing

TEMPORARY APPOINTMENT grade in the civil service examination and whose name is
An appointment in the civil service issued to a person entered in the register of eligible from which
who meets all the requirements for the position to which appointments must be made. (Administrative Code,
he is being appointed, including the appropriate Book V, TITLE 1-A, Sec.5 (8))
eligibility prescribed, in accordance with the provisions
of law, rules and standards promulgated in pursuance Eligibility is the state or quality of being legally fit or
thereof. It lasts until lawfully terminated, thus, enjoys qualified to be chosen.
security of tenure. (P.D. 807 (Civil Service Decree), Sec.
25(a)) QUALIFICATION
Acts which a person is required to do before-entering
PERMANENT APPOINTMENT upon position. It means two things:
A kind of appointment issued to a person who meets all 1. Endowments, qualities, or attributes that make
the requirements for the position to which he is being an individual eligible for public office
appointed, except the appropriate civil service eligibility, 2. Act of entering into performance of public office
in the absence of appropriate eligibilities and it becomes
necessary in the public interest to fill a vacancy. (P.D. FORMAL QUALIFICATIONS (C-A-P-C-A-R-E-S)
807, Sec. 25(b)) 1. Citizenship
2. Age
PROVISIONAL APPOINTMENT 3. Political affiliation
One which may be issued, upon the prior authorization 4. Civil service examination
of the Commissioner of the CSC, to a person who has 5. Ability to read and write
not qualified in an appropriate examination but who 6. Residence
otherwise meets the requirements for appointment to a 7. Education
regular position in the competitive service, whenever a 8. Suffrage
vacancy occurs and the filling thereof is necessary in the
interest of the service and there is no appropriate
register of eligibles at the time of appointment. (Jimenea RESTRICTIONS ON THE POWER OF
v. Guanzon, 1968) CONGRESS TO PRESCRIBE QUALIFICATIONS
1. Congress cannot exceed its constitutional
MIDNIGHT APPOINTMENT powers
Made by the President or acting president within 2 2. Congress cannot impose conditions of eligibility
months immediately before the next presidential inconsistent with constitutional provisions
elections and up to the end of his term, whether or not it 3. The qualification must be germane to the
is confirmed by the Commission. position, or must be relevant to the office for
they are prescribed
AD INTERIM APPOINTMENT 4. Where the Constitution establishes specific
It is made while Congress is not in session, before eligibility requirements for a particular
confirmation by the CA; it is immediately effective and constitutional office, the constitutional criteria
ceases to be valid if disapproved or by-passed by the are exclusive, and Congress cannot add to them
CA or until the next adjournment of the Congress except if the Constitution expressly or impliedly
gives the power to set qualifications
5. Congress cannot prescribe qualifications so
detailed as to practically amount to making a
legislative appointment: it is unconstitutional and
therefore void for being a usurpation of
executive power

78
 Disabilities and Inhibition of Public SPECIAL DISQUALIFICATIONS UNDER THE
CONSTITUTION
Officers 1. The President, Vice-president, the Members of
DISQUALIFICATION the Cabinet, and their deputies or assistants
The presence of circumstances and qualities which shall not, unless otherwise provided in the
makes an individual ineligible from holding a public Constitution, hold any other office or
office. Lack of disqualifications is itself a qualification. employment during their tenure. (Art. VIII, Sec.
13)
It is the legislature who has the right to prescribe 2. No Senator or Member of the House of
disqualifications in the same manner that it can Representatives may hold any other office or
prescribe qualifications, provided the prescribed employment in the Government or any
disqualifications do not violate the Constitution. subdivision, agency or instrumentality thereof
including government-owned or controlled
corporations or their subsidiaries, during his
CONSTITUTIONAL DISQUALIFICATIONS AND
term, without forfeiting his seat. Neither shall he
DISABILITIES be appointed to any office which may have been
1. No candidate who has lost in any election, shall
created or the emoluments thereof increase
within one year after such election, be appointed
during the term for which he was elected. (Art.
to any office in the Government or any
VI, Sec. 13)
Government-owned or controlled corporations
3. The Members of the Supreme Court and of other
or in any of their subsidiaries. (Sec. 6, Art. IX-B)
courts established by law shall not be
2. No elective official shall be eligible for
designated to any agency performing
appointment or designation in any capacity to
quasi-judicial or administrative functions. (Art.
any public office or position during his tenure
VIII, Sec. 12)
unless they forfeit their seat (Sec. 7(1), Art. IX- B)
4. No Member of a Constitutional Commission
3. No appointive official shall hold any other office
shall, during his tenure, hold any other office or
or employment in the Government or any
employment. The same disqualification applies
subdivision, agency or instrumentality thereof,
to the Ombudsman and his deputies. (Art. IX-A,
GOCCs or their subsidiaries, unless otherwise
Sec. 2; Art. XI, Sec. 8)
allowed by law or his position’s primary
5. The Ombudsman and his Deputies shall not be
functions. (Sec. 7(2), Art. IX-B)
qualified to run for any office in the election
4. The President, Vice-President, the Members of
immediately succeeding their cessation from
the Cabinet, and the deputies or assistants shall
office. (Art. XI, Sec. 11)
not, unless otherwise provided in the
6. Members of Constitutional Commissions, the
Constitution, hold any other office of
Ombudsman and his deputies must not have
employment during their tenure
been Candidates for any elective position in the
elections immediately preceding their
GENERAL DISQUALIFICATIONS UNDER THE appointment. (Art. IX-B, IX-C, IX-D, Sec. 1; Art.
CONSTITUTION XI, Sec. 8)
1. No candidate who lost in an election shall, within 7. Members of the Constitutional Commissions,
one year after such election, be appointed to the Ombudsman and his deputies are appointed
any office in Government. (Art. IX-B, Sec.6) to a term of 7 years, without reappointment. (Art.
2. No elective official shall be eligible for IX-B, Sec. 1(2); Art. IX-C, Sec. 1(2); Art. IX-D,
appointment or designation in any capacity to Sec. 1(2); Art. IX, Sec. 11)
any public office or position during his tenure. 8. The spouse and relatives by consanguinity or
(Art. IX-B, Sec. 7) affinity within the fourth civil degree of the
3. Unless otherwise provided by law or by the President shall not during his tenure be
primary functions of his position, no appointive appointed as Members of the Constitutional
official shall hold any other position in Commissions, or the Office of the Ombudsman,
Government. (Art. IX-B, Sec. 7(2)) or as Secretaries, Undersecretaries, chairmen or
heads of bureaus or offices, including
government-owned or controlled corporations
(Art. VII, Sec. 13, Art. VII)

79
General Rule: Appointive and elective officials cannot 3. Mandatory – Powers conferred on public officers
hold multiple employment or office during their tenure. are generally construed as mandatory although
the language may be permissive, where they are
Exception: Appointive officials may hold other office for the benefit of the public or individuals.
when allowed by law or by the primary functions of their 4. Permissive – Statutory provisions define the time
positions. (Sec. 7, Art IX-B) and mode in which public officers will discharge
their duties, and those which are obviously
designed merely to secure order, uniformity,
system and dispatch in public business are
Power and Duties of Public Officers generally deemed directory.
● If the act does not affect third persons and
is not clearly beneficial to the public,
SCOPE OF POWER OF A PUBLIC OFFICER permissive words will not be construed as
1. Expressly conferred upon him by law under mandatory.
which he has been appointed or elected.
2. Expressly annexed to the office by law which
created it or some other law referring to it.
POWER OF CONTROL
3. Attached to the office as incidents to it. It implies the power of an officer to manage, direct or
4. Generally, the powers are prescribed by the govern, including the power to alter or modify or set
Constitution or statutes. They only have those aside what a subordinate had done in the performance
powers expressly granted to them. of his duties and to substitute his judgment for that of
5. If broader powers are desirable, must be the latter.
conferred by the proper authority; cannot be
merely assumed nor created by the courts. POWER OF SUPERVISION
Supervisory power is the power of mere oversight over
AUTHORITY OF PUBLIC OFFICERS an inferior body which does not include any restraining
derived from the people themselves. The people, directly authority over such body. A supervising officer merely
or through representatives, create offices and agencies sees to it that the rules are followed, but he himself does
as they deem desirable for the administration of the not lay down such rules, nor does he have the discretion
public function. to modify or replace them.

Sovereignty resides in the people and all government

authority emanates from them. (Sec. 1, Art. II)
Rights of Public Officers
CLASSIFICATION OF POWERS AND DUTIES
1. Ministerial – Official duty is ministerial when it is 1. Right to Wages;
absolute, certain and imperative involving merely 2. Right to Preference in Promotion subject to the
execution of a specific duty arising from fixed discretion of the appointing authority;
and designated facts. 3. Right to vacation and sick leave;
● Where the officer or official body has no 4. Right to Maternity Leave;
judicial power or discretion as to the 5. Right to Retirement Pay;
interpretation of the law, and the course to 6. Other rights:
be pursued is fixed by law, their acts are a. Right to reimbursement for expenses
ministerial only. (State ex rel. School Dist. incurred in due performance of duty.
v. Ellis, 1956)
2. Discretionary – Acts which necessarily require This does not include transportation
the exercise of reason in the adaptation of allowance for those using government
means to an end, and discretion in determining vehicles
how or whether the act shall be done, or the
course pursued. b. Right to be indemnified against liabilities
● When the law commits to any officer the they may incur in bona fide discharge of
duty of looking into facts and acting upon duties;
them, not in a way which it specifically c. Right to longevity pay.
directs, but after a discretion in its nature, d. Right to self-organization
the function is discretionary.

80
PROMOTION PREVENTIVE SUSPENSION
The movement from one position to another with A disciplinary measure which is intended to enable the
increase in duties and responsibilities as authorized by disciplinary authority to investigate charges against the
law and usually accompanied by an increase in pay. respondent by preventing the latter from using his
position or office to influence witnesses, to intimidate
them, or to tamper with the records which may be vital in
NEXT-IN-RANK RULE
the prosecution of the case against him.
The concept of next-in-rank does not import any
mandatory or peremptory requirement that the person
next in rank must be appointed to the vacancy. The KINDS OF PREVENTIVE SUSPENSION
appointing authority has the discretion to fill the vacancy 1. Preventive suspension pending investigation
under the next-in-rank rule or by any other method 2. Preventive suspension pending appeal
authorized by law.
PENDING PENDING APPEAL
The salary of a public officer may not, by garnishment, INVESTIGATION
attachment or order of execution, be seized before being
paid to him and appropriated for the payment of his Not a penalty, but only a Punitive in character. It is
debts. means of enabling the in effect subsequently
disciplining authority to considered illegal if
conduct unhampered respondent is exonerated
Liabilities of Public Officers investigation and the administrative
decision finding him guilty
is reversed
General Rule: public officer is sustained by another due
to official scope of his authority. GENERAL RULE If exonerated – reinstated
No right to compensation with full pay for the period
Exception: or backwages even if of suspension
1. Bad faith; employee is exonerated
2. Malice; If conviction is affirmed-
3. Negligence; the period of his
4. Death or Injury to persons or damage to EXCEPTION suspension becomes part
property. Suspension unjustified of the final penalty of
suspension or dismissal.
THREE-FOLD RESPONSIBILITY OF PUBLIC
OFFICERS
1. Civil Liability – If the individual is damaged by
such violation, the official shall, in some cases,
ILLEGAL DISMISSAL, REINSTATEMENT, AND
be held liable civilly to reimburse the injured
party. BACK SALARIES
2. Criminal Liability – If the law has attached a Reinstatement and back salary or wages are separate
penal sanction, the officer may be punished reliefs given to an illegally dismissed official or employee.
criminally. The mere fact that an officer is acting
in an official capacity will not relieve him from The right to receive full backwages corresponds to the
criminal liability. salary at the time of his dismissal until reinstatement.
3. Administrative Liability – Such violation may also Any income he may have obtained during the litigation of
lead to imposition of fine, reprimand, suspension the case shall not be deducted from this amount.
or removal from office, as the case may be. (Campol v. Balao-As and Sianen, 2016)

81
TO BE ENTITLED TO BACKWAGES DE FACTO OFFICER
1. The employee must be found innocent of the One who assumed office under the color of a known
charges appointment or election but which appointment or
2. The suspension must be unjustified. election is void for reasons that the officer was not
eligible, or that there was want of power in the electing
body, or that there was some other defect or irregularity
in its exercise, wherein such ineligibility, want of power,
Immunity of Public Officers or defect being unknown to the public.

General Rule: While the doctrine of state immunity REQUISITES

appears to prohibit only suits against the state without 1. Valid and legitimate office;
its consent, it is also applicable to complaints filed 2. Actual physical possession of the office in good
against officials of the state for acts allegedly performed faith;
by them in the discharge of their duties. 3. Color of right or general acquiescence by the
public.
The suit is regarded as one against the state where
satisfaction of the judgment against the officials will
require the state itself to perform a positive act, such as Termination of Official Relations
the appropriation of the amount necessary to pay the
damages awarded against them.
MODES OF TERMINATING OFFICIAL
Exception: The rule does not apply where the public RELATIONSHIPS
official is charged in his official capacity for acts that are 1. Expiration of term or tenure;
unauthorized or unlawful and injurious to the rights of 2. Reaching the age limit for retirement;
others. 3. Resignation;
4. Recall;
Neither does it apply where the public official is clearly 5. Removal;
being sued not in his official capacity but in his personal 6. Abandonment;
capacity, although the acts complained of may have 7. Acceptance of an incompatible office;
been committed while he occupied a public position. 8. Abolition of office;
(Dayrit v. Phil. Pharmawealth, 2007) 9. Prescription of the right to office;
10. Impeachment;
11. Death;
Distinguish: De Facto and De Jure 12. Failure to assume office;
13. Conviction of a crime; or
Officers 14. Filing of a Certificate of Candidacy.

DE JURE OFFICER OUSTER

One who is in all respects legally appointed or elected An ouster of incumbent public officer before the
and qualified to exercise the office. expiration of his term implies that the office exists after
the ouster. Another term used is dismissal.
USURPER
One who takes possession of the office and undertakes RECALL
to act officially without any color of right or authority, An electoral mode of removal employed directly by the
either actual or apparent. people themselves through the exercise of their right of
suffrage. It is a political question not subject to judicial
Note that it is the color of authority, not the color of title, review, and has to be decided by the people in their
that distinguishes a de facto officer from a usurper. The sovereign capacity. (Evardone v. COMELEC, 1991)
authority to hold office is by some election or
appointment, however irregular or informal.

82
The exercise of power of recall is subject to the following It is the CSC which is empowered to look into the
limitations provided for by law: validity of creation of positions and appointments of
1. any elective local official may be the subject of a personnel appointed by the Mayor whose appointments
recall election only once during his term of office were confirmed by the CSC. There being a valid
for loss of confidence; and appointment confirmed by CSC and the concerned
2. no recall shall take place within one (1) year from personnel having rendered services, payment of their
the date of the official’s assumption to office or salaries is proper and legal. (Tolentino v. Loyola, 2011)
one (1) year immediately preceding a regular
election (Sec. 74, R.A. 7160 cited in Goh v. VALID PERSONNEL ACTIONS
Bayron, 2014) 1. Extending temporary appointment, however, this
must not amount to removal.
2. Transfer or reassignment but this must not
Civil Service involve a reduction in rank, status, and salary,
without break in service.
3. Detail must be made in the interest of public
The Civil Service embraces all branches, subdivisions, service, absent showing of manifest abuse or
instrumentalities and agencies of the Government, improper motive or purpose.
including government-owned and controlled
corporations with original charters (Sec. 2(1), Art. IX-B) CLASSES OF SERVICE
1. Career Service
CONSTITUTIONAL FUNCTIONS a. Entrance based on merit and fitness to
1. Establishes a career service; be determined by competitive
2. Adopts measures to promote morale, efficiency, examination or based on highly
integrity, responsiveness, progressiveness and technical qualification;
courtesy in the Civil Service; b. Opportunity for advancement; and
3. Strengthens the merits and rewards system; c. Security of tenure
4. Integrates all human resources and development
programs for all levels and ranks; and 2. Non-Career Service
5. nstitutionalized a management climate a. Entrance on bases other than those of
conducive to public accountability. (Art. IX-B, the usual tests of merits and fitness
Sec. 3) utilized for the career service; and
b. Tenure, which is limited to a period
LIMITATIONS specified by law, which is co-terminus
1. It cannot order the replacement of the appointee with that of the appointing authority or
simply because it considers another employee subject to his pleasure, or which is
to be better qualified (Lapinid v. CSC) limited to the duration of a particular
2. The CSC cannot co-manage or be a surrogate project for which purpose employment
administrator of government offices and was made.
agencies.
3. It cannot change the nature of the appointment KINDS OF CAREER SERVICE
extended by the appointing officer (Luego v. 1. Open Career Positions – prior qualification via
CSC, 1986) examination;
2. Closed Career Positions – those highly technical
PERSONNEL ACTION position;
Any action denoting movement or progress of personnel 3. Career Executive Service – Undersecretaries,
in the civil service. It includes: Bureau Directors;
1. Appointment through certification 4. Career Officers – those appointed by the
2. Promotion President like those in the Foreign Service;
3. Transfer 5. Commissioned Officers and enlisted men of the
4. Reinstatement AFP – governed by separate merit
5. Reemployment 6. Personnel of GOCCs – whether performing
6. Detail governmental or proprietary functions,
7. Reassignment with original charters; and
8. Demotion (EO 292, Rule V, Sec. 1, cited in City 7. Permanent laborers – whether skilled,
Mayor Debulgado v. CSC, 1994) semi-skilled, or unskilled.

83
KINDS OF NON-CAREER MISCONDUCT IN OFFICE
1. Elective official and their personal or confidential This refers to any unlawful behavior by a public officer in
staff; relation to the duties of his office, willful in character. The
2. Department heads and other officials of Cabinet term embraces acts which the office holder had no right
rank who hold positions at the pleasure of the to perform, acts performed improperly, and failure to act
President and their personal or confidential staff; in the face of an affirmative duty to act.
3. Chairpersons and members of commissions and
boards with fixed terms of office and their GRAVE MISCONDUCT
personal or confidential staff; Consists in a government official's deliberate violation of
4. Contractual personnel or those whose a rule of law or standard of behavior. It is regarded as
employment in the government is in accordance grave when the elements of corruption, clear intent to
with a special contract to undertake a specific violate the law, or flagrant disregard of established rules
work or job; and are present. (NPC v. CSC, 2012)
5. Emergency and seasonal personnel.
In grave misconduct, as distinguished from simple
EXCEPTIONS TO THE REQUIREMENT OF misconduct, the elements of corruption, clear intent to
COMPETITIVE EXAMINATIONS violate the law, or flagrant disregard of established rule
1. Policy-determining Position – one charged with must be manifest. Corruption as an element of grave
laying down of principal or fundamental misconduct consists of the act of an official or employee
guidelines or rules; who unlawfully or wrongfully uses his station or
2. Primary Confidential Position – one denoting character to procure some benefit for himself or for
not only confidence in the aptitude of the another, contrary to the rights of others. (Gabon v.
appointee for the duties of the office but Merka, 2011)
primarily close intimacy which ensures freedom
of intercourse without embarrassment or
freedom from misgiving or betrayals of personal SIMPLE NEGLECT OF DUTY
trust on confidential matters of state, or one This is defined as the failure of an employee to give
declared to be so by the President upon proper attention to a required task or to discharge a duty
recommendation of the Civil Service due to carelessness or indifference.
Commission.
3. Highly Technical Position – requires the On the other hand, gross neglect of duty is characterized
appointee to possess technical skill or training in by want of even the slightest care, or by conscious
the supreme or superior degree. indifference to the consequences, and in cases involving
public officials, by flagrant and palpable breach of duty.
It is the omission of that care that even inattentive and
thoughtless men never fail to take on their own property.
Accountability of Public Officers (Land Bank of the Philippines v. San Juan Jr., 2013)

GOOD FAITH ABANDONMENT OF THE CONDONATION

It is ordinarily used to describe that state of mind DOCTRINE
denoting honesty of intention and freedom from Under the condonation doctrine, a public official cannot
knowledge of circumstances which ought to put the be removed for administrative misconduct committed
holder upon inquiry. In other words, good faith is actually during a prior term, since his re-election to office
a question of intention. operates as a condonation of the officer's previous
misconduct to the extent of cutting off the right to
Although this is something internal, one can ascertain a remove him therefor. (Carpio-Morales v. Court of
person's intention not from his own protestation of good Appeals, 2015)
faith, which is self-serving, but from evidence of his
conduct and outward acts. (Dumduma v. CSC, 2011)

84
The prospective application of Carpio-Morales should be General Rule: The Office of the Ombudsman has
reckoned from April 12, 2016 because that was the date disciplinary authority over all elective and appointive
on which this Court had acted upon and denied with officials of the government and its subdivisions,
finality the motion for clarification/partial reconsideration. instrumentalities and agencies, including Members of
(Crebello v. Ombudsman, 2019) the Cabinet, local government, government-owned or
controlled corporations and their subsidiaries (Sec. 21,
Notwithstanding the declaration in Carpio-Morales that R.A. 6770)
Section 14(1) of the Ombudsman Act is ineffective and
of Section 14(2) is invalid, it does not exonerate Judge Exceptions:
Sison from administrative liability because he failed to 1. Officials who may be removed only by
consider the principle of judicial stability or impeachment
non-interference. Where decisions of certain 2. Members of Congress
administrative bodies are appealable to the CA, these 3. Members of the Judiciary (Sec. 21, R.A. 6770)
adjudicative bodies, like the Sandiganbayan, are
co-equal with the RTCs and their actions are logically Exception to the exception: However, the Office of the
beyond the control of the RTC. (Erice v. Judge Sison, Ombudsman has the power to investigate any serious
2017) misconduct in office committed by officials removable
by impeachment, for the purpose of filing a verified
complaint for impeachment, if warranted (Sec. 22, R.A.
THE OMBUDSMAN AND THE 6770)
SPECIAL PROSECUTOR
FUNCTIONS The Ombudsman exercises primary jurisdiction to
1. Investigative and Fact-Finding powers investigate any act or omission of the public officer in
2. Prosecute on its own or on complaint by any criminal cases cognizable by the Sandiganbayan It has
person, any act or omission of any public officer concurrent jurisdiction with other investigative agencies
or employee, office or agency, when such act or with respect to criminal cases involving public officers
omission appears to be illegal, unjust, improper cognizable by regular courts (Ombudsman v. Rodriguez,
or inefficient. 2010)
3. Impose penalties.
Under PD 1487, as amended, Tanodbayan was both
QUALIFICATIONS OF OMBUDSMAN AND prosecutor and Ombudsman. Harmonization of the laws
left the Special Prosecutor to continue to exercise
DEPUTIES
powers of the Tanodbayan except those specifically
1. Natural born citizen of the Philippines
passed on to the Ombudsman. Since the power to
2. At least 40 years old at time of appointment
investigate has been vested to the Ombudsman, the
3. Of recognized probity and independence
Special Prosecutor can only investigate and prosecute if
4. Member of the Philippine bar
authorized by the Ombudsman.
5. Must not have been candidate for any elective
office in the immediately preceding election
6. Special qualifications of an Ombudsman: must APPOINTMENT OF SPECIAL PROSECUTOR
have been either a judge or engaged in the 1. The President selects from a list of at 21
practice of law for 10 years or more nominees prepared by the Judicial and Bar
Council
2. From a list of 3 nominees for each vacancy
DISQUALIFICATION
thereafter, which shall be filled within 3 months
1. Cannot hold any other office or employment
after it occurs,
during his tenure;
3. Each list shall be published in a newspaper of
2. Cannot engage in the practice of any profession
general circulation.
or in the active management or control of any
4. The Special Prosecutor shall serve for a term of
business which may be affected by the functions
7 years without reappointment.
of his office;
3. Cannot be financially interested, directly or
indirectly, in any contract with or in any franchise
or privilege granted by the Government, any of
its subdivisions, agencies or instrumentalities,
including GOCCs or their subsidiaries.

