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PUBLIC OFFICER
General Principles
Public Office defined
 “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 exercise by him for the
benefit of the public ([Mechem Public Offices
and Officers,] Sec. 1). Aparri v. Court of
Appeals, 127 SCRA 231, (1984)
No vested right in a public office
 There is no such thing as a vested
interest or an estate in an office, or even an
absolute right to hold office. Excepting
constitutional offices which provide for special
immunity as regards salary and tenure, no
one can be said to have any vested right in an
office or its salary (42 Am. Jur. 881).”
Creation of an Office
 by the Constitution, Statute or by
authority of law
Entry to the Civil Service
 by election or appointment
Who is a de facto officer?
A de facto officer is “one who has the
reputation of being the officer he assumes
and yet is not a good officer in point of law.”
He is one who is in possession of the office
and discharging its duties under color of
authority, and by color of authority is meant
that derived from an election or appointment,
however irregular or informal, so that the
incumbent is not a mere volunteer.
A rightful incumbent (de jure officer) of a
public office may recover from a de facto
officer the salary received by the latter during
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the time of his wrongful tenure. Monroy v.
Court of Appeals, 20 SCRA 620, 626 (1967).
A de facto officer, not having a good title,
takes the salaries at his risk and must,
therefore, account to the de jure officer for
whatever salary he received during the period
of his wrongful tenure. General Manager,
Philippine Ports Authority (PPA) v.
Monserate, 381 SCRA 200, 213 (2002).
“[I]n cases where there is no de jure officer, a
de facto officer who, in good faith, has had
possession of the office and has discharged
the duties pertaining thereto, is legally
entitled to the emoluments of the office, and
may in an appropriate action recover the
salary, fees and other compensations attached
to the office.” Civil Liberties Union v.
Executive Secretary, 194 SCRA 317
Problem
ARIMAO, a supervisor, was promoted and
appointed as Director of the DECS-ARMM in
March 1995, and commenced performing
function of the office. After four months,
TAHER was also appointed to the position of
supervisor to succeed ARIMAO. Ultimately,
appointment of ARIMAO was disapproved for
lack of qualifications by a resolution of the
Civil Service Commission which became final
on October 17, 1998. Likewise, ARIMAO was
declared AWOL and dropped from the rolls.
May TAHER continue to occupy the position
of supervisor? ANSWER: When the
promotional appointment of ARIMAO was
disapproved, TAHER’s appointment as
supervisor was likewise disapproved. Absent
any showing that she has been reappointed to
the position, she cannot lay a valid claim
thereto. …….Section 13, Rule 6 of the
Omnibus Rules Implementing Book V, E.O.
292, provides: “All appointments involved in a
chain of promotions must be submitted
simultaneously for approval by the
Commission. The disapproval of the
appointment of a person proposed to a higher
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position invalidates the promotion of those in
lower positions and automatically restores
them to their former positions. However, the
affected persons are entitled to the payment
of salaries for services actually rendered at a
rate fixed in their promotional appointments.”
[Arimao vs. Taher, 498 SCRA 74(2006)]
CIVIL SERVICE COMMISSION
Scope
Including GOCCs with original charters
appointed. The rule neither grants a vested
right to the holder nor imposes a ministerial
duty on the appointing authority to promote
such person to the next higher position.
[Santiago, Jr. vs. Civil Service Commission,
178 SCRA 733(1989)]
Executive or legislative declaration of the
position as policy determining, primarily
confidential or highly technical, not conclusive
upon the courts. (PAGCOR v. Rilloraza,
6/25/01)

Appointments to civil service- only according

Extent of CSC powers
to merit and fitness thru competitive
 not allowed to disapprove
examinations, EXCEPT: policy-determining,
appointment and require another whom it
primarily confidential, or highly technical
believes to be more qualified. Central Bank v.
positions
CSC, 4/10/89;
 neither can it change the permanent
Non competitive positions-
appointment into a temporary one. Luego v.
1). policy determining- duty to formulate
CSC, 143 SCRA 327
method of action for the govt or any of its
subdivisions.
Concurrent jurisdiction of CSC with BOR
All members of the civil service are under the
2). Primarily confidential- denotes not only
jurisdiction of the CSC, unless otherwise
confidence in the aptitude of the appointee
provided by law. Being a non-career civil
for the duties of the office but primarily close
servant does not remove respondent from
intimacy which insures freedom of intercourse
the ambit of the CSC. Career or non-career, a
without embarrassment or freedom from
civil service official or employee is within the
misgivings or betrayals of personal trust on
jurisdiction of the CSC. In University of the
confidential matters of state.
Philippines v. Regino, this Court struck down
the claim of exclusive jurisdiction of the UP
“proximity rule”-in determining primarily
BOR to discipline its employees. In the more
confidential positions- where the position
recent case of Camacho v. Gloria, this Court
occupied is remote from that of the
lent credence to the concurrent jurisdiction of
appointing authority, the element of trust
the CSC when it affirmed that a case against a
between them is no longer predominant.
university official may be filed either with the
Grino v. CSC, 194 SCRA 548 (1991)
university’s BOR or directly with the CSC.
Highly technical- "to possess a technical skill
Security of tenure
or training in the supreme or superior degree
"for cause provided by law" covers both
procedural and substantive (Delos Santos v.
One who is next-in-rank is entitled to
Mallare, supra)
preferential consideration for promotion to
the higher vacancy but it does not necessarily
Non-competitive positions entitled to security
follow that he and no one else can be
of tenure, except those involving primarily

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confidential. (Hernandez v. Villegas, 14 SCRA under the direct disciplining authority of the
544 [1965] President.

"designation" of Manager for PTA (whose Doctrine of Condonation

appointment should be made by the
President) made by the Secretary of Tourism
is not a valid appointment, hence no security
of tenure. (Binamira v. Garrucho July 23,
1990)
Abolition of office
-does not violate security of tenure if:Done in
Good Faith-Briones v. Osmena, 104 Phil
588(bad faith) ;Dario v. Mison, 176 SCRA 84;
-Must not be for personal or political reasons
and not in violation of law (Roque v. Ericta, 53
SCRA 156 [1973])
 Pascual v. Hon. Provincial Board of
Nueva Ecija, 106 Phil. 406 (1959) issued the
landmark ruling that prohibits the disciplining
of an elective official for a wrongful act
committed during his immediately preceding
term of office. The Court explained that “[t]he
underlying theory is that each term is
separate from other terms, and that the
reelection to office operates as a condonation
of the officer’s previous misconduct to the
extent of cutting off the right to remove him
therefor.” [Salumbides Jr. vs. Office of the
Ombudsman, 619 SCRA 313(2010)]

-abolition and creation of office having the
same functions; Sec. 35 of RA 6715 -declaring
all positions of the Commissioners and Labor
Arbiters of the NLRC unconstitutional- (Mayor
v. Macaraig, 3/5/91)
Demotion for lack of evidence and proper
notice violates security of tenure and due
process. Gen. Manager, PPA v. Monserate, Gr
No. 129616, 4/17/02
Transfers without consent of the appointed-
not merely assigned- to a particular station
are not allowed. CARINO vs. Executive
Director, GR 144493, 4/9/02;
Even in re-assignment, if it is indefinite,
(lasting ten years), is removal without just
cause. Pastor v. City of Pasig, GR No. 146873,
5/9/02
-no security of tenure in temporary
appointments (Mendiola v. Tancinco, 52 SCRA
66; BUT may not be removed to bust faculty
union-PLM v. CSC, 241 SCRA 506
In Larin vs. Executive Secretary 280 SCRA
713. Being a presidential appointee, he comes
 The doctrine does not apply to re-
appointment to a non-career position. A
parallel question was involved in Civil Service
Commission v. Sojor, 554 SCRA 160 (2008),
where the Court found no basis to broaden
the scope of the doctrine of condonation:
Lastly, We do not agree with respondent’s
contention that his appointment to the
position of president of NORSU, despite the
pending administrative cases against him,
served as a condonation by the BOR of the
alleged acts imputed to him. The doctrine this
Court laid down in Salalima v. Guingona, Jr.,
257 SCRA 55 (1996), and Aguinaldo v. Santos,
212 SCRA 768 (1992), are inapplicable to the
present circumstances. Respondents in the
mentioned cases are elective officials, unlike
respondent here who is an appointed official.
Indeed, election expresses the sovereign will
of the people. Under the principle of vox
populi est suprema lex, the re-election of a
public official may, indeed, supersede a
pending administrative case. The same cannot
be said of a re-appointment to a non-career
position. There is no sovereign will of the
people to speak of when the BOR re-
appointed respondent Sojor to the post of

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university president. [Salumbides Jr. vs. Office
of the Ombudsman, 619 SCRA 313(2010)]
Prohibition against electioneering and
Partisan Political Activity
-includes every form of solicitation of the
electors vote in favor of specific candidate.
(People v. De Venecia, 14 SCRA 864. Includes
contribution of money for election purposes
and distribution of handbills.
seat. [on MR upheld in Quinto vs.
Commission on Elections, 613 SCRA
385(2010)], citing Fariñas, et al. v. Executive
Secretary, et al. G.R. No. 147387, December
10, 2003, 417 SCRA 503.
-prohibition does not apply to department
secretaries as they are occupying political
positions as alter egos of the President.
Santos v. Yatco, 106 Phil

The prohibition notwithstanding, civil service Sandiganbayan

officers and employees are allowed to vote, as
well as express their views on political issues,
or mention the names of certain candidates
for public office that they support. [Quinto vs.
Commission on Elections, 613 SCRA
385(2010)]
Deemed resigned provisions
Incumbent Appointive Official.—Under
Section 13 of RA 9369, which reiterates
Section 66 of the Omnibus Election Code, any
person holding a public appointive office or
position, including active members of the
Armed Forces of the Philippines, and officers
and employees in government-owned or-
controlled corporations, shall be considered
ipso facto resigned from his office upon the
filing of his certificate of candidacy.
Incumbent Elected Official.—Upon the other
hand, pursuant to Section 14 of RA 9006 or
the Fair Election Act, which repealed Section
67 of the Omnibus Election Code and
rendered ineffective Section 11 of R.A. 8436
insofar as it considered an elected official as
resigned only upon the start of the campaign
period corresponding to the positions for
which they are running, an elected official is
not deemed to have resigned from his office
upon the filing of his certificate of candidacy
for the same or any other elected office or
position. In fine, an elected official may run
for another position without forfeiting his
Salary Grade, not the only determinative
factor in Sandiganbayan’s jurisdiction.
 Petitioner claims that she is not a
public officer with Salary Grade 27; she is, in
fact, a regular tuition fee-paying student. This
is likewise bereft of merit. It is not only the
salary grade that determines the jurisdiction
of the Sandiganbayan. The Sandiganbayan
also has jurisdiction over other officers
enumerated in P.D. No. 1606. In Geduspan v.
People, We held that while the first part of
Section 4(A) covers only officials with Salary
Grade 27 and higher, its second part
specifically includes other executive officials
whose positions may not be of Salary Grade
27 and higher but who are by express
provision of law placed under the jurisdiction
of the said court. Petitioner falls under the
jurisdiction of the Sandiganbayan as she is
placed there by express provision of law. …
Section 4(A)(1)(g) of P.D. No. 1606 explicitly
vested the Sandiganbayan with jurisdiction
over Presidents, directors or trustees, or
managers of government-owned or controlled
corporations, state universities or educational
institutions or foundations. Petitioner falls
under this category. As the Sandiganbayan
pointed out, the BOR performs functions
similar to those of a board of trustees of a
non-stock corporation. By express mandate of
law, petitioner is, indeed, a public officer as
contemplated by P.D. No. 1606.

