1 GN Pol 291

THE CONSTITUTION
I. THE CONSTITUTION A: The provisions should be considered self-

executing; mandatory rather than directory; and
A. DEFINITION, NATURE AND CONCEPTS prospective rather than retroactive. (Nachura,
Reviewer in Political Law, 2005, p. 3)
Q: What is Political Law?
Note: The provisions of the Constitution are to be
considered as self-executing because if they are not
A: It is that branch of public law which deals with
treated as such, the legislature can ignore and
the organization and operations of the
practically nullify the direction of the fundamental law.
governmental organs of the State and defines its
relations with the inhabitants of the territory. A provision is not self-executing when it merely
(People v. Perfecto, G.R. No. L-18463, October 4, indicates the principles without laying down rules
1922) giving them the force of law. (Political Law Reviewer,
Suarez (2011), p. 8)
Q: What is the scope of political law?
Q: What is the doctrine of Constitutional
A: Supremacy?
1. Political law
2. Constitutional law A: Under this doctrine, if a law or contract
3. Administrative law violates any norm of the Constitution, that law or
4. Law on municipal corporations contract, whether promulgated by the legislative or
5. Law on public officers by the executive branch or entered into by private
6. Election laws persons for private purposes, is null and void and
7. Public international law without any force and effect. Thus, since the
Constitution is the fundamental, paramount and
Q: What is the Constitution? supreme law of the nation, it is deemed written in
every statute and contract. (Manila Prince Hotel v.
A: The Constitution is the basic and paramount law GSIS, G.R. No. 122156, February 3, 1997)
to which all other laws must conform and to which
all persons, including the highest officials, must B. PARTS
defer. (Cruz, Constitutional Law, 1998, p. 4)
Q: What are the three parts of a written
Q: When did the Philippine Constitution take
Constitution?
effect?
A:
A: It took effect on February 2, 1987, which was the
1. Constitution of Sovereignty – this refers to the
date of the plebiscite. (De Leon v. Esguerra, G.R. No.
provisions pointing out the modes or
L-78059, August 31, 1987)
procedure in accordance with which formal
changes in the Constitution may be made. (Art.
Q: How should the Philippine Constitution be
XVII, Amendments or Revisions)
interpreted?
2. Constitution of Liberty – the series of
prescriptions setting forth the fundamental
A:
civil and political rights of the citizens and
1. Verbalegis – whenever possible, the
imposing limitations on the power of the
words used in the Constitution must be
government as a means of securing the
given their ordinary meaning except
enjoyment of those rights. (Art. III, Bill of
where technical terms are employed.
Rights)
2. Ratio legiset anima – where there is
ambiguity, the words of the Constitution
3. Constitution of Government –provides for a
structure and system of government; refers to
should be interpreted in accordance with
the provisions outlining the organization of the
the intent of the framers.
government, enumerating its powers, laying
3. Utmagisvaleat quam pereat – the
down certain rules relative to its
Constitution has to be interpreted as a
administration and defining the electorate.
whole. (Francisco v. HR, G.R. No. 160261,
(Art. VI, Legislative Dep’t, Art. VII, Exec. Dep’t,
November 10, 2003)
Art. VIII, Judicial Dep’t, Art. IX, Constitutional
Commissions)
Q: In case of doubt, how should the Constitution
be construed?
1
ACADEMICS CHAIR: KAREN FELIZ G. SUPNAD UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR ACADEMICS: MARIA IRENE I. SANTOS
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JANICE G. NADAL
Facultad de Derecho Civil
VICE CHAIR FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN
UST GOLDEN NOTES 2012
C. AMENDMENT AND REVISION

If Congress, acting as a ConAss, calls for a
Q: Distinguish amendment from revision. ConCon but does not provide details for
the calling of such ConCon, Congress by
A: exercising its ordinary legislative power
AMENDMENT REVISION may supply such details. But in so doing,
Isolated or piecemeal the Congress (as legislature) should not
A revamp or rewriting transgress the resolution of Congress
change merely by
of the whole acting as a ConAss.
adding, deleting, or
instrument altering the
reducing without
substantial entirety of Note: The choice between ConAss or
altering the basic
the Constitution. ConCon is left to the discretion of Congress.
principles involved.
In other words, it is a political question, but
the manner of calling a ConCon is subject to
Q: What are the tests to determine whether a
judicial review because the Constitution has
proposed change is an amendment or a revision?
provided for voting requirements.
A:
c. By People’s Initiative upon a petition of at
1. Quantitative test – asks whether the proposed
least 12% of the total number of
change is as extensive in its provisions as to
registered voters, of which every
change directly the ‘substantial entirety’ of the
legislative district must be represented by
Constitution by the deletion or alteration of
3% of the registered voters therein.
numerous existing provisions. One examines
only the number of provisions affected and
2. Ratification – Amendments or revisions to the
does not consider the degree of the change.
Constitution should be ratified by the majority
2. Qualitative test – whether the change will
in a plebiscite which should be held not earlier
accomplish such far reaching changes in the
than 60 days nor later than 90 days after the
nature of our basic governmental plan as to
approval of such amendment.
amount to a revision. (Lambino v. Comelec,
G.R. No. 174153, October 25, 2006)
Q. What are the requisites for valid ratification?
Q: How may the Constitution be amended or
A.
revised?
1. Held in a plebiscite conducted under Election
Law
A:
2. Supervised by COMELEC
1. Proposal
3. Where only registered voters take part
a. By Congress upon a vote of ¾ of all its
members acting as Constituent Assembly
Note: Presidential proclamation is not required for
(ConAss)
effectivity of amendments/revisions
Note: While the substance of the XPN: Proposed amendment/revision provide

proposals made by each type of ConAss is otherwise.
not subject to judicial review, the manner
the proposals are made is subject to Q: What is the Doctrine of Proper Submission?
judicial review.
A: A plebiscite may be held on the same day as a
Since ConAss owes their existence to the regular election (Gonzales v. COMELEC, G.R. No. L-
Constitution, the courts may determine 28196, November 9, 1967), provided the people are
whether the assembly has acted in sufficiently informed of the amendments to be
accordance with the Constitution. voted upon, for them to conscientiously deliberate
thereon, to express their will in a genuine manner.
b. By Constitutional Convention (ConCon) Submission of piece-meal amendments is
unconstitutional. All amendments must be
Note: Congress may call a ConCon: submitted for ratification in one plebiscite only. The
1. By a vote of 2/3 of all its people have to be given a proper frame of
members; or
reference in arriving at their decision. (Tolentino v.
2. By a majority vote of all its
COMELEC, G.R. No. L-34150, October 16, 1971)
members, submit such question
to the electorate.
2
POLITICAL LAW TEAM
ADVISER: ATTY. EDWIN REY SANDOVAL AND ATTY. AL CONRAD ESPALDON; SUBJECT HEAD: JUAN PAULO NEPOMUCENO
ASST. SUBJECT HEADS: ANTHONY ROBLES; LISETTE MANDOCDOC; MEMBERS: MENANDRO MAGCULANG, JR., PAULA AZURIN, CARMELLA
YUMUL, GERARD SARINO, FLORENCE GUIFAYA, JUSTIN MATIBAG, RAFAELA SIRON, ANGELA PAGUIO, CLARABEL LACSINA, CATHERINE
TORTOLES, KATRIN GUINTO, APRIL ENRILE
THE CONSTITUTION
Q: What is initiative? Note: The following cannot be subject of an initiative

or referendum:
A: It is the power of the people to propose 1. Petition embracing more than one subject
amendments to the Constitution or to propose and shall be submitted to the electorate.
enact legislation. 2. Statutes involving emergency measures, the
enactment of which is specifically vested in
Q: What are the three (3) kinds of initiative under Congress by the Constitution, cannot be
subject to referendum until 90 days after
R.A. 6735?
their effectivity. (Sec. 10 RA 6735)
A:
1. Initiative on the Constitution—refers to a Q: Compare and differentiate the concepts and
petition proposing amendments to the processes of initiative from referendum.
Constitution
2. Initiative on statutes—refers to a petition to A:
enact a national legislation INITIATIVE REFERENDUM
3. Initiative on local legislation—refers to a The power of the The power of the
petition proposing to enact a regional, people to propose legislation through an
provincial, municipal, city, or barangay law, amendments to the election called for the
resolution or ordinance (Section 2 [a], R.A. Constitution or to purpose. (Sec. 3, R.A.
6735) propose and enact No. 6735 [1989])
legislations through an
Note: Section 2 (b) of R.A. 6735 provides for: election called for the
1. Indirect Initiative- exercise of initiative by the purpose.
people through a proposition sent to Congress or
the local legislative body for action LOCAL INITIATIVE LOCAL REFERENDUM
2. Direct Initiative- the people themselves filed the The legal process The legal process
petition with the COMELEC and not with whereby the registered whereby the registered
Congress. voters of a local voters of the local
government unit may government units may
Q: Is the initiative to change the Constitution directly propose, enact, approve, amend or
applicable to revision? or amend any reject any ordinance
ordinance. (Sec. 120) enacted by the
A: No. An initiative to change the Constitution Sanggunian. (Sec. 126)
applies only to an amendment. Revision broadly
implies a change that alters basic principle in the D. SELF-EXECUTING AND NON-SELF-
Constitution like altering the principle of separation EXECUTING
of powers or the system of checks and balances.
The initiative of the petitioners is a revision and not Q: What constitutional provisions are considered
merely an amendment. (Lambino vs. COMELEC, G.R. Self-Executing and Non-Self-Executing?
No. 174153, October 25, 2006)
A: The following provisions of the Constitution are
Q: What is referendum? considered as self-executing:
1. Provisions in the Bill of Rights on arrests,
A: It is the power of the electorate to approve or searches and seizures, the rights of a
reject legislation through an election called for that person under custodial investigation, the
purpose. rights of an accused, and the privilege
against self-incrimination,
Q: What are the two (2) classes of referendum? 2. Fundamental rights of life, liberty and the
protection of property,
A: 3. Provisions forbidding the taking or
1. Referendum on Statutes- refers to a petition to damaging of property for public use
approve or reject a law, or part thereof, passed without just compensation.
by Congress.
2. Referendum on Local Law- refers to a petition
Note: GR: A constitutional provision is self executing
to approve or reject a law, resolution or
ordinance enacted by regional assemblies and XPNs: where it merely announces a policy
local legislative bodies. and its language empowers the legislature
to prescribe the means by which the policy
shall be carried into effect:
3
1. Article II on "Declaration of Principles

and State Policies,"
XPNs to the XPN: Art II, Section 16-

right of the people to a balanced and
healthful ecology in accord with the
rhythm and harmony of nature. (Oposa
vs. Factoran , G.R. No. 101083, July 30,
1993)
2. Article XIII on "Social Justice and

Human Rights,"
3. Article XIV on "Education Science and
Technology, Arts, Culture end
Sports" (Manila Prince Hotel v. GSIS,
G.R. 122156, Feb. 3, 1997)
E. GENERAL PROVISIONS
Q: What are the symbols of nationality?
A:
1. Philippine Flag – the flag may be changed by
constitutional amendment
2. Name for the country
3. National anthem
4. National seal
Note: Congress may, by law, adopt new symbols in

numbers 2,3 and 4 subject to ratification by the People
in a referendum.
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POLITICAL LAW TEAM
GENERAL CONSIDERATIONS
II. GENERAL CONSIDERATIONS A: It means that all waters, around between and
connecting different islands belonging to the
A. NATIONAL TERRITORY Philippine Archipelago, irrespective of their width
or dimension, are necessary appurtenances of its
Q: What is Territory? land territory, forming an integral part of the
national or inland waters, subject to the exclusive
A: Territory is the fixed portion of the surface of the sovereignty of the Philippines.
Earth inhabited by the people of the State. As an nd
element of a State, it is an area over which a state It is found in the 2 sentence of Article 1 of the
has effective control. 1987 Constitution.
Q: What comprises the Philippine territory? Q: What does the Archipelagic Doctrine
emphasize?
A:
1. The Philippine archipelago – that body of A: It emphasizes the unity of the land and waters by
water studded with islands which is defining an archipelago as group of islands
delineated in the Treaty of Paris, as surrounded by waters or a body of waters studded
amended by the Treaty of Washington with islands.
and the Treaty with Great Britain.
Note: To emphasize unity, an imaginary single baseline
is drawn around the islands by joining appropriate
CONSISTS OF INCLUDING ITS points of the outermost islands of the archipelago with
a. Territorial Sea straight lines and all islands and waters enclosed
a. Terrestrial b. Seabed within the baseline form part of its territory.
b. Fluvial c. Subsoil
c. Aerial d. Insular shelves Q: What are the purposes of the Archipelagic
Domains e. Other Submarine Doctrine?
areas
A: The following are the purposes of the
2. All other territories over which the Archipelagic Doctrine:
Philippines has sovereignty or jurisdiction 1. Territorial Integrity
– includes any territory that presently 2. National Security
belongs or might in the future belong to 3. Economic reasons
the Philippines through any of the
accepted international modes of Note: The main purpose of the archipelagic doctrine is
acquiring territory. to protect the territorial interests of an archipelago,
that is, to protect the territorial integrity of the
Q: What are the components of our National archipelago. Without it, there would be “pockets of
Territory? high seas” between some of our islands and islets, thus
foreign vessels would be able to pass through these
A: “pockets of seas” and would have no jurisdiction over
1. Terrestrial Domain them.
2. Maritime Domain
3. Aerial Domain Q: Is the Spratlys Group of Islands (SGI) part of the
Philippine Archipelago?
Note: R.A. 9522 which was approved by President
Arroyo on March 10, 2009 amended certain provisions A: No. It is too far to be included within the
of R.A. 3046, as amended by R.A. 5446 and defined the archipelagic lines encircling the internal waters of
archipelagic baselines of the Philippines. Philippine Archipelago. However, the SGI is part of
the Philippine territory because it was discovered
1. ARCHIPELAGIC DOCTRINE by a Filipino seaman in the name of Vice-Admiral
Cloma who later renounced his claim over it in
favor of the Republic of the Philippines.
Q: What is an Archipelagic State?
Subsequently, then Pres. Marcos issued a
Presidential Decree constituting SGI as part of the
A: It is a state constituted wholly by one or more
Philippine territory and sending some of our armed
archipelagos and may include other islands.
forces to protect said island and maintain our
sovereignty over it.
Q: What is the Archipelagic Doctrine and where is
it found in the 1987 Philippine Constitution?
5
Q: Should the Spratlys group of Islands and Philippines v. NLRC, G.R. No. 108813, December 15,
Scarborough Shoal be considered as part of 1994)
National Territory?
Q: Can the State waive its immunity?
A: Yes. Article I of the Constitution provides: “The
national territory comprises the Philippine A: Yes, expressly or impliedly.
archipelago, x xx, and all other territories over 1. Express consent of the State may be
which the Philippines has sovereignty or jurisdiction, manifested only through general or
x xx.” The Spratlys Group of islands and special law.
Scarborough Shoal falls under the second phrase 2. Implied consent is given when the State
“and all other territories over which the Philippines itself commences litigation or when it
has sovereignty or jurisdiction.” It is part of our enters into a contract. There is an implied
national territory because Philippines exercise consent when the state enters into a
sovereignty (through election of public officials) business contract. (US v. Ruiz, G.R. No. L-
over Spratlys Group of Islands. Moreover, under the 35645 May 22, 1985)
Philippine Baselines Law of 2009 (RA 9522), the
Spratly Islands and the Scarborough Shoal are Q: Do all contracts entered into by the
classified as islands under the regime of the government operate as a waiver of its non-
Republic of the Philippines (Philippine Baselines Law suability?
of 2009).
A: No. Distinction must still be made between one
B. STATE IMMUNITY which is executed in the exercise of its sovereign
function and another which is done in its
proprietary capacity. A State may be said to have
Q: What is the Doctrine of State Immunity?
descended to the level of an individual and can this
be deemed to have actually given its consent to be
A: Under this doctrine, the State cannot be sued
sued only when it enters into business contracts. It
without its consent. (Sec. 3, Art. XVI, 1987
does not apply where the contract relates to the
Constitution)
exercise of its sovereign functions. (Department of
Agriculture vs. NLRC G.R. No. 104269, November 11,
Q: What is the basis of the doctrine of State
1993)
immunity?
Q: When is a suit considered as suit against the
A: It reflects nothing less than recognition of the
State?
sovereign character of the State and an express
affirmation of the unwritten rule effectively
A:
insulating it from the jurisdiction of courts. It is
1. When the Republic is sued by name;
based on the very essence of sovereignty.
2. When the suit is against an unincorporated
(Department of Agriculture v. NLRC, G.R. No.
government agency;
104269, November 11, 1993)
3. When the suit is on its face against a
government officer but the case is such that
Note: There can be no legal right against the authority
ultimate liability will belong not to the officer
which makes the law on which the right depends
but to the government. (Republic v. Sandoval,
(Republic vs. Villasor, G.R. No. L-30671, November 8,
G.R. No. 84607, March 19, 1993)
1973). However, it may be sued if it gives consent,
whether express or implied.
Q: Petitioners sued the Philippine National
Railways for damages for the death of their son
Q: Does this doctrine apply as well to foreign
who fell from an overloaded train belonging to the
government?
PNR. The trial court dismissed the suit on the
ground that the charter of the PNR, as amended
A: Yes. This doctrine also applies to foreign
by P.D No. 741 has made the same a government
government because of the sovereign equality of all
instrumentality, and thus immune from suit. Is the
the state. Accordingly, immunity is enjoyed by
dismissal proper?
other States, consonant with the public
international law principle of par in parem non
A: No. The correct rule is that not all government
habet imperium. The head of State, who is deemed
entities whether corporate or non-corporate, are
the personification of the State, is inviolable, and
immune from suits. Immunity from suit is
thus, enjoys immunity from suit. (JUSMAG
determined by the character of the objects for
6
POLITICAL LAW TEAM
which the entity is organized. When the GR: The rule is that the suit must be regarded as
government enters into a commercial business, it one against the state where the satisfaction of the
abandons its sovereign capacity and is to be treated judgment against the public official concerned will
like any other corporation. In this case, the State require the state to perform a positive act, such as
divested itself of its sovereign capacity when it appropriation of the amount necessary to pay the
organized the PNR which is no different from its damages awarded to the plaintiff.
predecessors, the Manila Railroad Company.Thus,
PNR is not immune from suit. It did not remove XPNs: The rule does not apply where:
itself from the operation of articles 1732 to 1766 of 1. The public official is charged in his
the Civil Code on common carriers. (Malang v. official capacity for acts that are
PNRC, G.R. No. L-49930, August 7, 1985) unlawful and injurious to the rights of
others. Public officials are not exempt, in
Q: Distinguish unincorporated government agency their personal capacity, from liability
performing governmental function and one arising from acts committed in bad faith;
performing proprietary functions according to the or
applicability of the Doctrine of State Immunity. 2. The public official is clearly being sued
not in his official capacity but in his
A: personal capacity, although the acts
Unincorporated Unincorporated complained of may have been
Government Agency Government Agency committed while he occupied a public
Performing Performing Proprietary position. (Lansang vs. CA, G.R. No.
Governmental Functions 102667, February 23, 2000)
Functions
Immunity has been Immunity has not been Q: What are the implications of the phrase “waiver
upheld in its favor upheld in its favor of immunity by the State does not mean a
because its function is whose function was not concession of its liability”?
governmental or in pursuit of a necessary
incidental to such function of government A: When the State gives its consent to be sued,
function. but was essentially a all it does is to give the other party an
business. (Air opportunity to show that the State is liable.
Transportation Office v. Accordingly, the phrase that “waiver of immunity
Spouses David, G.R. No. by the State does not mean a concession of
159402, Feb. 23, 2011) liability” means that by consenting to be sued, the
State does not necessarily admit that it is liable.
Q: What is the Restrictive Theory of State
Immunity from Suit? In such a case the State is merely giving the plaintiff
a chance to prove that the State is liable but the
A: The Restrictive Theory of State Immunity means State retains the right to raise all lawful defenses.
that a State may be said to have descended to the (Philippine Rock Industries, Inc. v. Board of
level of an individual and can thus be deemed to Liquidators, G.R. No. 84992, Dec. 15, 1989)
have tacitly given its consent to be sued only when
it enters into business contracts. However, the Q: Is there any distinction between suability and
restrictive application of State immunity is proper liability of the State?
only when the proceedings arise out of commercial
transactions of the foreign sovereign, its A: Yes.
commercial activities or economic affairs. It does
not apply where the contract relates to the exercise SUABILITY LIABILITY
of its sovereign functions. (US v. Ruiz, G.R. No. L- Depends on the consent Depends on the
35645, May 22, 1985) of the State to be sued applicable law and the
established facts
Q: When is a suit against a public official deemed The circumstance that a The State can never be
to be a suit against the State? State is suable does not held liable if it is not
necessarily mean that it suable.
A: The doctrine of State Immunity from suit applies is liable.
to complaints filed against public officials for acts
done in the performance of their duties within the Q: How are the liabilities of the following
scope of their authority. determined?
7
A: without the State having to do a positive act to