85
SPECIAL PROSECUTOR QUALIFICATIONS c. Civil and criminal cases filed pursuant to and in
1. Natural born citizens of the Philippines connection with Executive Order Nos. 1, 2, 14
2. At least 40 years old and 14-A, issued in 1986.
3. Of recognized probity and independence ● Provided, That the Regional Trial Court
4. Member of the Philippine Bar shall have exclusive original jurisdiction
5. Must not have been candidates for any elective where the information: (a) does not
national or local office in the immediately allege any damage to the government or
preceding election whether regular or special. any bribery; or (b) alleges damage to the
government or bribery arising from the
AUTHORITY AND RESPONSIBILITIES same or closely related transactions or
1. Shall be composed of the Special Prosecutor acts in an amount not exceeding
and his prosecution staff. P1,000,000.00 (R.A.. 10660)
2. The Special Prosecutor shall be under the
supervision and control of the Ombudsman.
3. Has the power to conduct preliminary Term Limits
investigation and prosecute criminal cases
within the jurisdiction of the Sandiganbayan
4. Has the power to enter into plea bargaining
agreements; and
APPOINTIVE OFFICIALS
5. Has the power to perform such other duties
assigned to it by the Ombudsman. CONSTITUTIONAL COMMISSIONERS
7 years without reappointment. Of those first appointed,
the Chairman shall hold office for 7 years, one
SANDIGANBAYAN Commissioner for 5 years, and the other Commissioner
A special appellate collegial court in the Philippines. The for 3 years, without reappointment.
special court was established by P.D. No. 1486, as
subsequently modified by P.D. No. 1606 and by R.A. Appointment to any vacancy shall be for the unexpired
numbered 7975, 8249 and 10660. portion of the term of the predecessor. (Art. IX-B, IX- C,
IX-D, Secs. 2)
COMPOSITION
1. Presiding Justice; and OMBUDSMAN AND DEPUTIES
2. 20 Associate Justices, with the rank of Justice of 7 years without reappointment (Art. XI, Sec. 11)
the Court of Appeals. (P.D. 1606, as amended by
R.A. 8249, further amended by R.A. 10660)
OTHER APPOINTIVE OFFICIALS
JURISDICTION
The Sandiganbayan shall exercise exclusive original General Rule: Security of tenure
jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as Exceptions:
amended, otherwise known as the Anti-Graft 1. When Congress may fix the term of an office for
and Corrupt Practices Act, Republic Act No. a fixed or indefinite term
1379, and Chapter II, Section 2, Title VII, Book II 2. Where the term is prescribed by law, public
of the Revised Penal Code, policy forbids the beginning and expiration of
b. Other offenses or felonies whether simple or terms to be left to the discretion of the person
complexed with other crimes committed by the holding the office, or the body having the
public officials and employees mentioned in appointing power.
Subsection A of this section in relation to their 3. When Congress creates the office, it has the
office. power to modify the term. It can also change the
tenure of the officers holding offices that it
created.
4. Budgetary authority has no power to shorten a
term of office fixed by the legislative act by
refusing to appropriate funds. (De Leon)

86
ELECTIVE OFFICIALS
PRESIDENT
6 years. The President shall not be eligible for
re-election. No person who has succeeded as President
and has served as such for more than 4 years shall be
qualified for election to the same office at any time. (Sec.
4 (1), Art, VII)

VICE PRESIDENT
6 years. No more than 2 successive terms. (Sec. 4 (2),
Art. VII)

SENATORS
6 years. No more than 2 consecutive terms. Half of the
senators elected in staggered elections every 3 years.
(Sec. 4, Art. VI)

MEMBERS OF THE HOUSE OF

REPRESENTATIVES
3 years. No more than 3 consecutive terms (Sec. 7, Art.
VI)

ALL ELECTIVE LOCAL OFFICIALS EXCEPT

BARANGAY OFFICIALS
3 years from noon of June 30, 1992 or the date provided
by law.

No official shall serve for more than 3 consecutive terms

for the same position (Sec. 8, Art. X, 1987 Constitution;
Sec. 43, LGC)

BARANGAY AND SANGGUNIANG KABATAAN

OFFICIALS
3 years. No barangay elective official shall serve for
more than 3 consecutive terms in the same position.

Voluntary renunciation of office for any length of time

shall not be considered as an interruption in the
continuity of service for the full term of election for the
following:
a. Vice President
b. Senators
c. Members of the House of Representatives
d. All elective officials, including barangay and
Sangguniang Kabataan Official. (Sec. 2, R.A.
9164, Sec. 11, R.A. 10742)

87
 General Principle

ADMINISTRATIVE LAW
Part of public law that fixes the organization and
determines the competence of administrative authorities
and indicates to the individual remedies for the violation
of his rights (Nachura).

Administrative law is the law concerning the powers and

procedures of administrative agencies, including
specially the law governing judicial review of
administrative actions (De Leon).

General Rule: The Revised Administrative Code is the

principal text that governs this branch of law.

Exception: The Code, however, does not cover the

military as long as it deals with purely military affairs.
They are governed by the Articles of War.
ADMINISTRATIVE LAW Exception to the exception: If it deals with their
relationship with the Civilians, still governed by the
Administrative Code.

Administrative Agencies

AGENCY
Includes any department, bureau, office, commission,
authority or officer of the National Government
authorized by law or executive order to make rules, issue
licenses, grant rights or privileges, and adjudicate cases;
research institutions with respect to licensing functions;
government corporations with respect to functions
regulating private right, privileges, occupation or
business; and officials in the exercise of disciplinary
power as provided by law (Sec. 2(1), Book VII, Admin
Code).

AGENCIES OF CONSTITUTIONAL ORIGIN

1. Civil Service Commission; or
2. Commission on Elections; or
3. Commission on Audit; or
4. Commission on Human Rights.

88
KINDS OF ADMINISTRATIVE AGENCIES
1. Government grant or gratuity, special privilege
Powers of Administrative Agencies
(Bureau of Lands, Phil. Veterans Admin., GSIS,
SSS, PAO); 1. Quasi-legislative or Rulemaking
2. Carrying out the actual business of government 2. Quasi-judicial or Adjudicatory
(BIR, Bureau of Customs, Bureau of Immigration,
Land Registration Authority); ENABLING POWERS
3. Service for public benefit (Phil Post, PNR, Permit the doing of an act which the law undertakes to
MWSS, NFA, NHA); regulate, and which would be unlawful without
4. Regulation of businesses affected with public government approval.
interest (Insurance Commission, LTFRB, NTC,
HLURB); DIRECTING POWER
5. Regulation of private businesses and individuals Order the performance of particular acts to ensure
(SEC); compliance with the law and often exercised for
6. Adjustment of individual controversies because corrective purposes.
of a strong social policy involved (ECC, NLRC,
SEC, DAR, COA) DISPENSING POWERS
Allows the administrative officer to relax the general
INSTRUMENTALITY operation of a law or exempt from performance of a
Refers to any agency of the National Government, not general duty.
integrated within the department framework vested
within special functions or jurisdiction by law, endowed EXAMINING POWERS
with some if not all corporate powers, administering Enables the administrative body to inspect the records
special funds, and enjoying operational autonomy, and premises, and investigate the activities, of persons
usually through a charter. or entities coming under its jurisdiction.

CONTROL SUMMARY POWERS

The power of an officer to alter or modify or nullify or set Those involving use by administrative authorities of force
aside what a subordinate officer had done in the upon persons or things without necessity of previous
performance of his duties and to substitute the judgment judicial warrant.
of the former for test of the latter.

SUPERVISION
RULEMAKING POWER
Overseeing or the power or authority of an officer to see Quasi-legislative or rule-making power is the power to
that subordinate officers perform their duties (Ganzon v. make rules and regulations that results in delegated
C.A., 1991). legislation that is within the confines of the granting
statute and the doctrine of non-delegability and
The President shall have control of all the executive separability of power (Palawan Council for Sustainable
departments, bureaus, and offices. He shall ensure that Development v. Lim, 2016).
the laws be faithfully executed (Sec. 17, Art. VII).
The grant of rulemaking power is a relaxation of the
separation of powers principle and is an exception to the
non-delegation of legislative powers. But such
administrative regulations must be consistent with the
law and be for the sole purpose of enforcing its
provisions and not to transcend the limits marked by the
law. The details and the manner of carrying out the law
are oftentimes left to the administrative agency entrusted
with its enforcement (People v. Maceren, 1977).

89
DOCTRINE OF SUBORDINATE LEGISLATION QUASI-JUDICIAL POWER
Power to promulgate rules and regulations is only limited Power of administrative authorities to make
to carrying into effect what is provided in the legislative determinations of facts in the performance of their
enactment. official duties and to apply the law as they construe it to
the facts so found. It partakes the nature of judicial
Administrative issuances may be distinguished power but exercised by a person other than a judge.
according to their nature and substance:
1. Legislative – In the matter of subordinate REQUISITES
legislation, designed to implement a primary 1. Jurisdiction must be properly acquired by the
legislation by providing the details thereof administrative body; and
2. Interpretative – Designed to provide guidelines 2. Due process must be observed in the conduct of
to the law which the administrative agency is in the proceedings.
charge of enforcing (BPI Leasing Corporation v.
CA, 2003).
INVESTIGATORY POWERS
The power to inspect, secure, or require the disclosure
REQUISITES FOR A VALID DELEGATION of information by means of accounts, records, reports,
1. Completeness Test – The law must be complete statements and testimony of witnesses. This power is
in itself and must set forth the policy to be implied and not inherent in administrative agencies (Sec.
executed. A statute is incomplete if it does not of Justice v. Lantion, 2000).
lay down any rule or definite standard by which
the administrative officer or board may be The rule is that findings of fact of administrative bodies,
guided in the exercise of discretionary powers if based on substantial evidence, are controlling on the
delegated to it (People v. Vera, 1937). reviewing authority (Reyna v. COA, 2011).
2. Sufficient Standards Test – The law must fix a
standard, the limits of which are sufficiently LICENSE
determinate or determinable, to which the A license may not be withdrawn, except for a violation of
delegate must conform (Abakada v. Ermita, pertinent laws, rules and regulation, or when public
2005). health and safety requires. An existing license shall not
expire if the licensee makes a timely application for the
NOTICE AND HEARING renewal.
Notice and hearing, as the fundamental requirements of
procedural due process, are essential only when an
administrative body exercises its quasi-judicial function. ADMINISTRATIVE DUE PROCESS
While administrative agencies are free from the rigidity of
In the exercise of quasi-legislative functions in the certain procedural requirements, they cannot entirely
performance of its executive or legislative functions, ignore or disregard the fundamental and essential
such as issuing rules and regulations, an administrative requirements of due process in trials and investigations
body need not comply with the requirements of notice of an administrative character (Ang Tibay v. CIR, 1940).
and hearing (PHILCOMSAT v. Alcuaz, 1989).
CARDINAL PRIMARY RIGHTS
TESTS TO DETERMINE INVALIDITY OF RULES 1. Right to a hearing – Includes the right of a party
1. If it exceeds the authority conferred to it; to present his own case and submit evidence in
2. If it conflicts with the governing statute; support thereof
3. If it extends or modifies the statute; 2. The tribunal must consider the evidence
4. If it has no reasonable relationship to the presented
statutory purpose; and 3. Decisions must be supported by evidence
5. If it is arbitrary or unreasonable or 4. Evidence must be substantial – The amount of
unconstitutional. relevant evidence which a reasonable mind
might accept as adequate to justify a conclusion
(Sec. 5, Rule 133)

90
 5. Decision must be rendered on the evidence ADMINISTRATIVE RES JUDICATA
presented at the hearing or at least contained in
the record and disclosed to the parties affected
6. The judge must act on its own independent
REQUISITES
consideration of the law and facts of the 1. The former judgment must be final;
controversy – not simply accept the views of a 2. It was rendered by a court having jurisdiction
subordinate in arriving at a decision over the subject matter and the parties;
7. Decision must be rendered in such a manner as 3. It must be a judgment on the merits; and
to let the parties know the various issues 4. There must be identity of parties, subject matter
involved and the reasons for the decision and cause of action (Ipekdijan Merchandising v.
rendered CTA, 1963).

General Rule: The doctrine of res judicata applies only

PROCEDURAL DUE PROCESS INCLUDES
to judicial or quasi-judicial proceedings and not to the
1. The right to actual or constructive notice of the
exercise of purely administrative functions.
institution of proceedings which may affect a
Administrative proceedings are non-litigious and
respondent’s legal rights
summary in nature; hence, res judicata does not apply
2. A real opportunity to be heard personally or with
(Nasipit Lumber Company v. NLRC, 1989).
the assistance of counsel, to present witnesses
and evidence in one’s favor, and to defend one’s
Exceptions:
rights
1. Naturalization proceedings or those involving
3. A tribunal vested with competent jurisdiction and
citizenship and immigration;
so constituted as to afford a person charged
2. Labor relations; and
administratively a reasonable guarantee of
3. Decisions affecting family relations, personal
honesty as well as impartiality; and
status or condition, and capacity of persons.
4. A finding by said tribunal which is supported by
substantial evidence submitted for consideration
during the hearing or contained in the records or
made known to the parties affected (Vivo v. Judicial Review
Pagcor, 2013)

RIGHT TO COUNSEL
It is not imperative in administrative investigations DOCTRINE OF PRIMARY
because such inquiries are conducted merely to ADMINISTRATION JURISDICTION
determine whether there are facts that merit disciplinary
measures against erring public officers and employees, Courts cannot or will not determine a controversy
with the purpose of maintaining the dignity of involving question within the jurisdiction of an
government service (Lumiqued v. Exevea, 1997). administrative body prior to the decision of that question
by the administrative tribunal where the:
1. Question calls administrative determination
ADMINISTRATIVE APPEAL requiring special knowledge, experience and
Includes the review by a higher agency of decisions services of the administrative tribunal;
rendered by an administrative agency, commenced by 2. Question requires determination of technical and
petition of an interested party. intricate issues of a fact;
3. Uniformity of ruling is essential to comply with
ADMINISTRATIVE REVIEW purposes of the regulatory statute administered.
A superior officer or department head, upon his or her
own volition, may review the decision of an RATIONALE
administrative agency or that of a subordinate’s decision In this era of clogged docket courts, the need for
pursuant to the power of control. specialized administrative boards with the special
knowledge and capability to hear and determine
promptly disputes on technical matters has become
indispensable. Between the power lodged in an
administrative body and a court, the trend has been to
refer it to the former (GMA v. ABS CBN, 2005).

91
REQUISITES Exceptions:
1. An administrative body and a regular court have 1. Violation of due process;
concurrent and original jurisdiction 2. When there is estoppel on the part of the
2. Question to be resolved requires expertise of administrative agency concerned;
administrative agency 3. When the issue involved is a purely legal
3. Legislative intent on the matter is to have question;
uniformity in rulings 4. When there is irreparable injury;
4. Administrative agency is performing a 5. When the administrative action is patently illegal
quasi-judicial or adjudicatory function, or not amounting to lack or excess of jurisdiction;
rulemaking or quasi-legislative function (Smart v. 6. When the respondent is a Department Secretary
NTC, 2003). whose acts as an alter ego of the President
bears the implied and assumed approval of the
Exceptions: latter;
1. When the issue is not within the competence of 7. When the subject matter is a private land case
the administrative body to act on (pure proceeding;
questions of law, over which the expertise is 8. When it would be unreasonable;
with the courts); 9. When no administrative review is provided by
2. Regular courts have jurisdiction in cases where law;
what is assailed is the validity or constitutionality 10. When the rule does not provide a plain, speedy,
of a rule or regulation issued by the and adequate remedy;
administrative agency in the performance of its 11. When the issue of non-exhaustion of
quasi-legislative function (Smart v. NTC) administrative remedies has been rendered
3. When the issue involved is clearly a factual moot;
question that does not require specialized skills 12. When there are circumstances indicating the
and knowledge for resolution to justify the urgency of judicial intervention;
exercise of primary jurisdiction. 13. When it would amount to a nullification of a
claim; and
14. Where the rule on qualified political agency
DOCTRINE OF EXHAUSTION OF applies (Laguna CATV Network v. Maraan, 2002).
ADMINISTRATIVE REMEDIES
Where the law has delineated the procedure by which APPEALS TO THE OFFICE OF THE PRESIDENT
administrative appeal or remedy could be effected, the A decision or order issued by a department or agency
same should be followed before recourse to judicial need not be appealed to the Office of the President
action can be initiated (Pascual v. Provincial Board, 1959) when there is a special law that provides for a different
mode of appeal. If the law does not provide for a specific
RATIONALE relief, appeals may be taken to the Office of the
One of the reasons for exhaustion of administrative President (Moran v. Office of the President, 2014)
remedies is our well-entrenched doctrine on separation
of powers, which enjoins upon the Judiciary a policy of
noninterference with matters falling primarily (albeit not
exclusively) within the competence of other
departments.

REQUISITES
1. The administrative agency is performing a
quasi-judicial function;
2. Judicial review is available; and
3. The court acts in its appellate jurisdiction.

92
DOCTRINE OF FINALITY OF
ADMINISTRATIVE ACTION
Courts will not interfere with the act of an administrative
agency before it has reached finality, or it has been
completed.

Once a decision or order becomes final and executory, it

thereby becomes immutable and unalterable and any
amendment or alteration which substantially affects a
final and executory judgment is null and void for lack of
jurisdiction, including the entire proceedings held for that
purpose (Gagui v. Dejero, 2013).

Exceptions:
1. Correction of clerical errors
2. Nunc pro tunc entries which cause no prejudice
to any party
3. Void judgments
4. Whenever circumstances transpire after the
finality of the decision rendering its execution
unjust and inequitable.

93
 Suffrage

Suffrage is the right and obligation of qualified citizens to

vote in the election of certain local and national officers
and in the determination of questions submitted to the
people. It includes within its scope election, plebiscite,
initiative and referendum.

The exercise of the right of suffrage is subject to existing

substantive and procedural requirements embodied in
our Constitution, statute books, and other repositories of
law (Akbayan-Youth v. COMELEC, 2001).

ELECTION
The means by which people choose their officials for a
definite and fixed period and to whom they entrust for
the time being the exercise of the powers of
government.

KINDS OF ELECTIONS
ELECTION LAW 1. Regular election – It is an election participated in
by those who possess the right of suffrage, not
otherwise disqualified by law, and is registered
voters.
2. Special election – It is held when there is failure
of election on the scheduled date of regular
election in a particular place or to fill a vacancy
in office before the expiration of the term for
which the incumbent was elected.

ELECTION PERIOD
General Rule: The period of election starts at 90 days
before and ends 30 days after the election date pursuant
to Sec. 9, Art. IX-C of the Constitution and Sec. 3 of B.P.
881, otherwise known as the Omnibus Election Code.

Exception: Under these same provisions, the COMELEC

is not precluded from setting a period different from that
provided thereunder (Aquino v. COMELEC, G.R. No.
211789-90, March 17, 2015).

QUALIFICATIONS OF VOTERS
Suffrage may be exercised by all citizens of the
Philippines not otherwise disqualified by law, who are at
least eighteen years of age, and who shall have resided
in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months
immediately preceding the election. No literacy,
property, or other substantive requirement shall be
imposed on the exercise of suffrage (Art. V, Sec. 1).