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 Moreover, it is well established that HOUSE OF REP., GR 160261, 11/10/03; two

compensation is not an essential element of
public office. At most, it is merely incidental to
the public office.
 Delegation of sovereign functions is
essential in the public office. An investment in
an individual of some portion of the sovereign
functions of the government, to be exercised
by him for the benefit of the public makes one
a public officer.
 The administration of the UP is a
sovereign function in line with Article XIV of
the Constitution. UP performs a legitimate
governmental function by providing advanced
instruction in literature, philosophy, the
sciences, and arts, and giving professional and
technical training. Moreover, UP is
maintained by the Government and it
declares no dividends and is not a corporation
created for profit.[Serana vs. Sandiganbayan,
542 SCRA 224(2008)]
IMPEACHMENT
Grounds for impeachment:
Culpable violation of the Constitution,
Treason, Bribery, Graft and Corruption Other
high crimes-(serious and enormous a nature
as to strike at the very life or the orderly
workings of the government), Betrayal of
Public Trust (betrayal of public interest,
inexcusable negligence of duty, tyrannical
abuse of power, breach of official duty by
malfeasance or misfeasance, cronyism,
favoritism, etc. to the prejudice of public
interest and which tend to bring the office
into disrepute, including obstruction of
justice. (Concom II Record, p. 272, 286)
(for purposes of the one-year ban)
Impeachment is deemed initiated by referral
of the impeachment complaint to the
appropriate house committee. Francisco v.
complaints referred to the same charges,
considered as one complaint.(Gutierrez v.
House of Rep. Committee on Justice, GR No.
193459 , 2/15/01;
OMBUDSMAN
Shared investigative jurisdiction of the
Ombudsman
 Respondent argues that it is the
Ombudsman who has primary jurisdiction
over the administrative complaint filed against
him. Notwithstanding the consolidation of the
administrative offense (non-declaration in the
SSAL) with the criminal complaints for
unexplained wealth (Section 8 of R.A. No.
3019) and also for perjury (Article 183,
Revised Penal Code, as amended) before the
Office of the Ombudsman, respondent’s
objection on jurisdictional grounds cannot be
sustained. Section 12 of Article XI of the 1987
Constitution mandated the Ombudsman to
act promptly on complaints filed in any form
or manner against public officials or
employees of the Government, or any
subdivision, agency, instrumentality thereof,
including government-owned or controlled
corporations. Under Section 13, Article XI, the
Ombudsman is empowered to conduct
investigations on his own or upon complaint
by any person when such act appears to be
illegal, unjust, improper, or inefficient. He is
also given broad powers to take the
appropriate disciplinary actions against erring
public officials and employees.
 The investigative authority of the
Ombudsman is defined in Section 15 of R.A.
No. 6770: “SEC.15.Powers, Functions and
Duties.—The Office of the Ombudsman shall
have the following powers, functions and
duties: (1)Investigate and prosecute on its
own or on complaint by any person, any act or
omission of any public officer or employee,

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office or agency, when such act or omission
appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over
cases cognizable by the Sandiganbayan and, in
the exercise of this primary jurisdiction, it may
take over, at any stage, from any investigatory
agency of Government, the investigation of
such cases; x x x x” (Emphasis supplied.)
 Such jurisdiction over public officers
and employees, however, is not exclusive.
“This power of investigation granted to the
Ombudsman by the 1987 Constitution and
The Ombudsman Act is not exclusive but is
shared with other similarly authorized
government agencies, such as the PCGG and
judges of municipal trial courts and
municipal circuit trial courts. The power to
conduct preliminary investigation on charges
against public employees and officials is
likewise concurrently shared with the
Department of Justice. Despite the passage of
the Local Government Code in 1991, the
Ombudsman retains concurrent jurisdiction
with the Office of the President and the local
Sanggunians to investigate complaints against
local elective officials.”(Emphasis supplied.)
 Respondent who is a presidential
appointee is under the disciplinary authority
of the OP. Executive Order No. 12 dated April
16, 2001 created the PAGC which was granted
the authority to investigate presidential and
also non-presidential employees “who may
have acted in conspiracy or may have been
involved with a presidential appointee or
ranking officer mentioned x x x.”On this score,
we do not agree with respondent that the
PAGC should have deferred to the
Ombudsman instead of proceeding with the
administrative complaint in view of the
pendency of his petition for certiorari with the
CA challenging the PAGC’s jurisdiction.
Jurisdiction is a matter of law. Jurisdiction
once acquired is not lost upon the instance of
the parties but continues until the case is
terminated. [Flores vs. Montemayor, 651
SCRA 396(2011)]
Even if the complaint concerns an act of the
public official or employee which is not
service-connected, the case is within the
jurisdiction of the Ombudsman.
 —Section 19 of R.A. No. 6770 also
states that the Ombudsman shall act on all
complaints relating, but not limited, to acts or
omissions which are unfair or irregular. Thus,
even if the complaint concerns an act of the
public official or employee which is not
service-connected, the case is within the
jurisdiction of the Ombudsman. The law does
not qualify the nature of the illegal act or
omission of the public official or employee
that the Ombudsman may investigate. It does
not require that the act or omission be related
to or be connected with or arise from the
performance of official duty.
 Misconduct; when grave or simple—
Misconduct is a transgression of some
established and definite rule of action, more
particularly, unlawful behavior or gross
negligence by a public officer. The misconduct
is grave if it involves any of the additional
elements of corruption, willful intent to
violate the law or to disregard established
rules, which must be proved by substantial
evidence. Otherwise, the misconduct is only
simple.
 Conduct Unbecoming a Public Officer;
Unbecoming conduct means improper
performance and applies to a broader range
of transgressions of rules not only of social
behavior but (also) of ethical practice or
logical procedure or prescribed method. —For
reneging on her promise to return aforesaid
amount, petitioner is guilty of conduct
unbecoming a public officer. x x x unbecoming
conduct means improper performance and
applies to a broader range of transgressions of
rules not only of social behavior but of ethical
practice or logical procedure or prescribed

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method. [Samson vs. Restrivera, 646 SCRA
481(2011)]
Misconduct differentiated from Disgraceful
and Immoral Conduct
 Misconduct means intentional
wrongdoing or deliberate violation of a rule of
law or standard of behavior, especially by a
government official. To constitute an
administrative offense, misconduct should
relate to or be connected with the
performance of the official functions and
duties of a public officer. In grave misconduct
as distinguished from simple misconduct, the
elements of corruption, clear intent to violate
the law or flagrant disregard of established
rule, must be manifest. Corruption as an
element of grave misconduct consists in the
act of an official or fiduciary person who
unlawfully and wrongfully uses his station or
character to procure some benefit for himself
or for another person, contrary to duty and
the rights of others.
we believe in no way was compromised or
affected by the commission of his offense.
However, as correctly found by the
Commission, we believe that Villanueva is
guilty of Disgraceful and Immoral Conduct
for having engaged in an illicit affair. In a
catena of cases, the Court has ruled that
government employees engaged in illicit
relations are guilty of “disgraceful and
immoral conduct” for which he/she may be
held administratively liable. [Villanueva vs.
Court of Appeals, 495 SCRA 824(2006)]
 What is the nature of acts or
omissions of public officer/employee that
the ombudsman may investigate? Answer:
Acts or omissions that appear to be ILLEGAL,
UNJUST, IMPROPER, OR INEFFICIENT. (Par. 1,
Sec. 13 of Article XI, Constitution)
 Is rape covered by the investigative
power of ombudsman? Answer: Certainly.
Rape is illegal and a crime.

 In the present case, Villanueva’s
offense was in no way connected with the
performance of his functions and duties as a
public officer. Sure, his office was used as a
venue for the commission of the offense and
definitely, his offense speaks despicably of his
character as a man but it in no way evinced
any failure on his part to discharge his duties
as a public officer. Yes, Villanueva’s offense is
gravely immoral and reprehensible but it falls
short of grave misconduct as defined by law.
To determine whether a public officer
committed misconduct, it is necessary to
separate the character of the man from the
character of the officer. Here, Villanueva’s
transgression laid bare the values of his inner
being but did not expose any of his
shortcoming as a public officer. Who
Villanueva is and what he believes in are
inconsequential in concluding whether his
misdemeanor amounts to misconduct. Rather,
what is material is whether Villanueva
properly discharged his public functions which
 What are the instances when the
court may interfere by certiorari with the
exercise of Ombudsman’s power to
determine probable cause in preliminary
investigation? ANSWER- In Mendoza-Arce v.
Office of the Ombudsman (Visayas) 380 SCRA
325 (2002), a writ of certiorari may issue in
any of the following instances: 1. When
necessary to afford adequate protection to
the constitutional rights of the accused; 2.
When necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of actions; 3. When
there is a prejudicial question that is sub-
judice; 4. When the acts of the officer are
without or in excess of authority; 5. Where
the prosecution is under an invalid law,
ordinance or regulation; 6. When double
jeopardy is clearly apparent; 7. Where the
court has no jurisdiction over the offense; 8.
Where it is a case of persecution rather than
prosecution; 9. Where the charges are
manifestly false and motivated by the lust for

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vengeance; 10. When there is clearly no prima
facie case against the accused and a motion to
quash on that ground has been denied.
Meaning of “suspension of not more than
one month’s salary
Section 27 of RA 6770 provides that any order,
directive, or decision of the Office of the
Ombudsman imposing the penalty of public
censure or reprimand, and suspension of not
more than one month’s salary, shall be final
and unappealable. In the instant case, the
penalty imposed by the Office of the
Ombudsman after finding herein respondents
guilty of simple neglect of duty was “fine
equivalent to their one (1) month’s pay.”
Valid? Answer. Following our ruling in Herrera
v. Bohol, 422 SCRA 282 (2004) the penalty
imposed upon respondents, which is fine
equivalent to one (1) month salary, is included
in the phrase “suspension of not more than
one month’s salary,” thus: “There is no
penalty as suspension of salary in our
administrative law, rules and regulations.
Salaries are simply not suspended. Rather it is
the official or employee concerned who is
suspended with a corresponding withholding
of salaries following the principle of “no work,
no pay.” Or, an official or employee may be
fined an amount equivalent to his or her
monthly salary as penalty without an
accompanying suspension from work.
Preventive suspension: by ombudsman (6
months) vs. executive officials (60 days)
Under Section 24 of the Ombudsman Act of
1989, it provides “preventive suspension shall
continue until the case is terminated by the
Office of the Ombudsman but not more than
six months, without pay. ” Does this violate
the equal protection considering preventive
suspension given by executive officials is
limited to sixty (60) days. ANSWER: [ while it
is argued] that there is no substantial
distinction between preventive suspensions
handed down by the Ombudsman and those
imposed by executive officials. On the
contrary, there is a world of difference
between them. The Constitution has endowed
the Ombudsman with unique safeguards to
ensure immunity from political pressure.
Among these statutory protections are fiscal
autonomy, fixed term of office and
classification as an impeachable officer. This
much was recognized by this Court in the
earlier cited case of Garcia v. Mojica.
Moreover, there are stricter safeguards for
imposition of preventive suspension by the
Ombudsman. The Ombudsman Act of 1989
requires that the Ombudsman determine: (1)
that the evidence of guilt is strong; and (2)
that any of the following circumstances are
present: (a) the charge against such officer or
employee involves dishonesty, oppression, or
grave misconduct or neglect in the
performance of duty; (b) the charges would
warrant removal from the service; or (c) the
respondent's continued stay in office may
prejudice the case filed against him.
MIRANDA vs. SANDIGANBAYAN, OFFICE OF
THE OMBUDSMAN, [G.R. No. 154098. July
27, 2005.]
Power to appoint its officials includes the
power to specify qualification standards
May the Civil Service Commission disapprove
the qualification standards set by the
Ombudsman for the latter’s subordinates
and personnel? ANSWER: NO. Under the
Constitution, the Office of the Ombudsman is
an independent body. As a guaranty of this
independence, the Ombudsman has the
power to appoint all officials and employees
of the Office of the Ombudsman, except his
deputies. This power necessarily includes the
power of setting, prescribing and
administering the standards for the officials
and personnel of the Office.
To further ensure its independence, the
Ombudsman has been vested with the power
of administrative control and supervision of
the Office. This includes the authority to
organize such directorates for administration