1. Public officers – by their acts without or in assist him
excess of jurisdiction: any injury caused by him 5. Where the government itself has violated its
is his own personal liability and cannot be own laws because the doctrine of State
imputed to the State. immunity cannot be used to perpetrate an
2. Government agencies – establish whether or injustice
not the State, as principal which may
ultimately be held liable, has given its consent. Q: What is the true test in determining whether a
suit against a public officer is a suit against the
GOVERNMENT AGENCIES SUABILITY State?
test of suability is
stated in their A: The test is that, if a public officer or agency is
a. Incorporated agencies sued and made liable, the State will have to
charters. If its charter
says so, it is suable perform an affirmative act of appropriating the
suable if the nature of needed amount to satisfy the judgment. If the
b. Unincorporated Statewill have to do so, then, it is a suit against the
their acts is
government agencies State.
proprietary in nature
by right of economic
c. Jure gestionis or business relation = Q: Is garnishment of government funds allowed?
may be sued
by right of sovereign A: GR: No. Whether the money is deposited by way
power, in the exercise of general or special deposit, they remain
d. Jure imperii government funds and are not subject to
of sovereign functions
= cannot be sued garnishment.
Note: Letters c and d are also considered as nature XPN: Where a law or ordinance has been
of acts of State. enacted appropriating a specific amount to pay
a valid government obligation, then the money
Acta Jure Imperii Acta Jure Gestionis can be garnished.
There is waiver of State
There is no waiver. Note: Funds belonging to government
immunity from suit.
corporations which can sue and be sued that are
The State entered into a
deposited with a bank can be garnished. (PNB v.
The State is acting in contract in its commercial Pabalan, G.R. No. L-33112, June 15, 1978)
its sovereign or proprietary capacity.
governmental The State descended to If the local legislative authority refuses to enact a
capacity. the level of a private law appropriating the money judgment rendered
entity. by the court, the winning party may file a petition
for mandamus to compel the legislative authority
3. Government – doctrine of State immunity is to enact a law (Municipality of Makati v. CA, G.R.
available; non-suability of the State is Nos. 89898-99, Oct. 1, 1990)
available to the agency even if it is shown
that it is engaged not only in government Q: Can the Government be made to pay interest in
functions but also, as a sideline, or money judgments against it?
incidentally, in proprietary enterprises.
A: GR: No.
Q: In what instances may a public officer be sued
without the State’s consent? XPNs:
1. Eminent domain
A: 2. Erroneous collection of taxes
1. To compel him to do an act required by law 3. Where government agrees to pay interest
2. To restrain him from enforcing an act claimed pursuant to law.
to be unconstitutional
3. To compel payment of damages from an Q: A property owner filed an action directly in
already appropriated assurance fund or to court against the Republic of the Philippines
refund tax over-payments from a fund already seeking payment for a parcel of land which the
available for the purpose national government utilized for a road widening
4. To secure a judgment that the officer project. Can the government invoke the doctrine
impleaded may satisfy the judgment himself of non-suitability of the state?
8
POLITICAL LAW TEAM
A: No. When the government expropriates property Note: In view of the new Constitution, the Philippines
for public use without paying just compensation, it is not only a representative or republican state but
cannot invoke its immunity from the suit. also shares some aspects of direct democracy such as
Otherwise, the right guaranteed in Section 9, Article “initiative and referendum”.
III of the 1987Constitution that private property
shall not be taken for public use without just Q: What do you understand by Constitutional
compensation will be rendered nugatory. Authoritarianism?
(Ministerio vs. Court of First Instance, L-31635, Aug.
31, 1971) A: Constitutional authoritarianism, as understood
and practiced in the Marcos regime under the 1973
C. PRINCIPLES AND POLICIES constitution, was the assumption of extraordinary
powers by the President including legislative and
Q: Are the provisions in Article II self-executing? judicial and even constituent powers.
A: GR: No. By its very title, Article II of the Q: Is constitutional authoritarianism compatible
Constitution is a “declaration of principles and state with a republican state?
policies.” However, principles in Article II are not
intended to be self-executing principles ready for A. Yes, if the Constitution upon which the Executive
enforcement through the courts. They are used by bases his assumption of power is a legitimate
the judiciary as aids or as guides in the exercise of expression of the people’s will and if the Executive
its power of judicial review, and by the legislature in who assumes power received his office through a
its enactment of laws. (Tondo Medical v. CA, G.R. valid election by the people. (Bernas Primer, 2006)
No. 167324, July 17, 2007)
Q: What is the State policy regarding war?
XPN: But a provision that is complete in itself,
and provides sufficient rules for the exercise of A: The State renounces war as an instrument of
rights, is self-executing. Thus, certain national policy. (Sec. 2, Art. II, 1987 Constitution)
provisions in Art. II are self-executing, one of
which is that provided in Section 16, Art. II, Q: Does the Philippines renounce defensive war?
“The State shall protect and advance the right
of the people to a balanced and healthful A. No, because it is duty bound to defend its
ecology in accord with the rhythm and citizens. Under the Constitution, the prime duty of
harmony of nature.” (Oposa v. Factoran, the government is to serve and protect the people.
supra.) The duty of full public disclosure is self
executing provision. (Province of North Q: What are the policies of the State on the
Cotabato v. GRP G.R. 183591 Oct. 14, 2008) following?
1. Working women
Q: What is a Republican State? 2. Ecology
3. The symbols of statehood
A: It is a state wherein all government authority 4. Cultural minorities
emanates from the people and is exercised by 5. Science and Technology
representatives chosen by the people. (Dissenting
Opinion of Justice Puno, G.R. No. 148334, January A:
21, 2004) 1. Section 14, Article XIII of the Constitution
provides: "The State shall protect working
Q: What are the manifestations of Republicanism? women by providing safe and healthful
working conditions, taking into account their
A: The following are the manifestations of maternal functions, and such facilities and
Republicanism: opportunities that will enhance their
welfare and enable them to realize their full
1. Ours is a government of laws and not of potential in the service of the nation."
men.
2. Rule of Majority (Plurality in elections) 2. Section 16, Article II of the Constitution
3. Accountability of public officials provides: The State shall protect and
4. Bill of Rights advance the right of the people and their
5. Legislature cannot pass irrepealable laws posterity to a balanced and healthful
6. Separation of powers ecology in accord with the rhythm and
harmony of nature."
9
communities to preserve and develop their

3. Section 1, Article XVI of the Constitution cultures, traditions, and institutions. It shall
provides: "The Flag of the Philippines shall consider these rights in the formulation of
be red, white, and blue, with a sun and national plans and policies."
three stars, as consecrated and honored by
the people and recognized by law." 5. Section 17, Article II of the Constitution
provides: "The State shall give priority to
Section 2, Article XVI of the Constitution education, science and technology, arts,
states: “The Congress may by law, adopt a culture and sports to foster patriotism and
new name for the country, a national nationalism, accelerate social progress, and
anthem, or a national seal, which shall all be promote total human liberation and
truly reflective and symbolic of the ideals, development."
history, and traditions of the people. Such
law shall take effect only upon its Section 14, Article XII of the Constitution
ratification by the people in a national reads in part: "The sustained development
referendum." of a reservoir of national talents consisting
of Filipino scientists, entrepreneurs,
4. Section 22, Article II of the Constitution professionals, managers, high-level technical
provides: The State recognizes and manpower and skilled workers and
promotes the rights of indigenous cultural craftsmen shall be promoted by the State.
communities within the framework of The State shall encourage appropriate
national unity and development." technology and regulate its transfer for the
national benefit.
Section 5, Article XII of the Constitution
reads: “The State, subject to the provisions Sub-section 2, Section 3, Article XIV of the
of this Constitution and national Constitution states: "They (educational
development policies and programs, shall institutions) shall inculcate patriotism and
protect the rights of indigenous cultural nationalism, foster love of humanity,
communities to their ancestral lands to respect for human rights, appreciation of
ensure their economic, social and cultural the role of national heroes in the historical
well-being. development of the country, teach the
rights and duties of citizenship, strengthen
The Congress may provide for the ethical and spiritual values, develop moral
applicability of customary laws governing character and personal discipline, encourage
property rights or relations in determining critical and creative thinking, broaden
the ownership and extent of the ancestral scientific and technological knowledge, and
domains." promote vocational efficiency."
Section 6, Art. XIII of the Constitution Section 10, Article XIV of the Constitution
provides: “The State shall apply the declares: "Science and Technology are
principles of agrarian reform or stewardship, essential for national development and
whenever applicable in accordance with progress. The State shall give priority to
law, in the disposition or utilization of other research and development, invention,
natural resources, including lands of the innovation, and their utilization; and to
public domain under lease or concession science and technology education, training,
suitable to agriculture, subject to prior services. It shall support indigenous,
rights, homestead rights of small settlers, appropriate, and self-reliant scientific and
and the rights of indigenous communities to cultural capabilities, and their application to
their ancestral lands. the country's productive systems and
national life."
The State may resettle landless farmers and
farm workers in its own agricultural estates Section 11, Article XIV of the Constitution
which shall be distributed to them in the provides: "The Congress may provide for
manner provided by law." incentives, including tax deductions, to
encourage private participation in programs
Section 17, Article XIV of the Constitution of basic and applied scientific research.
states: "The State shall recognize, respect Scholarships, grants-in-aid or other forms of
and protect the rights of indigenous cultural Incentives shall be provided to deserving
10
POLITICAL LAW TEAM
science students, researchers, scientists, checking abuse in government. (Valmonte vs.

investors, technologists, and specially gifted Belmonte, G.R. No. 74930, February 13, 1989)
citizens."
Section 12, Article XIV of the Constitution Q: What is the difference between the doctrines of
reads: “The State shall regulate the transfer Incorporation and Auto-Limitation?
and promote the adaptation of technology
from all sources for the national benefit. It Doctrine of Doctrine of Auto-
shall encourage widest participation of Incorporation limitation
private groups, local governments, and It means that the rules It is the doctrine where
community-based organizations in the of International law the Philippines adhere
generation and utilization of science and form part of the law of to principles of
technology." the land and no international law as a
legislative action is limitation to the
Q: Does the 1987 Constitution provide for a policy required to make them exercise of its
of transparency in matters of public concern? applicable in a country. sovereignty.
By this doctrine, the
A: Yes. The 1987 Constitution provides for a policy Philippines is bound by
of transparency in matters of public interest: generally accepted
principles of
1. Section 28, Article II of the 1987 Constitution international law, which
provides: "Subject to reasonable conditions are considered to be
prescribed by law, the State adopts and automatically part of our
implements a policy of full disclosure of all its own laws. (Tañada v.
transactions involving public interest," Angara, G.R. No.
2. Section 7, Article III states: "The right of the 118295, May 2, 1997)
people to information on matters of public
concern shall be recognized, access to official
records, and to documents, and papers
Note: The fact that the international law has been
pertaining to official acts, transactions, or made part of the law of the land does not by any
decisions, as well as to government research means imply the primacy of international law over
data used as basis for policy development, national law in the municipal sphere. (Philip Morris,
shall be afforded the citizen, subject to such Inc. v. CA, G.R. No. 91332, July 16, 1993)
limitations as may be provided by law."
3. Section 20, Article VI reads: "The records
Q: How is civilian supremacy ensured?
and books of account of the Congress shall be
preserved and be open to the public in
A:
accordance with law, and such books shall be
1. By the installation of the President, the highest
audited by the Commission on Audit which
civilian authority, as the commander-in-chief
shall publish annually an itemized list of
of all the armed forces of the Philippines. (Sec.
amounts paid to and expenses incurred for
18, Art. VII, 1987 Constitution)
each member."
2. Through the requirement that members of the
4. Section 17, Article XI provides: a sworn
AFP swear to uphold and defend the
statement of assets, liabilities and net worth of
Constitution, which is the fundamental law of
the President, the Vice-President, the
civil government. (Sec. 5, Par. 1, Art. XVI, 1987
Members of the Cabinet, the Congress, the
Constitution)
Supreme Court, the Constitutional Commission
and other constitutional offices, and officers of
Note: By civilian supremacy, it is meant that civilian
the armed forces with general or flag rank filed
authority is, at all times, supreme over the military.
upon their assumption of office shall be
disclosed to the public in the manner provided
Q: Can a person avoid the rendition of military
by law.
services to defend the State?
5. Section 21, Article XII declares in part:
"Information on foreign loans obtained or
A: No. One cannot avoid compulsory military
guaranteed by the government shall be made
service by invoking one’s religious convictions or by
available to the public."
saying that he has a sick father and several brothers
Note: These provisions on public disclosures are
and sisters to support. Accordingly, the duty of
intended to enhance the role of the citizenry in government to defend the State cannot be
governmental decision-making as well as in performed except through an army. To leave the
11
organization of an army to the will of the citizens religious belief in secular programs. (Estrada v.
would be to make this duty to the Government Escritor, A.M. No. P-02-1651, June 22, 2006)
excusable should there be no sufficient men who
volunteer to enlist therein. The right of the Q: What is the theory of Benevolent Neutrality?
Government to require compulsory military service
is a consequence of its duty to defend the State and A: Under this theory, the “wall of separation” is
is reciprocal with its duty to defend the life, liberty, meant to protect the church from the State. It
and property of the citizen.” (People v. Zosa, G.R. believes that with respect to governmental actions,
No. L-45892-93, July 13, 1938). accommodation of religion may be allowed, not to
promote the government’s favored form of religion,
Q: What are the provisions of the Constitution that but to allow individuals and groups to exercise their
support the principle of separation of Church and religion without hindrance.(Estrada v. Escritor, A.M.
State? No. P-02-1651, June 22, 2006)
A: Q: What theory is applied in the Philippines?

1. The non-establishment clause. (Sec. 5, Art. III)
2. Sectoral representation in the House of A: In the Philippine context, the Court categorically
Representatives. Various sectors may be ruled that, “the Filipino people, in adopting the
represented except the religious sector. (Sec. Constitution, manifested their adherence to the
5, Par. 2, Art. VI) benevolent neutrality approach that requires
3. Religious groups shall not be registered as accommodations in interpreting the religion
political parties. (Sec. 5, Par. 2,Art. IX-C, 1987 clauses. (Estrada v. Escritor, A.M. No. P-02-1651,
Constitution) June 22, 2006)
Note : Exceptions to the above-mentioned rule are the Q: What are the three kinds of accommodation
following provisons : that results from free exercise claim?
1. Churches, parsonages, etc. actually, directly and
exclusively used for religious purposes shall be A: Those which are:
exempt from taxation. (Sec. 28, Par. 3, Art. VI); 1. Found to be constitutionally compelled, i.e.
2. When a priest, preacher, minister or dignitary is required by the Free Exercise Clause
assigned to the armed forces, or any penal (mandatory),
institution or government orphanage or 2. Discretionary or legislative, i.e. not
leprosarium, public money may be paid to them required by the Free Exercise Clause
(Sec. 29, Par. 2, Art. VI);
(permissive),
3. Optional religious instruction for public
3. Prohibited by the religion clauses
elementary and high school students (Sec. 3,
Par. 3, Art. VI);
(prohibited).
4. Filipino ownership requirement for education
institutions, except those established by Note: Based on the foregoing, and after holding that
religious groups and mission boards (Sec. 4, Par. the Philippine Constitution upholds the benevolent
2, Art. XIV). neutrality doctrine which allows for accommodation,
the Court laid down the rule that in dealing with cases
involving purely conduct based on religious belief, it
Q: What is the Strict Separationist Approach?
shall adopt the strict-compelling State interest test
because it is most in line with the benevolent
A: Under this approach, the establishment clause neutrality-accommodation
was meant to protect the State from the church,
and the State’s hostility towards religion allows no Q: Distinguish mandatory accommodation,
interaction between the two. (Estrada v. Escritor, permissive accommodation, and prohibited
A.M. No. P-02-1651, June 22, 2006) accommodation
Q: What is the Strict Neutrality Approach? A:
Mandatory Permissive Prohibited
A: It is not hostility towards religion, but a strict
Accomodatio Accomodatio Accommodatio
holding that religion may not be used as a basis for
n n n
classification for purposes of governmental action,
Based on the Means that Results when
whether the action confers rights or privileges or
premise that the state may, the Court finds
imposes duties or obligations. Only secular criteria
when religious but is not no basis for a
may be the basis of government action. It does not
conscience required to, mandatory
permit, much less require accommodation of
12
POLITICAL LAW TEAM
conflicts with accomodate accommodation Note: Legislative power is given to the Legislature
a government religious , or it whose members hold office for a fixed term (Sec. 1,
obligation or interests. determines that Art. VI); executive power is given to a separate
prohibition, the legislative Executive who holds office for a fixed term (Sec. 1, Art.
the accommodation VII); and judicial power is held by an independent
government runs afoul of the Judiciary. (Sec. 1, Art. VIII)
sometimes establishment
may have to or the free Q: A group of losing litigants in a case decided by
give way. This exercise clause. the SC filed a complaint before the Ombudsman
accomodation In this case, the charging the Justices with knowingly and
occurs when Court finds that deliberately rendering an unjust decision in utter
all three establishment violation of the penal laws of the land. Can the
conditions of concerns prevail Ombudsman validly take cognizance of the case?
the over potential
compelling accommodation A: No. Pursuant to the principle of separation of
State interest interests. powers, the correctness of the decisions of the SC
test are met. as final arbiter of all justiciable disputes is
conclusive upon all other departments of the
Note: The purpose of accommodations is to remove a government; the Ombudsman has no power to
burden on, or facilitate the exercise of, a person’s or review the decisions of the SC by entertaining a
institution’s religions. complaint against the Justices of the SC for
knowingly rendering an unjust decision. (In re:
D. SEPARATION OF POWERS Laureta, G.R. No. L-68635, May 14, 1987)
Q: May the RTC or any court prohibit a committee

Q: What is the Doctrine of Separation of Powers? of the Senate like the Blue Ribbon Committee
from requiring a person to appear before it when
A: In essence, separation of powers means the it is conducting investigation in aid of legislation?
legislation belongs to the Congress, execution to
the executive, settlement of legal controversies to A: No, because that would be violative of the
the judiciary. Each is therefore prevented from principle of separation of powers. The principle
invading the domain of the others. essentially means that legislation belongs to
Congress, execution to the Executive and
Q: What is the purpose of separation of powers? settlement of legal controversies to the Judiciary.
Each is prevented from invading the domain of the
A: To prevent the concentration of authority in one others. (Senate Blue Ribbon Committee v.
person or group of persons that might lead to Majaducon, G.R. No. 136760, July29, 2003)
irreparable error or abuse in its exercise to the
detriment of republican institutions. The purpose Q: What is the principle of Blending of Powers?
was not to avoid friction, but, by means of the
inevitable friction incident to the distribution of A: It refers to an instance when powers are not
governmental powers among the three confined exclusively within one department but are
departments, to save the people from autocracy. assigned to or shared by several departments.
1. To secure action Examples of the blending of powers are the
2. To forestall over-action following:
3. To prevent despotism
4. To obtain efficiency 1. Power of appointment which can be
exercised by each department and be
Q: What are the powers vested in the three rightfully exercised by each department
branches of government? over its own administrative personnel;
2. General Appropriations Law – President
A: prepares the budget which serves as the
Executive Legislative Judiciary basis of the bill adopted by Congress;
Implementation Interpretation 3. Amnesty granted by the President requires
Making of laws
of laws of laws the concurrence of the majority of all the
(Power of the
(Power of the (Power of members of the Congress; and
purse)
sword) judicial review) 4. COMELEC does not deputize law-
enforcement agencies and instrumentalities
13
of the government for the purpose of b. Impeachment

ensuring free, orderly, honest, peaceful and c. Determination of
credible elections alone (consent of the salaries of judges.
President is required)
E. CHECKS AND BALANCES 5. Determine the

salaries of the
Q: What is the principle of Checks and Balances? president or
vice president
A: It allows one department to resist
encroachments upon its prerogatives or to rectify Q: How does the Judiciary check the other two
mistakes or excesses committed by the other branches?
departments.
A:It may declare (through the SC as the final
Q: How does the Executive check the other two arbiter) the acts of both the legislature and
branches? executive as unconstitutional or invalid so long as
there is grave abuse of discretion.
A:
Notes: The first and safest criterion to determine
EXECUTIVE CHECK whether a given power has been validly exercised by a
particular department is whether the power has been
Legislative Judiciary
constitutionally conferred upon the department
1. Through its power of claiming its exercise. However, even in the absence of
pardon, it may set aside express conferment, the exercise of the power may be
the judgment of the justified under the Doctrine of Necessary Implication -
Through its
judiciary. the grant of express power carried with it all other
veto power
2. Also by power of powers that may be reasonably inferred from it.
appointment – power to
appoint members of the F. DELEGATION OF POWERS
Judiciary.
Q: How does Legislature check the other two Q: Can a delegated power be re-delegated?
branches?
A:
A: GR: No. Delegated power constitutes not only a
right but a duty to be performed by the
LEGISLATIVE CHECK delegate through the instrumentality of his own
judgment and not through the intervening mind
Executive Judiciary
of another.
1. Override the Revoke or amend the
veto of the decisions by either:
XPN: Permissible delegations: PETAL
President 1. Enacting a new law
2. Reject certain 2. Amending the old law,
1. Delegation to the People through
appointments giving it certain
initiative and referendum. (Sec. 1, Art. VI,
made by the definition and
1987 Constitution)
president interpretation different
2. Emergency powers delegated by Congress
from the old
to the President. (Sec. 23, Art. VI)
3. Revoke the 3. Impeachment of SC
proclamation members
The conditions for the vesture of
of martial law
emergency powers are the following:
or suspension
of the writ of
a. There must be war or other national
habeas corpus
emergency
4. Impeachment 4. Define, prescribe, b. The delegation is for a limited period
apportion jurisdiction of only
lower courts: c. Delegation is subject to restrictions
a. Prescribe the as Congress may prescribe
qualifications of
lower court
judges
14
POLITICAL LAW TEAM
d. Emergency powers must be authority and indicating the

exercised to carry a national policy circumstances under which it is to be
declared by Congress pursued and effected. Its purpose is to
prevent total transference of legislative
3. Congress may delegate Tariff powers to power).
the President. (Sec. 28 (2),Art. VI)
Q: What is invalid delegation of legislative power?
Note: The Tariff and Customs Code is the
enabling law that grants such powers to the A:If there are gaps that will prevent its
president. enforcement, the delegate is given the opportunity
to step into the shoes of the legislature and
The power to impose tariffs in the first place exercise discretion in order to repair the omissions.
is not inherent in the President but arises
only from congressional grant. Thus, it is the Note: This is tantamount to an abdication of power in
prerogative of Congress to impose favor of the delegate, which is in violation of the
limitations and restrictions on such powers doctrine of separation of powers.
which do not normally belong to the
executive in the first place. (Southern Cross Q: What is the distinction between the President’s
Cement Corporation v. Philippine Cement authority to declare a state of national emergency
Manufacturing Corp., G.R. No. 158540, and her authority to exercise emergency powers?
August 3, 2005)
A: The President’s authority to:
4. Delegation to Administrative bodies –
also known as power of subordinate Declare a State of Exercise Emergency
legislation/ quasi-legislative powers. National Emergency Powers
Granted by the Requires a delegation
This refers to the authority vested by Constitution, no from Congress. (David,
Congress to the administrative bodies to legitimate objection et al. v. Gloria
“fill in the details” which Congress cannot can be raised. Macapagal-Arroyo, et
provide due to lack of opportunity or al., G.R. No. 171396,
competence.This includes the making of May 3, 2006)
supplementary rules and regulations.
They have the force and effect of law. Note: Conferment of
emergency powers on
Note: Congress can only delegate rule- the President is not
making power to administrative agencies. mandatory on
Congress.
5. Delegation to Local Governments – It is
not regarded as a transfer of general G.FORMS OF GOVERNMENT
legislative power, but rather as the grant
of authority to prescribe local regulations. Q: What is the form of system of government in
the Philippines?
Q: What are the two tests of valid delegation?
A: The Philippines adheres to the presidential
A: system.
1. Completeness Test – The law must be
complete in all essential terms and Q: What is the principal identifying feature of a
conditions when it leaves the presidential form of government?
legislature so that there will be nothing
left for the delegate to do when it A: The principal identifying feature of a presidential
reaches him except to enforce it. form of government is the separation of powers
2. Sufficient Standard Test – Iflaw does doctrine.
not spell out in detail the limits of the
delegate’s authority, it may be Note: In presidential system, the President is both the
sustained if delegation is made subject head of State and the head of government.
to a sufficient standard.
Q: What are the essential characteristics of a
Note: The sufficient standard test maps parliamentary form of government?
out the boundaries of the delegate’s
15
A: or by the voice of the majority, the rightful