94
DISQUALIFICATIONS OF VOTERS CANCELLATION OF REGISTRATION
1. Sentenced by final judgment to suffer The Board shall cancel the registration records of those
imprisonment for not less than one year, unless who have died as certified by the Local Civil Registrar.
granted a plenary pardon or granted amnesty; (Sec. 29, R.A. 8189)
2. Conviction by final judgment of any of the
following: INCLUSION PROCEEDINGS
a. Crime involving disloyalty to the Any person whose application for registration has been
government; disapproved by the Board or whose name has been
b. Violation against national security; or stricken out from the list may file with the court a petition
c. Firearms laws to include his name in the permanent list of voters in his
3. The right to vote is reacquired upon expiration of precinct at any time but not within 105 days prior to a
five years after service of sentence referred to in regular election or 75 days prior to a special election.
the two preceding items;
4. Insanity or incompetence as declared by
competent authority (OEC, Art. XII, Sec. 118). EXCLUSION PROCEEDINGS
Any registered voter, representative of a political party
REGISTRATION OF VOTERS or the Election Officer, may file with the court a sworn
The act of accomplishing and filing of a sworn petition for the exclusion of a voter from the permanent
application for registration by a qualified voter before the list of voters giving the name, address and the precinct
election officer of the city or municipality wherein he of the challenged voter at any time but not within 100
resides and including the same in the book of registered days prior to a regular election or 65 days before special
voters upon approval by the Election Registration Board election.
(Sec. 3(a), R.A. 8189).
JURISDICTION
Registration regulates the exercise of the right of 1. MTC – original and exclusive;
suffrage and is not a qualification for such right. 2. RTC – appellate jurisdiction; and
Registration is only one step towards voting, and it is not 3. SC – appellate jurisdiction over RTC on question
one of the elements that makes a citizen a qualified of law.
voter. Thus, although one is deemed to be a “qualified
elector,” he must nonetheless still comply with the General Rule: No res judicata. A decision in an
registration procedure in order to vote (Kabataan Party exclusion or inclusion proceeding, even if final and
List v. COMELEC, 2015). unappealable, does not acquire the nature of res
judicata (Domino v. COMELEC, 1999).
DEACTIVATION
It is the removal from the registration records from the Exception: The decision is res judicata as to the right to
precinct books of voters and places the same, properly remain in the list of voters or for being excluded
marked and dated in indelible ink, in the inactive file after therefrom for the particular election in relation to which
entering the cause of deactivation. the proceedings had been held.

REACTIVATION LOCAL ABSENTEE VOTING

Any voter whose registration has been deactivated may Refers to a system of voting whereby government
file with the Election Officer a sworn application for officials and employees, including members of the
reactivation of his registration in the form of an affidavit Armed Forces of the Philippines (AFP), and the
stating that the grounds for the deactivation no longer Philippine National Police (PNP), media practitioners
exist (Sec. 28, R.A. 8189). including their technical and support staff who are duly
registered voters, are allowed to vote for the national
The application for reactivation may be filed any time but positions in places where they are not registered voters
not later than 120 days before a regular election and 90 but where they are temporarily assigned to perform
days before a special election. election duties on election day (COMELEC Resolution
9637, Sec. 1(a), 2013).

95
OVERSEAS ABSENTEE VOTING Political Parties
The process by which qualified citizens of the
Philippines abroad exercise their right to vote (R.A.
10590, Sec. 3(k)). Political parties are organized groups of persons
pursuing the same ideology, political ideas or platforms
of government including its branches and divisions.
COVERAGE
Qualified citizens of the Philippines may vote for
Its purpose is to enable Filipino citizens belonging to
President, Vice-President, Senators and Party-List
marginalized and underrepresented sectors,
Representatives, as well as in all national referenda and
organizations and parties, and who lack well defined
plebiscites (R.A. 10590, Sec. 4).
political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that
QUALIFICATIONS will benefit the nation as a whole, to become members
1. Filipino citizens abroad; of the House of Representatives (Sec. 2, R.A. 7941).
2. At least 18 years of age on the day of elections;
and
3. Not otherwise disqualified by law.
JURISDICTION OF THE COMMISSION ON
ELECTIONS OVER POLITICAL PARTIES
DISQUALIFICATIONS 1. Registration of Political Parties
1. Those who have lost their Filipino citizenship in 2. Registration of Party Lists
accordance with Philippine laws; 3. Resolution of Intra-Party Disputes
2. Those who have expressly renounced their
Philippine citizenship and who have pledged REGISTRATION OF PARTY-LISTS
allegiance to a foreign country, except those Any organized group of persons may register as a party,
who have reacquired or retained their Philippine organization or coalition for purposes of the party-list
citizenship under R.A. 9225; system by filing with the COMELEC not later than 90
3. Those who have committed and are convicted in days before the election a petition verified by its
a final judgment by a Philippine court or tribunal president or secretary stating its desire to participate in
of an offense punishable by imprisonment of not the party-list system as a national, regional or sectoral
less than one year, such disability not having party or organization or a coalition of such parties or
been removed by plenary pardon or amnesty: organizations, attaching thereto its constitution, by-laws,
Provided, however, that any person disqualified platform or program of government, list of officers,
to vote under this subsection shall automatically coalition agreement and other relevant information as
acquire the right to vote upon the expiration of the COMELEC may require (R.A. 7941, Sec. 5).
five years after service of sentence; and
4. Any citizen of the Philippines abroad previously CANCELLATION OR REFUSAL OF
declared insane or incompetent by competent REGISTRATION
authority in the Philippines or abroad, as verified Motu proprio or upon verified complaint of any
by the Philippine embassies, consulates or interested party, after due notice and hearing:
Foreign Service establishments concerned, 1. It is a religious sect or denomination,
unless such competent authority subsequently organization or association, organized for
certifies that such person is no longer insane or religious purposes;
incompetent (R.A. 10590, Sec. 5, amending R.A. 2. It advocates violence or unlawful means to seek
9189). its goal;
3. It is a foreign party or organization;
DETAINEE VOTING 4. It is receiving support from any foreign
Detainee voting (either through the special polling place government, foreign political party, foundation,
inside jails or escorted voting) may be availed of by any organization, whether directly or through any of
registered detainee whose registration is not its officers or members or indirectly through third
transferred/deactivated/ cancelled/ deleted (Sec. 1, parties for partisan election purposes;
COMELEC Resolution No. 9371, 2012).

96
 5. It violates or fails to comply with laws, rules or
regulations relating to elections; Candidacy
6. It declares untruthful statements in its petition;
7. It has ceased to exist for at least 1 year; It refers to any person aspiring for or seeking an elective
8. It fails to participate in the last 2 preceding public office, who has filed a Certificate of Candidacy by
elections or fails to obtain at least 2% of the himself or through an accredited political party,
votes cast under the party-list system in the 2 aggroupment or coalition of parties (OEC, Sec. 79(a)).
preceding elections for the constituency in
which it has registered (R.A. 7941, Sec. 6). Any person may thus file a Certificate of Candidacy on
any day within the prescribed period for filing such, yet
CERTIFIED LIST OF REGISTERED PARTIES that person shall be considered a candidate, for
The COMELEC shall, not later than 60 days before purposes of determining one’s possible violations of
election, prepare a certified list of national, regional, or election laws, only during the campaign period (Penera
sectoral parties, organizations or coalitions which have v. COMELEC, 2009; R.A. 9369, Poll Automation Law,
applied or who have manifested their desire to Sec. 15).
participate under the party-list system and distribute
copies thereof to all precincts for posting in the polling
places on election day. The names of the party-list QUALIFICATIONS OF CANDIDATES
nominees shall not be shown on the certified list (R.A.
7941, Sec. 7). FOR PRESIDENT AND VICE-PRESIDENT
1. Natural-born citizen;
RESOLUTION OF INTRA-PARTY DISPUTES 2. At least 40 years old on the day of the election;
The ascertainment of the identity of the political party 3. Able to read and write;
and its legitimate officers responsible for its acts. The 4. Registered voter; and
COMELEC’s power to register political parties 5. Resident of the Philippines for at least 10 years
necessarily involved the determination of the persons immediately preceding the day of the election.
who must act on its behalf (Art. VII, Sec.2-3)

Thus, the COMELEC may resolve an intra-party FOR SENATOR

leadership dispute, in a proper case brought before it, as 1. Natural-born citizen;
an incident of its power to register political parties 2. At least 35 years old on the day of the election;
(Atienza v. COMELEC, 2010). 3. Able to read and write;
4. Registered voter; and
REGISTRATION OF POLITICAL PARTIES 5. Resident of the Philippines for not less than two
Any organized group of persons seeking registration as a years immediately preceding the day of the
national or regional political party may file with the election. (Art. VI, Sec. 3)
Commission a verified petition attaching thereto its
constitution and by-laws, platform or program of FOR DISTRICT REPRESENTATIVES
government and such other relevant information as may 1. Natural-born citizen;
be required by the Commission. The Commission shall, 2. Registered voter in the district in which he shall
after due notice and hearing, resolve the petition within be elected;
10 days from the date it is submitted for decision (B.P. 3. Resident of the same district for a period not
Blg. 881, Sec. 61). less than one year immediately preceding the
day of the election;
GROUPS WHICH CANNOT BE REGISTERED AS 4. Able to read and write; and
POLITICAL PARTIES 5. At least 25 years old on the day of the election.
1. Religious denominations and sects; (Art. VI, Sec. 6)
2. Those which seek to achieve their goals through
violence or unlawful means;
3. Those which refuse to uphold and adhere to the
Constitution; or
4. Those supported by foreign governments (Sec.
2(5), Art. IX-C)

97
FOR GOVERNOR, VICE GOVERNOR, MAYOR, Exceptions:
VICE MAYOR, PUNONG BARANGAY AND COMELEC may go beyond the face of the certificate of
SANGGUNIANG MEMBERS candidacy:
1. Citizen of the Philippines; 1. Nuisance candidates
2. Registered voter in the barangay, municipality, 2. Petition to deny due course to or cancel a
city, or province or, in the case of a member of certificate of candidacy (Romualdez-Marcos v.
the Sangguniang Panlalawigan, Sangguniang COMELEC)
Panlungsod, or Sangguniang Bayan, the district
where he intends to be elected; SUBSTITUTION AND WITHDRAWAL OF
3. Resident therein for at least one year CANDIDACY
immediately preceding the day of the election; A person who has filed a certificate of candidacy may,
4. Able to read and write Filipino or any other local prior to the election, withdraw the same by submitting to
language or dialect. (R.A. 7160, Sec. 39) the office concerned a written declaration under oath
(Sec. 73, B.P. Blg. 881).
RESIDENCY REQUIREMENT
The minimum requirement under our Constitution and Any person who withdraws shall not be eligible whether
election laws for the candidates' residency in the as a substitute candidate or not, for any other position.
political unit they seek to represent has never been
intended to be an empty formalistic condition. It carries GROUNDS FOR SUBSTITUTION
with it a very specific purpose: to prevent strangers or After the last day for filing of the certificates of
newcomers unacquainted with the conditions and needs candidacy, an official candidate of a registered political
of a community from seeking elective offices in that party may be substituted by a candidate belonging to
community (Jalover v. de la Pena, 2014). and nominated by the same political party on the
following grounds:
FILING FOR CERTIFICATE OF CANDIDACY 1. Death,
No person shall be eligible for any elective public office 2. Withdrawal
unless he files a sworn certificate of candidacy within the 3. Disqualified for any cause
period fixed herein (Sec. 73, B.P. Blg. 881).
NUISANCE CANDIDATE
EFFECT OF FILING Any registered candidate for the same office may file a
Appointive Officials holding appointive offices including petition to declare a duly registered candidate as a
active members of the AFP and officers of GOCCs shall nuisance candidate, personally or through duly
be considered ipso facto resigned upon the filing of his authorized representative with COMELEC, within five
certificate of candidacy (Sec. 66, B.P. Blg. 881). days from the last day of filing of Certificate of
Candidacy (R.A. 6646, Sec. 5).
Any person holding an elective office or position shall
not be considered resigned upon the filing of his A nuisance candidate is thus defined as one who, based
certificate of candidacy for the same or any other on the attendant circumstances, has no bona fide
elective office or position (Sec. 4, Comelec Resolution intention to run for the office for which the certificate of
No. 8678, 2010). candidacy has been filed, his sole purpose being the
reduction of the votes of a strong candidate, upon the
General Rule: The COMELEC shall have the ministerial expectation that ballots with only the surname of such
duty to receive and acknowledge receipt of the candidate will be considered stray and not counted for
certificates of candidacy provided said certificates are either of them (Zapanta v. COMELEC, 2019).
under oath and contain all the required data and in the
form prescribed by the Commission. The COMELEC has General Rule: The COMELEC may, motu proprio or
no discretion to give or not to give due course to a upon verified petition of an interested party, refuse to
certificate of candidacy filed in due form (Abcede v. give due course to or cancel a Certificate of Candidacy
Imperial, 1958). upon showing of the above-stated circumstances (OEC,
Sec. 69).

98
Exception: The COMELEC cannot motu proprio deny
due course to or cancel an alleged nuisance candidate’s Campaign
certificate of candidacy without providing the candidate
his opportunity to be heard (Timbol v. COMELEC, 2015). The term "election campaign" or "partisan political
activity" refers to an act designed to promote the
APPRECIATION OF VOTES OF NUISANCE election or defeat of a particular candidate or candidates
CANDIDATES to a public office (Sec. 79, B.P. Blg. 881) It includes:
The Court consistently declared that the votes cast for 1. Forming organizations, associations, clubs,
the nuisance candidate must be credited in favor of the committees or other groups of persons for the
legitimate candidate with a similar name to give effect to, purpose of soliciting votes and/or undertaking
rather than frustrate, the will of the voters, even if the any campaign for or against a candidate;
declaration of the nuisance candidate became final only 2. Holding political caucuses, conferences,
after the elections. In a nuisance petition, the votes of meetings, rallies, parades, or other similar
the nuisance candidate shall be credited to the assemblies, for the purpose of soliciting votes
legitimate candidate once the decision becomes final and/or undertaking any campaign or
and executory, whether before or after the elections. propaganda for or against a candidate;
When there is a final and executory judgment in a 3. Making speeches, announcements or
nuisance case, it shall be effective and operative as of commentaries, or holding interviews for or
election day. It is as if the nuisance candidate was never against the election of any candidate for public
a candidate to be voted for because his candidacy office;
caused confusion to the electorate and it showed his 4. Publishing or distributing campaign literature or
lack of bona fide intention to run for office. Thus, the materials designed to support or oppose the
votes for the said nuisance candidate shall be election of any candidate; or
transferred to the legitimate candidate, with the similar 5. Directly or indirectly soliciting votes, pledges or
name, as of election day also. support for or against a candidate.

In a multi-slot office, the COMELEC must not merely PREMATURE CAMPAIGNING

apply a simple mathematical formula of adding the votes Any election campaign or partisan political activity for or
of the nuisance candidate to the legitimate candidate against any candidate outside of the campaign period is
with the similar name. To apply such simple arithmetic prohibited and shall be considered as an election
might lead to the double counting of votes because offense (Sec. 80, BP Blg. 881)
there may be ballots containing votes for both nuisance
and legitimate candidates (Santos v. COMELEC, 2018). Exception: Political parties may hold political
conventions to nominate their official candidates within
In a multi-slot office, all votes cast in favor of the 30 days before the start of the period for filing a
nuisance candidate whose name is confusingly similar to certificate of candidacy (Sec. 15, R.A. 9369)
a bona fide candidate shall not be automatically credited
in the latter's favor. If the ballot contains one (1) vote for PROHIBITED ELECTION
the nuisance candidate and no vote for the bona fide
candidate, that vote will be counted in the latter's favor.
PROPAGANDA
However, if the nuisance candidate and the bona fide
candidate each gets a vote, only one (1) vote will be FOR ANY FOREIGNER
counted in the latter's favor (Zapanta v. COMELEC, 1. Aid any candidate or political party, directly or
2019). indirectly
2. Take part or influence in any manner in any
election
3. Contribute or make any expenditure in
connection with any election campaign or
partisan political activity (Sec. 81, B.P. Blg. 881).

99
FOR ANY PERSON DURING THE CAMPAIGN DISQUALIFICATIONS
PERIOD 1. Related within 4th degree of consanguinity or
1. Remove, destroy, obliterate or in any manner affinity to any member of the BEI
deface or 2. Related within 4th degree of consanguinity or
2. Prevent the distribution of lawful election affinity to any candidate to be voted for in the
propaganda (Sec. 83, B.P. Blg. 881). polling place or his spouse (Sec. 167, B.P. Blg.
881)
3. Engaged in any partisan political activity or take
LIMITATIONS ON EXPENSES part in the election, except to discharge his
duties as such and to vote (Sec. 173, B.P. Blg.
FOR CANDIDATES 881)
1. President and VP – P10 for every voter currently
registered
2. Other candidates – P3 for every voter currently BOARD OF CANVASSERS
registered in the constituency where he filed his
certificate of candidacy. CANVASS
The process by which the results in the election returns
FOR POLITICAL PARTIES are tallied and totaled.
P5 for every voter currently registered in the
constituency or constituencies where it has official CERTIFICATE OF CANVASS
candidates. A document in electronic and printed form containing
the total votes in figures obtained by each candidate in a
STATEMENT OF CONTRIBUTIONS AND city /municipality/ district/ province as the case may be.
EXPENSES The electronic certificates of canvass shall be the official
The full, true and itemized statement of all contributions canvass results in the aforementioned jurisdictions (Sec.
and expenditures in connection with the election. Filed 2 (6), R.A. 9369).
by every candidate and treasurer of the political party
and filed with the COMELEC in duplicate within 30 days FUNCTIONS OF BOARD OF CANVASSERS
after the day of the election (Sec. 14, R.A. 7166). The Board of Canvassers shall canvass the votes by
consolidating the electronically transmitted results or the
Board of Election Inspectors and results contained in the data storage devices used in the
printing of the election returns (Sec. 20, R.A. 9369).
Board of Election Canvassers
COMPOSITION OF NATIONAL BOARD OF
COMPOSITION CANVASSERS
1. Chairman 1. National Board of Canvassers for Senators and
2. Poll Clerk Party list representatives – COMELEC en banc
3. One other member (Sec. 13, R.A. 6646) 2. National Board of Canvassers for the President
and Vice President – The Senate and the House
QUALIFICATIONS of Representatives in joint public session (Sec.
1. Good moral character and irreproachable 20, R.A. 9369).
reputation
2. Registered voter of the city or municipality
3. Never been convicted of any election offense or
any other crime punishable by more than 6
months of imprisonment, and there is no
information pending against him for any election
offense
4. Speak, read and write English or the local dialect
(Sec. 166, B.P. Blg. 881).
5. At least 1 member of the BEI shall be an
information technology-capable person who is
trained and certified by the DOST to use the
Automated Elections System (Sec. 3, RA 9369).

100
 REQUISITES FOR DECLARATION OF FAILURE
Remedies OF ELECTIONS
1. No voting has taken place in the precincts
PETITION TO DENY DUE COURSE OR concerned on the date fixed by law, or even if
CANCEL CERTIFICATE OF there was voting, the election nonetheless
resulted in a failure to elect; and
CANDIDACY 2. The votes cast would affect the results of the
A verified petition seeking to deny due course to a election.
certificate of candidacy may be filed by any person
exclusively on the ground that material representation
contained therein as required is false. The petition may PRE-PROCLAMATION
be filed not later than 25 days from the time of filing of CONTROVERSY
the certificate of candidacy, and shall be decided, after Pre-proclamation controversy refers to any question
due notice and hearing, not later than 15 days before the pertaining to or affecting the proceedings of the Board of
election. Canvassers, which may be raised by any candidate or
by any registered political party or coalition of political
WHEN TO FILE parties, or by any accredited and participating party list
Any time not later than 25 days from the time of the filing group, before the Board or directly with the COMELEC
of the certificate of candidacy. (COMELEC Resolution No. 8804, Rule 3, Sec. 1).

HOW DECIDED
After due notice and hearing, not later than fifteen days ELECTION PROTEST
before the election. These are disputes which arise or are instituted after
proclamation of winning candidates and which issues
PETITION FOR DISQUALIFICATION pertain to the casting and counting of votes (election
An action or protest filed against any candidate where protests), or to the eligibility or disloyalty of the winning
he/she may be declared by final decision of a competent candidates (quo warranto).
court guilty of or found by the Commission of being
disqualified based on the grounds below. In effect, It is a special summary proceeding the object of which is
he/she shall be disqualified from continuing as a to expedite the settlement of controversies between
candidate, or if he/she has been elected, from holding candidates as to who received the majority of legal
the office. votes.

WHERE ELECTION PROTESTS CAN BE FILED

TIME OF FILING
1. COMELEC – It is the sole judge of all contests
The petition for disqualification may be filed any day
relating to elections, returns, and qualifications
after the last day for filing of certificates of candidacy,
of all elective regional, provincial and city
but not later than the date of proclamation (COMELEC
officials (reviewable by SC under Rule 64 using
Rules of Procedure, Rule 25, Sec. 3).
Rule 65);
2. Presidential Electoral Tribunal – Against the
GROUNDS FOR FAILURE OF ELECTIONS President and Vice President;
1. The election in any polling place has not been 3. SET – Against a senator;
held on the date fixed on account of force 4. HRET – Against a representative;
majeure, violence, terrorism, fraud, or other 5. RTC – Over contests for municipal officials
analogous causes; which may be appealed to COMELEC; and
2. The election in any polling place had been 6. MeTC or MTC – For barangay officials which
suspended before the hour fixed by law for the may be appealed to COMELEC.
closing of the voting on account of force
majeure, violence, terrorism, fraud, or other
analogous causes; and
3. After the voting and during the preparation and
transmission of the election returns or canvass
thereof such election results in failure to elect on
account of force majeure, violence, fraud or
analogous causes (Banaga Jr. v. COMELEC,
2000).
101
GROUNDS FOR THE FILING OF ELECTION
PROTESTS
1. Fraud;
2. Vote-buying;
3. Terrorism;
4. Presence of flying voters;
5. Misreading or misappreciation of ballots;
6. Disenfranchisement of voters;
7. Unqualified members of board of election
inspector; and
8. Other election irregularities.

QUO WARRANTO
Refers to an election contest relating to the qualifications
of an elective official on the ground of ineligibility or
disloyalty to the Republic of the Philippines.

The issue is whether the respondent possesses all the

qualifications and none of the disqualifications
prescribed by law. (A.M. No. 07-4-15-SC, May 15, 2007)

Quo warranto proceedings against a

Congressman-elect, Senator-elect, President-elect and
VP-elect are brought before the appropriate electoral
tribunals created by the Constitution.