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and allied services as may be necessary for
the effective discharge of the functions of the
Office, as well as to prescribe and approve its
position structure and staffing pattern.
Necessarily, it also includes the authority to
determine and establish the qualifications,
duties, functions and responsibilities of the
various directorates and allied services of the
Office. This must be so if the constitutional
intent to establish an independent Office of
the Ombudsman is to remain meaningful and
significant.
Qualification standards are used as guides in
appointment and other personnel actions, in
determining training needs and as aid in the
inspection and audit of the personnel work
programs. They are intimately connected to
the power to appoint as well as to the power
of administrative supervision. Thus, as a
corollary to the Ombudsman's appointing and
supervisory powers, he possesses the
authority to establish reasonable qualification
standards for the personnel of the Office of
the Ombudsman. OFFICE OF THE
OMBUDSMAN vs. CSC, EN BANC, [G.R. No.
162215. July 30, 2007.]
ADMINISTRATIVE LAW
Quasi-Judicial power
writ of error or a certiorari, such final
adjudication may be pleaded as res
judicata.”20 [National Housing Authority vs.
Almeida, 525 SCRA 383(2007), citing
Brillantes v. Castro, 99 Phil. 497, 503 (1956)]
Judicial recourse and review
What is the Doctrine of Primary Jurisdiction?
Answer: “If the case is such that its
determination requires the expertise,
specialized skills and knowledge of the proper
administrative bodies because technical
matters or intricate questions of facts are
involved, then relief must first be obtained in
an administrative proceeding before a remedy
will be supplied by the courts even though the
matter is within the proper jurisdiction of a
court.” (Industrial Enterprises, Inc. vs. CA.,
184 SCRA 426)
What is the Doctrine of Exhaustion of
Administrative Remedies? Answer: The
doctrine is such that “If a remedy within the
administrative processes is available, that
must exhausted first before resort to the
courts may be had.”
What are the exceptions to the rule on
exhaustion?

What is meaning of “administrative res Answer: Exceptions to such rule are:

judicata?”
Answer: But jurisprudence has also
recognized the rule of administrative res
judicata: “the rule which forbids the
reopening of a matter once judicially
determined by competent authority applies as
well to the judicial and quasi-judicial facts of
public, executive or administrative officers
and boards acting within their jurisdiction as
to the judgments of courts having general
judicial powers . . . It has been declared that
whenever final adjudication of persons
invested with power to decide on the
property and rights of the citizen is
examinable by the Supreme Court, upon a
 when there is violation of due
process;
 issue involved is purely legal;
 the administrative action is patently
illegal amounting to lack or in excess of
jurisdiction;
 the administrative agency is
estopped;
 there is irreparable injury;
 there is no plain, speedy and
adequate remedy;
 respondent is an alter-ego of the
president;
 when exhaustion of administrative
remedies would be unreasonable.;

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 there is urgency of judicial  Art. IX-A, Art. IX-C, Constitution

intervention
What is the doctrine of finality of
administrative action?
Answer: …..the court does not interfere, as a
rule, with administrative action prior to its
completion or finality. It is only after judicial
review is no longer premature that we
ascertain in proper cases whether the
administrative findings are not in violation of
law, whether they are free from fraud or
imposition and whether they find substantial
support from the evidence. [Matienza vs.
Abellera, 162 SCRA 1(1988)]
 RA 9189 (absentee voting law)
authorizes Congress to review COMELEC’s
implementing rules and regulations, valid?
ANSWER: It violates the constitutional
guaranty of independence of the
constitutional commissions. Macalintal vs.
Comelec et al., GR No. 157013, July 10, 2003.
ADMINISTRATIVE POWER
 Comelec has jurisdiction over actions
to annul the result of plebiscites-BUAC vs.
Comelec, G.R. No. 155855, January 26, 2004

 Power to regulate media, applies in

ELECTION LAW
COMELEC-Membership
 Two conditions for workability of
Rotational system? (1) that the terms of the
first three (3) Commissioners should start on a
common date, and, (2) that any vacancy due
to death, resignation or disability before the
expiration of the term should only be filled
only for the unexpired balance of the term.
Gaminde vs. Commission on Audit, 347 SCRA
655(2000), citing Republic v. Imperial, 96
Phil. 770 (1955)
 designation or appointment of
commissioners in acting capacity
unconstitutional as it impairs the
independence of the Commission. Brillantes
v. Yorac, 192 SCRA 358
 Ad intérim appointments of Chairman
and commissioners of COMELEC not a
violation. A renewal of ad interim
appointments in case of by-pass by the
Commission on Appointment not a violation
of the Constitution. MATIBAG vs. BENIPAYO,
GR 149036, 4/2/02
INDEPENDENCE
plebiscites and referenda. (UNIDO V.
COMELEC, 104 SCRA 17 [1981]); the power to
regulate media franchise holders does not
include regulation of expression of opinion of
writers in a plebiscite or referendum.
(SANIDAD V. COMELEC, 1-29-90). Radio and
television broadcasting companies may be
required to give free air time for political
advertisements during election period.
(TELEBAB vs. COMELEC, 289 SCRA 33)
 Power of Contempt not available in
the exercise of administrative powers of
COMELEC. (Guevarra v. Comelec, 104 Phil
269)
 Not only preventive power but also
curative
 include the authority to exclude
statistically improbable returns (Lagumbay v.
Comelec, 16 SCRA 175 [1966]).
 may rely on handwriting experts to
prove falsity of returns. (Usman v. Comelec,
42 SCRA 667 [1971].
 By law (Sec. 5 of BP 52) Comelec may
be granted the power to declare failure of

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elections. “Failure to elect” may also result
from post election terrorism, and such failure
authorizes COMELEC to call a special election-
Sanchez v. Comelec, 6/19/82
Judicial/Quasi-judicial powers of Comelec
Initial Appellate jurisdiction- by division
 Sec. 9 of RA 6679 providing for appeal
from MTC to the RTC on contests involving
elective municipal and barangay officials is
unconstitutional as it deprived COMELEC its
appellate jurisdiction. (Flores v. Comelec, 184
SCRA 484)

Initial jurisdiction in election cases, including
pre-proclamation case- by a division
 A petition to cancel the certificate of
candidacy of Garvida on the ground that she
would be more than 21 years of age on
election day cannot be acted upon by
COMELEC en banc but by a division. (Garvida
v. Sales, 271 SCRA 767)
 The power of the COMELEC does not
include review of elections of BARANGAY
FEDERATIONS as its power is limited to
popular elections (Taule v. Sec. Santos,
8/12/9
 What is the remedy of an aggrieved
party from an interlocutory order of a
division of Comelec alleged to have been
issued with grave abuse of discretion or
without jurisdiction? ANSWER: Under
Section 5(c), Rule 3 of the 1993 COMELEC
Rules of Procedure, a motion for
reconsideration on an interlocutory order of a
division of Comelec should be resolved by the
same division, and not by the Comelec En
Banc because only motions for
reconsideration of “final decisions” of a
division may be elevated to the Comelec en
banc. Under the above-quoted rule, the acts
of a Division that are subject of a motion for
reconsideration must have a character of
finality before the same can be elevated to
the COMELEC en banc. The elementary rule is
that an order is final in nature if it completely
disposes of the entire case. But if there is
something more to be done in the case after
its issuance, that order is interlocutory.
[REPOL v. Comelec, 428 SCRA 321 (2004)]
 Appeal from MTC or RTC should be
heard/decided by a division of COMELEC.
(Abad v. Comelec, 12/10/99)
Requirement of MR
 No Petition for Certiorari with the SC
without filing a motion for reconsideration
with COMELEC En Banc. (Reyes v. RTC,
5/5/95)
 A Motion for Reconsideration based
on the merits and not a dismissal for failure to
prosecute is what is contemplated under the
provision. SALAZAR v. COMELEC, 184 SCRA
433 [1990].
Effect if qualified majority requirement of
the Constitutional is not met
 What happens if COMELEC en banc
cannot muster the required majority vote of
all its members? Answer: Promulgated on 15
February 1993 pursuant to Section 6, Article
IX-A and Section 3, Article IX-C of the
Constitution is the COMELEC Rules of
Procedure, which under its Section 6, Rule 18
categorically provides: “Sec.6.Procedure if
Opinion is Equally Divided.—When the
Commission en banc is equally divided in
opinion, or the necessary majority cannot be
had, the case shall be reheard, and if on
rehearing no decision is reached, the action or
proceeding shall be dismissed if originally
commenced in the Commission; in appealed
cases, the judgment or order appealed from
shall stand affirmed; and in all incidental
matters, the petition or motion shall be
denied.” [Mendoza vs. Commission on
Election, 616 SCRA 443(2010)]

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party-list group or organization which

REVIEW OF COMELEC DECISIONS
 By the SC only by way of Certiorari
(under rule 64 & 65)
 Decisions reviewable by the SC
pertains to the adjudicatory or quasi-judicial
power of Comelec and does not apply to
decisions on administrative matters which
may be questioned before the ordinary
courts.(Filipinas Engineering v. Ferrer, 135
SCRA 25). THUS the proper court to review a
resolution of the COMELEC in recognizing the
lawful election registrar is the regular courts
of general jurisdiction. (Garces v. CA, 259
SCRA 99)
 May the Supreme Court still review
the decisions of Comelec involving election
contests of elective municipal and barangay
officials. YES, only on questions of law
(Galido v. Comelec, 1/18/91; reiterated in
Rivera v. Comelec, 7/12/91)
POLITICAL PARTIES
 What are the two grounds for
delisting of a party? Answer: COMELEC may
motu proprio or upon verified complaint of
any interested party, remove or cancel, after
due notice and hearing, the registration of any
national, regional or sectoral party,
organization or coalition if it: (a) fails to
participate in the last two (2) preceding
elections; or (b) fails to obtain at least two per
centum (2%) of the votes cast under the
party-list system in the two (2) preceding
elections for the constituency in which it has
registered.6 [Philippine Guardian
Brotherhood, Inc. (PGBI) vs. Commission on
Elections, 619 SCRA 585(2010)]
 May a party-list organization which
failed to get 2% of the votes cast under the
party-list be delisted? Answer: NO. “…a
qualified in the second round of seat
allocation cannot now validly be delisted for
the reason alone that it garnered less than 2%
in the last two elections. In other words, the
application of this disqualification should
henceforth be contingent on the percentage
of party-list votes garnered by the last party-
list organization that qualified for a seat in the
House of Representatives, a percentage that is
less than the 2% threshold invalidated in
Banat. The disqualification should now
necessarily be read to apply to party-list
groups or organizations that did not qualify
for a seat in the two preceding elections for
the constituency in which it registered.
[Philippine Guardian Brotherhood, Inc.
(PGBI) vs. Commission on Elections, 619
SCRA 585(2010)]
Party List
 PROBLEM: The last sentence of
Section 7 of R.A. 7941 reading: "[T]he names
of the party-list nominees shall not be shown
on the certified list." May COMELEC refuse to
divulge the names of nominees of certain
party list candidates on the basis of this
provision of the PARTY LIST LAW. RULING:
The prohibition imposed on the Comelec
under said Section 7 is limited in scope and
duration, meaning, that it extends only to the
certified list which the same provision
requires to be posted in the polling places on
election day. To stretch the coverage of the
prohibition to the absolute is to read into the
law something that is not intended. As it
were, there is absolutely nothing in R.A. No.
7941 that prohibits the Comelec from
disclosing or even publishing through
mediums other than the "Certified List" the
names of the party-list nominees. Assayed
against the non-disclosure is the right to
information enshrined in the self-executory of
Section 7, Article III of the Constitution,
complemented by Section 28, Article II of the
Constitution. BANTAY REPUBLIC ACT OR BA-
RA 7941, et al., vs. COMELEC, et al., [G.R. No.
177271. May 4, 2007.]