1. The members of the government or cabinet or legal government and maintains itself against
the executive arm are, as a rule, the will of the latter;
simultaneously members of the legislature; 2. Government of paramount force – established
2. The government or cabinet consisting of the and maintained by military forces who invade
political leaders of the majority party or of a and occupy a territory of the enemy in the
coalition who are also members of the course of war; and
legislature, is in effect a committee of the 3. Independent government – established by the
legislature; inhabitants of the country who rise in
3. The government or cabinet has a pyramidal insurrection against the parent State. (Kop Kim
structure at the apex of which is the Prime Cham v. Valdez Tan Key, G.R. No. L- 5,
Minister or his equivalent; September 17, 1945)
4. The government or cabinet remains in power
only for so long as it enjoys the support of the
majority of the legislature;
5. Both government and legislature are
possessed of control devices which each can
demand of the other immediate political
responsibility. In the hands of the legislature
is the vote of non-confidence (censure)
whereby government may be ousted. In the
hands of the government is the power to
dissolve the legislature and call for new
elections.
Q: What are the functions of the Government?
A:
1. Constituent – mandatory for the government
to perform because they constitute the very
bonds of society.
2. Ministrant – intended to promote the welfare,
progress and prosperity of the people.
Note: Distinction of function is no longer relevant

because the Constitution obligates the State to
promote social justice and has repudiated the laissez
faire policy (ACCFA v. Federation of Labor Unions, G.R.
No. L-221484, November 29, 1969).
Q: What are the classifications of government on

the basis of legitimacy?
A:
1. De jure government - a government truly and
lawfully established by the Constitution of a
State but which having been in the meantime
displaced is actually cut off from power or
control.
2. De facto government - a government of fact;
one actually exercising power and control in
the State as opposed to the true and lawful
government.
Q: What are the kinds of a de facto government?
A:
1. De facto proper – government that gets
possession and control of, or usurps, by force
16
POLITICAL LAW TEAM
LEGISLATIVE DEPARTMENT
III. LEGISLATIVE DEPARTMENT

While a supermajority is not a total ban against
repeal, it is a limitation in excess of what the
A.WHO MAY EXERCISE LEGISLATIVE POWER
Constitution requires on the passage of bills and is
constitutionally obnoxious because it significantly
Q: Who may exercise legislative power? constricts the future legislators’ room for action
and flexibility. (Datu Michael Abas Kida, et al. v.
A: Senate of the Philippines, et al. G.R. No. 196271,
1. Congress October 18, 2011)
2. Regional/Local Government Units
3. The People through initiative and referendum. Note: Every legislative body may modify or abolish the
acts passed by itself or its predecessors. This
Q: What are the limitations on the legislative legislature cannot bind a future legislature to a
power of Congress? particular mode of repeal. It cannot declare in advance
the intent of subsequent legislatures or the effect of
A: subsequent legislation upon existing statutes. (Datu
1. Substantive: limitations on the content of laws. Michael Abas Kida, et al. v. Senate of the Philippines, et
2. Procedural: limitations on the manner of al. G.R. No. 196271, October 18, 2011)
passing laws.
3. Congress cannot pass irrepealable laws. Q: Who exercises local legislative power and their
4. Congress, as a general rule, cannot delegate its presiding officer (PO)?
legislative power.
A:
XPN: See Delegation of Legislative Powers. Sangguniangpanlalawig Vice-
Province
an governor
Q: Is the supermajority vote requirement under Sangguniangpanlungso City vice-
City
R.A. 9054, the second Organic Act of ARMM which d mayor
reset the regular elections for the ARMM regional Municip
Municipalit
officials to the second Monday of September 2001 Sangguniangbayan al vice-
y
unconstitutional by giving it a character of an mayor
irrepealable law? Punong
Barangay Sangguniang barangay baranga
A: Yes. Even assuming that RA No. 9333 and RA No. y
10153 did in fact amend RA No. 9054, the
supermajority (2/3) voting requirement required Note: The PO shall vote only to break a tie. (Sec. 49,
under Section 1, Article XVII of RA No. 9054 has to Par. (a), R.A. 7160)
be struck down for giving RA No. 9054 the character
of an irrepealable law by requiring more than what Q: What are the products of legislative action and
the Constitution demands. their requisites for validity?
Section 16(2), Article VI of the Constitution provides A:

that a “majority of each House shall constitute a ORDINANCE RESOLUTION
quorum to do business.” In other words, as long as Merely a declaration of the
majority of the members of the House of sentiment or opinion of a
Law
Representatives or the Senate are present, these lawmaking body on a specific
bodies have the quorum needed to conduct matter
business and hold session. Within a quorum, a vote General and
of majority is generally sufficient to enact laws or permanent Temporary in nature
approve acts. character
GR: Not necessary in resolution
In contrast, Section 1, Article XVII of RA No. 9054
requires a vote of no less than two-thirds (2/3) of XPN: unless decided otherwise
Third reading is
the Members of the House of Representatives and by a majority of all the
necessary for an
of the Senate, voting separately, in order to sangguniang members (Article
ordinance
effectively amend RA No. 9054. Clearly, this 2/3 107, pars. a and c,
voting requirement is higher than what the Implementing Rules and
Constitution requires for the passage of bills, and Regulations of RA 7160)
served to restrain the plenary powers of Congress
to amend, revise or repeal the laws it had passed.
17
Q. What are the requisites for validity? HOUSE OF

SENATE
REPRESENTATIVES
A: GC-not-CUPPU Composition
1. Must not Contravene the constitution and 24 Senators (elected Not more than 250
any statute at large by qualified members, unless
2. Must not be Unfair or oppressive Filipino voters) otherwise provided by law.
3. Must not be Partial or discriminatory Qualifications
4. Must not Prohibit, but may regulate trade 1. Natural-born citizen of
5. Must not be Unreasonable 1. Natural-born
the Philippines;
6. Must be General in application and citizen of the
2. Except youth party-list
Consistent with public policy. (Magtajas Philippines;
representatives, at least
vs. Pryce Properties Corporation, Inc, G.R. 2. At least 35 years of
25 years of age on the
No. 111097 July 20, 1994) age on the day of
day of election;
election;
3. Able to read and write;
Q: What are the classes of legislative power? 3. Able to read and
4. Except the party-list
write;
representatives, a
A:ODeCO 4. A registered voter;
registered voter in the
5. Resident of the
district in which he shall
1. Original: Possessed by the people in their Philippines for not
be elected;
sovereign capacity i.e. initiative and less than 2 years
5. Resident thereof for a
referendum. immediately
period of not less than 1
2. Delegated: Possessed by Congress and preceding the day
year immediately the
other legislative bodies by virtue of the of election.
day of the election.
Constitution. Term of office
3. Constituent: The power to amend or 6years, commencing
revise the Constitution. at noon on the 30
th
4. Ordinary: The power to pass ordinary 3 years, commencing at

day of June next th
laws. noon on the 30 day of
following their
June next following their
election.
HOUSES OF CONGRESS election.
Term limit: Only up to
Term limit: No member of
1.Senate 2 consecutive terms.
the HoR shall serve for
2. House of Representatives However, they may
more than 3 consecutive
a) District representatives serve for more than 2
terms.
b) Party-list system terms provided that
the terms are not
Q: Discuss the composition, qualifications, and consecutive.
term of office of members of Congress.
A:
Q: Discuss the disqualifications of members of Congress.
A:
Senate House of Representatives
1. No Senator shall serve for more than 2 1. Shall not serve for more than three (3) consecutive
consecutive terms. Voluntary renunciation of the terms.Voluntary renunciation of the office for any
office for any length of time shall not be length of time shall not be considered as an
considered as an interruption in the continuity of interruption in the continuity of his service for the
his service for the full term for which he was full term for which he was elected. (Sec. 7, Article
elected (Section 4, Article VI). VI).
2. One who has been declared by competent 2. One who has been declared by competent authority
authority as insane or incompetent as insane or incompetent
18
POLITICAL LAW TEAM
LEGISLATIVE DEPARTMENT
3. One who has been sentenced by final judgment 3. One who has been sentenced by final judgment for:
for:
a. Subversion;
a. Subversion; b. Insurrection;
b. Insurrection; c. Rebellion;
c. Rebellion; d. Any offense for which he has been sentenced to
d. Any offense for which he has been sentenced apenalty of not more than 18 months; or
to a penalty of not more e. A crime involving moral turpitude, unless given
than 18 months; or plenary pardon or grantedamnesty. (Section
e. A crime involving moral turpitude, unless given 12, BP 881)
plenary pardon or
granted amnesty.(Section 12, BP 881)
Note: The term of office prescribed by the Constitution may not be extended or shortened by the legislature, but the
period during which an officer actually holds the office (tenure) may be affected by circumstances within or beyond the
power of said officer. Tenure may be shorter than the term or it may not exist at all. These situations will not change the
duration of the term of office.
19
Q: How can members of Congress be removed A:

from their respective offices?
District Representative Party-list
A: Representative
1. Elected nationally
SENATORS MEMBERS OF THE with party-list
HOUSE OF organizations
REPRESENTATIVES garnering at least
Expulsion by the Senate Expulsion by the House 2% of all votes cast
with the concurrence of is with the concurrence for the party-list
2/3 of all its members. of 2/3 of all its 1. Elected according system entitled to
(Sec. 16, par. 3, Article members. (Sec. 16, par. to legislative 1 seat, which is
VI) 3, Art. VI) district by the increased
constituents of according to
Q: Can Congress or COMELEC impose an additional such district; proportional
qualification for candidates for senator? 2. Must be a resident representation, but
of his legislative is in no way to
A: No. The Congress cannot validly amend or district for at least exceed 3 seats per
otherwise modify these qualification standards, as 1 year immediately organization;
it cannot disregard, evade, or weaken the force of a before the 2. No special
constitutional mandate, or alter or enlarge the election; residency
Constitution (Cordora v. COMELEC, G.R. No. 3. Elected personally, requirement;
176947, February 19, 2009; Social Justice Society v. by name; 3. Voted upon by
DDB and PDEA, G.R Nos. 157870, 158633, 161658, 4. Does not lose seat party or
November 3, 2008). if he/she changes organization. It is
party or affiliation; only when a party
Q: What is the rule on voluntary renunciation of 5. In case of vacancy, is entitled to
office for any length of time? a special election representation
may be held that it designates
A: It shall not be considered as an interruption in provided that the who will sit as
the continuity of his service for the full term for vacancy takes representative;
which he was elected (Secs. 4 and 7, Article VI). place at least 1 4. If he/she changes
year before the party or affiliation,
Q: What is the composition of the HoR? next election; loses his seat, in
6. A district which case he/she
representative is will be substituted
not prevented by another
from running again qualified person in
as a district the party
representative if /organization
he/she lost during based on the list
the previous submitted to the
election; and COMELEC;
7. A change in 5. In case of vacancy,
affiliation within a substitution will
months prior to be made within the
election does not party, based on the
prevent a district list submitted to
representative the COMELEC;
from running 6. A party-list
under his new representative
party. cannot sit if he ran
and lost in the
previous election;
and
7. A change in
affiliation within 6
months prior to
20
POLITICAL LAW TEAM
LAW ON PUBLIC OFFICERS
election prohibits same or nearly the same political

the party-list constituency so much so that their votes
representatives will constitute the popular majority.
from listing as b. Progressive – It must respond to the
representative change in times. The number of House
under his new party representatives must not be so big as to
or organization. be unwieldy. (Let us say, there is a growth
in population. The ratio may then be
increased. From 250,000 constituents/1
representative it may be reapportioned to
300, 000 constituents/1 representative).
2. Each city with a population of at least

250,000 or each province shall at least
have one representative.
Note: GR: There must be proportional

representation according to the number of
their constituents/inhabitants
XPN: In one city-one representative/one

province-one representative rule.
Q: Who are district representatives?
3. Legislative districts shall be re-
A: District representatives are those who were apportioned by Congress within 3 years
elected from legislative districts apportioned after the return of each census (Senator
among the provinces, cities and the Metropolitan Aquino III v. COMELEC, G.R. No. 189793,
Manila area. April7, 2010.
Q: How are legislative districts apportioned? Q: What is the reason for such rule?
A: Legislative districts are apportioned among the A: The underlying principle behind the rule for
provinces, cities, and the Metropolitan Manila area. apportionment is the concept of equality of
They are apportioned in accordance with the representation which is a basic principle of
number of their respect inhabitants and on the republicanism. One man’s vote should carry as
basis of a uniform and progressive ratio. (Sec. 5, Art. much weight as the vote of every other man.
VI, 1987Constitution)
Note: Section 5 provides that the House shall be
Each city with a population of at least 250,000 shall composed of not more than 250 members unless
have at least one representative. Each province otherwise provided by law. Thus, Congress itself may
shall have at least one representative. by law increase the composition of the HR. (Tobias v.
Abalos, G.R. No. L-114783, December 8, 1994)
Note: The question of the validity of an apportionment
law is a justiciable question. (Macias v. Comelec,G.R. As such, when one of the municipalities of a
No. L-18684, September 14, 1961) congressional district is converted to a city large
enough to entitle it to one legislative district, the
Q: What are the conditions for apportionment? incidental effect is the splitting of district into two. The
incidental arising of a new district in this manner need
not be preceded by a census. (Tobias v. Abalos, G.R.
A:
No. L-114783, December 8, 1994)
1. Elected from legislative districts which are
apportioned in accordance with the
number of inhabitants of each area and
on the basis of a uniform and progressive
ratio:
a. Uniform – Every representative of

Congress shall represent a territorial unit
with more or less 250,000 population. All
the other representatives shall have the
21
Q: How should the reapportionment be made? a majority of the cities and provinces
comprising the region.
A: Reapportionment can be made thru a special 4. Sectoral party – organized group of
law. (Mariano, Jr. vs. COMELEC, G.R. No. 118577, citizens belonging to any of the following
March 7, 1995) sectors: labor, peasant, fisherfolk, urban
poor, indigenous, cultural communities,
Q: What is Gerrymandering? Is it allowed? elderly, handicapped, women, youth,
veterans, overseas workers and
A: Gerrymandering is the formation of one professionals, whose principal advocacy
legislative district out of separate territories for the pertains to the special interest and
purpose of favoring a candidate or a party. It is not concerns of their sectors.
allowed because the Constitution provides that 5. Sectoral Organization – refers to a group
each district shall comprise, as far as practicable, of citizens who share similar physical
contiguous, compact and adjacent territory (Bernas, attributes or characteristics, employment,
Reviewer in Philippine Constitution, p. 186) interest or concerns.
6. Coalition – refers to an aggregation of
Q: Discuss the Party-List System. duly registered national, regional, sectoral
parties or organizations for political
A: Party-list representatives shall constitute 20% of and/or election purposes.
the total number of representatives in the House of
Representatives. (Sec. 5, Par. 2, Art. VI, 1987 Q: If one were to analyze the Constitutional and
Constitution) statutory examples of qualified parties, it should
be evident that they represent what classes?
Party-list system is a mechanism of proportional
representation in the election of representatives to A:
the HoR from national, regional and sectoral parties
or organizations or coalitions thereof registered Broad *Narrow Specifically Defined
with the COMELEC. Definition Definition Groups
Carpenters, security
A free and open party system shall be allowed to guards, microchip
evolve according to the free choice of the people. Working
Labor factory workers,
Class
(Sec. 2, Par. 5, Art. IX-C, 1987 Constitution) Political barbers, tricycle
parties registered under the party-list system shall drivers
be entitled to appoint poll watchers in accordance Informal settlers, the
with law. (Sec. 8, Art. IX-C) Economically Urban jobless, persons
Deprived Poor displaced by domestic
Q: Discuss the different parties under the party-list wars
system Working women,
The
Women battered women,
A: No votes cast in favor of political party, Vulnerable
victims of slavery
organization or coalition shall be valid except for Deaf and dumb, the
those registered under the party-list system. blind, people on
wheelchairs(Separate
1. Political party – organized group of Work Handi- Opinion of Justice
citizens advocating ideology or platform, Impaired Capped Abad, AngLadlad LGBT
principles and policies for the general Party v. COMELEC,
conduct of government and which, as the G.R. No. 190582, April
most immediate means of securing their 8, 2010)
adoption, regularly nominates and
supports certain of its leaders and Note: Obviously, the level of representation desired by
members as candidate in public office. both the Constitution and R.A. 7941 for the party-list
(Bayan Muna v. COMELEC, G.R. No. system is the second, the narrow definition of the
147612, June 28, 2001) sector that the law regards as "marginalized and
2. National party – its constituency is spread underrepresented." The implication of this is that, if
over the geographical territory of at least any of the sub-groupings (the carpenters, the security
a majority of regions. guards, the microchips factory workers, the barbers,
3. Regional party – its constituency is spread the tricycle drivers in the example) within the sector
over the geographical territory of at least desires to apply for accreditation as a party-list group,
it must compete with other sub-groups for the seat
22
POLITICAL LAW TEAM
allotted to the "labor sector" in the House of 2. Failure to obtain at least 10% of the votes
Representatives. This is the apparent intent of the casts in the constituency where the party
Constitution and the law.(Separate Opinion of Justice fielded candidates.(AngBagongBayani-
Abad, AngLadlad LGBT Party v. COMELEC, G.R. No. OFW Labor Party, v. COMELEC, G.R. No.
190582, April 8, 2010) 147589, June25, 2003)
Q: What groups are disqualified for registration? Q: Can major political parties participate in the
party-list elections?
A:
1. Religious denominations or sects. A: No. It is not open to all but only to the
2. Those who seek to achieve their goals marginalized and the underrepresented. Allowing
through violence or unlawful means. all individuals and groups, including those which
3. Those who refuse to uphold and adhere now dominate district elections, to have the same
to the Constitution; and opportunity to participate in the party-list elections
4. Those supported by foreign governments would desecrate this lofty objective and mongrelize
(AngBagongBayani-OFW Labor Party, v. the social justice mechanism into an atrocious
COMELEC, G.R. No. 147589, June25, 2003) veneer for traditional politics. (AngBagongBayani-
OFW Labor Party v. COMELEC, G.R. No. 147589,
Q: In sum, what are the requirements for a group June26, 2001)
to qualify for sectoral party accreditation?
Q: Who shall be voted?
A:
1. The applying party must show that it A: The registered national, regional or sectoral
represents the "marginalized and party-list groups or organizations and not their
underrepresented," exemplified by the candidates.
working class, the service class, the
economically deprived, the social Q: Who are elected into office?
outcasts, the vulnerable, the work
impaired, or some such similar class of A: It is the party-list representatives who are
persons. elected into office, not their parties or
2. The applying party should be organizations. These representatives are elected,
characterized by a shared advocacy for however, through that peculiar party-list system
genuine issues affecting basic human that the Constitution authorized and that Congress
rights as these apply to the sector it by law established where the voters cast their votes
represents. for the organizations or parties to which such party-
3. The applying party must share the cause list representatives belong. (Abayon v. HRET, G.R.
of their sector, narrowly defined as shown No. 189466, February 11, 2010)
above. If such party is a sub-group within
that sector, it must compete with other Q: What are the qualifications of party-list
sub-groups for the seat allocated to their nominees?
sector.
4. The members of the party seeking A:
accreditation must have an inherent 1. Natural- born citizen of the Philippines;
regional or national presence. 2. Registered voter;
5. Except for matters the COMELEC can take 3. Resident of the Philippines for at least 1
judicial notice of, the party applying for year immediately preceding the day of
accreditation must prove its claims by the election;
clear and convincing evidence.(Separate 4. Able to read and write;
Opinion of Justice Abad, AngLadlad LGBT 5. Bona fide member of the party or
Party v. COMELEC, G.R. No. 190582, April organization which he seeks to represent
8, 2010) at least 90 days preceding election day;
6. At least 25 years of age. (not more than
Q: What are the grounds for the cancellation of 30 years old for nominees for youth
registration? sector)
A: Note: There is absolutely nothing in R.A. 7941 that