Quo warranto proceedings against any regional,

provincial or city officials are brought before the
COMELEC.

Quo warranto proceedings against municipal officials

and barangay officials are brought before the RTCs and
MTCs respectively

EFFECT OF FILING AN ELECTION PROTEST OR

A PETITION FOR QUO WARRANTO
Generally, it bars the subsequent filing of a pre
proclamation controversy or a petition to annul
proclamation. It also amounts to the abandonment of
one filed earlier, thus, depriving the COMELEC of the
authority to inquire into and pass upon the title of the
protestee or the validity of his proclamation. Once the
competent tribunal has acquired jurisdiction over an
election protest or a petition for quo warranto, all
questions relative thereto will have to be decided in the
case itself and not in another proceeding. (Villamor v.
COMELEC, 2006)

102
 Autonomous Regions and their
Relation to the Government
There shall be created autonomous regions in Muslim
Mindanao and in the Cordilleras consisting of provinces,
cities, municipalities, and geographical areas sharing
common and distinctive historical and cultural heritage,
economic and social structures, and other relevant
characteristics within the framework of this Constitution
and the national sovereignty as well as territorial integrity
of the Republic of the Philippines. (Art. X, Sec. 15)

Created via organic act for each autonomous region,

with participation of the regional consultative
commission. The organic act:
1. Defines the basic structure of government for
the region consisting of the executive
department and legislative assemblies, both of
which shall be elective and representative of the
constituent political units; and,
2. Provides for special courts with personal, family,
LOCAL GOVERNMENTS and property law jurisdiction. (Art. X, Sec. 15-18)

Public Corporations

It is one created by the state by general or special act for

purposes of administration of local government or
rendering service in the public interest.

QUASI-CORPORATIONS
These are corporations created as agencies of State for
a narrow and limited purpose.

MUNICIPAL CORPORATIONS
These are political and corporate bodies constituted by
incorporation of inhabitants of city or town for purposes
of local government or as agency of State to assist in
civil government of the country. It is one formed and
organized for the government of a portion of the State.

ELEMENTS
1. A legal creation or incorporation;
2. A corporate name by which the artificial
personality or legal entity is known and in which
all corporate acts are done;
3. Inhabitants constituting the population who are
invested with the political and corporate power
which are executed through duly constituted
officers;
4. A place or territory within which the Local Civil
Government and corporate functions are
exercised.

103
NATURE
Every local government unit created or recognized under
Principles of Local Autonomy
this Code is a body politic and corporate endowed with
powers to be exercised by it in conformity with law. (Sec. The LGC declared that is shall be the policy of the State
15, LGC) that the territorial and political subdivisions of the State
shall enjoy genuine and meaningful local autonomy to
DUAL PURPOSE enable them to attain their fullest development as
It shall exercise powers as a political subdivision of the self-reliant communities and make them more effective
National Government and as a corporate entity partners in the attainment of national goals.
representing the inhabitants of its territory. (Sec. 15,
LGC) It is a heresy to suggest that local government units can
undo the acts of Congress, from which they have
REQUISITES FOR CREATION, CONVERSION, derived their power in the first place and negate by mere
DIVISION, MERGER OR DISSOLUTION ordinance the mandate of the stature. (Magtajas v. Pryce
Properties Corporation, 1994)
Creation And Conversion (Sec. 7, LGC)
When indeed the Constitution has expanded the
1. Law;
autonomy of local governments, they have not been
2. Plebiscite; and
thereby made imperium in imperio. Congress may still
3. Compliance with Criteria on:
impose limits on their powers. Thus, they may not violate
a. Income requirement;
the statutory limits on their powers. (Tan v. Pereña, 2005)
b. Land area requirement; and
c. Population requirement.
DECENTRALIZATION OF ADMINISTRATION
Division The central government delegates administrative powers
Division shall comply with the same requirements to political subdivisions in order to broaden the base of
prescribed for the creation of an LGU. Provided that government power and in the process make local
such division shall not reduce the income, population, or governments more responsive and accountable. It
land area of the LGU(s) concerned to less than the relieves the central government of the burden of
minimum requirements prescribed in this code. managing local affairs and enables it to concentrate on
Provided, further, that the income classification of the national concerns.
original LGU shall not fall below its current income
classification prior to such division. (Sec. 8, LGC) FORMS OF DECENTRALIZATION
1. Devolution – It is the transfer of power and
Merger authority from the national government to LGUs
Merger shall comply with the same requirements as the territorial and political subdivisions of the
prescribed for the creation of an LGU. (Sec. 8, LGC) State. The nature of power transfer is political,
and the approach is territorial or area.
Dissolution 2. Deconcentration – It is the transfer of power,
1. Law abolishing the municipal corporation; authority or responsibility, or the discretion to
2. Its income, population, or land area has been plan, decide and manage from central point or
irreversibly reduced to less than the minimum local levels, but within the central or national
standards prescribed for its creation. (Sec. 9, government itself. The nature of the transfer is
LGC) administrative, and the approach is sectoral.
3. Debureaucratization – It is the transfer of some
public functions and responsibilities, which the
government may perform, to private entities or
non-governmental organizations; it is people’s
empowerment or participation in local
governance.

104
POWER OF GENERAL SUPERVISION PURPOSE OF POLICE POWER
The President shall exercise general supervision over the 1. To promote the general welfare, comfort and
local government units to see to it that acts of local convenience of the people;
officials are within their prescribed powers and 2. To promote and preserve public health
functions. 3. To protect public morals

THE PRESIDENT SHALL DIRECTLY SUPERVISE General Rule: The general welfare provisions shall be
1. Provinces → Component Cities and liberally interpreted to give more powers to LGU in
Municipalities → Barangay (Secs 29 & 32, LGC) accelerating economic development and upgrading the
2. Provincial/City Supervision: quality of life for the people in the community
● Review of Executive Orders – submit 3
days from issuance and 30 days to LIMITATION IN EXERCISE OF POLICE POWER
decide on. Otherwise EO is deemed An ordinance enacted by virtue of the general welfare
valid (Sec. 30, LGC) clause is valid.
● Submission of legal questions to higher
LGU’s legal official (Sec. 31, LGC) Exceptions:
3. Highly Urbanized Cities 1. If it contravenes the fundamental law of the
4. Independent Component Cities Philippine Islands,
5. Autonomous Regions (CAR and ARMM) (Sec. 2. An Act of the Philippine Legislature,
16, Art X) 3. Against public policy,
4. Is unreasonable, oppressive, partial,
CONGRESS HAS THE POWER TO CONTROL discriminating, or in derogation of common right
1. Creation/division/merger (Batangas CATV v. CA, 2004)
2. Qualifications of officials
3. Share in the national taxes Based on the hierarchy of constitutionally protected
rights, the right to life enjoys precedence over the right
PRESIDENT AND ITS AGENCIES HAVE THE to property. The reason is obvious: life is irreplaceable,
POWER TO SUPERVISE property is not. When the state or LGU’s exercise of
1. Suspension of officials police power clashes with a few individuals’ right to
2. Oversight property, the former should prevail. (Social Justice
3. Investigation Society v. Atienza, 2007)

TEST FOR VALID EXERCISE OF POLICE POWER

1. Lawful subject – The interests of the public, not
Powers of Local Government Units a mere particular class, require the exercise of
police power.
GENERAL WELFARE CLAUSE 2. Lawful means – The means employed is
The power inherent in the State to regulate liberty and reasonably necessary for the accomplishment of
property for the promotion of the general welfare. the purpose and not unduly oppressive to
individuals.
Police power is the plenary power vested in the
legislature to make, ordain, and establish wholesome POWER TO ISSUE LICENSE AND PERMITS
and reasonable laws, statutes and ordinances, not Issuance of license is regulatory rather than an exercise
repugnant to the Constitution, for the good and welfare of taxation.
of the people.
KINDS OF LICENSES
Power to prescribe regulations flows from the 1. Regulation of Useful Occupation
recognition that the welfare of the people is the supreme 2. Regulation of Non-Useful Occupation
law.
Exception: For Revenue purposes

105
A license tax for regulation is not a tax on property but WHO CAN COMMENCE AN ACTION
rather a burden imposed for the right to exercise a 1. City/Municipal Mayor – He shall commence the
franchise or privilege of which the holder may not be action if the civil action is for the maintenance of
deprived without due process and when public interest a public nuisance.
so requires.
The Mayor cannot claim authority to summarily
While it is true that the matter of determining whether abate nuisance under the General Welfare
there is a pollution in the environment that requires Clause. This only applies to nuisance per se or
control if not prohibition of the operation of a business, one which affects the immediate safety of
is essentially addressed to the Environmental persons and property and may be summarily
Management Bureau of DENR, it must be recognized abated under the undefined law of necessity.
that the mayor of a town has as much responsibility to (Estate of Gregorio Francisco v. CA, 1991)
protect its inhabitants from pollution and by virtue of his
police power, he may deny the application of permit to 2. Private person – If the public nuisance is
operate business (the mayor here has factual basis). especially injurious to himself, he may abate by:
(Technology Developers, Inc. v. CA, 1991) a. Availing the remedies cited above
b. Removing or destroying the thing
But if the basis for issuance of permit to operate without committing breach of peace or
business is a special law, the latter shall govern over the doing unnecessary injury. but:
Local Government Code. A general law cannot repeal a ● There’s a demand to the
special law. (Laguna Lake Development Authority v. CA, owner/possessor of the
1995) nuisance
● Rejected demand
POWER TO ISSUE PERMITS FOR RALLIES ● Health officer and police
“No permit, no rally” rule is constitutional. While the executed their duties
freedom of speech and assembly were recognized by ● Value of destruction is less than
the court, such rights are not absolute. It is regulated by P3,000
police power in promoting health, morals, peace,
education, good order or safety, and general welfare of NUISANCE PER SE
the people. (Bayan v. Ermita, 2006; B.P. 880, The Public A nuisance under any and all circumstances
Assembly Act of 1985)
NUISANCE PER ACCIDENS
ABATEMENT OF NUISANCE Becomes a nuisance such under certain conditions and
1. Prosecution (Penal Code or other laws) circumstances. (Aquino, citing Salao v. Santos, 1939)
2. Civil Action
3. Extrajudicial Abatement EMINENT DOMAIN
Eminent domain is the inherent right of the State to
Private nuisance would only allow civil action and condemn or to take private property for public use upon
extrajudicial abatement. But in case it’s a private payment of just compensation while police power is the
nuisance, the following rules will still apply. power of the state to promote public welfare by
restraining and regulating the use of liberty and property
PERSONS RESPONSIBLE FOR NUISANCES without compensation. (Sec. 19, LGC)
1. District health officer – To ensure that one or all
the remedies for public nuisance are availed of. REQUIREMENTS
He shall also determine whether an extrajudicial 1. Taking of property
abatement is the best remedy. 2. For public use/purpose
2. Local Police – Assist in executing the abatement. 3. With just compensation

CAN THE LGU ENTER THE PROPERTY? YES.

1. Upon filing of expropriation proceedings;
2. Upon making a deposit.

The principle of res judicata does not apply in eminent

domain cases. (Moday v. CA)

106
WHEN PRIVATE PROPERTY IS TAKEN Each local government unit shall have the power to
1. Expropriator must enter into private property create its own sources of revenues and to levy taxes,
2. For more than a momentary period fees and charges subject to such guidelines and
3. Entry into property should be under warrant of limitations as the Congress may provide, consistent with
color or legal authority the basic policy of local autonomy. Such taxes, fees, and
4. Property must be devoted to a public use or charges shall accrue exclusively to the local
informally appropriated or injuriously affected governments. (Art. X, Sec. 5)
5. Utilization of the property for public use must be
in such a way as to oust the owner and deprive The basic rationale for the current rule is to safeguard
him of all beneficial enjoyment of the property. the viability and self-sufficiency of local government
(Heirs of Mateo Pidacan v. Air Transportation units by directly granting them general and broad tax
Office, 2007) powers.

EMINENT DOMAIN REQUISITE BY AN LGU The Constitutional objective obviously is to ensure that,
1. An ordinance, not a mere resolution, is enacted while local government units are being strengthened and
by the local legislative council authorizing the made more autonomous, the legislature must still see to
local Chief Executive to exercise the power of it that:
eminent domain; 1. the taxpayer will not be over-burdened or
2. The power is exercised for public use, purpose saddled with multiple and unreasonable
or welfare, or for the benefit of the poor and the impositions;
landless; 2. each local government unit will have its fair
3. There is payment of just compensation based on share of available resources;
the fair market value of the property at the time 3. the resources of the national government will not
of taking; and, be unduly disturbed; and
4. A valid and definite offer was previously made to 4. local taxation will be fair, uniform, and just.
the owner of the property, but the offer was not
accepted. (Municipality of Paranaque v V.M FUNDAMENTAL PRINCIPLES
Realty Corporation) 1. Uniformity within the territorial jurisdiction
2. Equitable, as far as practicable on the ability to
pay;
TAXING POWER 3. For public purposes;
4. Not unjust, excessive, oppressive or
General Rule: In case of doubt, any tax ordinance or
confiscatory;
revenue measure shall be construed strictly against the
5. Not contrary to law, public policy, national
LGU enacting it, and liberally in favor of the taxpayer.
economic policy, or in restraint of trade
6. Shall not be left to any private person
Any tax exemption, incentive or relief granted by any
7. Solely for the benefit of the LGU
LGU shall be construed strictly against the person
8. Progressive (Sec. 130, LGC)
claiming it.

Exception: To being in favor to LGU: Strictly against

SOURCES OF REVENUE
LGU, liberally in favor of taxpayer. 1. Under the Constitution
a. Taxes, fees and charges (Art. X, Sec. 5)
Exception to the exception: Strictly against the b. Share in the national taxes (Internal
taxpayer, if he’s claiming exemption. Revenue Allotment)
c. National Taxes is not limited to those
collected from income taxes but
includes all kinds of taxes (Mandanas v.
Ochoa, 2018)
d. Share in the proceeds of the utilization
and development of the national wealth
within their areas (Art. X, Sec. 7)

107
 2. Under the Local Government Code 5. All real property owned by duly registered
a. Floating of bonds cooperatives as provided for under R.A. No.
b. Grants or aids 6938; and
6. Machinery and equipment used for pollution
SHARE OF LGUS IN NATIONAL TAXES control and environmental protection (Sec. 234,
1. 40% on the Internal Revenue LGC)
2. Provinces and Cities – 23%
3. Municipalities – 34% OTHER LIMITATIONS ON TAXING POWERS OF
4. Barangays – 20% LGUS
5. 20% of each allocation should be for 1. Taxes already imposed by National Government:
development projects Generally, LGUs cannot impose taxes that are
already imposed by the National Government
The Local Government Code provides that LGUs shall (e.g. income tax, documentary stamps, estate
be entitled to a 40% share in the gross collection the taxes, customs duties, excise taxes under the
State derives from the utilization and development of NIRC, VAT) (Sec. 133, LGC)
these natural resources "within their territorial 2. Persons exempted: LGUs cannot impose taxes,
jurisdiction." The Code does not define the term fees, and charges on
"territorial jurisdiction." Provisions therein, however, a. Countryside and barangay business
indicate that territorial jurisdiction refers to the LGU's enterprises;
territorial boundaries. The Court held that the LGU’s b. Cooperatives duly registered under the
territorial jurisdiction refers only to its land area. Thus, its Cooperative Code; and
40% share only pertains to the proceeds from the use c. National Government, its agencies and
and development of natural resources found only in its instrumentalities, and local government
land area. units. (Sec. 133(n)-(o), LGC)

REAL PROPERTY TAXATION

RECLASSIFICATION OF LANDS
Annual ad valorem tax on real property may be
levied by a: REQUISITES FOR RECLASSIFICATION
1. Province; or 1. Via ordinance;
2. City; or 2. After public hearings for the purpose;
3. Municipality within Metropolitan Manila Area 3. Limited to the following percentages:
(Sec. 232, LGC) a. 15% for highly urbanized and
independent component cities
b. 10% for component cities and 1st to 3rd
EXCEPTIONS FROM REAL PROPERTY TAX
class municipalities
1. Real property owned by the Republic of the
c. 5% for 4th to 6th class municipalities
Philippines or any of its political subdivisions
d. EXCEPTION: The President may, when
2. EXCEPT: when the beneficial use thereof has
public interest requires and upon
been granted, for consideration or otherwise, to
recommendation by the NEDA, authorize
a taxable person;
reclassification in excess of the limits set
3. Charitable institutions, churches, parsonages or
herein
convents appurtenant thereto, mosques,
4. Approval by national agency: Where approval by
nonprofit or religious cemeteries and all lands,
a national agency is required for reclassification,
buildings, and improvements actually, directly,
such approval shall not be unreasonably
and exclusively used for religious, charitable or
withheld. Failure to act on a proper and
educational purposes;
complete application for reclassification within 3
4. All machineries and equipment that are actually,
months from receipt.
directly and exclusively used by local water
districts and government-owned or –controlled
Nothing in Section 20 LGC shall be construed as
corporations engaged in the supply and
repealing, amending, or modifying in any manner the
distribution of water and/or generation and
provisions of R.A. No. 6657.
transmission of electric power;

108
DISTINGUISHED FROM CONVERSION CLOSURE REQUISITES
The power granted to local governments is not the
PERMANENT TEMPORARY
power to convert land, but the power to reclassify land.

RECLASSIFICATION CONVERSION ● The ordinance Valid ordinance due to:

must be
approved by 2/3 ● Actual
The act of changing the The act of specifying how
of Sanggunian emergency
current use of a piece of agricultural lands shall be
● Provisions for ● Fiesta
agricultural land into some utilized for non-agricultural
public safety celebrations
other use as approved by uses such as residential,
● A substitute for ● Public rallies
the Department of Agrarian industrial, commercial, as
public facility ● Agricultural or
Reform. embodied in the land use
shall be provided industrial fairs
plan, subject to the
when necessary ● Undertaking of
requirements and
● May be used or public works and
procedure for land use
conveyed for any highways,
conversion.
purpose (like tele-communicati
how LGUs legally ons, and
dispose their waterworks
The reclassification of agricultural land does not property) projects
automatically allow a landowner to change its use. The ● Freedom park – ● Duration shall be
landowner has to undergo the process of conversion there must be a specified by the
before she is permitted to use the agricultural land for provision on its local chief
other purposes. (Chamber of Real Estate and Builders relocation executive in a
Association, Inc. v. Secretary of Agrarian Reform, 2010) written order
● Athletic, cultural,
civic activities –
CLOSURE AND OPENING OF ROADS must be officially
sponsored,
TYPES OF ROADS recognized, or
1. Local road approved by the
2. Alley LGU
3. Park
4. Square. (Must be within jurisdiction and through
and ordinance)
LEGISLATIVE POWER
1. Ordinance - prescribes a rule of conduct.
A MUNICIPALITY HAS THE AUTHORITY TO 2. Resolution - of temporary character, or
1. Prepare and adopt a land use map expresses sentiment.
2. Promulgate a zoning ordinance which may
consider, among other things, the municipal General Rule: The power to enact ordinances carries
roads to be constructed, maintained, improved with it the power to change or repeal them
or repaired
3. Close any municipal road
Exception: Provided, vested rights are not thereby
impaired and repeals are valid only when passed in a
A ROAD MAY BE certain manner which should be definite and should
1. Permanently closed relate specifically to the ordinance which should be
2. Temporarily closed repealed.
3. Opened
Congress has an implied power to repeal any municipal
ordinance either in express terms or by necessary
implication for the rule is that, if the subsequent statute
is necessarily repugnant to an ordinance and the
intention to repeal it is obvious, then the ordinance is
thereby impliedly repealed.

109
REQUISITES FOR VALID ORDINANCE RULES TO BE OBSERVED IN VOTING
1. Must not contravene the Constitution and any
statute
WHEN TWO-THIRDS (2/3) VOTE REQUIRED
2. Must not be unfair or oppressive
1. Extending loans or entering into contracts;
3. Must not be partial or discriminatory
2. Issuance of bonds or securities;
4. Must not prohibit but may regulate trade
3. Authorizing the lease of public property;
5. Must be general and consistent with public
4. Grant of franchises;
policy
5. Creation of LGU liability or indebtedness
6. Must not be unreasonable. (City of Manila v.
6. Over-ride the veto of the Mayor;
Laguio Jr., 2005)
7. Grant of tax exemptions;
8. Levy of taxes;
VETO 9. Discipline or suspend a member of the
If the local chief executive vetoes, it may be overridden sanggunian;
by 2/3 vote of all Sanggunian members; 10. Opening or closing of roads;
11. Selection and transfer of government site or
GROUNDS FOR VETO offices; and
1. Ordinance is ultra vires or prejudicial to public 12. Concurrence in the appointment of personnel
welfare (DILG Opinion No. 107-2003, dated 15 August
2. Veto on particular item(s) of appropriation for 2003)
ordinance, adoption of local development plan
and public investment plan, or ordinance To change the name of public structure with historical,
directing payment of money or creating liability cultural and ethnic significance, a unanimous vote is
3. Veto only once required.
4. Veto communicated to Sanggunian 15 days
(province) and 10 days (city/municipality);
otherwise the ordinance shall be deemed LOCAL INITIATIVE
approved It is the legal process whereby the registered voters of a
local government unit may directly propose, enact or
Exception: A barangay chairperson has no veto power; amend any ordinance. It may be exercised by all
he shall sign upon the approval of the majority of registered voters of the provinces, cities, municipalities
Sangguniang Barangay (Section 54-55, LGC) and barangays.