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absentia. [Macalintal vs. Commission on

QUALIFICATIONS
 Since his arrival on 4 May 2006, Ty
was bodily present in General Macarthur,
Eastern Samar. Ty however made trips
abroad during said period, i.e. to Bangkok,
Thailand (from 14 to 18 July 2006), and to
the USA (from 31 October 2006 to 19 January
2007). Did Ty comply with the residence
requirement to run for mayor on 14 May
2007 mayoralty election of Macarthur,
Eastern Samar despite his trips abroad?
Answer: There is no basis to require Ty to stay
in and never leave at all the Municipality of
General Macarthur, Eastern Samar, for the full
one-year period prior to the 14 May 2007
local elections so that he could be considered
a resident thereof. …. absence from residence
to pursue studies or practice a profession or
registration as a voter other than in the place
where one is elected, does not constitute loss
of residence. [Japzon vs. Commission on
Elections, 576 SCRA 331(2009)]
 May a Filipino green card holder or
US immigrant vote in absentia in Philippine
Presidential elections? Answer: YES. Under
Sec. 5(d) of RA 9189, otherwise known as
Absentee Voting Act, an immigrant or a
permanent resident who is recognized as such
in the host country, can vote if he/she
executes, upon registration, an affidavit
prepared for the purpose by the Commission
declaring that he/she shall resume actual
physical permanent residence in the
Philippines not later than three (3) years from
approval of his/her registration under this Act.
Such affidavit shall also state that he/she has
not applied for citizenship in another country.
Failure to return shall be cause for the
removal of the name of the immigrant or
permanent resident from the National
Registry of Absentee Voters and his/her
permanent disqualification to vote in
Elections, 405 SCRA 614(2003)]
CANDIDACY
 What are the requirements to
acquire a new domicile? ANSWER: In order to
acquire a new domicile by choice, there must
concur (1) residence or bodily presence in the
new locality, (2) an intention to remain there,
and (3) an intention to abandon the old
domicile. There must be animus manendi
coupled with animus non revertendi. The
purpose to remain in or at the domicile of
choice must be for an indefinite period of
time; the change of residence must be
voluntary; and the residence at the place
chosen for the new domicile must be actual.”
 Effect of filing a certificate of
candidacy.- Officials holding appointive
offices, including active members of the AFP
and officers of GOCCs shall be considered ipso
facto resigned. (Sec. 66 BP 881)
 In case of death, disqualification or
withdrawal of candidate after the last day for
filing of the certificate of candidacy, who may
substitute the candidate? Only a person
belonging to and certified by the same
political party may file a certificate of
candidacy not later than mid-day of the day of
the election. (Sec. 77, BP 881)
 Petition to deny or cancel certificate
of candidacy -In order to justify the
cancellation of COC, it is essential that the
false representation mentioned therein
pertain to a material matter for the sanction
imposed by this provision would affect the
substantive rights of a candidate—the right
to run for the elective post for which he filed
the certificate of candidacy. Although the
law does not specify what would be
considered as a “material representation.”

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[Salcedo II v. Commission on Elections, 312 office.”[Gonzales vs. Commission on

SCRA 447 (1999)]. Elections, 644 SCRA 761(2011)]

 Section 78 contemplates statements  What is the difference between a

regarding age, residence and citizenship or
non-possession of natural-born Filipino
status. Furthermore, aside from the
requirement of materiality, the false
representation must consist of a deliberate
attempt to mislead, misinform, or hide a fact
which would otherwise render a candidate
ineligible. In other words, it must be made
with an intention to deceive the electorate
as to one’s qualification for public office.
[Gonzales vs. Commission on Elections, 644
SCRA 761(2011)]
 What are the two instances where a
petition questioning the qualifications of a
candidate under the Omnibus Election Code?
(1)Before election, pursuant to Section 78
thereof on the ground of material
misrepresentation in the certificate of
candidacy and (2)After election, by petition
for quo warranto pursuant to Section 253 on
the ground of ineligibility or of disloyalty to
the Republic of the Philippines shall file a
sworn petition for quo warranto with the
Commission within ten days after the
proclamation of the results of the election.
 Difference between Sec. 78 and Sec.
253? - The only difference between the two
proceedings is that, under Section 78, the
qualifications for elective office are
misrepresented in the certificate of candidacy
and the proceedings must be initiated before
the elections, whereas a petition for quo
warranto under Section 253 may be brought
on the basis of two grounds—(1) ineligibility
or (2) disloyalty to the Republic of the
Philippines, and must be initiated within ten
days after the proclamation of the election
results. Under Section 253, a candidate is
ineligible if he is disqualified to be elected to
office, and he is disqualified if he lacks any of
the qualifications for elective
petition to deny or cancel certificate of
candidacy under Sec. 78 and the petition for
disqualification under Sec. 68 of the
Omnibus Election Code? Answer: The
grounds in Section 68 may be categorized into
two. First, those comprising “prohibited” acts
of candidates; and second, the fact of their
permanent residency in another country
when that fact affects the residency
requirement of a candidate according to the
law. (Section 12 or 68 of the Omnibus Election
Code, or Section 40 of the [Local Government
Code]) On the other hand, a petition to deny
due course to or cancel a CoC can only be
grounded on a statement of a material
representation in the said certificate that is
false. The petitions also have different effects.
While a person who is disqualified under
Section 68 is merely prohibited to continue as
a candidate, the person whose certificate is
cancelled or denied due course under Section
78 is not treated as a candidate at all, as if
he/she never filed a CoC. X x x they also vary
in their prescriptive period. A petition to
cancel a CoC gives a registered candidate the
chance to question the qualification of a rival
candidate for a shorter period: within 5 days
from the last day of their filing of CoCs, but
not later than 25 days from the filing of the
CoC sought to be cancelled. A petition for
disqualification may be filed any day after the
last day of the filing of CoC but not later than
the date of the proclamation. [Munder vs.
Commission on Election, et al., G.R. No.
194076(2011)]
 In a petition for disqualification,
where the petitioner dies, will the election
and proclamation of the winning candidate
cause the outright dismissal of the petition?
Answer: The case for disqualification exists,
and survives, the election and proclamation of
the winning candidate because an outright
dismissal will unduly reward the challenged

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candidate and may even encourage him to
employ delaying tactics to impede the
resolution of the disqualification case until
after he has been proclaimed. The exception
to the rule of retention of jurisdiction after
proclamation applies when the challenged
candidate becomes a member of the House of
Representatives or of the Senate, where the
appropriate electoral tribunal would have
jurisdiction. There is no law or jurisprudence
which says that intervention or substitution
may only be done prior to the proclamation of
the winning candidate. A substitution is not
barred by prescription because the action was
filed on time by the person who died and who
is being substituted. The same rationale
applies to a petition-intervention. [Lanot vs.
Commission on Elections, 507 SCRA
114(2006)]
 Effect of a final judgment
disqualifying a candidate before and after
the election. -Sec. 6 of RA No. 6646, Electoral
Reforms Law of 1987, repealing Sec. 72 of the
Omnibus Election Code provides: “Sec. 6.
Effect of Disqualification Case.—Any
candidate who has been declared by final
judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be
counted. If for any reason a candidate is not
declared by final judgment before an election
to be disqualified and he is voted for and
receives the winning number of votes in such
election, the Court or Commission shall
continue with the trial and hearing of the
action, inquiry, or protest and, upon motion of
the complainant or any intervenor, may
during the pendency thereof order the
suspension of the proclamation of such
candidate whenever the evidence of his guilt
is strong.”
 PROBLEM: Cayat and Palileng were
the only candidates for the mayoralty post in
Buguias, Benguet in the 10 May 2004 local
elections. Cayat filed his certificate of
candidacy on 5 January 2004. On 26 January
2004, Palileng filed a petition for
disqualification against Cayat before the
COMELEC Regional Election Office in Baguio
City alleging that Cayat is not eligible to run as
Mayor having been convicted by final
judgment for Acts of Lasciviousness, an
offense involving moral turpitude which under
Sec. 40(a) of R.A. 7160 otherwise known as
the Local Government Code is a ground for
disqualification, and which reads: (a) Those
sentenced by final judgment for an offense
involving moral turpitude for an offense
punishable by one (1) year or more of
imprisonment within [two] (2) years after
serving sentence; ….Comelec (through its 1 st
division) issued a resolution, disqualifying
Cayat and which became final on April 17,
2004. In the local elections held on 10 May
2004, Cayat's name remained on the
COMELEC's list of candidates. Cayat received
8,164 votes while Palileng, on the other hand,
received 5,292 votes. Cayat took his oath of
office on 17 May 2004, but Palileng was
declared by Comelec as the duly elected
mayor of Buguias, Benguet. Cayat went to the
Supreme Court to question the proclamation
of Palileng. Bayacsan, the elected vice-mayor,
on the other hand filed a petition in
intervention, arguing that Palileng is a second
placer and under the LABO doctrine, he was
not the choice of the people, and in the event
of disqualification of Cayat, he, being the vice
mayor elect should be declared the Mayor.
 QUESTION: Who should be the
mayor of Buguias? Cayat, Palileng or
Bayacsan?
ANSWER: Sec. 6 of RA No. 6646, repealing
Sec. 72 of the Omnibus Election Code says:
"Sec. 6. Effect of Disqualification Case.
— Any candidate who has been declared by
final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not
be counted. If for any reason a candidate is
not declared by final judgment before an

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election to be disqualified and he is voted for
and receives the winning number of votes in
such election, the Court or Commission shall
continue with the trial and hearing of the
action, inquiry, or protest and, upon motion
of the complainant or any intervenor, may
during the pendency thereof order the
suspension of the proclamation of such
candidate whenever the evidence of his guilt
is strong."
The present case falls under the first situation
envisaged under Section 6 of the Electoral
Reforms Law: a candidate disqualified by final
judgment before an election cannot be voted
for, and votes cast for him shall not be
counted. The Resolution disqualifying Cayat
became final on 17 April 2004, way before
the 10 May 2004 elections. Therefore, all the
8,164 votes cast in Cayat's favor are stray.
Cayat was never a candidate in the 10 May
2004 elections Palileng's proclamation is
proper because he was the sole and only
candidate, second to none. NOTE: The name
of Cayat remained in the list of candidates on
election day. [Cayat vs. Commission on
Elections, 522 SCRA 23(2007)]
 What if his disqualification by final
judgment came after the elections, and he
received the highest number of votes during
the election, may the second placer be
proclaimed as winner? ANSWER: The
second placer was rejected by the people as
he is not their choice and cannot be
proclaimed as the winner (LABO v. Comelec,
211 SCRA 297 [1992])
CAMPAIGN
 May a candidate, after filing his
certificate of candidacy, lawfully engage in
partisan political activity before the start of
the campaign period? Answer: YES, The
second sentence, third paragraph, Section 15
of RA 8436, as amended by Section 13 of RA
9369, provides that “[a]ny person who files
his certificate of candidacy within [the period
for filing] shall only be considered as a
candidate at the start of the campaign period
for which he filed his certificate of candidacy.”
The immediately succeeding proviso in the
same third paragraph states that “unlawful
acts or omissions applicable to a candidate
shall take effect only upon the start of the
aforesaid campaign period.” [Penera vs.
Commission on Elections, 605 SCRA
574(2009); RULING on MR]
REMEDIES AND JURISDICTION IN
ELECTION LAW
 What are the grounds for declaration
of failure of election? Answer: There are
only three (3) instances where a failure of
elections may be declared, namely: a) the
election in any polling place has not been held
on the date fixed on account of force majeure,
violence, terrorism, fraud, or other analogous
causes; b) the election in any polling place
had been suspended before the hour fixed by
law for the closing of the voting on account of
force majeure, violence, terrorism, fraud, or
other analogous causes; or c) after the voting
and during the preparation and transmission
of the election returns or in the custody or
canvass thereof, such election results in a
failure to elect on account of force majeure,
violence, terrorism, fraud, or other analogous
causes." (Sison v. Commission on Elections,
304 SCRA 170, 175 [1999]).
 What are issues in a pre-
proclamation controversy? Answer: The
grounds that must support a pre-
proclamation controversy are limited by the
Omnibus Election Code to the following:
“Section243.Issues that may be raised in pre-
proclamation controversy.—The following
shall be proper issues that may be raised in a
pre-proclamation controversy: (a)Illegal
composition or proceedings of the board of