1. Accepting financial contributions from prohibits COMELEC from disclosing or even publishing
foreign governments or agencies; and through mediums other than the “Certified List” the
names of the party-list nominees. As may be noted, no
23
national security or like concerns is involved in the

disclosure of the names of the party-list groups in
question (Bantay RA 7941 v. COMELEC, G.R. No.
177271; G.R. No. 177314, May 4, 2007)
Q: What is the effect of change of affiliation of any

party-list representative?
A: Any elected party-list representative who

changes his political party or sectoral affiliation This formula allows for the corresponding increase
during his term of office shall forfeit his seat; in the number of seats available for party-list
provided that if he changes his political party or representatives whenever a legislative district is
sectoral affiliation within 6 months before an created by law.
election, he shall not be eligible for nomination as
party-list representative under his new party or After prescribing the ratio of the number of party-
organization (Amores v. HRET, G.R. No. 189600, list representatives to the total number of
June29, 2010). representatives, the Constitution left the manner of
allocating the seats available to party-list
Note: In case of vacancy in the seat reserved for party- representatives to the wisdom of the legislature.
list representatives, the vacancy shall be automatically (BANAT v. COMELEC, G.R. No. 179271, April21,
filled by the next representative from the list of 2009)
nominees in the order submitted to the COMELEC by
the same party, organization or coalition, who shall Q: How shall the party-list representative seats be
serve for the unexpired term. If the list is exhausted, allocated?
the party, organization or coalition concerned shall
submit additional nominees.
A: In determining the allocation of seats for party-
list representatives under Section 11 of R.A. No.
Q: Does the Constitution preclude Congress from
7941, the following procedure shall be observed:
increasing its membership?
1. The parties, organizations, and coalitions
A: No. The Constitution does not preclude Congress
shall be ranked from the highest to the
from increasing its membership by passing a law,
lowest based on the number of votes they
other than a general re-apportionment law. Thus, a
garnered during the elections.
law converting a municipality into a highly
2. The parties, organizations, and coalitions
urbanized city automatically creates a new
receiving at least 2% of the total votes
legislative district, and consequently increases the
cast for the party-list system shall be
membership of the HoR(Mariano v. COMELEC, G.R
entitled to one guaranteed seat each.
No. 118577, March 7, 1995).
3. Those garnering sufficient number of
votes, according to the ranking in
Q: What is the formula mandated by the
paragraph 1, shall be entitled to
Constitution in determining the number of party-
additional seats in proportion to their
list representatives?
total number of votes until all the
additional seats are allocated.
A: The House of Representatives shall be composed
4. Each party, organization, or coalition shall
of not more than 250 members, unless otherwise
be entitled to not more than 3 seats.
fixed by law. (Sec. 5, Par. 1, Article VI, 1987
Constitution). Note: In computing the additional seats, the
guaranteed seats shall no longer be included because
The number of seats available to party-list they have already been allocated, at one seat each, to
representatives is based on the ratio of party-list every two percent. Thus, the remaining available seats
representatives to the total number of for allocation as “additional seats” are the maximum
representatives. Accordingly, we compute the seats reserved under the party-list system less the
number of seats available to party-list guaranteed seats. Fractional seats are disregarded in
representatives from the number of legislative the absence of a provision in R.A. 7941 allowing for a
districts. rounding off of fractional seats.(BANAT v. COMELEC,
G.R. No. 179271, April21, 2009)
Q: Is the continued operation of the two percent

threshold prescribed in Section 11 (b) R.A. 7941
24
POLITICAL LAW TEAM
with respect to the allocation of additional seats Congress is “in session” with respect to offenses
valid? punishable by up to 6 years of imprisonment.
A: No. The Court therefore strikes down the two Q: What is the purpose of parliamentary
percent threshold only in relation to the immunities?
distribution of the additional seats as found in the
second clause of Section 11 (b) of RA 7941. The two A: It is not for the benefit of the officials; rather, it is
percent threshold presents an unwarranted to protect and support the rights of the people by
obstacle to the full implementation of Section 5(2), ensuring that their representatives are doing their
Article VI of the Constitution and prevents the jobs according to the dictates of their conscience. It
attainment of the “broadest possible is indispensable no matter how powerful the
representation of party, sectoral or group interests offended party is.
in the House of Representatives”. (BANAT v.
COMELEC, G.R. No. 179271, April21, 2009) Q: May a congressman who committed an offense
punishable for not more than 6 years, but is not
Q: Is the Philippine Mines Safety Environment attending session, be arrested?
Association v. COMELEC ruling, also known as the
Minero Ruling, providing that a party-list A: No. So long as he is an incumbent congressman,
organization that does not participate in an and so long as Congress is in session, whether or
election necessarily gets, by default, less than 2% not he is attending it, he shall be immune from
of the party-list votes a valid application of R.A. arrest. (People v. Jalosjos, G.R. Nos. 132875-76, Feb.
7941? 3, 2000).
A: No. The Minero Ruling is an erroneous Q: Can a senator-lawyer be disbarred or

application of Section 6(8) of R.A. 7941 [also known disciplined by the Supreme Court for statements
as the Party-List System Act]; hence it cannot made during a privilege speech?
sustain PGBI’s delisting from the roster of
registered national, regional or sectoral parties, A: No. Indeed, the senator-lawyer’s privilege
organizations or coalitions under the party-list speech is not actionable criminally or in a
system. disciplinary proceeding under the Rules of Court.
The Court, however, would be remiss in its duty if it
Its basic defect lies in its characterization of the let the Senator’s offensive and disrespectful
non-participation of a party-list organization in an language that definitely tended to denigrate the
election as similar to a failure to garner the 2% institution pass by. It is imperative on the Court’s
threshold party-list vote. What Minero effectively part to re-instill in Senator/Atty. Santiago her duty
holds is that a party list organization that does not to respect courts of justice, especially this Tribunal,
participate in an election necessarily gets, by and remind her anew that parliamentary non-
default, less than 2% of the party-list votes. To be accountability thus granted to members of
sure, this is a confused interpretation of the law, Congress is not to protect them against
given the law’s clear and categorical language and prosecutions for their own benefit, but to enable
the legislative intent to treat the two scenarios them, as the people’s representatives, to perform
differently. Minero did unnecessary violence to the the functions of their office without fear of being
language of the law, the intent of the legislature, made responsible before the courts or other forums
and to the rule of law in general. outside the congressional hall. It is intended to
protect members of congress against government
Clearly, the Court cannot allow PGBI to be pressure and intimidation aimed at influencing the
prejudiced by the continuing validity of an decision-making prerogatives of Congress and its
erroneous ruling. Thus, the Court now abandons members. (Pobre v. Sen. Defensor-Santiago, A.C.
Minero and strikes it out from our ruling case law. No. 7399, Aug. 25, 2009)
(Philippine Guardians Brotherhood, Inc. [PGBI] v.
COMELEC, G.R. no. 190529, April 29, 2010) Q: Is Congress considered in session during a
recess?
C.LEGISLATIVE PRIVILEGES, INHIBITIONS
AND DISQUALIFICATIONS A: No. It is not in session. During a recess, a
congressman who has committed an offense
Q: What is immunity from arrest? punishable by not more than 6 years imprisonment
may be arrested.
A: Legislators are privileged from arrest while
25
Q: Is there immunity from searches? Q: What does speech or debate encompass?
A: No. The Constitution provides only a privilege A: It includes a vote or passage of a resolution, all
from arrest in order to ensure the attendance of the utterances made by Congressmen in the
Congressmen. performance of their functions such as speeches
delivered, statements made, or votes casts in the
Q: What is legislative privilege? halls of Congress. It also includes bills introduced in
Congress (whether or not it is in session) and all the
A: No member shall be questioned or held liable in other utterances (made outside or inside the
any forum other than his/her respective premises of Congress) provided they are made in
Congressional body for any debate or speech in accordance with a legislative function. (Jimenez v.
Congress or in any committee thereof. (Sec. 11, Cabangbang, G.R. No. L-15905, Aug. 3, 1966)
Article VI; Pobre v. Sen. Santiago, A.C.No, 7399,
Aug. 25, 2009) Note: The purpose of the privilege is to insure the
effective discharge of functions of Congress. The
Q: What are the limitations on legislative privilege may be abused but it is said that such is not
privilege? so damaging or detrimental as compared to the denial
or withdrawal of such privilege.
A:
1. Protection is only against forum other than Q: Does publication fall under the scope of
Congress itself. Thus, for defamatory speech?
remarks, which are otherwise privileged, a
member may be sanctioned by either the A: No, not all the time. The same shall be made
Senate or the House as the case may be. while Congress is in session and not during its
recess. However, if publication is made when
2. The “speech or debate” must be made in Congress is not in session, it is not privileged
performance of their duties as members of because Congressman is said to be not acting as
Congress. congressman. (Jimenez, v. Cabangbang, G.R. No. L-
15905, Aug. 3, 1966)
Q: Can the Sandiganbayan order the preventive
suspension of a Member of the HoR being Q: What are the prohibitions attached to a
prosecuted criminally for the violation of the Anti- legislator during his term?
Graft and Corrupt Practices Act?
A:
A: Yes. In Paredes, Jr. v. Sandiganbayan, the Court 1. Incompatible office – “No senator or
held that the accused cannot validly argue that only member of the House of Representatives
his peers in the House of Representatives can may hold any other office or employment
suspend him because the court-ordered suspension in the Government, or any subdivision,
is a preventive measure that is different and distinct agency, or instrumentality thereof,
from the suspension ordered by his peers for including government owned and
disorderly behaviour which is a penalty. (Paredes, controlled corporations or their
Jr. v. Sandiganbayan, G.R. No, 118354, Aug. 8, subsidiaries during his term without
1995) forfeiting his seat” (Sec. 13, Art.VI)
Q: What are the two (2) requirements for the Note: Forfeiture of the seat in Congress shall
privilege of Speech and Debate to operate? be automatic upon the member’s
assumption of such other office deemed
incompatible with his seat in Congress.
A:
However, no forfeiture shall take place if the
1. That the remarks must be made while the member of Congress holds the other
legislature or the legislative committee is government office in an ex-officio capacity.
functioning, that is in session;
2. That they must be made in connection with 2. Forbidden office – Neither shall a senator
the discharge of official duties. or a member of the House of
Representatives be appointed to any
Note: To invoke the privilege of speech, the matter office which may have been created or
must be oral and must be proven to be indeed the emoluments thereof increased during
privileged.
the term for which he was elected. (Sec.
13, Art. VI)
26
POLITICAL LAW TEAM
GOCCs or their
Note: With this, even if the member of the subsidiaries. (Sec. 13,
Congress is willing to forfeit his seat therein, Art.VI)
he may not be appointed to any office in the
government that has been created or the
emoluments thereof have been increased If the office was created
during his term. Such a position is forbidden or the emoluments
office. The purpose is to prevent trafficking Legislators cannot be
thereof increased during
in public office. appointed to any
the term for which he
office.(Sec. 13, Art.VI)
was elected. (Sec. 13,
The provision does not apply to elective Art.VI)
offices.
Legislators cannot
The appointment of the member of the
personally appear as
Congress to the forbidden office is not counsel before any
allowed only during the term for which he court of justice,
During his term of office.
was elected, when such office was created electoral tribunal,
or its emoluments were increased. After quasi-judicial and
such term, and even if the legislator is re- administrative bodies.
elected, the disqualification no longer (Sec. 14, Art.VI)
applies and he may therefore be appointed Legislators cannot be
to the office. financially interested
directly or indirectly in
Q. What is the rule on increase in salaries? any contract with or in
any franchise, or
A. No, increase in the salaries shall take effect until special privilege
after the expiration of the FULL TERM of all the granted by the During his term of office.
members of the Senate and the House of Government, or any
Representatives approving such increase. subdivision agency or
instrumentality
Q: What are the particular inhibitions attached to thereof, including the
their office? GOCC or its subsidiary.
(Sec. 14, Art.VI)
A: Legislators cannot When it is for his
1. Senators and Representatives are intervene in any pecuniary benefit or
prohibited from “Personally” appearing as matter before any where he may be called
counsel before any court of justice or office of the upon to act on account of
before the Electoral Tribunals, or quasi- Gov’t.(Sec. 14, Art.VI) his office.
judicial or other administrative bodies.
(Sec. 14, Art. VI) Q: Are legislators required to disclose their assets
2. Upon assumption of office, must make a and liabilities?
full disclosure of financial and business
interests. Shall notify the House A: Yes. All members of the Senate and HoR shall
concerned of a potential conflict in upon assumption of office and as often thereafter
interest that may arise from the filing of a as may be required by law, submit a declaration
proposed legislation of which they are under oath of his assets, liabilities and net worth.
authors. (Sec. 12, Art. VI) (Sec. 12, Art. VI)
Q: What are the disqualifications attached to their D. QUORUM AND VOTING MAJORITIES
office and when are they applicable?
Q: What is a quorum?
A:
A: A quorum is such number which enables a body
DISQUALIFICATION APPLICABLE WHEN to transact its business. It is such number which
Cannot hold any other makes a lawful body and gives such body the power
office or employment to pass a law or ordinance or any valid act that is
During his term. If he
in the Gov’t or any binding.
does so, he forfeits his
subdivision, agency or
seat.(Sec. 13, Art.VI)
instrumentality
thereof, including
27
Alternative Answer: A:
Quorum is based on the proportion between those Separate Joint

physically present and the total membership of the 1. Choosing the
body. President in case of
a tie(Sec. 4, Art.VII)
Note: In computing quorum, members who are 1. When revoking
2. Determining
outside the country and thus outside of each House’s or extending the
President’s disability
jurisdiction are not included.The basis for determining proclamation
(Sec. 11, Art.VII)
the existence of a quorum in the Senate shall be the suspending the
3. Confirming
total number of Senators who are within the coercive privilege of writ
nomination of Vice-
jurisdiction of the Senate (Avelino v. Cuenco, G.R. No. of habeas corpus
President (Sec. 9,
L-2821, March 4, 1949). (Sec. 18, Art.
Art.VI)
VII)
4. Declaring the
Q: What is the effect if there is no quorum? 2. When revoking
existence of a state
or extending the
of war in joint
A: In the absence of quorum, each House may declaration of
session (Sec. 23,
adjourn from day to day and may compel the martial law (Sec.
Art.VI)
attendance of absent members in such manner and 18, Art.VII).
5. Proposing
under such penalties as each House may provide.
Constitutional
Note: The members of the Congress cannot compel
amendments (Sec.
absent members to attend sessions if the reason of 1, Art.XVII)
absence is a legitimate one. The confinement of a
Congressman charged with a non-bailable offense Q: What are the instances when Congress votes
(more than 6 years) is certainly authorized by law and other than majority?
has constitutional foundations (People v. Jalosjos, G.R.
No. 132875-76, February 3, 2000) A:
Q: What does majority vote mean? INSTANCES WHEN NUMBER OF VOTES

CONGRESS VOTES REQUIRED
A: Majority refers to more than half of the total or 1. To suspend or expel a
aggregate. Although the Constitution provides that member in accordance 2/3 of all its members
the Speaker and the Senate President shall be with its rules and (Sec. 16,Par. 3,Art.VI)
elected by a majority of all members, the proceedings
Constitution does not provide that those who will 1/5 of the members
not vote for the winner (by majority vote) are ipso 2. To enter the Yeas and
present (Sec. 16, Par.
facto the minority who can elect the minority nays in the Journal
4,Art. VI)
leader. Majority votes pertain only to such number 2/3 of both houses in
or quantity as may be required to elect an aspirant 3. To declare the
joint session voting
as such. There is no indication that by such election, existence of a state of
separately (Sec. 23, Art.
the houses are already divided into the majority war
VI)
camp and the minority camp. 2/3 of the Members of
the House where it
Majority vote refers to the political party with the 4. To re-pass a bill after
originated followed by
most number of backings; refer to the party, faction Presidential veto
2/3 of the Members of
or organization with the most number of votes but the other House
not necessarily more than one half (plurality). 5. To determine the
(Santiago v. Guingona, G.R. No. 134577, Nov. 18, President’s disability 2/3 of both Houses
1998) after submissions by voting separately (Sec.
both the Cabinet and the 11, Art.VII)
Q: What are the instances when Congress is voting President
separately and voting jointly?
Q: Can the courts intervene in the implementation
of the internal rules of Congress?
A: No. As part of their inherent power, Congress

can determine their own rules. Hence, the courts
cannot intervene in the implementation of these
28
POLITICAL LAW TEAM
rules insofar as they affect the members of A: A mandatory recess is prescribed for the 30-day
Congress (Osmeña v. Pendatun, G.R. No L-17144, period before the opening of the next regular
Oct. 28, 1960) session, excluding Saturdays, Sundays and legal
holidays. This is the minimum period of recess and
Q: Who are the elected officers of Congress? may be lengthened by the Congress in its
discretion. It may however, be called in special
A: session at any time by the President. (Sec. 15, Art.
1. Senate President VI)
2. Speaker of the House
3. Such officers as deemed by each house to be Q: What is the rule on adjournment?
necessary
A: Neither House during the sessions of the
Q: How is election of officers done? Congress shall, without the consent of the other,
adjourn for more than 3 days, nor to any other
A: By a majority vote of all respective members place than that in which the two Houses shall be
(Sec.16,Par. 1, Art. VI). sitting. (Sec. 16, Par. 5,Art. VI)
Q: When is the regular session of Congress? Q: What is adjournment sine die?

th
A: Congress convenes once every year on the 4 A: Interval between the session of one Congress
Monday of July, unless otherwise provided for by and that of another.
law. It continues in session for as long as it sees fit,
until 30 days before the opening of the next regular
session, excluding Saturdays, Sundays, and legal E.DISCIPLINE OF MEMBERS
holidays. (Sec. 15, Art. VI)
Q: May each house of congress punish its
Q: What are the instances when there are special members for disorderly behavior?
sessions?
A: Yes. Each house may punish its members for
A: disorderly behavior and, with concurrence of 2/3 of
1. Due to vacancies in the offices of the all its members, suspend, for not more than 60
President and Vice President at 10 o’clock days, or expel a member. (Sec. 16, Par. 3, Art. VI).
a.m. on the third day after the vacancies;
(Sec. 10,Art.VI) Q: What is contemplated by “disorderly
2. To decide on the disability of the behavior?”
President because a majority of all the
members of the cabinet have “disputed” A: The interpretation of the phrase disorderly
his assertion that he is able to discharge behavior is the prerogative of the House concerned
the powers and duties of his office; (Sec. and cannot be judicially reviewed (Osmeña v.
11,Art.VII) Pendatun, G.R. No. L-17144, Oct.28, 1960).
3. To revoke or extend the Presidential
Proclamation of Martial Law or Note: Members of Congress may also be suspended by
suspension of the privilege of the writ of the Sandiganbayan or by the Office of the
habeas corpus;(Sec. 18,Art. VII) Ombudsman. The suspension in the Constitution is
4. Called by the President at any time when different from the suspension prescribed in RA 3019,
Congress is not in session; (Sec. 15,Art. VI) Anti-Graft and Corrupt Practices Act. The latter is not a
5. To declare the existence of a state of war penalty but a preliminary preventive measure and is
in a joint session, by vote of 2/3rds of not imposed upon the petitioner for misbehaviour as a
both Houses; (Sec. 23, Par. 1, Art. VI) member of Congress. (Santiago v. Sandiganbayan, G.R.
6. When the Congress acts as the Board of No. 128055, April 18, 2001).
Canvassers for the Presidential and Vice-
Presidential elections; (Sec. 4, Art. VII)
7. During impeachment proceedings. (Sec. 3,
Par. 4 and 6, Art. XI)
Q: What is a Mandatory Recess?
29
F.ELECTORAL TRIBUNAL AND THE

COMMISSION ON APPOINTMENTS Q: Imelda ran for HoR. A disqualification case was
filed against her on account of her residence. The
case was not resolved before the election. Imelda
Q: What is the composition of the electoral
won the election. However, she was not
tribunal (ET)?
proclaimed. Imelda now questions the COMELEC’s
jurisdiction over the case. Does the COMELEC have
A:
jurisdiction over the case?
1. 3 Supreme Court Justices designated by
the Chief Justice;
A: Yes. HRET’s jurisdiction as the sole judge of all
2. 6 members of the Chamber concerned
contests relating to elections, etc. of members of
(Senate or HoR) chosen on the basis of
Congress begins only after a candidate has become
proportional representation from the
a member of the HoR. Since Imelda has not yet
political parties and parties registered
been proclaimed, she is not yet a member of the
under the party-list system (Sec. 17, Art.
HoR. Thus, COMELEC retains jurisdiction.
VI).
(Romualdez-Marcos v. COMELEC, G.R. No. 119976,
Note: The senior Justice in the Electoral Tribunal shall Sept. 18, 1995)
be its chairman.
Q: Does the HRET have authority to pass upon the
Q: What is the jurisdiction of the Electoral eligibilities of the nominees of the party-list
Tribunals? groups that won in the lower house of Congress?
A: Each electoral tribunal shall be the sole judge of A: Yes. By analogy with the cases of district
all contests relating to the election, returns, and representatives, once the party or organization of
qualifications of their respective members (Sec. 17, the party-list nominee has been proclaimed and the
Art. VI). This includes determining the validity or nominee has taken his oath and assumed office as
invalidity of a proclamation declaring a particular member of the HoR, the COMELEC’s jurisdiction
candidate as the winner. Each ET is also vested with over election contests relating to his qualifications
rule-making power (Lazatin v. HRET, G.R. No. L- ends and the HRET’s own jurisdiction begins.
84297, Dec. 8, 1988. (Abayon v. HRET, G.R. No. 189466, Feb. 11, 2010)
It is independent of the Houses of Congress and its Q: What are the valid grounds or just causes for
decisions may be reviewed by the Supreme Court termination of membership to the tribunal?
only upon showing of grave abuse of discretion.
A:
Q: What is an election contest? 1. Expiration of Congressional term of Office
2. Death or permanent disability
A: Where a defeated candidate challenges the 3. Resignation from the political party he
qualification and claims for himself the seat of the represents in the tribunal
proclaimed winner. In the absence of an election 4. Formal affiliation with another political party
contest, ET is without jurisdiction. 5. Removal from office for other valid reasons.
(Bondoc v. Pineda, G.R. No. 97710, Sept. 26,
Note:Once a winning candidate has been proclaimed, 1991)
taken his oath, and assumed office as a member of the
HoR, COMELEC’s jurisdiction over election contests Q: Can the ET meet when Congress is not in
relating to his election, returns, and qualification ends, session?
and the HRET’s own jurisdiction begins. The phrase
“election, returns, and qualifications” should be A: Yes. Unlike the Commission on Appointments,
interpreted in its totality as referring to all matters the ET shall meet in accordance with their rules,
affecting the validity of the contestee’s title. (Vinzons- regardless of whether Congress is in session or not.
Chato v. COMELEC, G.R. No. 172131, April 2, 2007)
Q: Is there an appeal from the ET’s decision?
Q: In the absence of election contest, what power
does each House have over its members? A: No. Sec.17 of Art. VI provides that the SET/HRET
is the sole judge of all contests. Hence, from its
A: The power of each House to expel its members decision, there is no appeal. Appeal is not a
or even to defer their oath taking until their constitutional but merely a statutory right.
qualifications are determined may still be exercised
even without an election contest.
30
POLITICAL LAW TEAM
Q: Is there any remedy from its decision?