Where petitioner was charged with falsification of a It can be exercised only once a year and shall extend
public document for approving a resolution which only to matters within the powers of the Sanggunian. If
purportedly appropriated money to pay for the terminal at any time before the initiative is held, the Sanggunian
leave of 2 employees when actually no such resolution concerned adopts in toto the proposition presented and
was passed, the petitioner argued that his signature on the local chief executive approves the same, the initiative
the resolution was merely ministerial. The Supreme shall be cancelled. However, those against such action
Court disagreed, saying that the grant of the veto power may apply for initiative in the manner provided by law.
accords the Mayor the discretion whether or not to
approve the resolution. (De Los Reyes v Sandiganbayan,
1997)

REVIEW
1. The sangguniang panlalawigan shall review
ordinances and resolution of cities and
municipalities to determine if they are within their
power. (Sec. 56, LGC)
2. The sangguniang panlungsod or bayan shall
review sangguniang barangay ordinances to
determine if they are lawful. (Sec. 57, LGC)

110
LOCAL REFERENDUM Exception: Unless otherwise provided by the Code, no
Process whereby the registered voters of the LGUs may contract may be entered into by the local chief executive
approve, amend or reject any ordinance. on behalf of the local government unit without prior
authorization by the sanggunian concerned.
COMELEC SHALL HOLD AND DIRECT
1. Provinces – 60 days
ACQUIRING PROPERTIES
2. Municipalities – 45 days The local government unit may acquire real or personal,
3. Barangays – 30 days tangible or intangible property, in any manner allowed by
law, e.g., sale, donation, etc. The local government unit
may alienate only patrimonial property, upon proper
ULTRA VIRES ACTS authority.
When a contract is entered into without compliance with
the substantive requirements and has no inherent power, In the absence of proof that the property was acquired
the same is ultra vires and is null and void. Such through corporate or private funds, the presumption is
contract cannot be ratified or validated. that it came from the State upon the creation of the
municipality and, thus, is governmental or public
CORPORATE POWERS property. (Salas v. Jarencio, 1972)
1. To have continuous succession in its corporate
name RULE ON PRIVATE LAWYERS REPRESENTING
2. To acquire, hold and convey real or personal MUNICIPALITIES
property Private lawyers may not represent municipalities on their
3. To borrow money own, and neither may they do so even in collaboration
4. To issue municipal bonds with authorized government lawyers.
5. To have and use a corporate seal
6. LGUs may continue using, modify, or change Only the provincial fiscal, provincial attorney, and
their existing corporate seals. municipal attorney should represent a municipality in
7. Newly established LGU/those without corporate lawsuits.
seals:
a. may create their own corporate seals Exception: May expressly adopt the work already
which shall be registered with the DILG performed in good faith by such private lawyer, which
b. Any change of corporate seal shall also work is beneficial to it.
be registered.
8. To enter into contracts Exception to the exception:
9. Appropriate and spend money only for public 1. No injustice is made to the adverse party
purposes 2. No compensation in any guise is paid to the
10. To sue and be sued private lawyer (Ramos v. CA, 1997)

General Rule: Contracts entered into by the LGU shall

be governed by the stipulations of the contract or the LIABILITY OF LOCAL GOVERNMENT
law in force at the time rights and obligations arose. UNITS
REQUISITES PUBLIC OR GOVERNMENT FUNCTIONS
1. The LGU has the express, implied, or inherent The local government unit engaged in governmental
power to enter into the particular contract. functions, it is not liable for the acts of its officers or
2. The contract is entered into by the proper agents in the performance of its governmental functions.
department, board, committee, officer, or agent. This is based on the sovereign character of the state and
3. The contract must comply with certain its agencies. (Rodriguez, R.B.)
substantive requirements.
4. The contract must comply with the formal CORPORATE, PRIVATE OR PROPRIETARY
requirements of written contracts, e.g., the
FUNCTIONS
Statute of Frauds.
If engaged in proprietary functions, local government
5. Those entered into by the local chief executive
unit is liable. The LGU is to be regarded as a private
shall require a prior authorization from
corporation or individual as to its liability to third persons
Sanggunian
on contract or in tort.

111
TEST TO DETERMINE IF PUBLIC OF PRIVATE Settlement Of Boundary Disputes
FUNCTION
The true test is where the public corporation is DISPUTING UNITS SANGGUNIAN
performing governmental functions as an agency of the
state, it shares the state’s exemption from tort liability; Barangays in the same Sangguniang
where it is attending to what primarily are local matters, city or municipality Panlungsod or
it is liable. (Mendoza v. de Leon, 1916) Sangguniang Bayan

Holding of town fiesta is a proprietary function. The Municipalities in the Sangguniang

Municipality of Malasique, Pangasinan, was held liable same province Panlalawigan
for the death of a performer when the stage collapsed. A
Municipalities or JOINTLY referred in the
municipal corporation exercising proprietary functions is
component cities of Sanggunian of the
on the same footing as a private corporation. Its
different provinces provinces involved
governing board or councilors are not liable solidarily for
acts committed by its employees unless there is bad Component city or JOINTLY referred for
faith or wanton negligence on their part. (Torio v. municipality AND Highly settlement to the
Fontanilla, 1978) urbanized cities Sanggunian of the
parties, respectively
PERSONAL LIABILITY OF LOCAL
OFFICIALS
LOCAL OFFICIALS
LIABILITY FOR VIOLATION OF LAW
The Municipality of Bunawan, Agusan del Sur, through QUALIFICATIONS
the Mayor, was held in contempt and fined P1,000 with a 1. Filipino Citizen
warning, because of the refusal of the Mayor to abide by 2. Registered voter in the respective LGU or district
a Temporary Restraining Order issued by the Court. (Sanggunian Member)
(Moday v. CA) 3. Resident for at least 1 year
4. Able to read and write in Filipino/local
LIABILITY FOR CONTRACTS dialect/language
A municipal corporation, like an ordinary person, is liable 5. Age Requirement:
on a contract it enters into, provided that the contract is a. Governor, Vice Governor of Provinces;
intra vires. If the contract is ultra vires, the municipal Mayor, Vice Mayor, Sangguniang
corporation is not liable. Panglungsod of HUC: 23 years old
b. Mayor, Vice Mayor of ICC, Component
A private individual who deals with a municipal Cities and Municipalities: 21 years old
corporation is imputed constructive knowledge of the c. Sangguniang Panglungsod,
extent of the power or authority of the municipal Sangguiniang Bayan: 18 years old
corporation to enter into contracts. d. Punong Barangay, Sangguniang
Pambarangay: 18 years old
Ordinarily, the doctrine of estoppel does not lie against e. Sangguniang Kabataan – 18-24 years
municipal corporation. old

DOCTRINE OF IMPLIED MUNICIPAL LIABILITY

The doctrine applies to all cases where money or
property of a party is received under such circumstances
that the general law, independent of an express contract,
implies an obligation to do justice with respect to the
same.

A municipality may become obligated upon an implied

contract to pay the reasonable value of the benefits
accepted or appropriated by it as to which it has the
general power to contract. (Province of Cebu v. IAC)

112
DISQUALIFICATIONS ELECTION DATE
1. Sentenced by final judgment: Election date is scheduled every 2nd Monday of May,
a. Offenses involving moral turpitude every 3 years.
b. Offense punishable by 1-year
imprisonment (or more) within 2 year TERM OF OFFICE
after service of sentence Local elected official after the effectivity of the LGC:
2. Removed from office due to an administrative 1. 3 years from June 30, 1992 (12 noon).
case 2. Those elected within the ratification of 1987
3. Violation of oath of allegiance Constitution and June 30, 1992 shall end their
4. Dual citizenship office on the latter date.
5. Fugitives; criminal or non-political; here or
abroad Exception: Barangay Officials – 3 years. Starting on
6. Permanent resident abroad/continues to avail an second Monday of May 1994.
acquired right to reside abroad
7. Insane/feeble-minded (Secs. 39 & 40, LGC) No official shall serve for more than 3 consecutive terms
for the same position
The use of foreign passport after renouncing one’s
foreign citizenship is a positive and voluntary act of FOR THE THREE-TERM LIMIT FOR ELECTIVE
representation as to one’s nationality and citizenship; it
LOCAL GOVERNMENT OFFICIALS TO APPLY
does not divest Filipino citizenship regained by
1. That the official concerned has been elected for
repatriation, but it recants the Oath of Renunciation
three consecutive terms in the same local
required to qualify one to run for an elective position.
government post, and
(Maquiling v. COMELEC, 2013)
2. That he has fully served three consecutive
terms. (Ong v. Alegre, 2006)
TERM AND MANNER OF ELECTION
Voluntary Renunciation is not considered an interruption
ELECTED AT LARGE BY QUALIFIED VOTERS of the running of 3 consecutive terms.
1. Governor
2. Vice Governor Preventive suspension of an elected local official is not
3. City Mayor considered an interruption of the term.
4. City Vice Mayor
5. Municipal Mayor Preventive suspension, by its nature, is a temporary
6. Municipal Vice Mayor incapacity to render service during an unbroken term. It
7. Punong Barangay is not a valid interruption. To constitute as valid, the
8. Sangguniang Barangay (Secs. 41-43, LGC) interruption of the service should occur after there has
been a break in time. The best indicator of the
ELECTED BY DISTRICT suspended official’s continuity in office is the absence of
1. Sangguniang Panlalawigan a permanent replacement and the lack of authority to
2. Sangguniang Panlungsod appoint one since no vacancy exists. Furthermore,
3. Sangguniang Bayan preventive suspension does not involve a voluntary act
on the part of the official. By its very nature, it is
ELECTED BY REGISTERED VOTERS OF involuntary. (Aldovino v. COMELEC, 2009)
KATIPUNAN NG KABATAAN
Per Chapter, Sangguiang Kabataan RULES ON PRACTICE OF PROFESSION OF
LOCAL GOVERNMENT OFFICIALS
THE SANGGUNIAN MUST HAVE Local officials are prohibited from practicing their
1. 1 sectoral representative from the women profession or any other related business during their
2. 1 sectoral representative from the workers term.
3. 1 sectoral representation from any: urban poor,
indigenous cultural communities, disabled
persons, other sector (deemed by the
Sanggunian within 90 days prior the next local
elections)

113
Exceptions: Sanggunian members, but not during VICE
GOVERNOR PUNONG
session hours. Members of the Bar shall not: VACANT OFFICE GOVERNOR OR
OR MAYOR BARANGAY
VICE MAYOR
1. Appear as a counsel in any civil case wherein
the LGU is the adverse party;
Vice Highest ranking Highest
2. Appear as a counsel in any criminal case Governor or Sanggunian Ranking
wherein an officer or employee of the SUCCESSOR Vice Mayor. member. Sanggunian
government is accused of an offense in relation member, OR
to his office;
3. Collect any fee in administrative proceedings Highest Second highest Second
involving the LGU wherein he is an official; Ranking ranking Highest if
4. Use property and personnel of the government Sanggunian Sanggunian highest is
except when defending the interest of the NEXT member, or member permanently
government. (Sec. 90, LGC) SUCCESSOR Second unable
Highest if
highest is
permanently
VACANCIES AND SUCCESSION unable

PERMANENT VACANCIES
A permanent vacancy arises when an elective local SANGGUNIAN
official “Filled by Appointment” where automatic succession
1. Fills a higher vacant office, does not apply
2. Refuses to assume office,
3. Fails to qualify, Successor appointed/ Appointee should be from the
4. Dies same political party as the one causing the vacancy,
5. Is removed from office, except for the Sangguniang Barangay
6. Voluntarily resigns, or
7. Is permanently incapacitated to discharge the There is only one rule governing appointments to the
functions of his office. (Sec. 44, LGC) Sangguniang Barangay: any vacancy caused by the
cessation from office of a member must be made by the
OFFICES OF THE GOVERNOR, VICE mayor upon the recommendation of that Sanggunian.
The reason is that members of the Sangguniang
GOVERNOR, MAYOR, AND VICE MAYOR
Barangay are not allowed to have party affiliations.
“Automatic succession” takes place in case of such
(Fariñas v. Barba, 1996)
permanent vacancies in these offices. Successors shall
only serve the unexpired term.
PANLALAWIGAN PANLUNG-
VACANT AND SOD AND BARANGAY
PANLUNGSOD BAYAN

Highly Urbanized Component City or

LGU and ICCs Cities. Municipality

President through Governor Mayor upon

SUCCESSOR Executive recommenda
Secretary tion of the
Sangguniang
Barangay
concerned.

114
FROM THE SAME POLITICAL PARTY Temporary Vacancy
A nomination and a certificate of membership of the
appointee from the highest official of the political party LOCAL CHIEF CAUSE OF TEMPORARY
concerned are conditions sine qua non, and any EXECUTIVE VACANCY SUCCESSOR
appointment without such nomination and certificate OFFICER (INCAPACITY)
shall be null and void ab initio and shall be a ground for
administrative action against the official responsible. Physical or Legal
Vice-Governor
Governor, Mayor, Vice-Mayor, OR
reasons
IF THE OFFICIAL HAS NO POLITICAL PARTY OR Punong Highest Ranking
(LOA, abroad,
Barangay Sanggunian
the local chief executive shall appoint a qualified person suspension)
member
to fill, upon recommendation of the sanggunian
concerned. (Sec. 45, LGC) Automatically assumes and exercises all duties and powers
EXCEPT
REPRESENTATION OF THE YOUTH AND Power to suspend, appoint, dismiss employees.
BARANGAY SANGGUNIAN
Vacancy in the representation of the youth and the These powers can only be exercised if the power temporary
incapacity exceeds 30 working days.
barangay in the sanggunian shall be filled by the official
next in rank of the organization.
DISCIPLINE OF ELECTIVE OFFICIALS
RESIGNATION OF ELECTIVE OFFICIALS
Resignation is deemed effective only upon acceptance
GROUNDS
by the following authorities:
1. Disloyalty to the Republic of the Philippines;
2. Culpable violation of the Constitution;
RESIGNATION BY APPROVED BY 3. Dishonesty, oppression, misconduct in office,
gross negligence, or dereliction of duty;
Governors and President 4. Commission of any offense involving moral
vice-governors; Mayors turpitude or an offense punishable by at least
and vice-mayors of HUCs prision mayor;
and ICCs 5. Abuse of authority;
6. Unauthorized absence for 15 consecutive
Mayors and vice-mayors Governors working days
of component cities and 7. Except in the case of members of the local
municipalities
legislative bodies.
8. Application for, or acquisition of, foreign
Sanggunian members Sanggunian concerned citizenship or residence or the status of an
immigrant of another country; and
Barangay officials City or municipal mayor 9. Such other grounds as may be provided in the
LGC and other laws (Sec. 60(a), LGC)
Exceptions:
1. Resignation shall be deemed accepted if not
acted upon by the authority concerned within 15
working days from the receipt thereof.
2. Irrevocable resignations by sanggunian
members shall be deemed accepted upon
presentation before an open session of the
sanggunian concerned and duly entered in its
records.
3. This does not apply to sanggunian members
who are subject to recall elections or to cases
where existing laws prescribed the manner of
acting upon such resignations. (Sec. 82, LGC)

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 Jurisdiction Of Administrative Complaints
ELECTIVE SUSPENSION IMPOSED
ELECTIVE WHERE COMPLAINT TO OFFICIAL BY
OFFICIAL BE FILED
Province, highly urbanized President
Province, Highly urbanized Office of the President city, or independent
city, independent component city
component city, or
component city Component City or Governor
Municipality
Municipality Sangguniang Panlalawigan
Barangay Mayor
Barangay Sangguniang Panglungsod
or Bayan
WHEN IMPOSED
No investigation may be held within 90 days immediately 1. Anytime when the issues are joined
prior to any local election (Sec. 62, LGC) 2. When the evidence of the guilt is strong
3. Given the gravity of the offense, there is great
Ombudsman Jurisdiction probability that the continuance in office of the
respondent could influence the witnesses or
threaten the safety/integrity of the records or
PRIMARY JURISDICTION CONCURRENT evidence (Sec. 63(b), LGC)
JURISDICTION
LENGTH OF PREVENTIVE SUSPENSION
Acts or omissions of a Cases cognizable by 1. Any single preventive suspension cannot exceed
public officer or employee in regular courts and other 60 days;
cases cognizable by the investigative agencies of the 2. Cannot be imposed within 90 days immediately
Sandiganbayan (i.e. salary government (Sec. 61, LGC)
prior to any local election; if imposed before said
grade of 27 or higher) (Sec.
15, R.A. 6770) period but extends to such, automatically lifted
upon start of the 90-day period;
3. If there are several administrative cases against
an elective official, he cannot be preventively
In administrative cases involving the concurrent suspended for more than 90 days within a single
jurisdiction of two or more disciplining authorities, the year on the same ground/s existing and known
body in which the complaint is filed first, and which opts at the time of the first suspension;
to take cognizance of the case, acquires jurisdiction to 4. Once lifted, official is deemed reinstated without
the exclusion of other tribunals exercising concurrent prejudice to the continuance of the proceedings
jurisdiction (Office of the Ombudsman v. Rodriguez, against him (Sec.62-63, LGC)
2010)
The penalty of suspension shall not exceed the
unexpired term of the respondent or a period of 6
months for every administrative offense. It shall not be a
bar to the candidacy of the respondent so suspended
(Sec. 66(b), LGC)

116
REMOVAL GROUND FOR RECALL
An elective local official may be removed from office by Loss of trust and confidence (Sec. 69, LGC)
order of the proper court (Sec. 60, LGC)
INITIATION OF RECALL PROCESS
The penalty of removal from office as a result of By a petition of a registered voter supported by:
administrative investigation shall be considered a bar to 1. 25% of registered voters if LGU has a voting
the candidacy of the respondent for any elective position population of not more than 20,000.
(Sec. 66(c), LGC) 2. 20% of registered voters if LGU has a voting
population of 20,000 to 75,000. In no case shall
A suspension for multiple offenses does not amount to a petitioners be less than 5,000.
removal if each suspension corresponding to each 3. 15% of registered voters if LGU has a voting
offense does not exceed 6 months (Salalima v. population of 75,000 to 300,000. In
Guingona, 1996) a. no case shall petitioners be less than
15,000.
4. 10% of registered voters if LGU has a voting
DOCTRINE OF CONDONATION population of more than 300,000. In no case
A public official cannot be removed for administrative
shall petitioners be less than 45,000. (Sec. 70,
misconduct committed during a prior term, since his
LGC)
re-election to office operates as a condonation of the
officer's previous misconduct to the extent of cutting off
WHEN RECALL ELECTION IS HELD
the right to remove him therefor (Aguinaldo v. Santos,
1992)
LGU OFFICIALS DATE
DECLARED AS UNCONSTITUTIONAL
This doctrine has been overturned in Carpio- Morales v. Barangay, city, or municipal Not later than 30 days from
CA, where the Court held that election is not a mode of official completion
condoning an administrative offense. The doctrine
cannot be sanctioned under our present Constitution, Provincial officials Not later than 45 days from
completion (Sec. 71, LGC)
which upholds the concept that a public office is a
public trust and the corollary requirement of
accountability to the people at all times (Carpio-Morales
v. CA, 2015)
EFFECTS ON OFFICIAL SOUGHT TO BE
RECALLED
1. Automatically considered as candidate and is
DISCIPLINE OF APPOINTIVE entitled to be voted upon (Sec. 71, LGC)
OFFICIALS 2. Not allowed to resign while recall process is in
The power to discipline is specifically granted by the progress (Sec. 73, LGC)
Administrative Code to heads of departments, agencies,
and instrumentalities, provinces, and cities. The EFFECTIVITY OF RECALL
appointing authority is generally the disciplinary Upon election and proclamation of a successor or the
authority. candidate receiving the highest number of votes cast
during the election on recall (Sec. 72, LGC)
RECALL
Recall is the termination of official relationship of an LIMITATIONS
elective official for loss of confidence prior to the 1. Any local elective official may be the subject of
expiration of his term through the will of the electorate. recall election only once during his term of office
(Sec. 69, LGC) for loss of confidence (Sec. 74(a), LGC)
2. No recall election shall take place within 1 year
BY WHOM EXERCISED from the date of the official’s assumption to
The power of recall for loss of confidence shall be office or 1 year immediately preceding a regular
exercised by the registered voters of a local government local election (Sec. 74(b), LGC)
unit to which the local elective official subject to such
recall belongs.

117
TERM LIMITS RECALL ELECTIONS
An elective official, who has served for three consecutive
terms and who did not seek the elective position for
LENGTH OF TERM
what could be his fourth term, but later won in a recall
Shall be determined by law, currently 3 years.
election, had an interruption in the continuity of his
service. For, he had become in the interim (i.e. from the
WHAT CONSTITUTES A TERM OF OFFICE end of the 3rd term up to the recall election) a private
The term limit for elective officials must be taken to refer citizen. (Adormeo v. COMELEC, 2002)
to the right to be elected as well as the right to serve in
the same elective position. Consequently, it is not
CONVERSION
enough that an individual has served three consecutive
The abolition of an elective local office due to the
terms in an elective local office, he must also have been
conversion of a municipality to a city does not, by itself,
elected to the same position for the same number of
work to interrupt the incumbent official’s continuity of
times before the disqualification can apply. (Borja v.
service (Latasa v. COMELEC, 2003)
COMELEC, 1998)

The interruption of a term that would prevent the

PREVENTIVE SUSPENSION
operation of the three-term rule involves no less than the Preventive suspension is not a term-interrupting event as
involuntary loss of title to office [or the right to hold on to the elective officer’s continued stay and entitlement to
an office or at least an effective break from holding the office remain unaffected during the period of
office. (Aldovino, Jr. v. COMELEC, 2009) suspension, although he is barred from exercising the
functions of his office (Aldovino, Jr. v. COMELEC, 2009)
CONDITIONS FOR THE APPLICATION OF THE
LOSING IN AN ELECTION PROTEST
DISQUALIFICATION
When a candidate is proclaimed a winner for an elective
1. Elected for three consecutive times for the same
office and assumes office, his term is interrupted when
position; and
he loses in an election protest and is ousted from office,
2. Fully served three consecutive terms (Borja v.
thus disenabling him from serving what would otherwise
COMELEC, 1998)
be the unexpired portion of his term of office had the
protest been dismissed (Lonzanida v. COMELEC, 1999)
CIRCUMSTANCES AFFECTING THE
CONSECUTIVENESS OF TERMS However, when an official loses in an election protest
and said decision becomes final after said official had
AND/OR INVOLUNTARY served the full term for said office, then his loss in the
RESIGNATION election contest does not constitute an interruption since
he managed to serve the term from start to finish. His full
ASSUMPTION OF OFFICE BY LAW service should be counted in the application of the term
When a permanent vacancy occurs in an elective limits (Ong v. Alegre, 2006; Rivera III v. COMELEC, 2007)
position pursuant to the rules of succession
1. The office assumed – The successor’s service EFFECT OF WINNING IN AN ELECTION
for the unexpired portion of the term of the PROTEST
replaced official is not treated as one full term The period during which the winner of an election
and is not counted in the application of any term protest is unable to assume office as it was occupied by
limit. (Borja v. COMELEC, 1998) his opponent is considered to be an involuntary
2. For the office held before succession – The interruption in the service of his term and therefore bars
successor’s assumption by operation of law to the application of the three-term limit rule.
the higher office (e.g. vice-mayor) is considered
an involuntary severance or interruption of the
office he previously held (e.g. councilor). It is not
counted in the application of any term limit.
(Montebon v. COMELEC, 2008)

118
 PATRIMONY
Pertains to heritage, and given the history of the Manila
Hotel, it has become a part of our national economy and
patrimony. Thus, the Filipino First policy provision of the
Constitution is applicable. Such provision is per se
enforceable, and requires no further guidelines or
implementing rules or laws for its operation. (Manila
Prince Hotel v. GSIS, 1990)

GOALS
1. More equitable distribution of opportunities,
income, and wealth
2. Sustained increase in amount of goods and
services produced by the nation for the benefit
of the people
3. Expanding production as the key to raising the
quality of life for all, especially the
underprivileged.