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canvassers; (b)The canvassed election returns

are incomplete, contain material defects,
appear to be tampered with or falsified, or
contain discrepancies in the same returns or
in other authentic copies thereof as
mentioned in Sections 233, 234, 235 and 236
of this Code; (c)The election returns were
prepared under duress, threats, coercion, or
intimidation, or they are obviously
manufactured or not authentic; and (d)When
substitute or fraudulent returns in
controverted polling places were canvassed,
the results of which materially affected the
standing of the aggrieved candidate or
candidates.” [Abayon vs. Commission on
Elections, 583 SCRA 473(2009)]

 Effect of pendency of pre-

proclamation case on the period to file
election contest- Section 250 of the Omnibus
Election Code fixes the period within which to
file an election contest for provincial offices at
ten days after the proclamation of the
election results, to wit: “Section250.Election
contests for Batasang Pambansa, regional,
provincial and city offices.—A sworn petition
contesting the election of any Member of the
Batasang Pambansa or any regional, provincial
and city official shall be filed with the
Commission by any candidate who has duly
filed a certificate of candidacy and has been
voted for the same office, within ten days
after the proclamation of the results of the
election.”

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 However, this ten-day period may be constituency on grounds of ineligibility

suspended, as Section 248 of the
Omnibus Election Law provides:
“Section248.Effect of filing petition to
annul or to suspend the proclamation.—
The filing with the Commission of a
petition to annul or to suspend the
proclamation of any candidate shall
suspend the running of the period within
which to file an election protest or quo
warranto proceedings.”
 Is a petition to declare failure of
election a pre-proclamation
controversy? Answer: In Dagloc v.
Commission on Elections, 321 SCRA 273,
279-282 (1999) the Supreme Court
clarified that the “petition to annul or to
suspend the proclamation,” which
Section 248 refers to, and which
suspends the running of the period
within which to file the election protest
or quo warranto proceedings, must be a
pre-proclamation controversy. The Court,
thus, decreed in the same case that a
petition for the declaration of failure of
election was not a pre-proclamation
controversy and, therefore, did not
suspend the running of the reglementary
period within which to file an election
protest or quo warranto proceedings.
[Abayon vs. Commission on Elections,
583 SCRA 473(2009)]
 Election protest-filed within 10 days
from proclamation of results of the
election by any candidate who has filed
a certificate of candidacy and has been
voted upon for the same office on
grounds of fraud, terrorism,
irregularities, or illegal acts committed
before, during and after the casting of
votes.
 Quo warranto- filed within 10 days
from proclamation of the results of the
election by any registered voter in the
or disloyalty to the Republic of the
Philippines
 Election contest and quo warranto
distinguished:
 In quo warranto, the incumbent’s
ouster is sought on the ground of
ineligibility or disloyalty to the
republic. In an election contest,
incumbent’s ouster is sought on the
ground of irregularity in the conduct of
the elections or in the counting or
non-counting of ballots. (Caesar v.
Garrido, 53 Phil. 97)
 In quo warranto, the incumbent’s
ouster does not necessarily entitle the
petitioner to be seated. In an election
contest, if the protestee or respondent
is declared defeated, the protestant or
petitioner may be seated in his place
(Luisen v. Garcia, 103 Phil. 453)
 The grounds for quo warranto are
separable from the grounds for
election irregular alleged in the
protest. Each action should be dealt
with according to its own merits. Pacal
v. Ramos, G.R. 2167,17 May 48,45 Off.
Gaz. 4946, 81 Phil. 30
POWER TO PROSECUTE ELECTION
OFFENSES
 Power to investigate and prosecute
violations of elections laws as part of its
executive power, COMELEC has exclusive
jurisdiction to investigate and prosecute
election offenses committed by PUBLIC
OFFICIALS in relation to their office.
(CORPUS V. TANODBAYAN, 149 SCRA 281
[1987]

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 Preliminary Investigation conducted  When the law requires

by the Provincial Election Supervisor
involving election offenses need not pass
thru the Provincial Fiscal (Prosecutor)
before the Court may take cognizance to
determine the existence of probable
cause. (People v. Judge Inting, 7/25/90)
But may delegate such power to the
regular prosecutors (PEOPLE V. BASILIA,
11-6-89)
LOCAL GOVERNMENT
Power to create local governments
 Power to create local governments is
legislative in character.
 Congress has delegated (under Secs
385 & 386, RA 7160) to provincial
boards, and city and municipal
councils, the power to create barangays
within their jurisdiction,
 BUT the power to create provinces
and cities belongs to Congress as their
creation involves creation of legislative
districts. SEMA vs. COMELEC, G.R. No.
177597, July 16, 2008-
Meaning of autonomy
 decentralization of administration
NOT delegation or decentralization of
power
 retention of 10% of the IRA contrary
to local autonomy -Pimentel vs. Aguirre,
336 SCRA 201
 Dept. of Budget cannot set of a limit
to the statutory authority of local
governments to grant allowances to
judges. Dadole vs. COA, 178 SCAD 262
[Dec. 2002]
recommendation of nominees for the
position of Prov. Budger Officer from the
local government head (Governor), the
appointing authority cannot appoint
someone not passing thru the
recommendation of the local
government head. (San juan v. CSC,
4/19/91)
 The SC may intervene in the
dismissal of the Speaker of the
Sangguniang Pampook of Region XII. The
autonomous regions are not meant to be
"self immolation". Where due process is
not observed, the action of the
autonomous region is invalid. (Limbona
v. Conte Mangelin, 170 SCRA 786
[1989])
Question: What is the constitutional basis for
the Internal Revenue Allotment to local
governments? Answer. Article X, Section 6
says Local government units shall have a just
share, as determined by law, in the national
taxes, which shall be automatically released to
them.
Question. What are the requirements for
validity of a local ordinance?
Answer.
1) Must not contravene the Constitution or
any statute;
2) Must not be unfair or oppressive;
3) Must not be partial or discriminatory;
4) Must not prohibit but may regulate trade;
5) Must be general and consistent with public
policy;
6) Must be reasonable. (Tatel vs. Municipality
of Virac, 207 SCRA 157)
Question. What is the “doctrine of
forgiveness or condonation”? What is its
scope?

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Answer. An official’s reelection expresses the
sovereign will of the electorate to forgive or
condone any act or omission constituting a
ground for administrative discipline, which
was committed during his previous term. The
doctrine does not apply to criminal acts.
(Salalima v. Guingona, 257 SCRA 55 [1996]);
Question. Under the Local Government Code,
does the disciplining authority exercise the
power to remove elected local official?
Answer. NO. The power granted to
disciplining authority is the power to suspend.
Removal may only be decreed by an order of
the proper court. (Sec. 60)
and performing essential public services
pursuant to Section 2(10) of the Introductory
Provisions of the Administrative Code. As a
government instrumentality, MIAA is not
subject to any kind of tax by local
governments under Section 133(o) of the
Local Government Code. The exception to the
exemption in Section 234(a) does not apply to
MIAA because MIAA is not a taxable entity
under the Local Government Code. Such
exception applies only if the beneficial use of
real property owned by the Republic is given
to a taxable entity.
[Manila International Airport Authority vs.
Court of Appeals, 495 SCRA 591(2006)]

MMDA devoid of power to close provincial

Power to tax
MCIAA as GOCC
Accordingly, the position taken by the
petitioner is untenable. Reliance on Basco vs.
Philippine Amusement and Gaming
Corporation is unavailing since it was decided
before the effectivity of the LGC. Besides,
nothing can prevent Congress from decreeing
that even instrumentalities or agencies of the
Government performing governmental
functions may be subject to tax. Where it is
done precisely to fulfill a constitutional
mandate and national policy, no one can
doubt its wisdom. [Mactan Cebu
International Airport Authority vs. Marcos,
261 SCRA 667(1996)]
MIAA as “instrumentality,” not GOCC
MIAA is not a government-owned or
controlled corporation under Section 2(13) of
the Introductory Provisions of the
Administrative Code because it is not
organized as a stock or non-stock corporation.
Neither is MIAA a government-owned or
controlled corporation under Section 16,
Article XII of the 1987 Constitution because
MIAA is not required to meet the test of
economic viability. MIAA is a government
instrumentality vested with corporate powers
bus terminals
Designated by Executive Order (E.O.) No. 179,
MMDA "recommended a plan to decongest
traffic by eliminating the bus terminals now
located along major Metro Manila
thoroughfares and providing more and
convenient access to the mass transport
system to the commuting public through the
provision of mass transport terminal facilities"
which plan is referred to under the E.O. as the
Greater Manila Mass Transport System
Project. May the MMDA close the bus
terminals?
ANSWER: It bears stressing that under the
provisions of E.O. No. 125, as amended, it is
the DOTC, and not the MMDA, which is
authorized to establish and implement a
project such as the one subject of the cases at
bar. Thus, the President, although authorized
to establish or cause the implementation of
the Project, must exercise the authority
through the instrumentality of the DOTC
which, by law, is the primary implementing
and administrative entity in the promotion,
development and regulation of networks of
transportation, and the one so authorized to
establish and implement a project such as the
project in question. By designating the
MMDA as the implementing agency of the
Project, the President clearly overstepped the

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limits of the authority conferred by law,

rendering E.O. No. 179 ultra vires. In another
vein, the validity of the designation of MMDA
flies in the absence of a specific grant of
authority to it under R.A. No. 7924. To recall,
R.A. No. 7924 declared the Metropolitan
Manila area as a "special development and
administrative region" and placed the
administration of "metro-wide" basic services
affecting the region under the MMDA.
However, it has no police power. (MMDA vs.
VIRON TRANSPORTATION CO., INC., [G.R. No.
170656. August 15, 2007.]
What is the meaning of “fugitive from
justice”? ANSWER: “x x x includes not only
those who flee after conviction to avoid
punishment but likewise who, after being
charged, flee to avoid prosecution.” Marquez,
Jr. vs. COMELEC, 243 SCRA 538 (1995)
But not one who arrived in the Philippines
five(5) months before the filing of the felony
charge in Los Angeles court in the US.
[Rodriguez vs. Commission on Elections, 259
SCRA 296(1996)]

State the grounds for disciplinary actions for

Who are disqualified to run for local elective
office?
ANSWER: The following persons are
disqualified from running for any elective local
position:
(a) Those sentenced by final judgment for an
offense involving moral turpitude or for an
offense punishable by one (1) year or more of
imprisonment, within two (2) years after
serving sentence;
(b) Those removed from office as a result of
an administrative case;
(c) Those convicted by final judgment for
violating the oath of allegiance to the
Republic;
local elective officials. ANSWER: Sec. 60 of
LGC provides that “An elective local official
may be disciplined, suspended, or removed
from office on any of the following grounds:
(a) Disloyalty to the Republic of the
Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in
office, gross negligence, or dereliction of duty;
(d) Commission of any offense involving moral
turpitude or an offense punishable by at least
prision mayor;
(e) Abuse of authority;

(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-
political cases here or abroad;
(f) Permanent residents in a foreign country
or those who have acquired the right to reside
abroad and continue to avail of the same right
after the effectivity of this Code; and
(f) Unauthorized absence for fifteen (15)
consecutive working days, except in the case
of members of the sangguniang panlalawigan,
sangguniang panlungsod, sangguniang bayan,
and sangguniang barangay;
(g) Application for, or acquisition of, foreign
citizenship or residence or the status of an
immigrant of another country; and

(g) The insane or feeble-minded. (Sec. 40, (h) Such other grounds as may be provided in
LGC) this Code and other laws.