A: CA shall confirm the appointments by the
A: Yes. A special civil action for certiorari under Rule President with respect to the following positions:
65 of the Rules of Court may be filed. This is based HAPCOO
on grave abuse of discretion amounting to lack or
excess of jurisdiction. This shall be filed before the 1. Heads of the Executive departments.
Supreme Court. (except if it is the Vice-President who is
appointed to the post)
Q: What is the composition of the Commission on 2. Ambassadors, other Public ministers or
Appointments (CA)? Consuls
3. Officers of the AFP from the rank of
A: colonel or naval captain
1. Senate President as ex-officio chairman 4. Other officers whose appointments are
2. 12 Senators vested in him by the Constitution (i.e.
3. 12 members of the HoR (Sec. 18, Art. VI) COMELEC members) (Bautista v. Salonga,
G.R. No. 86439, April 13, 1989)
Note: A political party must have at least 2 elected
senators for every seat in the Commission on Q: What are the rules on voting?
Appointments. Thus, where there are two or more
political parties represented in the Senate, a political A:
party/coalition with a single senator in the Senate 1. The CA shall rule by a majority vote of all
cannot constitutionally claim a seat in the Commission the members.
on Appointments. It is not mandatory to elect 12 2. The chairman shall only vote in case of
senators to the Commission; what the Constitution
tie.
requires is that there must be at least a majority of the
3. The CA shall act on all appointments
entire membership. (Guingona, Jr. v. Gonzales, G.R.
No. 106971, Oct. 20, 1992)
within 30 session days from their
submission to Congress (Sec. 18, Art. VI)
Q: How are the 12 Senators and 12
Representatives chosen? Q: What are the limitations on confirmation?
A: The members of the Commission shall be elected A:

by each House on the basis of proportional 1. Congress cannot by law prescribe that the
representation from the political party and party appointment of a person to an office
list. Accordingly, the sense of the Constitution is created by such law be subject to
that the membership in the Commission on confirmation by the CA.
Appointment must always reflect political 2. Appointments extended by the President
alignments in Congress and must therefore adjust to the above-mentioned positions while
to changes. It is understood that such changes in Congress is not in session shall only be
party affiliation must be permanent and not merely effective until disapproval by the CA or
temporary alliances (Daza v. Singson, G.R. No. until the next adjournment of Congress
86344, Dec. 21, 1989). Endorsement is not (Sarmiento III v. Mison, G.R. No. L-79974,
sufficient to get a seat in COA. Dec. 17, 1987).
Note: The provision of Sec. 18, Art. VI of the Q: What are the guidelines in the meetings of the
Constitution, on proportional representation is CA?
mandatory in character and does not leave any
discretion to the majority party in the Senate to A:
disobey or disregard the rule on proportional 1. Meetings are held either at the call of the
representation; otherwise, the party with a majority Chairman or a majority of all its members.
representation in the Senate or the HoR can by sheer 2. Since the CA is also an independent
force of numbers impose its will on the hapless constitutional body, its rules of procedure
minority. By requiring a proportional representation in are also outside the scope of
the CA, Sec. 18 in effect works as a check on the congressional powers as well as that of
majority party in the Senate and helps maintain the the judiciary. (Bondoc v. Pineda, G.R. No.
balance of power. No party can claim more than what 97710, Sept. 26, 1991)
it is entitled to under such rule (Guingona,Jr. v.
Gonzales, G.R. No. 105409, March1, 1993). Note: The ET and the CA shall be constituted within 30
days after the Senate and the HoR shall have been
Q: What is the jurisdiction of the CA?
31
organized with the election of the Senate President Note: All decrees which are not inconsistent with the
and the Speaker of the House. Constitution remain operative until they are amended
or repealed. (Guingona v. Carague, G.R. No. 94571,
G.POWERS OF CONGRESS April 22, 1991)
Q: When does a bill become a law?

1.LEGISLATIVE
A:
Q: What are the legislative powers of Congress? 1. Approved and signed by the President
2. Presidential veto overridden by 2/3 vote
A: of all members of both Houses
1. General plenary power (Sec. 1, Art. VI) 3. Failure of the President to veto the bill
2. Specific power of appropriation and to return it with his objections to the
3. Taxation and expropriation House where it originated, within 30 days
4. Legislative investigation after the date of receipt
5. Question hour 4. A bill calling a special election for
President and Vice-President under Sec.
Q: What is Legislative Power? 10. Art. VII becomes a law upon its
approval on the third reading and final
A: It is the power or competence of the legislative reading
to propose, enact, ordain, amend/alter, modify,
abrogate or repeal laws. It is vested in the Congress Q: When does a law takes effect?
which shall consist of a Senate and a House of
Representatives, except to the extent reserved to A: A law must be published as a condition for its
the people by the provision on initiative and effectivity and in accordance with Article 2 of the
referendum. Civil Code, it shall take effect fifteen days following
the completion of its publication in the Official
Q: What is the Doctrine of Shifting Majority? Gazette or in a newspaper of general circulation
unless it is otherwise provided. (G.R. No.L-63915,
A: For each House of Congress to pass a bill, only Dec. 29, 1986)
the votes of the majority of those present in the
session, there being a quorum, is required.
a) LEGISLATIVE INQUIRIES AND OVERSIGHT
Q: What are the Rules regarding the Passage of FUNCTIONS
Bills?
Q: What does Section 21, Article VI of the
A: Constitution provides?
1. No bill passed by either House shall become a
law unless it has passed three readings on A: The Senate or the House of Representatives or
separate days. any of its respective committees may conduct
2. Printed copies of the bill in its final form should inquiries in aid of legislation in accordance with its
be distributed to the Members 3 days before duly published rules of procedure. The rights of
its passage (except when the President persons appearing in, or affected by, such inquiries
certifies to the necessity of its immediate shall be respected.
enactment to meet a public calamity or
emergency) Q: What is the scope of subject matter of the
3. Upon the last reading of a bill, no amendment power to conduct inquiries in aid of legislation?
thereto shall be allowed.
4. The vote on the bill shall be taken immediately A: Indefinite. The field of legislation is very wide as
after the last reading of a bill. compared to that of the American Congress. And
5. The yeas and the nays shall be entered in the because of such, the field of inquiry is also very
Journal. broad. It may cover administrative inquiries, social,
economic, political problem (inquiries), discipline of
XPN: The certification of the President dispenses members, etc. Suffice it to say that it is co-extensive
with the reading on separate days and the printing with legislative power. (Arnault v. Nazareno, G.R.
of the bill in the final form before its final approval. No. L-3820, July 18, 1950)
(Tolentino v. Secretary of Fincance, G.R.No. 115455,
Oct. 30, 1995) Note: “In aid of legislation” does not mean that there
is pending legislation regarding the subject of the
32
POLITICAL LAW TEAM
inquiry. In fact, investigation may be needed for Securities Regulation Code for selling unregistered
purposes of proposing future legislation. foreign securities. This has led the Senate to
conduct investigation in aid of legislation. SCB
If the stated purpose of the investigation is to refused to attend the investigation proceedings on
determine the existence of violations of the law, the the ground that criminal and civil cases involving
investigation is no longer “in aid of legislation” but “in the same issues were pending in courts. Decide.
aid or prosecution.” This violates the principle of
separation of powers and is beyond the scope of
A: The mere filing of a criminal or an administrative
Congressional powers.
complaint before a court or a quasi-judicial body
should not automatically bar the conduct of
Q: What are the limitations on legislative
legislative investigation. Otherwise, it would be
investigation?
extremely easy to subvert any intended inquiry by
Congress through the convenient ploy of instituting
A:
a criminal or an administrative complaint. Surely,
1. Constitutional rights to counsel and
the exercise of sovereign legislative authority, of
against self-incrimination – even if the
which the power of legislative inquiry is an essential
investigation is not a criminal
component, cannot be made subordinate to a
investigation, the information divulge
criminal or an administrative investigation.
therein may be used in criminal
(Standard Chartered Bank v. Senate, G.R. No.
prosecution (Under Sec. 21, Art. VI, it is
167173, Dec. 27, 2007)
provided that the rights of 1987
Constitution, the persons appearing in or
Q: Distinguish the above-mentioned case from the
affected by such inquiries shall be
case of Bengzon v. Senate Blue Ribbon Committee.
respected).
2. The Rules of procedures to be followed in
A: It is true that in Bengzon, the Court declared that
such inquiries shall be published for the
the issue to be investigated was one over which
guidance of those who will be summoned.
jurisdiction had already been acquired by the
This must be strictly followed so that the
Sandiganbayan, and to allow the [Senate Blue
inquiries are confined only to the
Ribbon] Committee to investigate the matter would
legislative purpose. This is also to avoid
create the possibility of conflicting judgments; and
abuses.
that the inquiry into the same justiciable
3. The investigation must be in aid of
controversy would be an encroachment on the
legislation.
exclusive domain of judicial jurisdiction that had set
4. Congress may not summon the President
in much earlier.
as witness or investigate the latter in view
of the doctrine of separation of powers
To the extent that, in the case at bench, there are a
except in impeachment cases.
number of cases already pending in various courts
and administrative bodies involving the petitioners,
Note: It is the President’s prerogative to
divulge or not the information which he
relative to the alleged sale of unregistered foreign
deems confidential or prudent in the public securities, there is a resemblance between this case
interest. and Bengzon. However, the similarity ends there.
5. Congress may no longer punish the Central to the Court’s ruling in Bengzon -- that the
witness in contempt after its final Senate Blue Ribbon Committee was without any
adjournment. The basis of the power to constitutional mooring to conduct the legislative
impose such penalty is the right to self- investigation -- was the Court’s determination that
preservation. And such right is the intended inquiry was not in aid of legislation.
enforceable only during the existence of The Court found that the speech of Senator Enrile,
the legislature (Lopez v. Delos Reyes, G.R. which sought such investigation contained no
No. L-3436,Nov. 5, 1930). suggestion of any contemplated legislation; it
6. Congress may no longer inquire into the merely called upon the Senate to look into possible
same justiciable controversy already violations of Sec. 5, R.A. No. 3019. Thus, the Court
before the court (Bengzon v. Blue Ribbon held that the requested probe failed to comply with
Committee, G.R. No. 89914, Nov. 20, a fundamental requirement of Sec. 21, Article VI of
1991). the Constitution. (Standard Chartered Bank v.
Senate, G.R. No. 167173, Dec. 27, 2007)
Q: Senator Enrile accused the Vice Chairman of the
Standard Chartered Bank of violating the
33
Q: Does Congress have the power to cite persons Q: What is the power of oversight of Congress?
in contempt?
A: The power of oversight embraces all activities
A: Yes. Even if the Constitution only provides that undertaken by Congress to enhance its
Congress may punish its members for disorderly understanding of and influence over the
behavior or expel the same, it is not an exclusion of implementation of legislation it has enacted. It
power to hold other persons in contempt. concerns post-enactment measures undertaken by
Congress. (Concurring and Dissenting Opinion of
Note: Congress has the inherent power to punish Justice Puno,Macalintal v. COMELEC, G.R. No.
recalcitrant witnesses for contempt, and may have 157013, July 10, 2003)
them incarcerated until such time that they agree to
testify. The continuance of such incarceration only Q: What is the scope of the power of oversight?
subsists for the lifetime, or term, of such body. Thus,
each House lasts for only 3 years. But if one is A: To:
incarcerated by the Senate, it is indefinite because the 1. Monitor bureaucratic compliance with
Senate, with its staggered terms, is a continuing body.
program objectives
2. Determine whether agencies are properly
Q: Does the pardoning power of the President administered
apply to cases of legislative contempt? 3. Eliminate executive waste and dishonesty
4. Prevent executive usurpation of
A: No. It is a limitation on the President’s power to legislative authority
pardon by virtue of the doctrine of separation of 5. Assess executive conformity with the
powers. congressional perception of public
interest. (Concurring and Dissenting
Q: What is the so-called ‘question hour’? Opinion of Justice Puno, Macalintal v.
COMELEC, G.R. No. 157013, July 10, 2003)
A: The heads of departments may upon their own
initiative, with the consent of the President, or Q: What are the bases of oversight power of
upon the request of either House, as the rules of Congress?
each House shall provide, appear before and be
heard by such House on any matter pertaining to A: The power of oversight has been held to be:
their departments. Written questions shall be
submitted to the President of the Senate or the 1. Intrinsic in the grant of legislative power
Speaker of the HoR at least 3 days before their itself
scheduled appearance. Interpellations shall not be 2. Integral to the system of checks and
limited to written questions, but it may cover balances
matters related thereto. When the security of the 3. Inherent in a democratic system of
State or the public interest so requires and the government
President so states in writing, the appearance shall
be conducted in executive session (Sec. 22, Art.VI) Q: What are the categories of Congressional
Oversight Functions?
Q: Distinguish question hour from legislative
investigation. A: SIS
1. Scrutiny—implies a lesser intensity and continuity
A: of attention to administrative operations. Its
primary purpose is to determine economy and
LEGISLATIVE efficiency of the operation of government activities.
QUESTION HOUR
INVESTIGATION In the exercise of legislative scrutiny, Congress may
(SEC. 22, ART. VI,
(SEC. 21, ART. VI, request information and report from the other
1987 CONSTITUTION)
1987 CONSTITUTION) branches of government. It can give
As to persons who may appear recommendations or pass resolutions for
Only a department consideration of the agency involved. It is based
Any person
head primarily on the power of appropriation of
As to who conducts the investigation Congress. But legislative scrutiny does not end in
Entire body Committees budget hearings. Congress can ask the heads of
As to subject matter departments to appear before and be heard by
Matters related to the Any matter for the either the House of Congress on any matter
department only purpose of legislation pertaining to their department. Likewise, Congress
34
POLITICAL LAW TEAM
exercises legislative scrutiny thru its power of

confirmation to find out whether the nominee A: No. The phrase “duly published rules of
possesses the necessary qualifications, integrity and procedure” requires the Senate of every Congress
probity required of all public servants. to publish its rules of procedure governing inquiries
in aid of legislation because every Senate is distinct
2. Congressional Investigation—involves a more from the one before it or after it. (Garcillano v.
intense digging of facts. It is recognized under House of Representatives Committee on Public
Section 21, Article VI. Even in the absence of Information, G.R. No. 170338, Dec. 23, 2008)
constitutional mandate, it has been held to be an
essential and appropriate auxiliary to the legislative Q: Is the present (2008) Senate a continuing
functions. legislative body?
3. Legislative Supervision—it connotes a continuing A: The present Senate under the 1987 Constitution
and informed awareness on the part of is no longer a continuing legislative body. The
congressional committee regarding executive present Senate has 24 members, twelve of whom
operations in a given administrative area. It allows are elected every 3 years for a term of 6 years each.
Congress to scrutinize the exercise of delegated Thus, the term of 12 Senators expires every 3 years,
law-making authority, and permits Congress to leaving less than a majority of Senators to continue
retain part of that delegated authority. into the next Congress (Garcillano v. House of
Representatives Committee on Public Information,
Q: What is legislative veto? Is it allowed in the et al., G.R. No. 170338, Dec. 23, 2008).
Philippines?
Note: There is no debate that the Senate as an
A: Legislative veto is a statutory provision requiring institution is "continuing", as it is not dissolved as an
the President or an administrative agency to entity with each national election or change in the
present the proposed IRR of a law to Congress composition of its members. However, in the conduct
which, by itself or through a committee formed by of its day-to-day business the Senate of each Congress
it, retains a “right” or “power” to approve or acts separately and independently of the Senate of the
disapprove such regulations before they take effect. Congress before it.
As such, a legislative veto in the form of a
Undeniably, all pending matters and proceedings,
congressional oversight committee is in the form of
i.e.unpassed bills and even legislative investigations, of
an inward-turning delegation designed to attach a the Senate of a particular Congress are considered
congressional leash to an agency to which Congress terminated upon the expiration of that Congress and it
has by law initially delegated broad powers. It is merely optional on the Senate of the succeeding
radically changes the design or structure of the Congress to take up such unfinished matters, not in the
Constitution’s diagram of power as it entrusts to same status, but as if presented for the first time. The
Congress a direct role in enforcing, applying or logic and practicality of such a rule is readily apparent
implementing its own laws. Thus, legislative veto is considering that the Senate of the succeeding
not allowed in the Philippines. (ABAKADA Guro Congress (which will typically have a different
Party-list v. Purisima, G.R. No. 166715, Aug. 14, composition as that of the previous Congress) should
2008) not be bound by the acts and deliberations of the
Senate of which they had no part. (Neri v. Senate
Q: Can Congress exercise discretion to approve or Committee on Accountability of Public Officers and
disapprove an IRR based on a determination of Investigations, GR. No. 180643, Sept. 4, 2008)
whether or not it conformed to the law?
Q: What is its consequence?
A: No. In exercising discretion to approve or
disapprove the IRR based on a determination of A: The consequence is that the Rules of Procedure
whether or not it conformed to the law, Congress must be republished by the Senate after every
arrogated judicial power unto itself, a power expiry of the term of the 12 Senators (Garcillano v.
exclusively vested in the Supreme Court by the House of Representatives Committee on Public
Constitution. Hence, it violates the doctrine of Information, G.R. No. 170338, Dec. 23, 2008)
separation of powers. (ABAKADA Guro Party-list v.
Purisima, G.R. No. 166715, Aug. 14, 2008) Q: Is the publication of the rules in the Internet a
valid publication?
Q: May the Senate be allowed to continue the
conduct of a legislative inquiry without a duly A: The invocation of the Senators of the Provisions
published rules of procedure? of “The Electronic Commerce Act of 2000,” to
support their claim of valid publication through the
35
internet as all the more incorrect. The law merely unusual that the final version approved by one
recognizes the admissibility in evidence of House differs from what has been approved by the
electronic data messages and/or electronic other.
documents. It does not make the internet a
medium for publishing laws, rules and regulations. The “conference committee,” consisting of
(Garcillano v. House of Representatives Committee members nominated from both Houses, is an extra-
on Public Information, G.R. No. 170338, Dec. 23, constitutional creation of Congress whose function
2008) is to propose to Congress ways of reconciling
conflicting provisions found in the Senate version
Q: Is the publication of the internal rules of the and in the House version of a bill. (Concurring and
House or Senate required? Dissenting Opinion, J. Callejo, Sr., G.R. No. 168056,
Sept. 1, 2005)
A: The Constitution does not require publication of
the internal rules of the House or Senate. Since Q: Are the conferees limited to reconciling the
rules of the House or Senate that affect only their differences in the bill?
members are internal to the House or Senate, such
rules need not be published, unless such rules A: The conferees are not limited to reconciling the
expressly provide for their publication before the differences in the bill but may introduce new
rules can take effect. (Pimentel, Jr., et al v. Senate provisions germane to the subject matter or may
Committee of the Whole, G.R. No. 187713, March 8, report out an entirely new bill on the subject.
2011). (Tolentino v. Secretary of Finance, G.R.No, 115455,
Aug. 25, 1994)
Q: Is the publication of the Rules of the Senate
Committee of the Whole required for their Q: What is the scope of the powers of Bicameral
effectivity? Conference Committee?
A: In this particular case, the Rules of the Senate A:

Committee of the Whole itself provide that the 1. Adopt the bill entirely
Rules must be published before the Rules can take 2. Amend or Revise
effect. Thus, even if publication is not required 3. Reconcile the House and Senate Bills
under the Constitution, publication of the Rules of 4. Propose entirely new provisions not found
the Senate Committee of the Whole is required in either the Senate or House bills
because the Rules expressly mandate their
publication. xxx. To comply with due process b) LIMITATIONS ON LEGISLATIVE POWER
requirements, the Senate must follow its own
internal rules if the rights of its own members are Q: What is the so-called one bill-one subject rule?
affected. (Pimentel, Jr., et al v. Senate Committee of
the Whole, G.R. No. 187713, March 8, 2011) A: Every bill passed by the Congress shall embrace
only one subject. The subject shall be expressed in
a) THE BICAMERAL CONFERENCE the title of the bill. This rule is mandatory.
COMMITTEE
Note: The purposes of such rule are: (1) To prevent
Q: What is the purpose of the constitution of the hodgepodge or log-rolling legislation; (2) To prevent
Bicameral Conference Committee? surprise or fraud upon the legislature; and, (3) To fairly
apprise the people of the subjects of
legislation.(Central Capiz v. Ramirez, G.R. No. 16197,
A: A Conference Committee is constituted and is
March 12, 1920)
composed of Members from each House of
Congress to settle, reconcile or thresh out
Q: How many readings must a bill undergo before
differences or disagreements on any provision of
it may become a law?
the bill.
A: Each bill must pass 3 readings in both Houses. In
Q: If the version approved by the Senate is
other words, there must be a total of 6 readings.
different from that approved by the House of
Representatives, how are the differences
GR: Each reading shall be held on separate days
reconciled?
and printed copies thereof in its final form shall
be distributed to its Members, 3 days before its
A. In a bicameral system, bills are independently
passage.
processed by both Houses of Congress. It is not
36
POLITICAL LAW TEAM
XPN: If a bill is certified as urgent by the the House of Representatives. (Sec. 24,
President as to the necessity of its immediate Art. VI)
enactment to meet a public calamity or
emergency, the 3 readings can be held on the Note: During the First Reading only the title of the bill
same day. (Sec. 26, Art. VI) is read and it is passed to the proper committee. On
the Second Reading the entire text is read, debates
Q: What are the reasons for the “three readings on and amendments are held. Third Reading only the title
three separate days” rule? is read votes are taken immediately thereafter.
A: To : Q: What is an appropriation bill?

1. address the tendency of legislators, (on the
last day of the legislative year when A: It is a bill, the primary and specific aim of which
legislators are eager to go home) is to appropriate a sum of money from the public
2. rush bills through treasury.
3. insert alterations which would not
otherwise stand scrutiny in leisurely Q: What is a revenue bill?
debate.
A: A revenue bill is one specifically designed to raise
Q: What are the limitations of such power? money or revenue through imposition or levy.
A: Q: What is a bill of local application?