NATIONAL ECONOMY AND Exploration, Development and

Utilization of Natural Resources
PATRIMONY
The State, being the owner of the natural resources, is
accorded the primary power and responsibility in the
exploration, development and utilization thereof. As such
it may undertake these activities through four modes:
1. The State may directly undertake such activities;
2. The State may enter into co-production, joint
venture or production-sharing agreements with
Filipino citizens or qualified corporations;
3. Congress may, by law, allow small-scale
utilization of natural resources by Filipino
citizens; or
4. For the large-scale exploration, development
and utilization of minerals, petroleum and other
mineral oils, the President may enter into
agreements with foreign-owned corporations
involving technical or financial assistance. (La
Bugal-B’Laan Tribal Assn. v. Ramos, 2004)

119
 Nationalist And Citizenship Requirement CAPITAL
The 60% requirement applies to both the voting control
UNDERTAKING REQUIREMENT and the beneficial ownership of the public utility.
Therefore, it shall apply uniformly, separately, and across
Co-production, joint the board to all classes of shares, regardless of
venture, or nomenclature or category, comprising the capital of the
production-sharing corporation. (e.g. 60% of common stock, 60% of
agreements on preferred voting stock, and 60% of preferred non-voting
exploration, stock.) (Gamboa v. Teves, 2012)
development, and
utilization of natural A joint venture falls within the purview of an
resources Filipino Citizen or “association” pursuant to Sec. 11, Art. XII and must
Corporation or comply with the 60%-40% Filipino-foreign capitalization
associations with at requirement. (JG Summit Holdings v. CA, 2001)
Operation of a Public
least 60% capital
Utility
owned by Filipinos PUBLIC UTILITY
A public utility is a utility corporation which renders
Ownership of
service to the general public for compensation. Its
educational institutions
essential feature is that its service is not confined to
other than those
privileged individuals but is open to an indefinite public.
established by religious
The public or private character of a utility does not
groups and mission
depend on the number of persons who avail of its
boards
services but on whether or not it is open to serve all
members of the public who may require it (Iloilo Ice and
Engaging in the Filipino Citizens or Cold Storage Co. v. Public Utility Board)
advertising industry corporations or
associations with at STATE POLICIES ON MONOPOLIES AND
least 70% capital RESTRAINT OF TRADE
owned by Filipinos
The State shall regulate or prohibit monopolies when the
public interest so requires. No combinations in restraint
Mass Media Wholly owned by of trade or unfair competition shall be allowed (Sec. 19,
Filipinos Art. XII).

STATE POLICY ON THE OWNERSHIP OF

ALIENS MAY ACQUIRE EQUITY BUT CANNOT EDUCATIONAL INSTITUTIONS
PARTICIPATE IN THE MANAGEMENT OF BUSINESS Educational institutions, other than those established by
ENTITIES religious groups and mission boards, shall be owned
1. Public utilities (Section 11, Article XII) solely by citizens of the Philippines or corporations or
2. Education (Section 4(2), Article XIV) associations at least sixty per centum of the capital of
which is owned by such citizens.
Franchises and Authorities, and The Congress may, however, require increased Filipino
Certificates for Public Utilities equity participation in all educational institutions. The
control and administration of educational institutions
Franchise, certificate or any other form of authorization shall be vested in citizens of the Philippines (Sec. 4(2),
for the operation of public utilities- ONLY to citizens of Art. XIV)
the Philippines or corporations at least 60% of whose
capital is Filipino-owned. (Art. VII, Sec 11)

Congress does not have the exclusive power to issue

franchises. Administrative bodies may be empowered by
law to do so (Albano v. Reyes)

120
 Acquisition, Ownership, and Transfer RULES ON THE DISPOSITION OF
of Public and Private Lands AGRICULTURAL LANDS OF THE PUBLIC
DOMAIN
1. Private corporations or associations may not
REGALIAN DOCTRINE acquire alienable lands of the public domain.
All lands of the public domain, waters, minerals, coal, 2. Qualified individuals (Filipinos) may acquire a
petroleum and other mineral oils, all forces of potential maximum of 12 hectares of alienable lands of
energy, fisheries, forests or timber, wildlife, flora and public domain by purchase, homestead or grant.
fauna and other natural resources are owned by the 3. Private corporations may hold alienable lands of
State (Sec. 2, Art. XII). the public domain by lease up to a maximum of
1,000 hectares and for a period of 25 years
LIMITS IMPOSED ON THE CONCEPT OF renewable for another 25 years years.
REGALIAN DOCTRINE 4. Qualified individuals (Filipinos) may lease land of
1. Only agricultural lands of the public domain may the public domains up to a maximum of 500
be alienated. hectares (Sec. 3, Art. XII).
2. The exploration, development, and utilization of
all natural resources shall be under the TRANSFER OF PRIVATE LANDS TO ALIENS
supervision of the State either by directly Save in cases of hereditary succession, no private lands
undertaking such exploration, development, and shall be transferred or conveyed except to individuals,
utilization or through co-exploration, joint corporations, or associations qualified to acquire or hold
venture, or production-sharing agreements with lands of the public domain. (Sec. 7, Art. XII)
qualified persons or corporations.
3. All agreements with the qualified private sector PROHIBITION DOES NOT APPLY TO
maybe for only a period not exceeding 25 years, OWNERSHIP OF OTHER REAL PROPERTY
renewable for another 25 years A foreigner may own a condominium unit because the
4. The 25-year limit is not applicable to water rights prohibition on aliens is only from acquiring land (Hulst v.
for irrigation, water supply, fisheries, or industrial PR Builders, 2008)
uses other than the development of water
power, for which beneficial use may be the
measure and the limit of grant. Practice of Profession
5. The use and enjoyment of the marine wealth of
the archipelagic waters, territorial sea, and
exclusive economic zone shall be reserved for The practice of all professions in the Philippines shall be
Filipino citizens. limited to Filipino citizens, save in cases prescribed by
6. Utilization of natural resources in rivers, lakes, law. (Art. XII, Sec. 14)
bays, and lagoons may be allowed on a small
scale to Filipino citizens or cooperatives—with The right to choose a profession is subject to fair,
priority for subsistence fishermen and fish reasonable and equitable admissions and academic
workers (Bernas; Art. XIII, Sec. 2) requirements. (Art. XIV, Sec. 5(3))

CLASSIFICATION OF THE LAND OF THE PUBLIC Organization and Regularization of

DOMAIN
Lands of the public domain are classified into Corporations, Private and Public
agricultural, forest or timber, mineral lands, and national
The Congress shall not, except by general law, provide
parks. Agricultural lands of the public domain may be
for the formation, organization, or regulation of private
further classified according to the uses to which they
corporations. Government-owned or controlled
may be devoted (Sec. 3, Art. XII).
corporations may be created or established by special
charters in the interest of the common good and subject
to the test of economic viability. (Art. XII, Sec. 16)

121
REQUIREMENTS FOR CREATION OF GOCCS The state shall apply the principles of agrarian reform or
THROUGH SPECIAL CHARTER stewardship, whenever applicable in accordance with
1. GOCC must be established for the common law, in the disposition or utilization of other natural
good. resources including lands of the public domain under
2. GOCC must pass the economic viability test lease or concession suitable to agriculture, subject to
prior rights, homestead rights of small settlers, and the
rights of indigenous communities to their ancestral
Monopolies, Restraint of Trade and lands. (Article XIII, Sec. 6)
Unfair Competition
The ownership and management of mass media shall
MONOPOLIES be limited to citizens of the Philippines, or to
Although the Constitution enshrines free enterprise as a corporations, cooperatives or associations,
policy, it nevertheless reserves to the Government the wholly-owned and managed by such citizens.
power to intervene whenever necessary for the
promotion of the general welfare (Philippine Coconut The Congress shall regulate or prohibit monopolies in
Desiccators v. PCA, 1998) commercial mass media when the public interest so
requires. No combinations in restraint of trade or unfair
Not per se prohibited by the Constitution but may be competition therein shall be allowed.
permitted to exist to aid the government in carrying on
an enterprise or to aid in the performance of various The advertising industry is impressed with public
services and functions in the interest of the public. interest, and shall be regulated by law for the protection
Nonetheless, a determination must first be made as to of consumers and the promotion of the general welfare.
whether public interest requires a monopoly. (Agan, Jr. v.
PIATCO, 2003) Only Filipino citizens or corporations or associations at
least seventy per centum of the capital of which is
owned by such citizens shall be allowed to engage in
CENTRAL MONETARY AUTHORITY the advertising industry.

FUNCTIONS The participation of foreign investors in the governing

1. Provide policy directions in the areas of money, body of entities in such industry shall be limited to their
banking and credit; proportionate share in the capital thereof, and all the
2. Supervise the operation of banks; executive and managing officers of such entities must
3. Exercise such regulatory powers as may be be citizens of the Philippines. (Article XVI, Sec. 6)
provided by law over the operations of finance
companies and other institutions performing
similar functions

QUALIFICATIONS OF THE GOVERNORS

1. Natural-born Filipino;
2. Known probity, integrity and patriotism;
3. Majority shall come from the private sector

ORGANIZATION AND REGULATION OF

CORPORATIONS, PRIVATE AND PUBLIC
The use of property bears a social function, and all
economic agents shall contribute to the common good.
(Art. XII, Sec. 6)

Individuals and private groups, including corporations,

cooperatives, and similar collective organizations, shall
have the right to own, establish, and operate economic
enterprises, subject to the duty of the State to promote
distributive justice and to intervene when the common
good so demands.

122
 Concept of Social Justice

Social justice is neither communism, nor despotism, nor

atomism, nor anarchy, but the humanization of laws and
the equalization of social and economic forces by the
State so that justice in its rational and objectively secular
conception may at least be approximated. (Calalang v.
Williams, 1940)

Economic, Social and Cultural

Rights
Economic, social and cultural rights are those human
rights relating to the workplace, social security, family
life, participation in cultural life, and access to housing,
food, water, health care and education.

SCOPE
SOCIAL JUSTICE AND 1.
2.
Worker’s rights
The right to social security and social protection
HUMAN RIGHTS 3.
4.
Protection and assistance to the family
Right to an adequate standard of living
5. Right to health
6. The right to education
7. Cultural rights

Commission on Human Rights

POWERS AND FUNCTIONS

1. Investigate, on its own or on complaint by any
party, all forms of human rights violations
involving civil and political rights;
2. Provide appropriate legal measures for the
protection of human rights of all persons within
the Philippines, as well as Filipinos residing
abroad, and provide for preventive measures
and legal aid services to the under-privileged
whose human rights have been violated or need
protection
3. Exercise visitorial powers over jails, prisons, or
detention facilities
4. Establish a continuing program of research,
education, and information to enhance respect
for the primacy of human rights;

123
 5. Recommend to Congress effective measures to 9. Request the assistance of any department,
promote human rights and to provide for bureau, office, or agency in the performance of
compensation to victims of violations of human its functions
rights, or their families 10. 3. Appoint its officers and employees in
6. Grant immunity from prosecution to any person accordance with law
whose testimony or whose possession of 11. 4. Perform such other duties and functions
documents or other evidence is necessary or as may be provided by law. (Article XII, Sec. 17)
convenient to determine the truth in any
investigation conducted by it or under its
authority;

The CHR may receive evidence and make findings of

fact as regard claimed human rights violations involving
civil and political rights. But fact finding is not
adjudication, and cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial
agency or official. (Carino v. CHR, 1991)

The powers and functions of the Commission are

defined by the 1987 Constitution:
1. Investigate, on its own or on complaint by any
party, all forms of human rights violations
involving civil and political rights
2. Adopt its operational guidelines and rules of
procedure, and cite for contempt for violations
thereof in accordance with the Rules of Court
3. Provide appropriate legal measures for the
protection of human rights of all persons within
the Philippines, as well as Filipinos residing
abroad, and provide for preventive measures
and legal aid services to the underprivileged
whose human rights have been violated or need
protection
4. Exercise visitorial powers over jails, prisons, or
detention facilities
5. Establish a continuing program of research,
education, and information to enhance respect
for the primacy of human rights
6. Recommend to the Congress effective measures
to promote human rights and to provide for
compensation to victims of violations of human
rights, or their families
7. Monitor the Philippine Government's compliance
with international treaty obligations on human
rights
8. Grant immunity from prosecution to any person
whose testimony or whose possession of
documents or other evidence is necessary or
convenient to determine the truth in any
investigation conducted by it or under its
authority

124
 Academic Freedom

ESSENTIAL FREEDOMS OF A UNIVERSITY

1. Who may teach;
2. What may be taught;
3. How it will be taught; and
4. Who may be admitted to study

The right to discipline the student likewise finds basis in

the freedom “what to teach”. Indeed, while it is
categorically stated under the Education Act of 1982
that students have a right “to freely choose their field of
study, subject to existing curricula and to continue their
course therein up to graduation,” such right is subject to
the established academic and disciplinary standards laid
down by the academic institution (DLSU Inc., v. CA,
2007)
EDUCATION, SCIENCE,
Due process in disciplinary cases involving students
TECHNOLOGY, ARTS, does not entail proceedings and hearings similar to
those prescribed for actions and proceedings in courts
CULTURE AND SPORTS of justice. Such proceedings may be summary and
cross-examination is not even an essential part thereof.

In the exercise of the police power of the State, the

power to supervise and regulate legal education is
circumscribed by the normative contents of the
Constitution itself must be reasonably exercised.
Transgression of these limitations renders the power
and the exercise thereof unconstitutional. The Court
recognizes the power of the LEB under its charter to
prescribe minimum standards for law admission.
However, the Court ruled that the flaws which the Court
assessed to be unconstitutional are removed, thereby
still allowing PhiLSAT to develop into maturity.
(Pimentel v. LEB, 2019)

There is no undue delegation of legislative power in the

enactment of the K to 12 law. To determine this, there
are two tests: the completeness test and the sufficient
standard test.

125
For completeness test, the law must be complete when
it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce
it. For sufficient standard test, it mandates adequate
guidelines or limitations in the law to determine the
boundaries of the delegate's authority; limits must be
specified. The K to 12 law's lack of provision on labor
does not render the law incomplete. Clearly, under the
two tests, the K to 12 law, is complete in all essential
terms and conditions and contains sufficient parameters
on the power delegated to the DepEd, CHED and
TESDA. (CoTeSCUP v. Sec. of Education, 2018)

STANDARDS TO MEET PROCEDURAL DUE

PROCESS
1. Students must be informed in writing of the
nature and cause of any accusation against
them;
2. They shall have the right to answer the charges
against them, with the assistance of counsel, if
desired:
3. They shall be informed of the evidence against
them;
4. They shall have the right to adduce evidence in
their own behalf and
5. The evidence must be duly considered by the
investigating committee or official designated by
the school authorities to hear and decide the
case. (PSBA v. Alcuaz, 1988)

126
 Concepts

OBLIGATION ERGA OMNES

Obligation of every state towards the international
community as a whole. It is when all states have legal
interest in the protection of these obligations. (Barcelona
Traction, Light and Power Company Limited, ICJ
Reports, 1964)

JUS COGENS
Customary international law that has attained the status
of a peremptory norm, accepted and recognized by the
international community of states as a rule from which
no derogation is permitted; and can be modified only by
a subsequent norm having the same character. Any
treaty that conflicts with a peremptory norm is void. (Art.
53, Vienna Convention on the Law of Treaties)

PUBLIC INTERNATIONAL EX AEQUO ET BONO

It is a principle of international law used by international
LAW tribunals in deciding disputes based on equitable
considerations. The International Court of Justice can
only decide a case ex aequo et bono if the parties to the
dispute agree to its use. (Art. 38(2), Statute of the
International Court of Justice)

TYPES OF EX AEQUO ET BONO

1. Equity infra legem – A form of equity which
constitutes a method of interpretation of the law
in force, and which is based on law.
2. Equity praeter legem – When fairness
supplements the law or fills in its gaps.
3. Equity contra legem – When principles of equity
are deployed to strike down a law.

Relationship between International

Law and National Law
THEORIES ON THE RELATIONSHIP BETWEEN
INTERNATIONAL LAW AND MUNICIPAL LAW
1. Dualist/Pluralist Theory – International law and
municipal law are essentially different from each
other. They differ as to source, relations they
regulate, and substance. In case of conflict,
municipal law prevails based on state
sovereignty.
2. Monistic Theory – International law and
municipal law belong to only one system of law.

127
THEORIES AS TO ADOPTION OF Sources of Obligations in
INTERNATIONAL LAW AND DOMESTIC LAW International Law
1. Doctrine of Transformation – International law
becomes part of domestic law through the Sources of International Law Under The Statute of
appropriate legal machinery such as an act of International Court of Justice
Congress.
2. Doctrine of Incorporation – International law is PRIMARY SECONDARY
adopted as part of municipal law by operation of
law, without a positive act to adopt it. 1. Treaties (Art. 38 (a), 1. Judicial Decisions
Statute of ICJ) (Art. 38 (d), Statute
CONFLICT BETWEEN INTERNATIONAL LAW of ICJ
AND MUNICIPAL LAW
General Rule: Both must be harmonized to give effect 2.International 2. Legal Scholarship
to both systems of law. It is presumed that municipal law Customs (Art. 38 (b), or Teachings of most
is enacted with due regard for international law. Statute of ICJ) highly qualified
publicist of various
Exception: If the local court decides, it depends on the nations (Art. 38 (d),
following: Statute of ICJ)
1. Constitution v. International Law – Constitution
prevails 3. General Principles
2. Constitution v. Treaty – Treaty is subject to of Law Recognized by
qualification or amendment by a subsequent Civilized Nations (Art.
law. (Bernas) 38 (c), Statute of ICJ)
3. Local Statute v. International Law – Equal in
status

Exception to exception: If the international court

decides, international law prevails. GENERAL RULE IN CASES OF CONFLICT
BETWEEN THE SOURCES
The validity of treaties, as well as their proper adoption 1. Between primary and secondary sources,
into municipal law, are proper subjects of judicial review. primary sources will prevail.
(Gonzalez v. Hechanova, 1963) 2. Between two or more primary sources, the
following shall prevail:
Treaties have the same status as domestic laws. a. Treaties prevail over customs.
However, on the international level, a state, under the b. Customs prevail over general principles
principle of pacta sunt servanda, is obliged to comply of law.
with the treaty.
EXCEPTION IN CASES OF CONFLICT BETWEEN
THE SOURCES
Jus Cogens – A treaty is void, if at the time of its
conclusion, it conflicts with a peremptory norm of
general international law.

Jus Cogens norms are of the highest status. (Art 53,

Vienna Convention on the law of the Treaties)

TREATIES AND AGREEMENTS

It determines the rights and duties of states just as
individual rights are determined by contracts. Its binding
force comes from the voluntary decision of sovereign
states to obligate themselves to a mode of behavior.
(Bernas)

128
PRIVATE INTERNATIONAL LAW Customary rule must be in accordance with constant
Domestic law which deals with cases where foreign law and uniform usage practiced by the states. (Asylum
intrudes in the domestic sphere, where there are Case, ICJ Reports, 1950)
questions as to the applicability of foreign laws or the
role of foreign courts. Some degree of uniformity amongst state practices is
essential before a custom could come into existence.
TYPES OF TREATIES (Anglo-Norwegian Fisheries Case, ICJ Reports, 1951)
1. Law-making Treaties – Treaties that are intended
to have universal or general relevance. State practice must be both extensive and virtually
2. Treaty Contracts – Treaties that apply only uniform. (North Sea Continental Shelf Case, ICJ Report,
between at least two States. 1969)

Parties that do not sign and ratify a particular treaty are General Rule: Conduct of states should be consistent
not bound by its terms. (Shaw, 2003) with customary rules, and state conduct inconsistent
with a given rule should be treated as breaches of that
When treaties reflect customary law, then non-parties rule, not as indications of the recognition of a new rule.
are bound. One way of creating new customary law is (Nicaragua Case, ICJ Report, 1986)
by a treaty coupled with opinio juris and which must be
fundamentally norm-creating. (North Sea Continental Exception: Persistent Objector Rule – A rule of
Shelf Case, ICJ Report, 1969) international law which posits that a state, which has
persistently objected to the status as custom of a
When a treaty incorporates or covers customary law, particular practice, in the process of evolving into a
such customary law will maintain its separate existence. custom, is not bound by that customary rule.
(Shaw, citing the Nicaragua Case, 2003)
It is essential that the state’s objection arises prior to the
CUSTOMARY INTERNATIONAL LAW formation of the rule and continues consistently
Consists of rules of law derived from the consistent thereafter.
conduct of states acting out of the belief that such
conduct is obligatory upon them. GENERAL PRINCIPLES OF LAW
Principles of municipal law common to the legal systems
ELEMENTS of the world. (Bernas)
1. Opinio Juris – Psychological or actual behavior
of states These are rules generally accepted by municipal
2. State Practice – Material facts or actual behavior systems and not to the municipal law of a particular
of states state. (Barcelona Traction, Light and Power Company
Limited, ICJ Reports, 1964).
The substance of customary law must be looked for
primarily in the actual practice and opinio juris of states. The spirit of general principles of law as a source of
(Libya/Malta Case, ICJ Reports, 1985) international law is the principle of non-liquet, a situation
where there is no applicable law.
OPINIO JURIS SIVE NECESSITATIS
The belief of a state that it is bound by a certain legal
EXAMPLES OF GENERAL PRINCIPLES OF LAW
obligation. 1. Obligation to make reparations (Chorzow Factory
Case, PCIJ, Series A., No, 9, 1928)
2. Res Judicata (Administrative Tribunal Case, ICJ, 1954)
STATE PRACTICE
3. Estoppel (Temple of Preah Vihear Case, ICJ, 1962)
It covers acts, statements, omissions or silence of a
4. Principle of good faith (Nuclear Tests Case, ICJ, 1974)
state from which views about customary law may be
5. Equity
inferred.