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Under the LGC, who may remove elective (3) By the mayor, if the respondent is an
local officials? elective official of the barangay.

ANSWER: An elective local official may be When may preventive suspension be

removed from office on the grounds
enumerated above by order of the proper
court. (last par. Sec. 60 LGC)
Who are disciplining authorities over local
elective officials? ANSWER: They are:
(a) President for elective official of a province,
a highly urbanized city, an independent
component city or component city;
(b) Sanggunian Panlalawigan for elective
official of a municipality whose decision may
be appealed to the Office of the President;
and
(c) Sanggunian for elective barangay official
whose decision shall be final and executory.
imposed? ANSWER: Preventive suspension
may be imposed at any time after the issues
are joined, when the evidence of guilt is
strong, and given the gravity of the offense,
there is great probability that the continuance
in office of the respondent could influence the
witnesses or pose a threat to the safety and
integrity of the records and other evidence:
Provided, That, any single preventive
suspension of local elective officials shall not
extend beyond sixty (60) days: Provided,
further, That in the event that several
administrative cases are filed against an
elective official, he cannot be preventively
suspended for more than ninety (90) days
within a single year on the same ground or
grounds existing and known at the time of the
first suspension.

Limitations on investigation of local elective What is the maximum period of suspension

officials -However, no investigation shall be
held within ninety (90) days immediately prior
to any local election, and no preventive
suspension shall be imposed within the said
period. If preventive suspension has been
imposed prior to the 90-day period
immediately preceding local election, it shall
be deemed automatically lifted upon the start
of aforesaid period.
Who may issue preventive suspension of
local elective officials? ANSWER: Under
Section 63 of LGC, it is issued by-
(1) By the President, if the respondent is an
elective official of a province, a highly
urbanized or an independent component city;
(2) By the governor, if the respondent is an
elective official of a component city or
municipality; or
as a penalty – ANSWER: The penalty of
suspension shall not exceed the unexpired
term of the respondent or a period of six (6)
months for every administrative offense, nor
shall said penalty be a bar to the candidacy of
the respondent so suspended as long as he
meets the qualifications required for the
office. (par(b), Sec. 66, LGC)
What is the accessory penalty for a
administrative removal of an elective local
official? ANSWER: The penalty of removal
from office as a result of an administrative
investigation shall be considered a bar to the
candidacy of the respondent for any elective
position. (par. C, Sec. 66, LGC)
What are the limitations on Recall?
(a) Any elective local official may be the
subject of a recall election only once during
his term of office for loss of confidence.

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(b) No recall shall take place within one (1)
year from the date of the official's assumption
to office or one (1) year immediately
preceding a regular local election. (Sec. 74,
LGC)
Section 118. Jurisdictional Responsibility for
Settlement of Boundary Dispute. - Boundary
disputes between and among local
government units shall, as much as possible,
be settled amicably. To this end:

Who may preventively suspend local
appointive officials and employees, and on
what ground?
ANSWER: The local chief executives may
preventively suspend for a period not
exceeding sixty (60) days and subordinate
official or employee under his authority
pending investigation if the charge against
such official or employee involves dishonesty,
oppression or grave misconduct or neglect in
the performance of duty, or if there is reason
to believe that the respondent is guilty of the
charges which would warrant his removal
from the service. (Sec. 85, LGC)
(a) Boundary disputes involving two (2) or
more barangays in the same city or
municipality shall be referred for settlement
to the sangguniang panlungsod or
sangguniang bayan concerned.
(b) Boundary disputes involving two (2) or
more municipalities within the same province
shall be referred for settlement to the
sangguniang panlalawigan concerned.
(c) Boundary disputes involving municipalities
or component cities of different provinces
shall be jointly referred for settlement to the
sanggunians of the province concerned.

Who may impose, and penalty may be
imposed upon them? - Except as otherwise
provided by law, the local chief executive may
impose the penalty of removal from service,
demotion in rank, suspension for not more
than one (1) year without pay, fine in an
amount not exceeding six (6) months salary,
or reprimand and otherwise discipline
subordinate officials and employees under his
jurisdiction. If the penalty imposed is
suspension without pay for not more than
thirty (30) days, his decision shall be final. If
the penalty imposed is heavier than
suspension of thirty (30) days, the decision
shall be appealable to the Civil Service
Commission, which shall decide the appeal
within thirty (30) days from receipt thereof.
(Sec. 87, LGC)
(d) Boundary disputes involving a component
city or municipality on the one hand and a
highly urbanized city on the other, or two (2)
or more highly urbanized cities, shall be
jointly referred for settlement to the
respective sanggunians of the parties.
(e) In the event the sanggunian fails to effect
an amicable settlement within sixty (60) days
from the date the dispute was referred
thereto, it shall issue a certification to that
effect. Thereafter, the dispute shall be
formally tried by the sanggunian concerned
which shall decide the issue within sixty (60)
days from the date of the certification
referred to above.
From the decision of the sanggunian
concerned, how is appeal taken therefrom?

How is boundary dispute among local Answer: Section 119 of the LGC says: Appeal.
governments settled? - Within the time and manner prescribed by
Answer: This is governed by Sec. 118-119 of the Rules of Court, any party may elevate the
the Local Government Code which says: decision of the sanggunian concerned to the

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proper Regional Trial Court having jurisdiction
over the area in dispute. The Regional Trial
Court shall decide the appeal within one (1)
year from the filing thereof. Pending final
resolution of the disputed area prior to the
dispute shall be maintained and continued for
all legal purposes.
For purposes of this Chapter, a permanent
vacancy arises when an elective local official
fills a higher vacant office, refuses to assume
office, fails to qualify, dies, is removed from
office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the
functions of his office.

In case of PERMANENT vacancies in the For purposes of succession as provided in the

offices of of the Governor, Vice-Governor,
Mayor, and Vice-Mayor, how should it be
filled up?
ANSWER: This is covered by Sec. 44 of the
LGC which states: Section 44. Permanent
Vacancies in the Offices of the Governor, Vice-
Governor, Mayor, and Vice-Mayor. - If a
permanent vacancy occurs in the office of the
governor or mayor, the vice-governor or vice-
mayor concerned shall become the governor
or mayor. If a permanent vacancy occurs in
the offices of the governor, vice-governor,
mayor, or vice-mayor, the highest ranking
sanggunian member or, in case of his
permanent inability, the second highest
ranking sanggunian member, shall become
the governor, vice-governor, mayor or vice-
mayor, as the case may be. Subsequent
vacancies in the said office shall be filled
automatically by the other sanggunian
members according to their ranking as
defined herein.
(b) If a permanent vacancy occurs in the office
of the punong barangay, the highest ranking
sanggunian barangay member or, in case of
his permanent inability, the second highest
ranking sanggunian member, shall become
the punong barangay.
(c) A tie between or among the highest
ranking sanggunian members shall be
resolved by the drawing of lots.
(d) The successors as defined herein shall
serve only the unexpired terms of their
predecessors.
Chapter, ranking in the sanggunian shall be
determined on the basis of the proportion of
votes obtained by each winning candidate to
the total number of registered voters in each
district in the immediately preceding local
election.
How should permanent vacancies in the
Sanggunian be filled up?
ANSWER: Sec. 45 of LGC provides for the
contingency, to wit: Section 45. Permanent
Vacancies in the Sanggunian. -
(a) Permanent vacancies in the sanggunian
where automatic succession provided above
do not apply shall be filled by appointment in
the following manner:
(1) The President, through the Executive
Secretary, in the case of the sangguniang
panlalawigan and the sangguniang
panlungsod of highly urbanized cities and
independent component cities;
(2) The governor, in the case of the
sangguniang panlungsod of component cities
and the sangguniang bayan;
(3) The city or municipal mayor, in the case of
sangguniang barangay, upon recommendation
of the sangguniang barangay concerned.
(b) Except for the sangguniang barangay, only
the nominee of the political party under
which the sanggunian member concerned
had been elected and whose elevation to the

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position next higher in rank created the last
vacancy in the sanggunian shall be appointed
in the manner hereinabove provided. The
appointee shall come from the same political
party as that of the sanggunian member who
caused the vacancy and shall serve the
unexpired term of the vacant office. In the
appointment herein mentioned, a nomination
and a certificate of membership of the
appointee from the highest official of the
political party concerned are conditions sine
qua non, and any appointment without such
nomination and certification shall be null and
void ab initio and shall be a ground for
administrative action against the official
responsible therefore.
(c) In case or permanent vacancy is caused by
a sanggunian member who does not belong
to any political party, the local chief executive
shall, upon recommendation of the
sanggunian concerned, appoint a qualified
person to fill the vacancy.
(d) In case of vacancy in the representation of
the youth and the barangay in the
sanggunian, said vacancy shall be filled
automatically by the official next in rank of
the organization concerned.
In case a vacancy in the sanggunian
panglungsod is created by a member who is
not affiliated with any political party, who
has the power to nominate and appoint?
May the appointing power decline to appoint
the nominee?
ANSWER. The power to nominate belongs to
the sanggunian where the vacancy was
created. The power to appoint belongs to the
local chief executive, in this case the City
Mayor. Since the power to appoint is
discretionary, the city mayor may not appoint
the nominee, but he cannot appoint other
than who was nominated by the
recommending authority. In short, the
appointing power has to wait for the next
nomination. (see Farinas vs. Barba, 256 SCRA
396 [1996]
What about in case of temporary vacancy in
the office of the local chief executive, how
should it be filled up?
ANSWER: This is answered by Sec. 46 of the
LGC which provides: Section 46. Temporary
Vacancy in the Office of the Local Chief
Executive. –
(a) When the governor, city or municipal
mayor, or punong barangay is temporarily
incapacitated to perform his duties for
physical or legal reasons such as, but not
limited to, leave of absence, travel abroad,
and suspension from office, the vice-governor,
city or municipal vice-mayor, or the highest
ranking sangguniang barangay member shall
automatically exercise the powers and
perform the duties and functions of the local
chief executive concerned, except the power
to appoint, suspend, or dismiss employees
which can only be exercised if the period of
temporary incapacity exceeds thirty (30)
working days.
(b) Said temporary incapacity shall terminate
upon submission to the appropriate
sanggunian of a written declaration by the
local chief executive concerned that he has
reported back to office. In cases where the
temporary incapacity is due to legal causes,
the local chief executive concerned shall also
submit necessary documents showing that
said legal causes no longer exist.
(c) When the incumbent local chief executive
is traveling within the country but outside his
territorial jurisdiction for a period not
exceeding three (3) consecutive days, he may
designate in writing the officer-in-charge of
the said office. Such authorization shall
specify the powers and functions that the
local official concerned shall exercise in the