1. SUBSTANTIVE—
a. Express: A: It is one which is limited to specific localities,
i. Bill of Rights (Art.III, 1987 Constitution) such as for instance the creation of a town (Bernas
ii. On Appropriations (Secs. 25 and Commentary, p. 748, 2003). Hence, it is one
29pars. 1 and 2, Art.VI) involving purely local or municipal matters, like a
iii. On Taxation (Sections 28 and 29, charter of a city.
paragraph 3, Article VI)
iv. On Constitutional appellate jurisdiction Q: What are private bills, and how are they
of SC (Sec. 30, Art. VI) illustrated?
v. No law granting title of royalty or
nobility shall be passed (Sec.31, Art. VI) A: Those which affect private persons, such as for
vi. No specific funds shall be appropriated instance a bill granting citizenship to a specific
or paid for use or benefit of any foreigner (Bernas, 2003, p.748,).They are illustrated
religion, sect, etc., except for priests, by a bill granting honorary citizenship to a
etc., assigned to AFP, penal institutions, distinguished foreigner (Cruz, Philippine Political
etc. (Sec. 29, par. 2, Art.VI) Law, 1995, p. 155).
b. Implied:
i. Prohibition against irrepealable laws (i) LIMITATIONS ON REVENUE,
ii. Non-delegation of powers APPROPRIATION AND TARIFF MEASURES
2. PROCEDURAL— Q: What are the constitutional limitations on the

a. Only one subject, to be stated in the title legislative’s power to enact laws on revenue,
of the bill (Sec. 26, par. 1, Art.VI). appropriation and tariff measures?
b. Three (3) readings on separate days;
printed copies of the bill in its final form A:
distributed to members 3 days before its 1. All appropriation, revenue or tariff bills, bills
passage, except if President certifies to its authorizing increase of the public debt, bills of
immediate enactment to meet a public local application, and private bills, shall
calamity or emergency; upon its last originate exclusively in the House of
reading, no amendment allowed and the Representatives, but the Senate may propose
vote thereon taken immediately and the or concur with amendments. (Sec. 24, Art. VI)
yeas and nays entered into the Journal
(Sec.26, par. 2, Art. VI) Note: The initiative for filing of ART bills must
c. Appropriation bills, revenue bills, tariff come from the House, but it does not prohibit the
bills, bills authorizing the increase of filing in the Senate of a substitute bill in
public debt, bills of local application and anticipation of its receipt of the bill from the
private bills shall originate exclusively in House, so long as the action by the Senate is
withheld pending the receipt of the House
37
bill.(Tolentino v. Sec. of Finance, G.R. No. 115455, b. Senate President

Aug. 25, 1994). c. Speaker of the HoR
d. Chief Justice
2. The President shall have the power to veto any e. Heads of Constitutional
particular item or items in an appropriation, Commissions.
revenue, or tariff bill, but the veto shall not 6. Prohibitions against appropriations for
affect the item or items to which he does not sectarian benefit; and
object. (Sec.27, Art. VI) 7. Automatic re-appropriation – if, by the
end of any fiscal year, the Congress shall
Q: What are the implied limitations on have failed to pass the general
appropriation power? appropriations bill for the ensuing fiscal
year, the general appropriations law for
A: the preceding fiscal year shall be deemed
1. Must specify public purpose reenacted and shall remain in force and
2. Sum authorized for release must be effect until the general appropriations bill
determinate, or at least determinable. is passed by the Congress (Sec. 25,Par. 7,
(Guingona v. Carague, G.R. No. 94571, Art. VI).
April22, 1991)
Q: What is the power of appropriation?
Q: What are the constitutional limitations on
special appropriations measures? A: The spending power, called the “power of the
purse” belongs to Congress, subject only to the veto
A: power of the President. It carries with it the power
1. Must specify public purpose for which the to specify the project or activity to be funded under
sum was intended the appropriation law.
2. Must be supported by funds actually
available as certified by the National Q: What is an appropriation law?
Treasurer or to be raised by
corresponding revenue proposal included A: A statute, the primary and specific purpose of
therein. (Sec. 25 Par. 4, Art. VI, 1987 which is to authorize release of public funds from
Constitution) the treasury.
Q: What are the Constitutional rules on General Q: What is budget?

Appropriations Laws?
A: Financial program of the national government
A: for the designated calendar year, providing for the
1. Congress may not increase appropriations estimates of receipts of revenues and expenditures.
recommended by the President for the
operations of the government; Q: What are the classifications of appropriations?
2. Form, content and manner of preparation
of budget shall be provided by law; A:
3. No provision or enactment shall be 1. General appropriation law – passed
embraced in the bill unless it releases annually, intended for the financial
specifically to some particular operations of the entire government
appropriations therein; during one fiscal period;
4. Procedure from approving appropriations
for Congress shall be the same as that of 2. Special appropriation law – designed for a
other departments in order to prevent specific purpose
sub-rosa appropriations by Congress;
5. Prohibition against transfer of Q:The budget of a predominantly Muslim province
appropriations (doctrine of provides the Governor with a certain amount as
augmentation), however the following his discretionary funds. Recently, however, the
may, by law, be authorized to augment SangguniangPanlalawiganpassed a resolution
any item in the general appropriations appropriating P100,000 as a special discretionary
law for their respective offices from fund of the Governor, to be spent by him in
savings in other items of their respective leading a pilgrimage of his provincemates to
appropriations: Mecca, Saudi Arabia, Islam's holiest city.
a. President
38
POLITICAL LAW TEAM
Philconsa, on constitutional grounds, has filed suit A: No, because it is presumed that their needs have
to nullify the resolution of the already been identified while drafting the budget.
SangguniangPanlalawigan giving the special
discretionary fund to the Governor for the stated (ii) Presidential Veto and Congressional
purpose. How would you decide the case? Give Override
your reasons.
Q: What is the rule on presidential veto?
A: The resolution is unconstitutional.
1.) First, it violates Art. VI, Sec. 29(2) of the
A:
Constitution which prohibits the
GR: If the President disapproves a bill enacted
appropriation of public money or property,
by Congress, he should veto the entire bill. He
directly or indirectly, for the use, benefit or
is not allowed to veto separate items of a bill.
support of any system of religion;
2.) Second, it contravenes Art. VI, Sec. 25(6)
XPN: Item-veto is allowed in case of
which limits the appropriation of
Appropriation, Revenue, and Tariff bills(Sec.
discretionary funds only for public
27, Par. 2, Art. VI).
purposes.
XPNs to the XPN:
The use of discretionary funds for purely religious
purpose is unconstitutional, and the fact that the
1. Doctrine of inappropriate provisions
disbursement is made by resolution of a local
– a provision that is constitutionally
legislative body and not by Congress does not make
inappropriate for an appropriation
it any less offensive to the Constitution. Above all,
bill may be singled out for veto even
the resolution constitutes a clear violation of the
if it is not an appropriation or
Non-establishment Clause of the Constitution.
revenue item.(Gonzales v. Macaraig,
Jr., G.R. No. 87636, November 19,
Q: Who shall propose the budget?
1990)
A: The President shall propose the budget and
2. Executive impoundment – refusal of
submit it to Congress. It shall indicate the
the President to spend funds already
expenditures, sources of financing as well as
allocated by Congress for specific
receipts from previous revenues and proposed
purpose. It is the failure to spend or
revenue measures. It will serve as a guide for
obligate budget authority of any
Congress:
type. (Philconsa v. Enriquez, G.R. No.
113105, August 19, 1994)
1. In fixing the appropriations;
2. In determining the activities which should
be funded. (Sec. 22, Art. VII) Q: When is there a pocket veto?
Note: The proposed budget is not final. It is subject to A: It occurs when:

the approval of Congress but the President may 1. the President fails to act on a bill; and
exercise his or her veto power. Accordingly, the power 2. the reason he does not return the bill to
of the purse belongs to Congress, subject only to the the Congress is that Congress is not in
veto power of the President. The President may session.
propose the budget but still the final say on the matter
of appropriation is lodged in the Congress. (Philippine Note: Pocket veto is not applicable in the Philippines
Constitution Association v. Enriquez, G.R. No. 113105, because inaction by the President for 30 days never
Aug. 19, 1994) produces a veto even if Congress is in recess. The
President must still act to veto the bill and
Q: May Congress modify the budget proposed by communicate his veto to Congress without need of
the President? returning the vetoed bill with his veto message.
A: Yes. However, Congress may only reduce but not Q: When does the Constitution require that the
increase the budget. yeas and nays of the Members be taken every
time a House has to vote?
Q: May Congress increase its outlay for itself, the
Judiciary and other Constitutional bodies? A:
1. Upon the last and third readings of a bill
(Section 26, Par. 2, Article VI);
39
2. At the request of 1/5 of the members a) Election of officers

present (Section 16, Par. 4, Article VI); and b) Promulgate internal rules
3. In repassing a bill over the veto of the c) Disciplinary powers (Sec. 16, Art. VI)
President (Section 27, Par. 1, Article VI). 12. Informing Function
Q: What is a rider? Q: State the conditions under which, during a

period of national emergency, Congress may grant
A: A rider is a provision in a bill which does not emergency powers to the President is allowed.
relate to a particular appropriation stated in the
bill. Since it is an invalid provision under Sec. 25, A: Under Sec. 23[2], Article VI of the Constitution,
Par. 2, Art. VII, 1987 Constitution, the President may Congress may grant the President emergency
veto it as an item. powers subject to the following conditions:
1. There is a war or other national emergency
Q. How can Congress override a Presidential veto? 2. The grant of emergency powers must be for
A. If, after reconsideration 2/3 of all members of a limited period
such House agree to pass the bill, it shall be sent to 3. The grant of emergency powers is subject to
the other House by which it shall likewise be such restrictions as Congress may prescribe
reconsidered and if approved by 2/3 of all members 4. The emergency powers must be exercised to
of that House, it shall become law without need of carry out a national policy declared by
presidential approval. Congress
2.NON-LEGISLATIVE POWERS Q: What is the policy of the Philippines regarding

a) Informing function war?
A: The Philippines renounces war as an instrument

Q: What are the Non-legislative powers of
of national policy. (Sec. 2, Art. II)
Congress?
Q: What are the voting requirements to declare
A:
the existence of a state of war?
1. Power to declare the existence of state of
war (Sec. 2, Par. 1, Art. VI)
A:
2. Power to act as Board of Canvassers in
1. 2/3 of both Houses
election of President (Sec. 10, Art. VII)
2. In joint session
3. Power to call a special election for
3. Voting separately
President and Vice-President (Sec. 10, Art.
VII)
Note: Even though the legislature can declare
4. Power to judge President’s physical existence of war and enact measures to support it, the
fitness to discharge the functions of the actual power to engage war is lodged nonetheless in
Presidency (Sec. 11, Art. VII) the executive.
5. Power to revoke or extend suspension of
the privilege of the writ of habeas corpus Q: Discuss the Informing function of Congress.
or declaration of martial law (Sec. 18, Art.
VII) A: The informing function of the legislature includes
6. Power to concur in Presidential its function to conduct legislative inquiries and
amnesties. Concurrence of majority of all investigation and its oversight power.
the members of Congress (Sec. 19, Art.
VII) The power of Congress does not end with the
7. Power to concur in treaties or finished task of legislation. Concomitant with its
international agreements; concurrence of principal power to legislate is the auxiliary power to
at least 2/3 of all the members of the ensure that the laws it enacts are faithfully
Senate (Sec. 21, Art. VII) executed. As well stressed by one scholar, the
8. Power to confirm certain legislature “fixes the main lines of substantive
appointments/nominations made by the policy and is entitled to see that administrative
President (Secs. 9 and 16, Art. VII) policy is in harmony with it; it establishes the
9. Power of Impeachment (Sec. 2, Art. XI) volume and purpose of public expenditures and
10. Power relative to natural resources (Sec. ensures their legality and propriety; it must be
2, Art. XII) satisfied that internal administrative controls are
11. Power of internal organization (Sec. 16, operating to secure economy and efficiency; and it
Art. VI)
40
POLITICAL LAW TEAM
informs itself of the conditions of administration of 3. The President may not be prevented from
remedial measure.” instituting suit. (Soliven v. Makasiar, G.R.
No. 82585, Nov. 14, 1988)
The power of oversight has been held to be intrinsic 4. There is nothing in our laws that would
in the grant of legislative power itself and integral prevent the President from waiving the
to the checks and balances inherent in a democratic privilege. The President may shed the
system of government. Woodrow Wilson went one protection afforded by the privilege.
step farther and opined that the legislature’s (Soliven v. Makasiar, G.R. No. 82585, Nov.
informing function should be preferred to its 14, 1988)
legislative function. He emphasized that “[E]ven 5. Heads of departments cannot invoke the
more important than legislation is the instruction President’s immunity. (Gloria v. Court of
and guidance in political affairs which the people Appeals, G.R. No. 119903, Aug. 15, 2000)
might receive from a body which kept all national
concerns suffused in a broad daylight of B. (Rule on immunity after tenure)
discussion.” (Concurring and Dissenting Opinion of Once out of office, even before the end of the
Justice Puno, Macalintal v. COMELEC, G.R. No. 6-year term, immunity for non-official acts is
157013,July 10, 2003) lost. Such was the case of former President
Joseph Estrada. Immunity cannot be claimed
D. EXECUTIVE DEPARTMENT to shield a non-sitting President from
prosecution for alleged criminal acts done
Q: Who is the Chief Executive of the State? while sitting in office. (Estrada v. Desierto, G.R.
Nos. 146710-15, Mar. 2, 2001)
A: The President is the Head of State and the Chief
Executive. Q: Is a non-sitting President immune from suit for
acts committed during his tenure?
PRIVILEGES, INHIBITIONS AND
A: No, a non-sitting President does not enjoy
DISQUALIFICATIONS immunity from suit, even though the acts were
done during her tenure. The intent of the framers
a. IMMUNITY AND PRIVILEGES of the Constitution is clear that the immunity of the
president from suit is concurrent only with his
Q: What are the privileges of the President and tenure and not his term. Former President Arroyo
VP? cannot use the presidential immunity from suit to
A: shield herself from judicial scrutiny that would
assess whether, within the context
PRESIDENT VICE-PRESIDENT of amparo proceedings, she was responsible or
PRIVILEGES accountable for the abduction of Rodriguez. (In Re:
1. Salary shall not be Petition for the Writ of Amparo and Habeas Data in
1. Official residence; favor of Noriel H. Rodriguez; Noriel H. Rodriguez vs.
decreased during his
2. Salary is determined Gloria Macapagal-Arroyo, et al., G.R. Nos. 191805
tenure;
by law and not to be &193160. Nov. 15, 2011)
2. If appointed to a
decreased during his
Cabinet post, no
tenure (Sec. 6, Art. Q: What are the reasons for the President’s
need for Commission
VII); immunity from suit?
on Appointments’
3. Immunity from suit A:
confirmation (Sec. 3,
for official acts. 1. Separation of powers. The separation of
Art. VII).
powers principle is viewed as demanding
1. Executive Immunity the executive’s independence from the
judiciary, so that the President should not
be subject to the judiciary’s whim.
Q: What are the rules on executive immunity?
(Almonte v. Vasquez, G.R. No. 95367, May
A: A. (Rules on immunity during tenure)
23, 1995)
1. The President is immune from suit during
his tenure. (In re: Bermudez, G.R. No.
2. Public convenience. The grant is to assure
76180, Oct. 24, 1986)
the exercise of presidential duties and
2. An impeachment complaint may be filed
functions free from any hindrance or
against him during his tenure. (Art. XI)
distraction, considering that the
presidency is a job that, aside from
41
requiring all of the office-holders’ time, as the Commander-in-Chief of the Philippine

demands undivided attention. (Soliven v. military?
Makasiar, G.R. No. 82585, Nov. 14, 1988)
A: Yes.The President may be held accountable
Note: President's immunity from suit does under the principle of command responsibility. The
not extend to his alter egos. However, the President, being the commander-in-chief of all
said immunity extends beyond his term, so armed forces, necessarily possesses control over
long as the act, on which immunity is the military that qualifies him as a superior within
invoked, was done during his term. the purview of the command responsibility
doctrine.
Q: What is the principle of command
responsibility? On the issue of knowledge, it must be pointed out
that although international tribunals apply a strict
A: According to Fr. Bernas, “command standard of knowledge, i.e., actual knowledge, the
responsibility,” in its simplest terms, means the same may nonetheless be established through
“responsibility of commanders for crimes circumstantial evidence. In the Philippines, a more
committed by subordinate members of the armed liberal view is adopted and superiors may be
forces or other persons subject to their control in charged with constructive knowledge. Knowledge
international wars or domestic conflict.” of the commission of irregularities, crimes or
offenses is presumed when: (a) the acts are
It is “an omission mode of individual criminal widespread within the government official’s area of
liability,” whereby the superior is made responsible jurisdiction; (b) the acts have been repeatedly or
for crimes committed by his subordinates for failing regularly committed within his area of
to prevent or punish the perpetrators (as opposed responsibility; or (c) members of his immediate
to crimes he ordered).(Rubrico, et al. vs. GMA, et staff or office personnel are involved.
al., G.R. No. 183871, Feb. 18, 2010)
As to the issue of failure to prevent or punish, it is
Q: What are the elements of command important to note that as the commander-in-chief
responsibility? of the armed forces, the President has the power to
effectively command, control and discipline the
A: The elements are: military. (Rodriguez vs. GMA, et al., G.R. Nos.
(a) the existence of a superior-subordinate 191805 &193160, Nov. 15, 2011.)
relationship between the accused as
superior and the perpetrator of the crime Q: Upon complaint of the incumbent President of
as his subordinate; the Republic, Achernar was charged with libel
(b) the superior knew or had reason to know before the RTC. Achernar contends that if the
that the crime was about to be or had been proceedings ensue by virtue of the President’s
committed; filing of her complaint-affidavit, she may
(c) the superior failed to take the necessary subsequently have to be a witness for the
and reasonable measures to prevent the prosecution, bringing her under the trial court’s
criminal acts or punish the perpetrators jurisdiction. May Achernar invoke the President’s
thereof. (Rodriguez vs. GMA, et al., G.R. immunity?
Nos. 191805 &193160, Nov. 15, 2011.)
A: No,the immunity of the President from suit is
Q: Can it be applied in amparo proceedings? personal to the President. It may be invoked only by
the President and not by any other person. (Soliven
A: It should, at most, be only to determine the v. Makasiar, G.R. No. 82585, Nov. 14, 1988)
author who, at the first instance, is accountable for,
and has the duty to address, the disappearance and 2. Executive Privilege
harassments complained of, so as to enable the
Court to devise remedial measures that may be
Q: What is executive privilege?
appropriate under the premises to protect rights
covered by the writ of amparo.(Rubrico, et al. vs.
A: It is the power of the President to withhold
GMA, et al., G.R. No. 183871, Feb. 18, 2010)
certain types of information from the public, the
courts, and the Congress.
Q: May the President be held liable for
extrajudicial killings and enforced disappearances
Q: How is the privilege invoked?
42
POLITICAL LAW TEAM
A: Executive privilege must be invoked in relation reasonable time to inform the President or the
to specific categories of information and not to Executive Secretary of the possible need for
categories of persons. invoking the privilege. This is necessary in order to
provide the President or the Executive Secretary
Note: While executive privilege is a constitutional with fair opportunity to consider whether the
concept, a claim thereof may be valid or not matter indeed calls for a claim of executive
depending on the ground invoked to justify it and the privilege. If, after the lapse of that reasonable time,
context in which it is made. Noticeably absent is any neither the President nor the Executive Secretary
recognition that executive officials are exempt from invokes the privilege, Congress is no longer bound
the duty to disclose information by the mere fact of to respect the failure of the official to appear
being executive officials. (Senate v. Ermita, G.R. No. before Congress and may then opt to avail of the
169777, April 20, 2006)
necessary legal means to compel his appearance.
(Senate v. Ermita, G.R. No. 169777, April 20, 2006)
Q: Is the invocation of this privilege through
executive orders, prohibiting executive officials Q: What is the requirement in invoking the
from participating in legislative inquiries, violates privilege?
the constitutional right to information on matters
of public concern of the people? A: A formal claim of the privilege is required. A
formal and proper claim of executive privilege
A: Yes. To the extent that investigations in aid of requires a specific designation and description of
legislation are generally conducted in public, the documents within its scope as well as precise
however, any executive issuance tending to unduly and certain reasons for preserving their
limit disclosures of information in such confidentiality. Without this specificity, it is
investigations necessarily deprives the people of impossible for a court to analyze the claim short of
information which, being presumed to be in aid of disclosure of the very thing sought to be protected.
legislation, is presumed to be a matter of public
concern. The citizens are thereby denied access to Note: Congress must not require the President to state
information which they can use in formulating their the reasons for the claim with such particularity as to
own opinions on the matter before Congress — compel disclosure of the information which the
opinions which they can then communicate to their privilege is meant to protect. (Senate v. Ermita, G.R.
representatives and other government officials No. 169777, April 20, 2006).
through the various legal means allowed by their
freedom of expression.(Senate v. Ermita, G.R. No. Q: Is the privilege absolute?
169777, April 20, 2006)
A: No. Claim of executive privilege is subject to
Q: Who can invoke executive privilege? balancing against other interest. Simply put,
confidentiality in executive privilege is not
A: absolutely protected by the Constitution. Neither
1. President the doctrine of separation of powers, nor the need
for confidentiality of high-level communications can
Note: The privilege being an extraordinary power, it sustain an absolute, unqualified Presidential
must be wielded only by the highest official in the privilege of immunity from judicial process under all
executive department. Thus, the President may not circumstances. (Neri v. Senate,G.R. No. 180643,
authorize her subordinates to exercise such power. Mar. 25, 2008).
2. Executive Secretary, upon proper authorization Q: Sec. 1 of EO 464 required all heads of
from the President departments in the Executive branch to secure the
consent of the President before appearing in an
Note: The Executive Secretary must state that the inquiry conducted by either House of Congress,
authority is “By order of the President,” which pursuant to Art. VI, Sec. 22 of the Constitution.
means he personally consulted with her. Does this section applies onlyto question hour? Is
it valid?
Q: What is required if an official is summoned by
Congress on a matter which in his own judgment A: Section 1, in view of its specific reference to
might be covered by executive privilege? Section 22 of Article VI of the Constitution and the
absence of any reference to inquiries in aid of
A: When an official is being summoned by Congress legislation, must be construed as limited in its
on a matter which, in his own judgment, might be application to appearances of department heads in
covered by executive privilege, he must be afforded the question hour contemplated in the provision of
43
said Section 22 of Article VI. The reading is dictated PRIVILEGE

by the basic rule of construction that issuances Pertains to
must be interpreted, as much as possible, in a way Includes advisory
communications,
that will render it constitutional. opinions,
documents or other
recommendations and
materials that reflect
The requirement then to secure presidential deliberations
presidential decision-
consent under Section 1, limited as it is only to comprising part of a
making and
appearances in the question hour, is valid on its process by which
deliberations that the
face. For under Section 22, Article VI of the governmental decisions
President believes
Constitution, the appearance of department heads and policies are
should remain
in the question hour is discretionary on their part. formulated
confidential
(Senate v. Ermita, G.R. No. 169777, April 20, 2006) Applies to decision-
Applies to decision-
making of executive
Note: Sec. 1 of EO 464 cannot, however, be applied to making of the President
officials
appearances of department heads in inquiries in aid of Rooted in the
legislation. Congress is not bound in such instances to constitutional principle
respect the refusal of the department head to appear of separation of powers Rooted in common law
in such inquiry, unless a valid claim of privilege is
and the President’s privileges
subsequently made, either by the President herself or
unique constitutional
by the Executive Secretary. (Senate v. Ermita, G.R. No.
169777, April 20, 2006)
role
Q: What are the elements of presidential