129
JUDICIAL DECISIONS The population does not have to be homogeneous
While they do not constitute stare decisis, they are racially, ethnically, tribally, religiously, linguistic, or
subsidiary means for the determination of the rules of otherwise. But it must be a settle population, although
international law. It is not binding, except between the presence of certain nomadic inhabitants does not
parties and in a particular case, but are highly persuasive matter.
sources. (Art. 38 and 59, Statute of ICJ)
2. TERRITORY
TEACHINGS OF MOST HIGHLY QUALIFIED Geographic base in the exercise of state sovereignty.
PUBLICIST Territorial control is the essence of a state. (Magallona;
They have the same persuasive effect as Judicial Island of Las Palmas Case, 2 U.N. Rep. Intl. Arb. Awards
Decisions and similarly are subsidiary means of 829)
determining the rules of international law (Article 38,
Statute of ICJ). MODES OF ACQUIRING TERRITORY
a. Occupation
b. Prescription
c. Accession or Accretion
Subjects of International Law d. Cession

These are entities endowed with rights and obligations in a. Occupation

the international order and which possess the capacity It is the effective exercise of sovereignty over a terra
to take certain kinds of action on the international plane. nullius territory, and not mere discovery. Effective
(Bernas) occupation means continued display of authority. It
1. States involves:
2. International Organizations 1. Intention and will to act as sovereign or animus
3. Individuals occupandi
2. Actual exercise or display of authority
STATES
It is a community which consists of a territory and a The exercise of sovereignty must be peaceful, actual,
population subject to an organized political authority; continuous, and sufficient to confer valid title to
and is characterized by sovereignty. (Conference on sovereignty.
Yugoslavia Arbitration Commission: Opinions on
Questions Arising From the Dissolution of Yugoslavia, b. Prescription
Opinion No. 1 of November 29, 1991, 1992) Title is acquired by continuous and undisturbed exercise
of sovereignty over a period of time.
ELEMENTS/QUALIFICATIONS OF Requisites of Prescription
STATEHOOD 1. Must be exercised under á titre de souverain
1. People or Permanent Population 2. Peaceful and uninterrupted
2. Territory 3. Public and enduring for a certain length of time
3. Government 4. Territory must not be terra nullius
4. Sovereignty and the capacity to enter into
relations with other states (Art. 1, 1933 c. Accession or Accretion
Montevideo Convention on Rights and Duties of Accession or accretion is the natural process of land
States) formation resulting in the increase of territory. No act of
any party is necessary to increase the territory. This is a
1. PEOPLE OR PERMANENT POPULATION natural action of the environment, resulting in the
A community of persons sufficient in number, capable of increase of the territory of a state.
maintaining the permanent existence of the community,
and held together by a common bond of law.

130
d. Cession FUNDAMENTAL RIGHTS OF THE STATE
The transfer of territory from one state to another by a 1. Right to Existence and Self-Defense
treaty. The only bilateral form of acquiring territory. 2. Right of Sovereignty and Independence
Validity of cession depends on the valid title of the 3. Right of Equality
ceding state. 4. Right to Territorial Integrity and Jurisdiction

3. GOVERNMENT MANDATES AND TRUST TERRITORIES

An institution by which an independent society makes Restrictions upon the independence of states cannot be
and carries out rules of action which are necessary to presumed. (S.S. Lotus (France v. Turkey), 1927)
enable men to live in a social state, or which are
imposed upon the people forming that society by those Between independent states, respect for territorial
who possess the power or authority of prescribing them. sovereignty is an essential foundation of international
(Bacani v. NACOCO, 1956) relations. (Corfu Channel Case (UK v. Albania), 1949)

Kinds of Government INTERNATIONAL ORGANIZATIONS

1. De jure government – Government with a color Organizations that are set up by a treaty among two or
of legitimacy more states. Their powers and privileges are limited by
2. De facto government – Government without a the constituent instrument that created them. (Bernas)
mandate of law
INDIVIDUALS
Jus Poslimium Individuals have limited locus standi in international law;
Acts of the government done under the control of a de have limited rights and obligations (limited legal
facto government, when they are not of a political capacity). They have the same status as non-state
complexion, remain good even upon the restoration of international subjects such as insurgents, international
the legitimate government. (Co Kim Cham v. Valdez Tan, organizations, and national liberation movements.
1945)
Exception: European Convention on Human Rights –
4. SOVEREIGNTY AND THE CAPACITY TO While it is an international tribunal, it allows individuals to
ENTER INTO RELATIONS WITH OTHER STATES file petitions for violations of human rights within its
It means independence from outside control. It is the jurisdiction.
capacity to enter into relations with other states. It is,
however, dependent on recognition of other states. INSURGENTS
(Bernas; Montevideo Convention) The conduct of parties in a non-international armed
conflict is the 1977 Protocol II to the 1949 Geneva
Principle of State Continuity Convention.
The state continues as a juristic being notwithstanding
changes in its government or administration, even if NON-INTERNATIONAL ARMED CONFLICTS
such changes are extralegal or unconstitutional, as long They are armed conflicts which take place in the territory
as such changes do not result in the loss of any of its of the High Contracting Party between its armed forces
essential elements. and dissident armed forces or organized armed groups.

Recognition of Other States Protocol II shall not apply to situations of internal

The act of acknowledging the capacity of an entity to disturbances and tensions, such as riots not being an
exercise rights belonging to statehood. (Bernas) armed conflict.

THEORIES OF STATE RECOGNITION

1. Declaratory Theory – Recognition is merely
“declaratory” of the existence of the state and its
being a state depends upon its possession of
the required elements and not upon recognition.
2. Constitutive Theory – Recognition constitutes
what makes a state a state and confers legal
personality on the entity.

131
To be covered under Protocol II, the following Effects Doctrine
requirements for the “material field application” should An aspect of the territoriality principle. A state also has
be present: jurisdiction over acts occurring outside its territory but
1. The armed dissidents must be under responsible having effects within it. This was enunciated in the Lotus
command. case, an early case dealing with territorial jurisdiction.
2. They must exercise control over a part of its
territory to carry out sustained and concerted The effects doctrine consists of two principles
military operations and to implement its 1. Subjective territorial principle – gives a state
Protocol. jurisdiction to prosecute and punish crimes
commenced within the state
Based from the requirements, NDF, NPA, MNLF and 2. Objective territorial principle – gives a state
MILF does not fall under the status of a subject of jurisdiction to prosecute and punish crimes
international law. consummated within its territory. (Lotus case)

NATIONAL LIBERATION MOVEMENTS 2. NATIONALITY PRINCIPLE AND

National Liberation Movements are organized groups STATELESSNESS
fighting in behalf of the whole people for freedom from See Part “NATIONALITY AND STATELESSNESS”.
colonial power. (Bernas)
3. PROTECTIVE PRINCIPLE
Characteristics of National Liberation Movements A state may exercise jurisdiction over conduct outside its
1. They can be based within the territory which territory that threatens its security, as long as that
they are seeking to liberate, or they might find a conduct is generally recognized as criminal by states in
base in a friendly country. the international community. (Restatement 402[3])
2. The ultimate goal of controlling a definite
territory. This excludes acts committed in the exercise of the
3. They must have an organization capable of liberty guaranteed to an alien by the law of the place
coming into contact with other organizations. where the act was committed.
(Bernas)
4. UNIVERSALITY PRINCIPLE
Certain activities, which are universally dangerous to
Jurisdiction of States states and their subjects, require authority from all
community members to punish such acts wherever they
may occur, even absent a link between the state and the
BASIS OF JURISDICTION parties or the acts in question.
1. Territoriality Principle
2. Nationality Principle and Statelessness The international criminal court defines the crimes to
3. Protective Principle which universality principle applies
4. Universality Principle 1. Genocide
5. Passive Personality Principle 2. Crimes against humanity
3. War crimes
1. TERRITORIALITY PRINCIPLE
The fundamental source of jurisdiction is sovereignty 5. PASSIVE PERSONALITY PRINCIPLE
over territory. A state has absolute, but not necessarily A state may apply its criminal law when the victim of an
exclusive, power to prescribe, adjudicate and enforce act is its national, even if the same is committed outside
rules for conduct that occurs within its territory. Hence, it its territory. It is usually applicable to terrorist and other
is necessary that boundaries be determined. organized attacks. (Sec. 402, Third Restatement)

Las Palmas Case

To have jurisdiction, occupation is not enough; control
must also be established.

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EXEMPTIONS FROM JURISDICTION ELEMENTS OF DIPLOMATIC AND CONSULAR
LAW
ACT OF STATE DOCTRINE 1. Immunity of diplomatic staff
Every sovereign state is bound to respect the 2. The inviolability of the diplomatic mission and its
independence of every other sovereign state, and the grounds
courts of one country will not sit in judgment on the acts 3. The security of diplomatic correspondence and
of the government of another, done within its own diplomatic bags
territory. Redress of grievance by reason of such acts
must be obtained of by sovereign powers as between SOURCES OF DIPLOMATIC AND CONSULAR
themselves. (Underhill v. Hernandez, 1897) LAW
1. Customary law
It is not applicable where the validity of a foreign 2. General legal principles
government act is not issue. (Kirkpatrick Co. v. 3. Agreement
Environmental Tectonics Corp, 1990) 4. Acts
5. Analogy
INTERNATIONAL ORGANIZATION AND ITS 6. Comitas Gentium
OFFICERS 7. International Comity
There is no common law doctrine recognizing the 8. Courtesy, Precedence, and Etiquette
immunity of international organizations. Their immunities 9. Protocol (customary source)
come from conventional instrument creating them. 10. Other sources such as Doctrines and
(Bernas) Jurisdiction

IRRI was created by a Memorandum of Agreement and DIFFERENCES OF A DIPLOMATIC OFFICER

not a treaty; however, it is still granted immunity by virtue AND A CONSULAR OFFICER
of PD 1620 which granted it the statutes, prerogatives, 1. Diplomatic officer – looks after the political
privileges, and immunities of an international interests of their state and its nationals.
organization. (Kapisanan ng Manggagawa at TAC sa IRRI 2. Consular officer – looks after the commercial
- Organized Labor Association In Line Industries And interests of their state.
Agriculture v. International Rice Research Institute, Inc.,
1990) CLASSES OF HEADS OF MISSION
1. Ambassadors or nuncios accredited to Heads of
State, and other heads of mission of equivalent
rank;
Diplomatic and Consular Law 2. Envoys, ministers and internuncios accredited to
Heads of State
DIPLOMATIC LAW 3. Chargés d’affaires accredited to Ministers for
The totality of legal norms regulating the method of Foreign Affairs (Art. 14, 1961 Vienna Convention
appointing and recalling diplomatic representatives and On The Diplomatic Relations)
of fixing diplomatic ranks, functions, and legal status.
(Sarmiento) PERSONNEL OF THE DIPLOMATIC
REPRESENTATIVE
CONSULAR LAW 1. Members of his/her family and others of his/her
The body of principles and norms (of domestic household
legislation as well as of international law) regulating the 2. Those directly in the service of the mission
activities of consuls. The state defines the scope of the 3. Counselors, secretaries, attaches interpreters,
functions of its consular representatives, taking into clerks, etc.
account the legislation of the host country. (Sarmiento)

133
PRIVILEGES OF A DIPLOMAT EFFECTIVE NATIONALITY LINK
1. Inviolability For a state to claim a person as a national, the state
2. Exemption of person from criminal and civil must have reasonable connection or an “effective link”
jurisdiction with that person.
3. Immunity of residence from local jurisdiction
4. Jurisdiction within his residence The doctrine on effective nationality link is used to
5. Precedence, ceremonial prerogatives, according determine which of two states, of which a person is a
to rank national, will be recognized as having the right to give
diplomatic protection to the holder of dual nationality.
MAIN FUNCTION OF A CONSULAR OFFICER (The Nottebohm Case: Liechtenstein v. Guatemala, 1955)
Consuls are officials sent by the state to foreign ports
and cities, mainly for the purpose of watching over and STATELESSNESS
promoting the commercial and industrial interests of the Stateless persons are those who do not have a
appointing state and its citizens or subjects; and nationality, such as refugees. They are either:
protecting its nationals who are travelling or residing in 1. De jure stateless persons – those who have lost
these regions. their nationality, if they had one, and have not
acquired a new one.
CLASSES OF HEADS OF CONSULAR POSTS 2. De facto stateless persons – those who have a
1. Consuls-general nationality but are denied protection by their
2. Consuls state when out of the state.
3. Vice-consuls
4. Consular agents Despite the status of statelessness, they are afforded a
remedy based on the Philippine Constitution which
EXEQUATUR adopts the generally accepted principles of international
It is applied to the written official recognition issued by law as part of the land. (Art. II, Sec. 3, 1987 Philippine
the local state authorizing a foreign consul to perform Constitution)
therein his functions as such.
The Universal Declaration of Human Rights states that
everyone has the right to an effective remedy by
Nationality and Stationaless competent national tribunals. (Article 8, The Universal
Declaration of Human Rights [UDHR])

NATIONALITY
Every state has jurisdiction over its nationals even when
those nationals are outside the state. Each state has the General Principles of Treaty Law
right to decide who are its nationals using either the
principle of jus sanguinis or jus soli or naturalization laws.
An international agreement concluded between states, in
As to corporations, a state has jurisdiction over written form and governed by international law, whether
corporations organized under its laws. Many states embodied in a single instrument or in two or more
assert jurisdiction over corporations whose principal related instruments. (Art. 2, 1969 Vienna Convention on
place of business or registered office is located in their the Law of Treaties)
territories. States have also sought to regulate
corporations organized or having their principal place of
business abroad when these corporations are owned or
controlled by nationals.

For maritime vessels, a state has jurisdiction over

vessels flying its flag. Each state determines
requirements for registration. But flags of convenience
might be challenged on the ground of lack of sufficient
link. The same principle is generally applicable to
aircrafts and spacecrafts

134
TYPES OF TREATIES It is within the authority of the President to refuse to
1. Multilateral Treaties – It is open to all states. It submit a treaty to the Senate, or having secured its
creates norms as basis for general rule of law. consent for its ratification, refuse to ratify it. (Pimentel v.
They are either codification of treaties or Executive Secretary, 2005)
law-making treaties.
2. Bilateral Treaties or Contract Treaties – Treaties SIGNATURE
between two states which are contractual in It concludes the negotiations. It serves as authentication
nature which create reciprocal expectations. of the document; it makes the text authoritative and
3. Treaties that create Collaborative Mechanism – It definitive.
may be universal in scope or regional (e.g.
fishing agreements) Under international law, although a mere signatory is not
strictly bound to the provisions of a treaty, nonetheless,
TREATY-MAKING PROCESS they are bound not to defeat the object and purpose of
1. Negotiation the treaty (Art. 18 (a), Vienna Convention on the Law of
2. Signature Treaties)
3. Ratification
4. Exchange of Instrument/Deposit of Instrument CONSENT
1. Exchange of instruments constituting a treaty
AUTHORITY TO NEGOTIATE 2. Ratification
1. Authorization must be secured by the lead 3. Acceptance
agency from the President through the Secretary 4. Approval or accession
of Foreign Affairs; 5. Any other means if so agreed (Art. 2, Vienna
2. The request for authorization must be in writing, Convention on the Law of Treaties)
proposing the composition of the Philippine
delegation and recommending the range of No form is required for treaties. Exchange of notes
positions to be taken by that delegation. (Sec. 3, between the two heads of state may be considered as
EO 459) an international agreement. (Qatar v. Bahrain, 1994)

FULL POWERS The Vienna Convention only covers agreements between

It is the authority granted to a representative of the state states which are in writing and which are governed by
to enter into, negotiate, sign and seal a treaty. This may international law. (Magallona)
be delegated by the President to the Secretary of
Foreign Affairs. (Sec. 4, EO 459) States which did not participate in the initial negotiation
may express their consent to be bound by accession.
PERSONS WITH AUTHORITY TO NEGOTIATE (Art. 15, Vienna Convention on the Law of Treaties)
OR SIGN A TREATY OR AN EXECUTIVE
AGREEMENT EXCLUDED FROM THE VIENNA CONVENTION
1. Secretary of the Department of Foreign Affairs ON THE LAW OF TREATIES
2. Heads of Philippine diplomatic missions, for the 1. Those concluded between states and other
purpose of adopting a text of a treaty or an subjects of international law
agreement between the Philippines and the 2. Those agreements not in written form
state to which they are accredited 3. Those which are governed by the national law of
3. Representatives accredited by the Philippines to one of the parties or by any other national law
an international conference or to an international system chosen by their parties (Art. 15, Vienna
organization or one of its organs, for the purpose Convention on the Law of Treaties)
of adopting the text of a treaty in that
conference, organization or organ RESERVATION
It is a unilateral statement, however phrased or named,
The power to ratify is vested in the President, subject to made by a state when signing, ratifying, accepting,
the concurrence of the Senate. The role of the Senate is approving or acceding to a treaty, whereby it purports to
limited only to giving or withholding its consent or exclude or to modify the legal effect of certain provisions
concurrence to the ratification. of the treaty in their application to the State.

135
RESERVATION IS NOT ALLOWED GROUNDS TO INVALIDATE TREATIES
1. When the treaty prohibits it 1. Error of fact
2. When only specified reservations may be made 2. Fraud
3. When reservation is incompatible with the object 3. Corruption
and purpose of the treaty. (Art. 19, Vienna 4. Duress
Convention on the Law of Treaties) 5. Violation of jus cogens
6. Violation of internal law of a state
PACTA SUNT SERVANDA
Every treaty in force is binding upon the parties to it and 1. Error of Fact
must be performed by them in good faith. A party may It must relate to a fact or situation which was assumed
not invoke the provisions of its internal law as by the state to exist at the time when the treaty was
justification for its failure to perform a treaty. (Art. 26, concluded, and which formed an essential basis of its
Vienna Convention on the Law of Treaties) consent to be bound by the treaty.