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absence of the local chief executive except the

power to appoint, suspend, or dismiss
employees.
(d) In the event, however, that the local chief
executive concerned fails or refuses to issue
such authorization, the vice-governor, the city
or municipal vice-mayor, or the highest
ranking sangguniang barangay member, as the
case may be, shall have the right to assume
the powers, duties, and functions of the said
office on the fourth (4th) day of absence of
the said local chief executive, subject to the
limitations provided in subsection (c) hereof.
(e) Except as provided above, the local chief
executive shall in no case authorize any local
official to assume the powers, duties, and
functions of the office, other than the vice-
governor, the city or municipal vice-mayor, or
the highest ranking sangguniang barangay
member, as the case may be.
TERM LIMITS
TERM- “It is not competent for the legislature
to extend the term of officers by providing
that they shall hold over until their successors
are elected and qualified where the
constitution has in effect or by clear
implication prescribed the term and when the
Constitution fixes the day on which the official
term shall begin, there is no legislative
authority to continue the office beyond that
period, even though the successors fail to
qualify within the time. OSMENA V.
COMELEC, 1199 SCRA 750, 758 991
 For BARANGAYS-Congress has plenary
authority under the Constitution to
determine by legislation not only the
duration of the term of barangay officials,
but also the application to them of a
consecutive term limit. [Comelec vs. Cruz,
605 SCRA 167(2009)]
TERM LIMIT does not apply if:
 Term acquired by SUCCESSION; not
elected for the office and term-Borja v.
Commission on Elections, 260 SCRA 604
(1996).
 ELECTION INVALIDATED- presented
the question of whether the
disqualification on the basis of the three-
term limit applies if the election of the
public official (to be strictly accurate, the
proclamation as winner of the public
official) for his supposedly third term had
been declared invalid in a final and
executory judgment. Lonzanida v.
Commission on Elections, G.R. No.
135150, July 28, 1999, 311 SCRA 602-
UNLESS FULLY SERVED THE TERMS:
 like Lonzanida, also involved the issue
of whether there had been a
completed term for purposes of the
three-term limit disqualification. These
cases, however, presented an
interesting twist, as their final
judgments in the electoral contest
came after the term of the contested
office had expired so that the elective
officials in these cases were never
effectively unseated. (Ong v. Alegre,
479 SCRA 473 (2006) and Rivera v.
COMELEC, 523 SCRA 41 (2007)
PROHIBITED ELECTION MUST BE IMMEDIATE,
not a RECALL ELECTION:
 Adormeo v. Commission on
Elections, 376 SCRA 90 (2002) dealt with
the effect of recall; on the three-term
limit disqualification. The case presented
the question of whether the
disqualification applies if the official lost
in the regular election for the supposed
third term, but was elected in a recall
election covering that term; the official

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was not elected for three (3) consecutive
terms. The Court reasoned out that for
nearly two years, the official was a private
citizen; hence, the continuity of his
mayorship was disrupted by his defeat in
the election for the third term. Socrates v.
Commission on Elections,391 SCRA 457
(2002) also tackled recall.... Any
subsequent election, like a recall election,
is no longer covered by the prohibition for
two reasons. First, a subsequent election
like a recall election is no longer an
immediate reelection after three
consecutive terms. Second, the
intervening period constitutes an
involuntary interruption in the continuity
of service…..A recall election mid-way in
the term following the third consecutive
term is a subsequent election but not an
immediate reelection after the third term.
TERM LIMITATION NOT AFFECTED BY
CONVERSION OF THE LOCAL GOVERNMENT
 Latasa v. Commission on Elections,
417 SCRA 601 (2003) presented the novel
question of whether a municipal mayor
who had fully served for three
consecutive terms could run as city mayor
in light of the intervening conversion of
the municipality into a city. During the
third term, the municipality was
converted into a city; the cityhood charter
provided that the elective officials of the
municipality shall, in a holdover capacity,
continue to exercise their powers and
functions until elections were held for the
new city officials. The Court ruled that the
conversion of the municipality into a city
did not convert the office of the municipal
mayor into a local government post
different from the office of the city mayor
—the territorial jurisdiction of the city
was the same as that of the municipality;
the inhabitants were the same group of
voters who elected the municipal mayor
for 3 consecutive terms; and they were
the same inhabitants over whom the
municipal mayor held power and
authority as their chief executive for nine
years.
INVOLUNTARY INTERRUPTION OF SERVICE- BY
SUCCESSION
 In Montebon v. Commission on
Elections, 551 SCRA 50 (2008)-where
the highest-ranking municipal
councilor succeeded to the position of
vice-mayor by operation of law. ….an
(involuntary) interruption had
intervened so that he could again run
as councilor.
INTERRUPTION MUST RESULT TO LOSS OF
OFFICE-
 not merely the right to serve- such as
preventive suspension which is not an
interruption Aldovino, Jr. vs.
Commission on Elections, 609 SCRA
234(2009)
Public International Law
A. Concepts
 Obligations erga omnes (obligations
to all mankind/states) Belgium v. Spain
(1970), also called the Barcelona
Traction Case.
e.g. acts of aggression, and of
genocide, as also from the principles
and rules concerning the basic rights
of the human person, including
protection from slavery and racial
discrimination
Barcelona Traction case
The Barcelona Traction, Light and Power
Company, Limited, was incorporated in 1911
in Toronto (Canada), where it has its head

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office. For the purpose of creating and
developing an electric power production and
distribution system in Catalonia (Spain) it
formed a number of subsidiary companies, of
which some had their registered offices in
Canada and the others in Spain. , some years
after the first world war Barcelona Traction
share capital came to be very largely held by
Belgian nationals, ….
Barcelona Traction issued several series of
bonds, … In 1936 the servicing of the
Barcelona Traction bonds was suspended on
account of the Spanish civil war. After that
war the Spanish exchange control authorities
refused to authorize the transfer of the
foreign currency necessary for the resumption
of the servicing of the sterling bonds…..
In 1948 three Spanish holders of recently
acquired Barcelona Traction sterling bonds
petitioned the court of Reus (Province of
Tarragona) for a declaration adjudging the
company bankrupt, on account of failure to
pay the interest on the bonds. On 12 February
1948 a judgment was given declaring the
company bankrupt and ordering the seizure
of the assets of Barcelona Traction and of two
of its subsidiary companies. Pursuant to this
judgment the principal management
personnel of the two companies were
dismissed and Spanish directors appointed.
Shortly afterwards, these measures were
extended to the other subsidiary companies.
New shares of the subsidiary companies were
created, which were sold by public auction in
1952 to a newly-formed company, Fuerzas
Electricas de Cataluna, S.A. (Fecsa), which
thereupon acquired complete control of the
undertaking in Spain. xxx
The Belgian Government brought the matter
before the ICJ.. on behalf of natural and
juristic persons, alleged to be Belgian
nationals and shareholders for damage
allegedly caused to those persons by the
conduct, said to be contrary to international
law, of various organs of the Spanish State
towards that company.
The Court observed that when a State
admitted into its territory foreign investments
or foreign nationals it was bound to extend to
them the protection of the law and assumed
obligations concerning the treatment to be
afforded them. But such obligations were not
absolute. In order to bring a claim in respect
of the breach of such an obligation, a State
must first establish its right to do so. (erga
omnes, but obiter)
In the field of diplomatic protection,
international law was in continuous evolution
and was called upon to recognize institutions
of municipal law. In municipal law, the
concept of the company was founded on a
firm distinction between the rights of the
company and those of the shareholder. Only
the company, which was endowed with legal
personality, could take action in respect of
matters that were of a corporate character. A
wrong done to the company frequently
caused prejudice to its shareholders, but this
did not imply that both were entitled to claim
compensation. Whenever a shareholder's
interests were harmed by an act done to the
company, it was to the latter that he had to
look to institute appropriate action. An act
infringing only the company's rights did not
involve responsibility towards the
shareholders, even if their interests were
affected. In order for the situation to be
different, the act complained of must be
aimed at the direct rights of the shareholder
as such (which was not the case here since
the Belgian Government had itself admitted
that it had not based its claim on an
infringement of the direct rights of the
shareholders).
International law had to refer to those rules
generally accepted by municipal legal systems.
An injury to the shareholder's interests
resulting from an injury to the rights of the

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company was insufficient to found a claim.
Where it was a question of an unlawful act
committed against a company representing
foreign capital, the general rule of
international law authorized the national
State of the company alone to exercise
diplomatic protection for the purpose of
seeking redress. No rule of international law
expressly conferred such a right on the
shareholder's national State.xxx
It had been maintained that a State could
make a claim when investments by its
nationals abroad, such investments being part
of a State's national economic resources, were
prejudicially affected in violation of the right
of the State itself to have its nationals enjoy a
certain treatment. But, in the present state of
affairs, such a right could only result from a
treaty or special agreement. And no
instrument of such a kind was in force
between Belgium and Spain.
It had also been maintained that, for reasons
of equity, a State should be able, in certain
cases, to take up the protection of its
nationals, shareholders in a company which
had been the victim of a violation of
international law. The Court considered that
the adoption of the theory of diplomatic
protection of shareholders as such would
open the door to competing claims on the
part of different States, which could create
an atmosphere of insecurity in international
economic relations. In the particular
circumstances of the present case, where the
company's national State was able to act, the
Court was not of the opinion that jus standi
was conferred on the Belgian Government by
considerations of equity.
The Court's Decision However, the possession
by the Belgian Government of a right of
protection was a prerequisite for the
examination of such problems. Since no jus
standi before the Court had been established,
it was not for the Court to pronounce upon
any other aspect of the case.
Accordingly, the Court rejected the Belgian
Government's claim by 15 votes to 1, 12 votes
of the majority being based on the reasons
set out above.
 Jus cogens (premptory norms- non
derogable) e.g. prohibition against piracy,
genocide, aggression, slaving, self
determination, torture
Latin meaning "compelling law." This
"higher law" must be followed by all
countries. The 1986 Vienna Convention on the
Law of Treaties affirmed jus cogens as an
accepted doctrine in international law.
Problem
Petitioners, members of the MALAYA LOLAS, a
non-stock, non-profit organization registered
with the Securities and Exchange Commission,
established for the purpose of providing aid to
the victims of rape by Japanese military forces
in the Philippines during the Second World
War, approached the Executive Department to
espouse their claim. However, officials of the
Executive Department declined to assist the
petitioners, and took the position that the
individual claims of the comfort women for
compensation had already been fully satisfied
by Japan’s compliance with the Peace Treaty
between the Philippines and Japan. Hence,
this petition where petitioners pray for this
court to:
 Declare that respondents committed
grave abuse of discretion amounting to
lack or excess of discretion in refusing to
espouse their claims for the crimes
against humanity and war crimes
committed against them; and
 Compel the respondents to espouse
their claims for official apology and

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other forms of reparations against Japan
before the International Court of Justice
(ICJ) and other international tribunals.
ANSWER: “It is well-established that
“[t]he conduct of the foreign relations of
our government is committed by the
Constitution to the executive and
legislative—‘the political’—departments
of the government, and the propriety of
what may be done in the exercise of this
political power is not subject to judicial
inquiry or decision.”
“…at present, there is no sufficient
evidence to establish a general
international obligation for States to
exercise diplomatic protection of their
own nationals abroad. Though, perhaps
desirable, neither state practice nor
opinio juris has evolved in such a
direction. If it is a duty internationally, it
is only a moral and not a legal duty, and
there is no means of enforcing its
fulfillment. [Vinuya vs. Romulo, 619
SCRA 533(2010)]
3. Concept of aeguo et bono
It is a term often used in international
law when a matter is to be decided according
to principles of equity rather than by points of
law. Article 38(2) of the Statute of the
International Court of Justice provides that
the court may decide cases ex aequo et bono,
if the parties agree thereto.
In the context of arbitration, it refers to
the power of the arbitrators to dispense with
consideration of the law and consider solely
what they consider to be fair and equitable in
the case at hand. Article 33 of the United
Nations Commission on International Trade
Law's Arbitration Rules (1976) provides that
the arbitral tribunal should decide as ex
aequo et bono only if the parties have
expressly authorized the arbitral tribunal to
do so and if the law applicable to the arbitral
procedure permits such arbitration.
(http://definitions.uslegal.com/e/ex-
aequo-et-bono)
B. International and national law
 Incorporation & transformation
 Conflict between international law &
national law
C. Sources
An authoritative source of international laws
is found in Art. 38 of the Statute of the
International Court of Justice which says:
 The Court, whose function is to
decide in accordance with international
law such disputes as are submitted to it,
shall apply:
Primary sources
 international conventions, whether
general or particular, establishing
rules expressly recognized by the
contesting states;
 international custom, as evidence of a
general practice accepted as law;
 the general principles of law
recognized by civilized nations;
Secondary sources:
 subject to the provisions of Article 59,
judicial decisions and the teachings of
the most highly qualified publicists of
the various nations, as subsidiary
means for the determination of rules
of law.
2. This provision shall not prejudice the
power of the Court to decide a case ex aequo
et bono, if the parties agree thereto.