Q: What are the varieties of executive privilege?
communications privilege?
A:
A:
1. State secret privilege – invoked by
1. The protected communication must relate to a
Presidents on the ground that the
“quintessential and non-delegable presidential
information is of such nature that its
power.”
disclosure would subvert crucial military
or diplomatic objective.
2. The communication must be authored or
“solicited and received” by a close advisor of
2. Informer’s privilege – privilege of the
the President or the President himself. The
government not to disclose the identity of
judicial test is that an advisor must be in
persons who furnish information in
“operational proximity” with the President.
violations of law to officers charged with
the enforcement of the law.
3. The presidential communications privilege
remains a qualified privilege that may be
3. General privilege – for internal
overcome by a showing of adequate need,
deliberations. Said to attach to intra-
such that the information sought “likely
governmental documents reflecting
contains important evidence” and by the
advisory opinions, recommendations and
unavailability of the information elsewhere by
deliberations comprising part of a process
an appropriate investigating authority.
by which governmental decisions and
policies are formulated.
Q: Are presidential communications presumptively
Note: In determining the validity of a claim of
privileged?
privilege, the question that must be asked is not
only whether the requested information falls A: Yes. The presumption is based on the President’s
within one of the traditional privileges, but also generalized interest in confidentiality. The privilege
whether that privilege should be honored in a is necessary to guarantee the candor of presidential
given procedural setting. advisors and to provide the President and those
who assist him with freedom to explore alternatives
Q: Differentiate Presidential Communications in the process of shaping policies and making
Privilege from Deliberative Process Privilege. decisions and to do so in a way many could be
unwilling to express except privately. The
A: presumption can be overcome only by mere
showing of public need by the branch seeking
PRESIDENTIAL DELIBERATIVE PROCESS access to conversations. The courts are enjoined to
COMMUNICATIONS PRIVILEGE resolve the competing interests of the political
44
POLITICAL LAW TEAM
branches of the government “in the manner that Q: What are the prohibitions attached to the
preserves the essential functions of each Branch.” President, Vice-President, Cabinet Members, and
their deputies or assistants?
Q: The House of Representatives’ House
Committee conducted an inquiry on the Japan- A: The President, Vice-President, Members of the
Philippines Economic Partnership Agreement Cabinet, and their deputies or assistants, unless
(JPEPA), then being negotiated by the Philippine otherwise provided in this Constitution shall:
Government. The House Committee requested DTI 1. Shall not receive any other emolument from
Usec. Aquino to furnish it with a copy of the latest the government or any other source (Sec. 6,
draft of the JPEPA. Aquino replied that he shall Art. VII)
provide a copy thereof once the negotiations are
completed. 2. Shall not hold any other office or
employment during their tenure unless:
A petition was filed with the SC which seeks to a. Otherwise provided in the
obtain a copy of the Philippine and Japanese offers Constitution (e.g. VP can be
submitted during the negotiation process and all appointed as a Cabinet Member; Sec.
pertinent attachments and annexes thereto. of Justice sits on Judicial and Bar
Aquino invoked executive privilege based on the Council)
ground that the information sought pertains to b. The positions are ex-officio and they
diplomatic negotiations then in progress. On the do not receive any salary or other
other hand, Akbayan for their part invoke their emoluments therefor (e.g. Sec. of
right to information on matters of public concern. Finance is head of Monetary Board)
Are matters involving diplomatic negotiations 3. Shall not practice, directly or indirectly, any
covered by executive privilege? other profession during their tenure
A: Yes. It is clear that while the final text of the 4. Shall not participate in any business
JPEPA may not be kept perpetually confidential, the
offers exchanged by the parties during the 5. Shall not be financially interested in any
negotiations continue to be privilege even after the contract with, or in any franchise, or special
JPEPA is published. Disclosing these offers could privilege granted by the Government,
impair the ability of the Philippines to deal not only including GOCCs
with Japan but with other foreign governments in
future negotiations. (AKBAYAN Citizen’s Action 6. Shall avoid conflict of interest in conduct of
Party v. Aquino, G.R No. 170516, July 16, 2008) office
Note: Such privilege is only presumptive. 7. Shall avoid nepotism (Sec. 13, Art. VII)
Q: Matters involving diplomatic negotiations are Note: The spouse and relatives by
covered by executive privilege. However, such consanguinity or affinity within the 4th civil
privilege is only presumptive. How can this degree of the President shall not, during his
tenure, be appointed as:
presumption be overcome?
a. Members of the Constitutional
Commissions
A: Recognizing a type of information as privileged b. Office of the Ombudsman
does not mean that it will be considered privileged c. Secretaries
in all instances. Only after a consideration of the d. Undersecretaries
context in which the claim is made may it be e. Chairmen or heads of bureaus or
determined if there is a public interest that calls for offices, including GOCCs and their
the disclosure of the desired information, strong subsidiaries
enough to overcome its traditionally privileged
status. (AKBAYAN Citizen’s Action Party v. Aquino, If the spouse, etc., was already in any of the
et al., G.R No. 170516, July 16, 2008) above offices at the time before his/her spouse
became President, he/she may continue in office.
What is prohibited is appointment and
b. PROHIBITIONS, INHIBITIONS AND reappointment, not continuation in office.
DISQUALIFICATIONS Spouses, etc., can be appointed to the judiciary
and as ambassadors and consuls.
Q: Christian, the Chief Presidential Legal Counsel
45
(CPLC), was also appointed as Chairman of the 3. Privilege of immunity from suit is personal
PCGG. May the two offices be held by the same to the President and may be invoked by
person? him alone. It may also be waived by the
President, as when he himself files suit.
A: No. The two offices are incompatible. Without (Soliven v. Makasiar, G.R. No. 82585, Nov.
question, the PCGG is an agency under the 14, 1988)
Executive Department. Thus, the actions of the 4. The President cannot dispose of state
PCGG Chairman are subject to the review of the property unless authorized by law. (Laurel
CPLC. (Public Interest Group v. Elma, G.R. No. v. Garcia, G.R. No. 92013, July 25, 1990)
138965, June 30, 2006)
Q: What are the specific powers of the President?
POWERS OF THE PRESIDENT
A: He is the repository of all executive power, such
a. EXECUTIVE AND ADMINISTRATIVE POWERS IN as:
GENERAL 1. Appointing power (Sec. 16, Art. VII)
2. Power of control over all executive
Q: What is executive power? departments, bureaus and offices (Sec.
17, Art. VII)
A: It is the power of carrying out the laws into 3. Commander-in-Chief powers (calling-out
practical operation and enforcing their due power, power to place the Philippines
observance. (National Electrification Administration under martial law, and power to suspend
v. CA, G.R. No. 143481, Feb. 15, 2002). It is the legal the privilege of the writ of habeas corpus)
and political functions of the President involving the (Sec. 18, Art. VII)
exercise of discretion. 4. Pardoning power (Sec. 19, Art. VII)
5. Borrowing power (Sec. 20, Art. VII)
Q: To whom is executive power vested? 6. Diplomatic/Treaty-making power (Sec. 21,
Art. VII)
A: It is vested in the President of the Philippines. 7. Budgetary power (Sec. 22, Art. VII)
The President shall have control of all executive 8. Informing power (Sec. 23, Art. VII)
departments, bureaus and offices. He shall ensure 9. Veto power (Sec. 27, Art. VI)
that laws are faithfully executed.(Sec. 17, Art. VI, 10. Power of general supervision over local
1987 Constitution) governments (Sec. 4, Art. X)
11. Power to call special session (Sec. 15, Art.
Q: What is the faithful execution clause? VI)
A: Since executive power is vested in the President Q: Is the power of the President limited only to
of the Philippines, he shall have control of all such specific powers enumerated in the
executive departments, bureaus and offices. Constitution?
Consequently, he shall ensure that the laws be
faithfully executed (Sec. 17, Art. VII). The power to A: No. The powers of the President cannot be said
take care that the laws be faithfully executed makes to be limited only to the specific power enumerated
the President a dominant figure in the in the Constitution. Executive power is more than
administration of the government. The law he is the sum of specific powers so enumerated. The
supposed to enforce includes the Constitution, framers did not intend that by enumerating the
statutes, judicial decisions, administrative rules and powers of the President he shall exercise those
regulations and municipal ordinances, as well as powers and no other. Whatever power inherent in
treaties entered into by the government. the government that is neither legislative nor
judicial has to be executive. These unstated residual
Q: What is the scope of executive power? powers are implied from the grant of executive
power and which are necessary for the President to
A: comply with his duties under he Constitution.
1. Executive power is vested in the President (Marcos v. Manglapus, G.R. No. 88211, Oct. 27,
of the Philippines. (Sec. 1, Art. VII, 1987 1989).
Constitution)
2. It is not limited to those set forth in the Q: What is administrative power?
Constitution (Residual powers). (Marcos v.
Manglapus, G.R. No. 88211, Oct. 27, A:Administrative power is concerned with the work
1989) of applying policies and enforcing orders as
46
POLITICAL LAW TEAM
determined by proper governmental organs. It

enables the President to fix a uniform standard of A:
administrative efficiency and check the official 1. Heads of executive departments
conduct of his agents. To this end, he can issue GR: Appointment of cabinet secretaries
administrative orders, rules and regulations. (Ople requires confirmation.
v. Torres, G.R. No. 127685, July 23, 1998). XPN: Vice-president may be appointed as
a member of the Cabinet and such
b. APPOINTING POWER appointment requires no confirmation.
(Sec. 3, Art. VII)
1. In General 2. Ambassadors, other public ministers and
consuls – those connected with the
diplomatic and consular services of the
Q: What is appointment, and how is it made? country.
3. Officers of AFP from the rank of colonel or
A: It is the selection, by the authority vested with naval captain
the power, of an individual who is to exercise the
functions of a given office.It may be made verbally Note: PNP of equivalent ranks and the Philippine
but it is usually done in writing through what is Coast Guard are not included.
called the commission.
4. Other officers of the government whose
Q: What is the nature of the appointing power of appointments are vested in the President
the President? in the Constitution (Sec. 16, Art. VII), such
as:
A: The power to appoint is executive in nature. a. Chairmen and members of the CSC,
While Congress and the Constitution in certain COMELEC and COA (Sec. 1[2], Art. IX-
cases may prescribe the qualifications for particular B, C, D)
offices, the determination of who among those who b. Regular members of the JBC (Sec.
are qualified will be appointed is the President’s 8[2], Art. VIII)
prerogative. (Pimentel, et al. v. Ermita, et al., G.R.
No. 164978, Oct. 13, 2005). Q: What is the appointing procedure for those that
need CA confirmation?
Q: Are the appointments made by an acting
President effective? A:
A: These shall remain effective unless revoked by 1. Nomination by the President
the elected President within 90 days from his 2. Confirmation by the CA
assumption or re-assumption of office. (Sec. 14, Art. 3. Issuance of commission
VII) 4. Acceptance by the appointee (Cruz,
Philippine Political Law, 2002 ed., p. 207).
Q: What is designation?
Note: At anytime, before all four steps have been
A: It is the imposition of additional duties on a complied with, the President can withdraw the
person already in the public service. It is considered nomination and appointment. (Lacson v. Romero, G.R.
only as an acting or temporary appointment, which No. L-3081, Oct. 14, 1949)
does not confer security of tenure on the person
named. (Binamira v. Garrucho, G.R. No. 92008, July Q: What is the appointing procedure for those that
30, 1990) do not need CA confirmation?
Note: The President has the power to temporarily A:

designate an officer already in the government service 1. Appointment
or any other competent person to perform the 2. Acceptance
functions of an office in the executive branch. In no
case shall the temporary designation exceed one year. Q: Distinguish an ad interim appointment from an
appointment in an acting capacity.
2. Commission on Appointments
Confirmation A:
Q: What are four instances where confirmation of AD INTERIM APPOINTMENT IN AN

the Commission on Appointments is required? APPOINTMENT ACTING CAPACITY
47
Made at any time there 2. GR: Two months immediately before the next
Made if Congress is not is vacancy, i.e., whether Presidential elections (2nd Monday of May),
in session Congress is in session or and up to the end of his "term" (June 30), a
not President (or Acting President) shall not make
Requires confirmation Does not require appointments.
of CA confirmation of CA XPN:Temporary appointments, to executive
Permanent in nature Temporary in nature positions, when continued vacancies therein
Appointee enjoys Appointee does not will prejudice public service (Sec. 15, Art. VII)
security of tenure enjoy security of tenure (e.g. Postmaster); or endanger public safety
(e.g. Chief of Staff).
Q: Is the act of the President in appointing acting
secretaries constitutional, even without the 3. Midnight Appointments
consent of the Commission on Appointments
while Congress is in session? Q: Sec. 15, Art. VII of the 1987 Constitution
prohibits the President from making appointments
A: Yes. Congress, through a law, cannot impose on two months before the next presidential elections
the President the obligation to appoint and up to the end of his term. To what types of
automatically the undersecretary as her temporary appointment is said prohibition directed against?
alter ego. An alter ego, whether temporary or
permanent, holds a position of great trust and A: Section 15, Article VII is directed against two
confidence. The office of a department secretary types of appointments:
may become vacant while Congress is in session. 1. Those made for buying votes – refers to
Since a department secretary is the alter ego of the those appointments made within two
President, the acting appointee to the office must months preceding the Presidential
necessarily have the President’s confidence. election and are similar to those which
(Pimentel v. Ermita, G.R. No. 164978, Oct. 13, 2005) are declared election offenses in the
Omnibus Election Code; and
Note: Acting appointments cannot exceed one year. 2. Those made for partisan considerations –
(Section 17[3], Chapter 5, Title I, Book III of EO 292). consists of the so-called “midnight”
appointments. (In Re: Hon. Mateo A.
Q: May an appointment be the subject of a judicial Valenzuela and Hon. Placido B. Vallarta,
review? A.M. No. 98-5-01-SC Nov. 9, 1998)
A: Generally, no. Appointment is a political Q: Does an outgoing President have the power to
question. So long as the appointee satisfies the appoint the next Chief Justice within the period
minimum requirements prescribed by law for the starting two months before the presidential
position, the appointment may not be subject to elections until the end of the presidential term?
judicial review. Discuss thoroughly.
Q: What are the limitations regarding the A: Yes. Article VII is devoted to the Executive
appointing power of the president? Department, and, among others, it lists the powers
vested by the Constitution in the President. The
A: presidential power of appointment is dealt with in
1. The spouse and relatives by consanguinity or Sections 14, 15 and 16 of the Article.In particular,
affinity within the 4th civil degree of the Section 9 states that the appointment of Supreme
President shall not, during his "tenure" be Court Justices can only be made by the President
appointed: upon the submission of a list of at least three
a. As members of the Constitutional nominees by the JBC; Section 4(1) of the Article
Commissions mandates the President to fill the vacancy within 90
b. Member of the Office of days from the occurrence of the vacancy.
Ombudsman
c. Secretaries Had the framers intended to extend the prohibition
d. Undersecretaries contained in Section 15, Article VII to the
e. Chairmen or heads of bureaus or appointment of Members of the Supreme Court,
offices, including government-owned they could have explicitly done so. They could not
or controlled corporations and their have ignored the meticulous ordering of the
subsidiaries. (Sec. 13[2], Art. VII) provisions. They would have easily and surely
written the prohibition made explicit in Section 15,
48
POLITICAL LAW TEAM
Article VII as being equally applicable to the the public service of such officers. (Cruz, Philippine
appointment of Members of the Supreme Court in Political Law, 2002 ed., pp. 209-210)
Article VIII itself, most likely in Section 4 (1), Article
VIII. That such specification was not done only Note: Members of the career service of the Civil
reveals that the prohibition against the President or Service who are appointed by the President may be
Acting President making appointments within two directly disciplined by him (Villaluz v. Zaldivar, G.R. No.
months before the next presidential elections and L-22754, Dec. 31, 1965) provided that the same is for
up to the end of the President’s or Acting cause and in accordance with the procedure
President’s term does not refer to the Members of prescribed by law.
the Supreme Court.
Members of the Cabinet and such officers whose
continuity in office depends upon the President may
Given the background and rationale for the be replaced at any time. Legally speaking, their
prohibition in Section 15, Article VII, there is no separation is effected not by the process of removal
doubt that the Constitutional Commission confined but by the expiration of their term. (Aparri v. CA, G.R.
the prohibition to appointments made in the No. L-30057, Jan. 31, 1984)
Executive Department. The framers did not need to
extend the prohibition to appointments in the d. POWER OF CONTROL AND SUPERVISION
Judiciary, because their establishment of the JBC
and their subjecting the nomination and screening
Q: What is the power of control?
of candidates for judicial positions to the unhurried
and deliberate prior process of the JBC ensured that
A: Controlis thepower of an officer to alter or
there would no longer be midnight appointments to
modify or nullify or to set aside what a subordinate
the Judiciary. (De Castro v. JBC, G.R. No. 191002,
has done in the performance of his duties and to
Mar. 17, 2010)
substitute one’s own judgment for that of a
subordinate.
c. POWER OF REMOVAL
Note: The President’s power over GOCCs comes not
Q: Where does the President derive his power of
from the Constitution, but from statute. Hence, it may
removal? be taken away by statute.
A: The President derives his implied power of The President has full control of all the members of his
removal from other powers expressly vested in him. Cabinet. He may appoint them as he sees fit, shuffle
1. It is implied from his power to appoint. them at pleasure, and replace them in his discretion
2. Being executive in nature, it is implied without any legal inhibition whatever. However, such
from the constitutional provision control is exercisable by the President only over the
vesting the executive power in the acts of his subordinates and not necessarily over the
President. subordinate himself. (Ang-Angco v. Castillo, G.R. No.L-
3. It may be implied from his function to 17169, Nov. 30, 1963)
take care that laws be properly
executed; for without it, his orders for 1. Doctrine of Qualified Political Agency
law enforcement might not be
effectively carried out. Q: What is the doctrine of qualified political
4. The power may be implied from the agency or alter ego principle?
President’s control over the
administrative departments, bureaus, A: It means that the acts of the secretaries of the
and offices of the government. Without Executive departments performed and
the power to remove, it would not be promulgated in the regular course of business are
always possible for the President to presumptively the acts of the Chief Executive.
exercise his power of control. (Sinco, (Villena v. Secretary of the Interior, G.R. No. L-
Philippine Political Law, 1954 ed., p. 46570, April 21, 1939)
275)
Q: What are the exceptions to the alter ego
Q: Can the President remove all the officials he doctrine?
appointed?
A:
A: No. All officials appointed by the President are 1. If the acts are disapproved or reprobated
also removable by him since the Constitution by the President;
prescribes certain methods for the separation from
49
2. If the President is required to act in local affairs as long as the concerned LGU acts
person by law or by the Constitution. within the parameters of the law and the
Constitution. Any directive, therefore, by the
Note: The SC held that the Secretary of Finance can act President or any of his alter egos seeking to alter
as an agent of the Legislative Dept. to determine and the wisdom of a law-conforming judgment on local
declare the event upon which its expressed will is to affairs of a LGU is a patent nullity, because it
take effect. Thus, being the agent of Congress and not violates the principle of local autonomy, as well as
of the President, the latter cannot alter, or modify or the doctrine of separation of powers of the
nullify, or set aside the findings of the Secretary of executive and the legislative departments in
Finance and to substitute the judgment of the former governing municipal corporations. (Dadole v. COA,
for that of the latter.(Abakada Guro v. Executive
G.R. No. 125350, Dec. 3, 2002)
Secretary, G.R. No. 168056, Sept. 1, 2005)
Q: Distinguish control from supervision.
Q: What is the reason for the alter ego doctrine?
A:
A: Since the President is a busy man, he is not
expected to exercise the totality of his power of
CONTROL SUPERVISION
control all the time. He is not expected to exercise
An officer in control The supervisor or
all his powers in person. He is expected to delegate
lays down the rules in superintendent merely
some of them to men of his confidence, particularly
the doing of an act. sees to it that the rules
to members of his Cabinet.
are followed, but he
himself does not lay
2. Executive Departments and Offices down such rules.
If the rules are not The supervisor does
Q: Can Department Heads exercise power of followed, the officer in not have the discretion
control in behalf of the President? control may, in his to modify or replace
discretion, order the them. If the rules are
A: Yes. The President’s power of control means his act undone or re-done not observed, he may
power to reverse the judgment of an inferior by his subordinate or order the work done or
officer. It may also be exercised in his behalf by he may even decide to re-done but only to
Department Heads. do it himself. conform to the
prescribed rules.
Note: The Sec. of Justice may reverse the judgment of (Drilon v. Lim, G.R. No.
a prosecutor and direct him to withdraw an
112497, Aug. 4, 1994)
information already filed. One who disagrees,
however, may appeal to the Office of the President in
Note: The power of supervision does not include the
order to exhaust administrative remedies prior filing to
power of control; but the power of control necessarily
the court.
includes the power of supervision.
Q: Can the Executive Secretary reverse the
decision of another department secretary? e. COMMANDER-IN-CHIEF POWERS
A: Yes. The Executive Secretary when acting “by Q: What is the scope of the President’s
authority of the President” may reverse the Commander-in-Chief powers?
decision of another department secretary. (Lacson-
Magallanes Co., Inc. v. Paño, G.R. No. L-27811, Nov. A:
17, 1967) 1. Command of the Armed Forces –The
Commander-in-Chief clause vests on the
3. Local Government Units President, as Commander-in-Chief,
absolute authority over the persons and
Q: What is the power of general supervision? actions of the members of the armed
forces. (Gudani v. Senga, G.R. No. 170165,
A: This is the power of a superior officer to ensure Aug. 15, 2006)
that the laws are faithfully executed by
Note: By making the President the
subordinates. The power of the President over
Commander-in-Chief of all the armed forces,
LGUs is only of general supervision. Thus, he can
the principle announced in Art. II, Sec. III is
only interfere in the affairs and activities of a LGU if bolstered. Thus, the Constitution lessens the
he finds that the latter acted contrary to law. The danger of a military take-over of the
President or any of his alter egos cannot interfere in
50
POLITICAL LAW TEAM
government in violation of its republican

nature. Q: Can the Supreme Court inquire into the
factual basis of the suspension of the
The President as Commander-in-Chief can
prevent the Army General from appearing in privilege of the writ of habeas corpus?
a legislative investigation and, if disobeyed,
can subject him to court martial. (Gudani v. A: Yes. The Supreme Court declared that it had the
Senga, G.R. No. 170165, Aug. 15, 2006) power to inquire into the factual basis of the
suspension of the privilege of the writ and to annul
2. Calling-out powers –Call the armed forces the same if no legal ground could be established.
to prevent or suppress lawless violence, Hence, the suspension of the privilege of the writ is
invasion, or rebellion. The only criterion no longer a political question to be resolved solely
for the exercise of this power is that by the President. (Lansang v. Garcia, G.R. No. L-
whenever it becomes necessary. 33964, Dec. 11, 1971)
Note: The declaration of a state of Note: The Supreme Court may also inquire into the
emergency is merely a description of a factual basis of the proclamation of martial law.
situation which authorizes her to call out the (Bernas, A Comprehensive Reviewer, 2006, p. 318)
Armed Forces to help the police maintain
law and order. It gives no new power to her, Q: Is the right to bail impaired if the privilege of
nor to the police. Certainly, it does not the writ of habeas corpus is suspended?
authorize warrantless arrests or control of
media. (David v. Ermita, G.R. No. 171409, A: The right to bail shall not be impaired even when
May 3, 2006) the privilege of the writ of habeas corpus is
suspended. (Sec. 13, Art. III, 1987 Constitution).
The Constitution does not require the
President to declare a state of rebellion to Q: What are the limitations on the suspension of
exercise her calling out power grants.
the privilege of writ of habeas corpus?
Section 18, Article VII grants the President,
as Commander-in-Chief a “sequence” of
“graduated powers.” (Sanlakas v. Executive
A:
Secretary, G.R. No. 159085, Feb. 3, 2004) 1. Applies only to persons judicially charged for
rebellion or offenses inherent in or directly
3. Suspension of the privilege of the writ of connected with invasion; and
habeas corpus 2. Anyone arrested or detained during
suspension must be charged within 3 days.
Note: A “writ of habeas corpus” is an order Otherwise, he should be released.
from the court commanding a detaining
officer to inform the court if he has the Q: State the guidelines in the declaration of
person in custody, and what is his basis in martial law.
detaining that person.
A:
The “privilege of the writ” is that portion of 1. There must be an invasion or rebellion, and
the writ requiring the detaining officer to 2. Public safety requires the proclamation of
show cause why he should not be tested. martial law all over the Philippines or any part
What is permitted to be suspended by the thereof.
President is not the writ itself but its 3. Duration: Not more than 60 days following
privilege. which it shall be automatically lifted unless
extended by Congress.
4. He may proclaim martial law over the 4. Duty of the President to report to Congress:
entire Philippines or any part thereof. within 48 hours personally or in writing.
5. Authority of Congress to revoke or extend the
Q: What are the requisites for the suspension of effectivity of proclamation: by majority vote of
the privilege of the writ of habeas corpus? all of its members voting jointly.
A: Note: Once revoked by Congress, the President