TERRITORIAL SCOPE It cannot be invoked if the state contributed, by its own

Unless a different intention appears from the treaty or is conduct, to the error or if the circumstances were such
otherwise established, a treaty is binding upon each as to put that state on notice of a possible error. (Art. 48,
party in respect of its entire territory. (Art. 29, Vienna Vienna Convention on the Law of Treaties)
Convention on the Law of Treaties)
2. Fraud
PACTA TERTIIS NEC NOCENT NEC PROSUNT It must have induced the state to conclude a treaty
A state is not bound to act in accordance with a treaty if through the fraudulent act of another negotiating state.
it is not a party to a treaty, except if that treaty codifies (Art. 49, Vienna Convention on the Law of Treaties)
customary international law.
3. Corruption of a Representative of a State
DOCTRINE OF UNEQUAL TREATIES The expression of a state’s consent to be bound by a
Originally called for treaties signed by the Chinese with treaty has been procured through corruption, direct or
Western Powers after suffering military defeat, this indirect, by another negotiating state. (Art. 50, Vienna
doctrine implies that they were establishing a system of Convention on the Law of Treaties)
benefits for the “civilized” powers, while restricting the
sovereignty of the “uncivilized” and subordinate states. 4. Duress
(Perez) The treaty’s conclusion was procured and coerced by
the threat or use of force in violation of the principles of
international law. (Art. 52, Vienna Convention on the Law
REBUS SIC STANTIBUS of Treaties)
Legal principle that justifies the non-performance of
treaty obligations where unforeseen or substantial 5. Violation of Jus Cogens
changes occur which would render one of the parties Violation of a peremptory norm of international law. (Art.
thereto unable to undertake treaty obligations as 53, Vienna Convention on the Law of Treaties)
stipulated therein.
6. Violation of Internal Law of State
It is a fundamental change in the circumstances which The violation must be manifest and must concern a rule
determines the parties to accept a treaty, if it has of its internal law of fundamental importance. (Art. 46,
resulted in a radical transformation of the extent of the Vienna Convention on the Law of Treaties)
obligations imposed by it, may, under, certain
conditions, afford the party affected a ground for
AMENDMENT OF A TREATY
invoking the termination or suspension of the treaty.
It is a formal revision done with the participation, at least
(Fisheries Jurisdiction Case, 1973)
in its initial stage, by all the parties to a treaty

136
MODIFICATION OF A TREATY
It involves only some of the parties.
Doctrine of State Responsibility

TERMINATION OF TREATIES This doctrine posits that a state is responsible for every
1. Desistance of parties by mutual consent internationally wrongful act committed by it and is liable
(express) for the acts of its officials only when the act is
2. Expiration of term attributable to the state.
3. Accomplishment of purpose
4. Material breach ELEMENTS OF STATE RESPONSIBILITY
5. Loss of subject matter 1. Existence of an international legal obligation in
6. Novation force as between the two states
7. Rebus sic stantibus or fundamental change of 2. Act or omission which violates that obligation,
circumstance and which is imputable to the state responsible
8. Outbreak of war 3. Loss or damage which has resulted from the
9. Violation of jus cogens unlawful act or omission (Shaw, 2003)

MATERIAL BREACH CONSISTS OF ELEMENTS OF AN INTENTIONALLY WRONGFUL

1. A repudiation of the treaty not sanctioned by the ACT
VCLT; or 1. The act or omission is attributable to the state
2. Violation of a provision essential to the under international law – need not be punishable
accomplishment of the object or purpose of the by local law; may be deemed lawful in internal
treaty; supervening impossibility of performance law.
2. The act constitutes a breach of an international
REQUISITES obligation of the state (international
1. Must result from the permanent disappearance delinquency).
or destruction of an object indispensable for the
execution of the treaty
2. Impossibility of performance must not be a
result of a breach by the party invoking it, either
Refugees
of an obligation under the treaty or of any other
international obligation owed to any other party An individual who is outside his or her country of
or the treaty nationality or habitual residence, who is unable or
unwilling to return due to a well-founded fear of
persecution based on his or her race, religion,
TREATY EXECUTIVE AGREEMENT
nationality, political opinion, or membership in a
particular social group. (Art. 1(A)(2), 1951 Convention
Involves political issues Adjustments of details relating to the Status of Refugees)
or changes of national carrying out
policy well-established national CRITERIA REQUIRED TO QUALIFY AS A
and international REFUGEE
policies, traditions and 1. The persons have a well-founded fear of
Involves international those involving persecution for reasons of race, religion,
agreements of a political arrangements of a more nationality, membership of a particular social
character or less temporary nature. group or political opinion.
2. The person is outside the country of his
nationality.
3. The person is unable or is unwilling to avail
himself of the protection of that country owing to
such fear.
4. The person is unwilling to return to the former
habitual residence. (1951 Convention relating to
the Status of Refugees)

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EXCLUDED INDIVIDUALS AS REFUGEES Any person may be extradited, whether he be a national
1. The person has committed a crime against of the requesting State, or a refuge of another state.
peace, a war crime, or a crime against humanity, Political and religious offenders are generally not subject
as defined in the international instruments drawn to extradition.
up to make provision in respect of such crimes.
(Art. 1(F), 1951 Convention relating to the Status PRINCIPLE OF SPECIALITY
of Refugees) The fugitive may be tried only for the crime specified in
2. The person has committed a serious the request for extradition, and only when the crime is
non-political crime outside the country of refuge included in the list of offenses in the treaty.
prior to his admission to that country as a
refugee. (Art. 1(F), 1951 Convention relating to ATTENTAT CLAUSE
the Status of Refugees) The murder of the head of state or any member of his
3. The person has been guilty of acts contrary to family is not to be regarded as a political offense for
the purposes and principles of the United purposes of extradition. In the absence of a special
Nations. (Art. 1(F), 1951 Convention relating to agreement, the offense must have been committed
the Status of Refugees) within the territory or against the interests of the
4. Those who voluntarily avail themselves of the demanding state. (Cruz)
protection of their country of nationality or
habitual residence or individuals who have RULE OF DOUBLE CRIMINALITY
received protection in a third country are also The act for which the extradition is sought must be
not considered refugees. (Art. 1(C), 1951 punishable in both the requesting and requested states.
Convention relating to the Status of Refugees)
Extradition may be resorted to only if there is an
NON-REFOULEMENT PRINCIPLE extradition treaty between the two states. If there is no
The obligation of States not to refoul or return a refugee extradition treaty, the host state has the right to grant
to “the frontiers of territories where his life or freedom asylum; the individual has no right to demand asylum.
would be threatened on account of his race, religion,
nationality, membership of a particular social group or
political opinion.” (Art. 33 (1), 1951 Convention relating to EXTRADITION DEPORTATION
the Status of Refugees)
Surrender of a fugitive by Expulsion of an alien
one state to another considered undesirable
Treatment of Aliens where he is wanted for by a local state, usually
prosecution or, if already but not necessarily to his
convicted, for own state
EXTRADITION punishment
The removal of an accused from the Philippines with the
object of placing him at the disposal of foreign Surrender is made at the It is a unilateral act of the
authorities, to enable the requesting state or government request of the latter state local state and is made
to hold him in connection with any criminal investigation on the basis of in its own interests
directed against him or the execution of a penalty extradition treaty
imposed on him under the penal or criminal law of the
requesting state or government. (PD 1069, The
Alien will be surrendered Undesirable alien may
Philippine Extradition Law)
to the state asking for his be sent to any state
extradition willing to accept him
BASIS OF EXTRADITION
Extradition is based on the consent of the state of
asylum as expressed in a treaty or manifested as an act State of origin that Resident/host state that
of goodwill. (Cruz) initiates the proceedings initiates deportation

Offense is criminal in Offense is administrative

nature in nature

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 NON-DEROGABLE RIGHT UNDER THE ICCPR
International Human Rights Law 1. Right to life (Art. 6)
2. Freedom from torture and other inhuman
UNIVERSAL DECLARATION OF HUMAN RIGHTS punishment (Art. 7)
(UDHR) 3. Freedom from enslavement and servitude (Art. 8
It was adopted by the UN General Assembly, composing (1) and (2))
of 48 countries, on December 10, 1948. The UDHR is 4. Protection from imprisonment for inability to
considered as a “common standard of achievement for fulfill contractual obligations (Art. 11)
all peoples and all nations.” (Preamble, UDHR) 5. Protection from ex post facto laws (Art. 15)
6. Right to recognition everywhere as a person
INTERNATIONAL COVENANT ON CIVIL AND before the law (Art. 16)
POLITICAL RIGHTS (ICCPR) 7. Freedom of thought, conscience and religion
ICCPR was adopted and opened for signature, (Art. 18)
ratification and accession by the UN General Assembly
Resolution 2200 of December 16, 1966. It entered into OPTIONAL PROTOCOLS TO THE ICCPR
force on March 23, 1976. 1. First Optional Protocol – It was entered into
force on March 23, 1976. It is designed for
SUBSTANTIVE RIGHTS UNDER ICCPR private parties who are victims of human rights
1. Right to life, liberty and property violations.
2. Right to equality 2. Second Optional Protocol – It was entered by
3. Freedom from torture and ill-treatment General Assembly Resolution 44/128 on
4. Right to adequate prison conditions December 15, 1989. It is adopted to abolish the
5. Freedom of movement death penalty.
6. Recognition and protection of legal personality
and privacy INTERNATIONAL COVENANT ON ECONOMIC,
7. Freedom of thought, conscience, religion and SOCIAL AND CULTURAL RIGHTS (ICESCR)
expression ICESCR was adopted by the United Nations General
8. Freedom of association Assembly on December 16, 1966 through GA Resolution
9. Protection of minorities 2200A (XXI), and came in force from January 3, 1976.
10. Right to self-determination
SUBSTANTIVE RIGHTS UNDER ICESCR
INSTANCE WHEN STATE PARTIES TO THE 1. Right to work
ICCPR MAY TAKE MEASURES DEROGATING 2. Right to favorable conditions of work
FROM THEIR OBLIGATIONS UNDER THE ICCPR 3. Right to form free trade unions
In times of public emergency which threatens the life of 4. Right to social security and insurance
the nation and the existence of which is officially 5. Right to adequate standard of living
proclaimed, state parties to ICCPR may take measures 6. Right to special assistance for families
derogating from their obligations under the Covenant to 7. Right to the highest standard of physical and
the extent strictly required by the exigencies of the mental health
situation. 8. Right to education including compulsory primary
education
Such measures should not be inconsistent with their 9. Right to the enjoyment of cultural and scientific
other obligations under international law and do not benefits and international contacts
involve discrimination solely on the ground of race, color,
sex, language, religion or social origin. (Art. 4(1), ICCPR) INTERNATIONAL IMPLEMENTATION OF HUMAN
RIGHTS LAW
Each country has the obligation to implement the human
rights law within its jurisdiction. It can be done, when
proper, in municipal courts. (Bernas)

CUSTOMARY HUMAN RIGHTS LAW

Some human rights principles have become customary
law in light of state practice, e.g. prohibition on torture,
genocide, slavery, and discrimination. (Bernas)

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 2. Non-international armed conflict – Conflicts that
International Humanitarian Law take place in the territory of a High Contracting
Party between its armed forces and dissident
International humanitarian law provides for instances armed forces or other organized armed groups
when the use of armed force is justifiable (jus ad bellum) which, under responsible command, exercise
and it regulates the conduct of armed conflict (jus in such control over a part of its territory as to
bello). (Bernas) enable them to carry out sustained and
concerted military operations. (Additional
Protocol II to the Geneva Convention)
JUS AD BELLUM JUS IN BELLO
WAR OF NATIONAL LIBERATION
The rules of Rules by which Armed conflicts in which people are fighting against
international law international law colonial domination and alien occupation and against
governing the legality regulates the actual racist regimes in the exercise of their right of
of the use of force by conduct of hostilities self-determination.
states. These once the use of force
constitute the legal has begun.
CIVILIANS
justifications for the
Any person not a combatant; in case of doubt whether a
use of force under
person is a civilian, that person shall be considered to be
international law.
a civilian (Art. 50(1), Additional Protocol I to the Geneva
Convention)

APPLICATION OF INTERNATIONAL CIVILIAN POPULATION

HUMANITARIAN LAW It comprises all persons who are civilians. The presence
It applies from the initiation of such armed conflicts and within the civilian population of individuals who do not
extends beyond the cessation of hostilities until a come within the definition of civilians does not deprive
general conclusion of peace is reached. (Prosecutor v. the population of its civilian character. (Art. 50(2) and (3),
Tadic, 1999) Additional Protocol I to the Geneva Convention)

ARMED CONFLICT HORS DE COMBAT

It exists whenever there is a resort to armed forces 1. He is in the power of an adverse party
between states or protracted armed violence between 2. He clearly expresses an intention to surrender
governmental authorities and organized armed groups, 3. He has been rendered unconscious or is
or between such groups within a state. otherwise incapacitated by wounds or sickness,
and therefore is incapable of defending himself.
CATEGORIES OF ARMED CONFLICTS
1. International armed conflicts PRINCIPLES OF INTERNATIONAL
2. Internal or non-international armed conflicts HUMANITARIAN LAW
3. War of national liberation 1. The parties to the conflict must at all times
distinguish between civilians and combatants.
INTERNATIONAL ARMED CONFLICT Attacks may only be directed against
A state of war between two or more states, even if one combatants. Attacks must not be directed
does not recognize it. It may take the form of a direct against civilians.
conflict between states or of intervention. (Common Art. 2. There must be a distinction between civilian
2, Geneva Convention) objects and military objectives. No attacks may
be directed against civilian objects.
INTERNAL OR NON-INTERNATIONAL ARMED 3. Indiscriminate attacks are prohibited.
CONFLICT 4. There must be proportionality in attack.
1. Non-international armed conflict – Armed 5. In the conduct of military operations, constant
conflict not of an international character care must be taken to spare the civilian
occurring in the territory of one of the High population.
Contracting Parties. (Common Art. 3, Geneva 6. There must be precautions against the effects of
Convention) attacks.

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 7. Medical personnel exclusively assigned to RIGHTS AND DUTIES OF NEUTRAL STATES
medical duties must be respected and protected 1. Abstain from taking part in the hostilities and
in all circumstances. from giving assistance o either belligerent;
8. Religious personnel exclusively assigned to 2. Prevent its territory and other resources from
religious duties must be respected and being used in the conduct of hostilities by the
protected in all circumstances. belligerents;
9. Cultural property must be respected. 3. Acquiesce in certain restrictions and limitations
10. There must be no superfluous or unnecessary that the belligerents may find necessary to
suffering in the use of means and methods of impose, especially in connection with
warfare. international commerce (Cruz)\
11. The use of poison or poisoned weapons is
prohibited. RIGHTS AND DUTIES OF BELLIGERENT
12. The use of biological weapons is prohibited. STATES
1. Respect the status of the neutral state.
PRISONERS OF WAR 2. Submit to any lawful measures it takes to
1. Prisoners of war are persons enumerated under maintain or protect its neutrality.
Art. 4, the Third Geneva Convention, who have
fallen into the power of the enemy. NEUTRAL TERRITORIES
2. Prisoners of war must at all times be humanely War activities by or on behalf of any of the belligerents
treated. (Art. 13, Par. 1) may not be undertaken in the territory of the neutral
3. Prisoners of war must at all times be protected, state.
particularly against acts of violence or
intimidation and against insults and public Neutral territories cannot be used by belligerents for the
curiosity. (Art. 13, Par. 2) movement of troops, transports of military supplies,
4. Prisoners of war are entitled in all circumstances erection of wireless stations for exclusively military
to respect for their persons and their honor. (Art. purposes, recruiting soldiers and military operations.
14) (Cruz)
5. Women shall be treated with all the regard due
to their sex and shall in all cases benefit by CONTRABAND
treatment favorable as that granted to men (Art. It is a term applied to goods which, although neutral
14, Par. 2) property, may be seized by a belligerent because they
6. Prisoners of war shall retain full civil capacity are useful for war and are bound for a hostile
which they enjoyed at the time of their capture destination. (Cruz)
(Art. 14, Par. 3)
DOCTRINE OF ULTIMATE CONSUMPTION
LAW ON NEUTRALITY Goods intended for civilian use which may ultimately find
It is a condition where a state does not take part, directly their way to and be consumed by the belligerent forces
or indirectly, in a war between other states. Neutrality are also liable to seizure on the way. (Cruz)
exists during the time of war. Only states may become
neutral. (Cruz) DOCTRINE OF INFECTION
Contrabands shipped together with innocent goods
NEUTRALIZATION belonging to the same owner may be confiscated. (Cruz)
It is a result of a treaty wherein the duration and the
other conditions of the neutralization are agreed upon by
DOCTRINE OF ULTIMATE DESTINATION
the neutralized state and other powers. Neutralization
Liability of contraband to capture is determined not by
operates both in times of peace and in times of war.
their ostensible but by their real destination. (Cruz)
(Cruz)

DOCTRINE OF CONTINUOUS VOYAGE

When the goods are reloaded at the intermediate port on
the same vessel. (Cruz)

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DOCTRINE OF CONTINUOUS TRANSPORT ARCHIPELAGIC STATES
When the goods are reloaded on another vessel or other An archipelagic state is a state constituted wholly by one
form of transportation. or more archipelagos and may include other islands.
(Art. 46, UNCLOS)
BLOCKADE
It is a hostile operation by means of which the vessel STRAIGHT ARCHIPELAGIC BASELINES
and aircraft of one belligerent prevent all other vessels An archipelagic state may draw straight archipelagic
including those of neutral states, from entering or leaving baselines joining the outermost points of the outermost
the ports or coasts of the other belligerent, the purpose islands and the drying reefs of the archipelago.
being to ship off the place from international commerce
and communication with other states. (Cruz) Provided, within such baselines are included the main
islands and an area in which the ratio of the area of the
UNNEUTRAL SERVICE water to the area of the land including atolls, is between
It consists of acts of a more hostile character than 1 to 1 and 9 to 1. (Art. 47, UNCLOS)
carriage of contraband or breach of blockade, which are
undertaken by merchant vessels of a neutral state in aid ARCHIPELAGIC WATERS
of any of the belligerents. (Cruz) Waters enclosed by the archipelagic baselines drawn in
accordance with Art. 47, UNCLOS, regardless of their
ANGARY depth or distance from the coast. (Art. 49 (1), UNCLOS)
By the right of angary, a belligerent may upon payment
of just compensation seize, use or destroy, in case of ARCHIPELAGIC SEA LANES PASSAGE
urgent necessity for purposes of offenses or defense, It is the exercise of the rights of navigation and overflight
neutral property found in its territory, in enemy territory, in the normal mode solely for the purpose of continuous,
or on the high seas. (Cruz) expeditious and unobstructed transit between one part
of the high seas or an exclusive economic zone and
TERMINATION OF NEUTRALITY another part of the high seas or an exclusive economic
1. When the neutral state itself joins the war zone. (Art. 53 (2), UNCLOS)
2. Upon the conclusion of peace
INTERNAL WATERS
All waters landwards from the baseline of the territory.
Sovereignty over internal waters is the same as
Law of the Sea sovereignty over land, and internal waters are not
subject to the right of innocent passage. (Bernas)
It is a branch of public international law which regulates
the relations of states with respect to the use of the When a straight baseline is established, enclosing areas
oceans. as internal waters which were not previously considered
as part of internal waters, a right of innocent passage
BASELINES shall exist in those areas or waters. (Art. 8 (2), UNCLOS)
The baseline is the water line along the coast as marked
on large scale charts officially recognized by the coastal TERRITORIAL SEA
State. It is a line from which the width of the territorial It is a belt of sea outwards from the baseline and up to
sea is measured. (Bernas) 12 nautical miles beyond.

TWO WAYS OF DRAWING THE BASELINE Sovereignty of a coastal state extends to the air space
1. Normal Baseline – This line follows the over the territorial sea as well as to its bed and subsoil,
curvatures of the coast and therefore would but sovereignty over the territorial sea is exercised
normally not consist of straight lines. subject to UNCLOS and other rules of international law.
2. Straight Baseline – This line is drawn connecting (Art. 2, UNCLOS)
selected points on the coast without appreciable
departure from the general shape of the coast.
Under RA 3046 and RA 5446, straight baselines
are drawn around the Philippines. (Bernas)

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When the application of the 12 nautical mile rule to INTERNATIONAL TRIBUNAL FOR THE LAW OF
neighboring littoral states results in overlapping, a THE SEA
median line equidistant from the opposite baselines will The Tribunal has jurisdiction over all disputes and all
be applied instead. (Bernas) applications submitted to it in accordance with the
UNCLOS and all matters specifically provided for in any
Exception: Median-line rule does not apply where other agreement which confers jurisdiction on the
historic title or other special circumstances require a Tribunal. (Shaw)
different rule of delimitation of territorial seas. (Art. 15,
UNCLOS)
International Environmental Law
CONTIGUOUS ZONE
It is an area of water not exceeding 24 nautical miles
from the baseline. It extends 12 nautical miles from the It is a branch of public international law comprising
edge of territorial sea. (Bernas) those substantive, procedural, and institutional rules
which have as their primary objective the protection of
The coastal state exercises authority over that area the environment; the term environment being
necessary to: understood as encompassing both the features and the
1. Prevent infringement of its customs, fiscal, products of the natural world and those of human
immigration or sanitary laws and regulations civilization.
within its territory or territorial sea
2. Punish infringement of the above laws and PRINCIPLE OF COMMON BUT
regulations committed within its territory or DIFFERENTIATED RESPONSIBILITY
territorial sea. (Art. 33 (1), 1982 Law of the Sea) In view of different contributions to global environmental
degradation, states have common but differentiated
EXCLUSIVE ECONOMIC ZONE responsibilities. Developed countries acknowledge the
It is an area extending not more than 200 nautical miles responsibility that they bear in the international pursuit to
beyond the baseline. The coastal state has rights over sustainable development, in view of the pressures their
the economic resources of the sea, seabed and subsoil, societies place on the global environment, and of the
but the right does not affect the right of navigation and technologies and financial resources they command.
overflight of other states. (Bernas) (Principle 7, Rio Declaration)

CONTINENTAL SHELF It was formulated in 1972 in the UN Conference on the

Continental shelf, archipelagic shelf or insular shelf for Human Environment by 113 states. (Bernas)
archipelagos, refer to the seabeds and subsoils of the
submarine areas adjacent to the coastal state but PRINCIPLE 21 OF THE STOCKHOLM
outside the territorial sea, to a depth of 200 meters, or DECLARATION
beyond the limit to where the depth allows exploitation, States have, in accordance with the Charter of the
and the seabed and subsoil of areas adjacent to islands. United Nations and the principles of international law,
(Bernas) the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the
EXTENDED CONTINENTAL SHELF responsibility to ensure that activities within their
Every coastal nation is entitled to delineate the outer jurisdiction or control do not cause damage to the
limit of its continental shelf beyond 200 nautical miles environment of other states or of areas beyond the limits
from shore. Within this extended continental shelf, the of national jurisdiction.
coastal state has sovereign rights over the natural
resources on and beneath the seabed. (Art. 76,
UNCLOS)

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PRECAUTIONARY PRINCIPLE
The point of the precautionary principle is to anticipate
and avoid environmental damage before it occurs. This
preventive measure, which is novel in many ways, would
ultimately serve to lower mitigation costs of resultant
environmental damage. (Mary Stevens, The
Precautionary Principle in International Area, 2002)

‘NO HARM’ PRINCIPLE

No state has the right to use or permit the use of its
territory, in such a manner as to cause injury by fumes,
in or to the territory of another, or to the properties or
persons therein, when the case is of serious
consequence and the injury is established by clear and
convincing evidence. (Trail Smelter Case: United States
v. Canada, 1941)

GENERAL DUTY OF COOPERATION

States have the duty to cooperate with one another,
irrespective of the differences in their political, economic
and social systems, in the various spheres of
international relations; in order to maintain international
peace and security and to promote international
economic stability and progress, the general welfare of
nations and international cooperation, free from
discrimination based on such differences. (Principle 4,
General Assembly Resolution 2625 (XXV) on the
‘Principles of International Law Concerning Friendly
Relations and Cooperation among States’)

POLLUTER-PAYS PRINCIPLE
National authorities should endeavor to promote the
internalization of environmental costs and the use of
economic instruments, taking into account the approach
that the polluter should, in principle, bear the cost of
pollution, with due regard to the public interest and
without distorting international trade and investment.
(Principle 16, Rio Declaration)

144