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NOTE: The primary sources, by practice, are
enumerated on the basis of hierarchal value,
except for JUS COGENS (torture, piracy, slave
trade, terrorism, …)
D. Subjects
are the principle of reciprocity and the
danger of retaliation by the aggrieved
State; international immunities enjoy no
similar protection. [see separate opinion
of J. Puno in Liang vs. People, 355 SCRA
125(2001)]

1. States May a charge of slander against an employee

2. International organizations
3. Individuals (to a certain extent)
E. Diplomatic and consular law
“Diplomatic Immunities” and “International
Immunities,” Distinguished.—There are three
major differences between diplomatic and
international immunities.
 Firstly, one of the recognized
limitations of diplomatic immunity is that
members of the diplomatic staff of a
mission may be appointed from among
the nationals of the receiving State only
with the express consent of that State;
apart from inviolability and immunity
from jurisdiction in respect of official
acts performed in the exercise of their
functions, nationals enjoy only such
privileges and immunities as may be
granted by the receiving State.
International immunities may be
specially important in relation to the
State of which the official is a national.
 Secondly, the immunity of a
diplomatic agent from the jurisdiction of
the receiving State does not exempt him
from the jurisdiction of the sending
State; in the case of international
immunities there is no sending State and
an equivalent for the jurisdiction of the
sending State therefore has to be found
either in waiver of immunity or in some
international disciplinary or judicial
procedure.
 Thirdly, the effective sanctions which
secure respect for diplomatic immunity
of ADB within the immunity clause of the
employees of ADB? ANSWER: Under the
Vienna Convention on Diplomatic Relations, a
diplomatic envoy is immune from criminal
jurisdiction of the receiving State for all acts,
whether private or official, and hence he
cannot be arrested, prosecuted and punished
for any offense he may commit, unless his
diplomatic immunity is waived. On the other
hand, officials of international organizations
enjoy “functional” immunities, that is, only
those necessary for the exercise of the
functions of the organization and the
fulfillment of its purposes. This is the reason
why the ADB Charter and Headquarters
Agreement explicitly grant immunity from
legal process to bank officers and employees
only with respect to acts performed by them
in their official capacity, except when the
Bank waives immunity. In other words,
officials and employees of the ADB are subject
to the jurisdiction of the local courts for their
private acts, notwithstanding the absence of a
waiver of immunity. NOTE: the court likewise
ruled that slander could hardly be considered
an act committed in official capacity. [Liang
vs. People, 355 SCRA 125(2001)]
Problem: The US embassy in Libya was
attacked by Islamist extremists, burning the
embassy building, and in the process, killing
the US ambassador. What are possible
violations of the Libyan Government under
international law?
ANSWER: The Libyan government may be
held liable under Article 22 of the Vienna
Convention on Diplomatic Relations which
states: “2. The receiving State is under a
special duty to take all appropriate steps to

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protect the premises of the mission against  Avoidance of State Responsibility

any intrusion or damage and to prevent any
disturbance of the peace of the mission or
impairment of its dignity.” Likewise, under
Article 29 of the same convention states that:
“The person of the diplomatic agent shall be
inviolable. He shall not be liable to any form
of arrest or detention. The receiving State
shall treat him with due respect and shall take
all appropriate steps to prevent any attack on
his person, freedom or dignity.”
F. Treaties
The provision of Art. XVIII, Sec. 25 of the
Constitution, is complied with by virtue of the
fact that the presence of the US Armed Forces
through the VFA is a presence “allowed
under” the RP-US Mutual Defense Treaty.
Since the RP-US Mutual Defense Treaty itself
has been ratified and concurred in by both the
Philippine Senate and the US Senate, there is
no violation of the Constitutional provision
resulting from such presence. [Nicolas vs.
Romulo, 578 SCRA 438(2009)]
G. Nationality and statelessness
1. Modes of acquisition of nationality
2. Multiple nationality
 The claim of particular nationality
shall be decided on that basis of
the national law to exclusion of
the other national laws.
 If the issue of nationality is raised
in a third state, the latter shall
apply the principle of effective or
active nationality.
3. Loss of nationality
H. Treatment of aliens
1. Doctrine of State Responsibility
 International Standard of Justice
 Failure of protection or redress
 Exhaustion of Local Remedies
 Resort to diplomatic protection
 Enforcement of claim
2. Exclusion, Deportation
3. Extradition
a) Fundamental principles
 Extradition is based on
consent of the state of asylum
under a treaty or as an act of
goodwill
 Principle of Specialty
 Any person may be extradited
 Political and religious
offenders generally not
extraditable
 Attentat clause
 Offense committed within the
territory or against the
interest of the demanding
state unless there is special
agreement.
 Rule of double criminality
b) Procedure
c) Distinguished from deportation
What is Extradition, its nature & its purpose?
ANSWER: Extradition has thus been
characterized as the right of a foreign power,
created by treaty, to demand the surrender of
one accused or convicted of a crime within its
territorial jurisdiction, and the correlative
duty of the other state to surrender him to
the demanding state. It is not a criminal
proceeding. Even if the potential extraditee is
a criminal, an extradition proceeding is not by
its nature criminal, for it is not punishment for
a crime, even though such punishment may
follow extradition. It is sui generis, tracing its
existence wholly to treaty obligations
between different nations. It is not a trial to
determine the guilt or innocence of the
potential extraditee. Nor is it a full-blown civil
action, but one that is merely administrative
in character. Its object is to prevent the

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escape of a person accused or convicted of a
crime and to secure his return to the state
from which he fled, for the purpose of trial or
punishment. [Government of Hong Kong
Special Administrative Region vs. Olalia, Jr.,
521 SCRA 470(2007)]
Under what international document/s may
the grant of bail to an extraditee be justified?
ANSWER: On December 10, 1948, the United
Nations General Assembly adopted the
Universal Declaration of Human Rights in
which the right to life, liberty and all the other
fundamental rights of every person were
proclaimed. While not a treaty, the principles
contained in the said Declaration are now
recognized as customarily binding upon the
members of the international community. …
In 1966, the UN General Assembly also
adopted the International Covenant on Civil
and Political Rights which the Philippines
signed and ratified. Fundamental among the
rights enshrined therein are the rights of
every person to life, liberty, and due process.
The Philippines, along with the other
members of the family of nations, committed
to uphold the fundamental human rights as
well as value the worth and dignity of every
person. This commitment is enshrined in
Section 11, Article II of our Constitution which
provides: “The State values the dignity of
every human person and guarantees full
respect for human rights.” The Philippines,
therefore, has the responsibility of protecting
and promoting the right of every person to
liberty and due process, ensuring that those
detained or arrested can participate in the
proceedings before a court, to enable it to
decide without delay on the legality of the
detention and order their release if justified.
In other words, the Philippine authorities are
under obligation to make available to every
person under detention such remedies which
safeguard their fundamental right to liberty.
These remedies include the right to be
admitted to bail. [Government of Hong Kong
Special Administrative Region vs. Olalia, Jr.,
521 SCRA 470(2007)]
I. International Human Rights Law
1. Universal Declaration of Human
Rights
2. International Covenant on Civil and
Political Rights
3. International Covenant on
Economic, Social and Cultural Rights
J. International Humanitarian Law and
neutrality
1. Categories of armed conflicts
a) International armed conflicts
b) Internal or non-international armed
conflict
c) War of national liberation
What is the Doctrine of Command
Responsibility?
ANSWER: The doctrine has been
codified under Art. 28 of the Rome Statute of
International Criminal Court, to wit: A military
commander or person effectively acting as a
military commander shall be criminally
responsible for crimes within the jurisdiction
of the Court committed by forces under his or
her effective command and control, or
effective authority and control as the case
may be, as a result of his or her failure to
exercise control properly over such forces.
(Rome Statute, Art. 28). The first treaty
codification of the doctrine of command
responsibility was in the Hague Convention IV
of 1907.7 A provision therein held belligerent
nations responsible for the acts of their armed
forces, prefiguring the modern precept of
holding superiors accountable for the crimes
of subordinates if they fail in their duties of
control, which is anchored firmly in customary
international law. [Rubrico vs. Macapagal-
Arroyo, 613 SCRA 233(2010)]

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Question: Under what conditions may the (a) That superior either knew or, owing to the
doctrine be applied? circumstances at the time, should have known
that the subordinates were committing or
Answer: The doctrine applies if: about to commit such crimes;

 The military commander or person 2. Core international obligations of

either knew or, owing to the
circumstances at the time, should have
known that the forces were committing
or about to commit such crimes;
 The military commander or person
failed to take all necessary and
reasonable measures within his or her
power to prevent or repress their
commission or to submit the matter to
the competent authorities for
investigation and prosecution.
(Rome Statute, Art. 28)
Is command responsibility now part of our
laws?
ANSWER: Under RA 9851, An Act Defining
and Penalizing Crimes against International
Humanitarian Law, Genocide and Other
Crimes against Humanity, Organizing
Jurisdiction, Designating Special Courts, and
for Related Purposes; signed into law on
December 11, 2009, it penalizes and defines
command responsibility as follows:
Section10.Responsibility of Superiors.—In
addition to other grounds of criminal
responsibility for crimes defined and
penalized under this Act, a superior shall be
criminally responsible as a principal for such
crimes committed by subordinates under
his/her effective command and control, or
effective authority and control as the case
may be, as a result of his/her failure to
properly exercise control over such
subordinates, where:
states in International Humanitarian Law
3. Principles of International
Humanitarian Law
a) Treatment of civilians
b) Prisoners of war
4. Law on neutrality
K. Law of the sea
1. Baselines
2. Archipelagic states
a) Straight archipelagic baselines
b) Archipelagic waters
c) Archipelagic sea lanes passage
3. Internal waters
4. Territorial sea
5. Exclusive economic zone
6. Continental shelf
a) Extended continental shelf
7. International Tribunal for the Law
of the Sea
L. International environment law
1. Principle 21 of the Stockholm Declaration
What is Principle 21 of the Stockholm
Declaration? ANSWER: States have, in
accordance with the Charter of the United
Nations and the principles of international
law, the sovereign right to exploit their own
resources pursuant to their own
environmental policies, and the responsibility
to ensure that activities within their
jurisdiction or control do not cause damage
to the environment of other States or of
areas beyond the limits of national
jurisdiction.

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THE BARRISTERS’ CLUB OFFICERS

Chancellor: ABBYGAILE T. GONZALES
Vice Chancellor: ROMEL L. BASILAN
Secretary: JESSA ALYSSA G. REYES
Treasurer: MILDRED P. AMBROS
PRO: ROBYN B. DELA PENA
PRO: AARON JAMES E. CO
Business Manager: RUDDY ALLEN N. YEE
Business Manager: LESLIE D. RAGUINDIN
SSG Representative: ANNE LUCILLE B. RUIZ
Ex-Officio: RONA B. ESTRADA
Adviser: ATTY. ISAGANI G. CALDERON
Dean, College of Law: ATTY. REYNALDO U. AGRANZAMENDEZ

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