1. There must be an invasion or rebellion cannot set aside the revocation.
2. Public safety requires the suspension
Q: What are the limitations on the declaration of
Note: The invasion and rebellion must be actual and martial law?
not merely imminent.
51
negotiations, solutions that may require changes to

A: Martial law does not: the Constitution for their implementation. So long
as the President limits herself to recommending
1. Suspend the operation of the these changes and submits to the proper procedure
Constitution; for constitutional amendment and revision, her
2. Supplant the functioning of the civil mere recommendation need not be construed as
courts or legislative assemblies; unconstitutional act. Given the limited nature of the
3. Authorize conferment of jurisdiction over President’s authority to propose constitutional
civilians where civil courts are able to amendments, she cannot guarantee to any third
function; party that the required amendments will eventually
be put in place, nor even be submitted to a
Note: Civilians cannot be tried by military plebiscite. The most she could do is submit these
courts if the civil courts are open and proposals as recommendations either to Congress
functioning. (Olaguer v. Military Commission or the people, in whom constituent powers are
No. 34, G.R. No. L-54558, May 22, 1987). vested. (Province of North Cotabato v. Gov’t of the
Republic of the Philippines Peace panel on Ancestral
4. Automatically suspend the privilege of the Domain, G.R. No. 183591, Oct.14, 2008)
writ of habeas corpus.
Q:Is martial law a purely executive power?
Note: When martial law is declared, no new powers
are given to the President; no extension of arbitrary A: No. Although Article VII sec 18 of the 1987
authority is recognized; no civil rights of individuals are
Constitution vests in the President the power to
suspended. The relation of the citizens to their State is
proclaim martial law or suspend the privilege of the
unchanged. The Supreme Court cannot rule upon the
correctness of the President’s actions but only upon its
writ of habeas corpus, he shares such power with
arbitrariness. the Congress. Thus:
Q: What are the ways to lift the proclamation of 1. The President’s proclamation or suspension is
martial law? temporary, good for only 60 days;
2. He must, within 48 hours of the proclamation
A: or suspension, report his action in person or in
1. Lifting by the President himself writing to Congress;
2. Revocation by Congress 3. Both houses of Congress, if not in session must
3. Nullification by the SC jointly convene within 24 hours of the
4. By operation of law after 60 days (Sec. 18, proclamation or suspension for the purpose of
Art. VII) reviewing its validity; and
4. The Congress, voting jointly, may revoke or
Q: Is the actual use of the armed forces by the affirm the President’s proclamation or
President subject to judicial review? suspension, allow their limited effectivity to
lapse, or extend the same if Congress deems
A: No. While the suspension of the privilege of the warranted.
writ of habeas corpus and the proclamation of
martial law is subject to judicial review, the actual It is evident that under the 1987 Constitution
use by the President of the armed forces is not. the President and the Congress act in tandem
Thus, troop deployments in times of war are in exercising the power to proclaim martial law
subject to the President’s judgment and discretion. or suspend the privilege of the writ of habeas
(IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000) corpus. They exercise the power, not only
sequentially, but in a sense jointly since, after
Q: May the President, in the exercise of peace the President has initiated the proclamation or
negotiations, agree to pursue reforms that would the suspension, only the Congress can
require new legislation and constitutional maintain the same based on its own evaluation
amendments, or should the reforms be restricted of the situation on the ground, a power that
only to those solutions which the present laws the President does not have.(Fortun v.
allow? Macapagal-Arroyo, G.R. No. 190293, March
20, 2012)
A: If the President is to be expected to find means
for bringing this conflict to an end and to achieve Q: Can the Supreme Court question the factual
lasting peace in Mindanao, then she must be given bases of the President’s declaration of a state of
the leeway to explore, in the course of peace national emergency?
52
POLITICAL LAW TEAM
A: Executive clemency is granted for the purpose of

A: While it is true that the Court may inquire into relieving the harshness of the law or correcting
the factual bases for the President’s exercise of the mistakes in the administration of justice. The power
above power, it would generally defer to her of executive clemency is a non-delegable power
judgment on the matter. It is clearly to the and must be exercised by the President personally.
President that the Constitution entrusts the
determination of the need for calling out the armed Note: Clemency is not a function of the judiciary;It is
forces to prevent and suppress lawless violence. an executive function. The grant is discretionary, and
Unless it is shown that such determination was may not be controlled by the legislature or reversed by
attended by grave abuse of discretion, the Court the court, save only when it contravenes its
will accord respect to the President’s judgment. limitations. It includes cases involving both criminal
(Datu Zaldy Uy Ampatuan, et al. v. Hon. Ronaldo and administrative cases.
Puno, et al., G.R. No. 190259. June 7, 2011.)
Q: What is the scope of the President’s pardoning
Q: Can the Supreme Court review the factual bases power? (Forms of executive clemency)
of the promulgation of a suspension of thr
privilege of the writ of habeas corpus? A: The President may grant the following:
[ Pa R C Re A ]
A: Consequently, although the Constitution
reserves to the Supreme Court the power to review 1. Pardons (conditional or plenary)
the sufficiency of the factual basis of the 2. Reprieves
proclamation or suspension in a proper suit, it is 3. Commutations
implicit that the Court must allow Congress to 4. Remission of fines and forfeitures
exercise its own review powers, which is automatic 5. Amnesty
rather than initiated. Only when Congress defaults
in its express duty to defend the Constitution Note: The first 4 require conviction by final judgment
while amnesty does not.
through such review should the Supreme Court step
in as its final rampart. The constitutional validity of
Q: Are there limitations to the President’s
the President’s proclamation of martial law or
pardoning power?
suspension of the writ of habeas corpus is first a
political question in the hands of Congress before it
A: Yes. It:
becomes a justiciable one in the hands of the Court.
(Fortun vs. PGMA, March 20, 2012)
1. Cannot be granted in cases of
impeachment.
Q: Can the President deploy AFP and PNP
2. Cannot be granted for violations of
personnel pursuant to a declaration of a state of
election laws without favorable
emergency in 3 places in Mindanao without an act
recommendations of the COMELEC.
of Congress?
3. Can be granted only after convictions by
final judgment (except amnesty).
A: The President did not proclaim a national
4. Cannot be granted in cases of civil or
emergency, only a state of emergency in the three
legislative contempt.
places mentioned. And she did not act pursuant to
5. Cannot absolve convict of civil liability.
any law enacted by Congress that authorized her to
6. Cannot restore public offices forfeited.
exercise extraordinary powers. The calling out of
the armed forces to prevent or suppress lawless
Q: What is pardon? What are its legal effects?
violence in such places is a power that the
Constitution directly vests in the President. She did
A: Pardon is an act of grace which exempts
not need a congressional authority to exercise the
individual on whom it is bestowed from
same. (Datu Zaldy Uy Ampatuan, et al. v. Hon.
punishment which the law inflicts for a crime he has
Ronaldo Puno, et al., G.R. No. 190259. June 7,
committed. As a consequence, pardon granted
2011.)
after conviction frees the individual from all the
penalties and legal disabilities and restores him to
f. PARDONING POWER
all his civil rights. But unless expressly grounded on
the person’s innocence (which is rare), it cannot
Q: What is the purpose of executive clemency?
bring back lost reputation for honesty, integrity and
Can it be delegated?
fair dealing. (Monsanto v. Factoran, G.R. No. 78239,
Feb. 9, 1989)
53
Note: Because pardon is an act of grace, no legal restores his eligibility to that office. (Monsanto v.
power can compel the President to give it. Congress Factoran, G.R. No. 78239, Feb. 9, 1989)
has no authority to limit the effects of the President’s
pardon, or to exclude from its scope any class of Q: What is reprieve?
offenders. Courts may not inquire into the wisdom or
reasonableness of any pardon granted by the A: It is the postponement of sentence to a date
President. certain, or stay of execution.
Q: What are the kinds of pardon? What makes Note: It may be ordered to enable the government to
them different from each other? secure additional evidence to ascertain the guilt of the
convict or, in the case of the execution of the death
A: sentence upon a pregnant woman, to prevent the
1. Absolute pardon - one extended without killing of her unborn child.
any conditions
2. Conditional pardon - one under which the Q: What is commutation?
convict is required to comply with certain
requirements A: It is the reduction or mitigation of the penalty,
3. Plenary pardon - extinguishes all the from death penalty to life imprisonment,
penalties imposed upon the offender, remittances and fines. Commutation is a pardon in
including accessory disabilities partial form but not in substance, because it does not
pardon does not extinguish all penalties affect his guilt; it merely reduces the penalty for
4. Partial pardon - does not extinguish all reasons of public interest rather than for the sole
the penalties benefit of the offender.
Note: A judicial pronouncement that a convict who Note: Commutation does not have to be in any
was granted a pardon subject to the condition that he particular form. Thus, the fact that a convict was
should not again violate any penal law is not necessary released after 6 years and placed under house arrest,
before he can be declared to have violated the which is not a penalty, already leads to the conclusion
condition of her pardon. (Torres v. Gonzales, G.R. No. that the penalty has been shortened.
L-76872, July 23, 1987)
Q: Can the SC review the correctness of the action
Q: Can an offender reject pardon? of the President in granting executive clemency by
commuting the penalty of dismissal, as ruled by
A: It depends. the Court, to a dismissed clerk of court?
1. Conditional Pardon –theoffender has the
right to reject it since he may feel that the A: Yes. By doing so, the SC is not deciding a political
condition imposed is more onerous than the question. What it is deciding is whether or not the
penalty sought to be remitted. President has the power to commute the penalty of
2. Absolute Pardon– thepardonee has no the said clerk of court. As stated in Daza v. Singson,
option at all and must accept it whether he G.R. No. 87721-30, December 21, 1989, it is within
likes it or not. the scope of judicial power to pass upon the validity
of the actions of the other departments of the
Note: In this sense, an absolute pardon is similar Government.
to commutation, which is also not subject to
acceptance by the offender. (Cruz, Philippine Q: What is remission?
Political Law, 2002 ed., p. 232)
A: Remission of fines and forfeitures merely
Q: Mon Daraya, the assistant city treasurer of prevents the collection of fines or the confiscation
Caloocan, was convicted of estafa through of forfeited property. It cannot have the effect of
falsification of public documents. However, he was returning property which has been vested in third
granted an absolute pardon, prompting him to parties or money already in the public treasury.
claim that he is entitled to be reinstated to his
former public office. Is Mon’s contention tenable? Note: The power of the President to remit fines and
forfeitures may not be limited by any act of Congress.
A: No. Pardon does not ipso facto restore a But a statue may validly authorize other officers, such
convicted felon neither to his former public office as department heads or bureau chiefs, to remit
nor to his rights and privileges which were administrative fines and forfeitures.
necessarily relinquished or forfeited by reason of
the conviction although such pardon undoubtedly Q: What is probation?
54
POLITICAL LAW TEAM
judgment
A: It is a disposition under which a defendant after Need not be accepted Must be accepted
conviction and sentence is released subject to
conditions imposed by the court and to the
supervision of a probation officer. g. DIPLOMATIC POWERS
Q: What is a parole? Q: What are the President’s powers over foreign

affairs?
A: The suspension of the sentence of a convict
granted by a Parole Board after serving the A: The President is the chief architect of foreign
minimum term of the indeterminate sentence relations. By reason of the President's unique
penalty, without granting a pardon, prescribing the position as Head of State, he is the logical choice as
terms upon which the sentence shall be suspended. the nation's spokesman in foreign relations. The
Senate, on the other hand, is granted the right to
Q: What is amnesty? share in the treaty-making power of the President
by concurring with him with the right to amend.
A: It is a grant of general pardon to a class of
political offenders either after conviction or even Q: What is the scope of the foreign relations
before the charges are filed. It is the form of powers of the President?
executive clemency which under the Constitution
may be granted by the President only with the A: The President’s diplomatic powers include power
concurrence of the legislature. to:
Note: Thus, the requisites of amnesty are (a) 1. Negotiate treaties and other international
concurrence of a majority of all the members of agreements. However, such treaty or
Congress and (b) a previous admission of guilt. international agreement requires the
concurrence of the Senate (Sec. 21, Art.
Q: What are the effects of the grant of amnesty? VII) which may opt to do the following:
a. Approve with 2/3 majority;
A: Criminal liability is totally extinguished by b. Disapprove outright; or
amnesty; the penalty and all its effects are thus c. Approve conditionally, with
extinguished. Amnesty reaches back to the past and suggested amendments which if re-
erases whatever shade of guilt there was. In the negotiated and the Senate’s
eyes of the law, a person granted amnesty is suggestions are incorporated, the
considered a new-born child. (Cruz, Philippine treaty will go into effect without
Political Law, 2002 ed., p. 237) need of further Senate approval.
2. Appoint ambassadors, other public
Q: Differentiate amnesty from pardon. ministers, and consuls.
3. Receive ambassadors and other public
A: ministers accredited to the Philippines.
(Cruz, Philippine Political Law, 2002 ed., p.
AMNESTY PARDON 239).
4. Contract and guarantee foreign loans on
Addressed to Political Addressed to Ordinary
behalf of RP. (Sec. 20, Art. VII).
offenses offenses
5. Deport aliens:
Granted to a Class of
Granted to Individuals a. This power is vested in the President
Persons
by virtue of his office, subject only to
Requires concurrence of Does not require
restrictions as may be provided by
majority of all members concurrence of
legislation as regards to the grounds
of Congress Congress
for deportation. (Sec. 69, Revised
Public act which the
Private act which must Administrative Code).
court may take judicial
be pleaded and proved b. In the absence of any legislative
notice of
restriction to authority, the President
Looks forward and may still exercise this power.
Looks backward and
relieves the pardonee of
puts to oblivion the c. The power to deport aliens is limited
the consequence of the by the requirements of due process,
offense itself
offense
which entitles the alien to a full and
May be granted before Only granted after fair hearing.
or after conviction conviction by final
55
d. But: the alien is not entitled to bail as including receipts from existing and proposed
a matter of right. (Tan Sin v. The revenue measures. (Sec. 22, Art. VII).This power is
Deportation Board, G.R. No. L-11511, properly entrusted to the President as it is the
Nov. 28, 1958) President who, as chief administrator and enforcer
of the laws, is in the best position to determine the
Note: The adjudication of facts upon which needs of the government and propose the
the deportation is predicated devolved on corresponding appropriations therefor on the basis
the President whose decision is final and of existing or expected sources of revenue.
executory. (Tan Tong v. Deportation Board,
G.R. No. L-7680, April 30, 1955) i. RESIDUAL POWER
6. Decide that a diplomatic officer who has
Q: What are residual powers?
become persona non grata be recalled.
7. Recognize governments and withdraw
A: Whatever power inherent in the government
recognition. (Cruz, Philippine Political
that is neither legislative nor judicial has to be
Law, 2002 ed., p. 239)
executive. These unstated residual powers are
implied from the grant of executive power and
Q: Where do the President’s diplomatic powers
which are necessary for the President to comply
come from?
with his duties under the Constitution. (Marcos v.
Manglapus, G.R. No. 88211, Oct. 27, 1989)
A: The extensive authority of the President in
foreign relations in a government patterned after
that of the US proceeds from 2 general sources:
1. The Constitution
2. The status of sovereignty and j. Impoundment Power
independence of a state.
Q: What is impoundment power?
Q: Who ratifies a treaty? What is the scope of the
power to concur treaties and international A: Impoundment refers to the refusal of the
agreements? President, for whatever reason, to spend funds
made available by Congress. It is the failure to
A: The power to ratify is vested in the President spend or obligate budget authority of any type.
subject to the concurrence of Senate. The role of
the Senate, however, is limited only to giving or Q: What are the principal sources of this power?
withholding its consent or concurrence. Hence, it is
within the authority of the President to refuse to A:
submit a treaty to the Senate. Although the refusal 1. Authority to impound given to the
of a state to ratify a treaty which has been signed in President either expressly or impliedly by
his behalf is a serious step that should not be taken Congress
lightly, such decision is within the competence of 2. The executive power drawn from the
the President alone, which cannot be encroached President’s role as Commander-in-Chief
upon by the Court via a writ of mandamus.
(Pimentel v. Ermita, G.R. No. 164978, Oct. 13, 2005) 3. Faithful Execution clause
Note: The power of the Senate to give its concurrence Note: Proponents of impoundment insist
carries with it the right to introduce amendments to a that a faithful execution of the laws
treaty. If the President does not agree to any requires that the President desist from
amendments or reservations added to a treaty by the implementing the law if doing so would
Senate, his only recourse is to drop the treaty entirely. prejudice public interest. An example
But if he agrees to the changes, he may persuade the given is when through efficient and
other nation to accept and adopt the modifications. prudent management of a project,
substantial savings are made. In such a
h. BUDGETARY POWER case, it is sheer folly to expect the
President to spend the entire amount
Q: What is budgetary power? budgeted in the law. (PHILCONSA v.
Enriquez, G.R. No. 113105, Aug. 19, 1994)
A: Within 30 days from opening of every regular
session, the President shall submit to Congress a RULES ON SUCCESSION
budget of expenditures and sources of financing,
56
POLITICAL LAW TEAM
Q: What are the rules to be applied if there is a Vice-President President shall have ben
vacancy before the beginning of the term of the elected and qualified.
President?
Q: What are the rules and procedure if a vacancy
A: Section 7 lays down the rule to be applied if occurs in the offices of the President and Vice-
there is a vacancy before the beginning of the term President?
of the President.
A: The rules of procedure are as follows:
1. In case of death or - The Vice-President elect
permanent disability of shall become President. 1. At 10:00 A.M. of the third day after said
the President-elect. vacancy occurs --- Congress shall convene
2. In case of failure to - The Vice-President shall in accordance with its rules without need
elect the President (i.e. act as the President until of cal.
Presidential elections the President shal have
has not ben held or been chosen and 2. Within 7 days—Congress shall enact a law
non-completion of the qualified. calling for a special election to elect a
canvass of the President and a Vice President.
Presidential elections)
3, In case no President - The Senate President, or 3. Said special election shall be held—Not
and Vice-President in case of his inability, the earlier than forty-five (45) days nor later
shall have been chosen Speaker of the House of than sixty (60) days from the time of such
and qualified, or where Representatives shall act call.
both shall have died or as President until a
become permanently President or a Vice- 4. The bill calling such special election—
disabled. President shall have been Shall be deemed certified under
chosen and qualified. paragraph 2, Section 26, Article VI of this
Constitution and shall become law upon
-Congress shall by law its approval on third reading by Congress.
provide for the manner in
which one who is to act 5. Appropriations for said special election—
as President shall be Shall be charged against any current
selected until a President appropriations and shall be exempt from
or a Vice-President shall the requirements of paragraph 4, Section
have qualified, in case of 25, Article VI of this Constitution.
death, permanent
disability or inability of 6. The convening of Congress and the
the officials mentioned in special election—cannot be suspended or
# 3. postponed
Q: What are the rules to be applied if the vacancy 7. No special election shall be called—If the
occurs during the incumbency of the President? vacancy occurs within eighteen (18)
months before the date of the next
A: Section 8 lays down the rules to be applied if a presidential elections. (Suarez, Political
vacancy occurs during the incumbency of the Law Reviewer, p. 492-493, 2011)
President.
Q: What are the instances when there is
1. In case of : (a) - The Vice President shall presidential inability to discharge powers and
Death; (b) Permanent become the President to duties of his office?
Disability; (c) Removal serve the unexpired term.
from office; or (d) A:
Resigantion of the
President 1. When the President - The powers and duties
2. In case of : (a) - The Senate President, or transmits to the Senate of his office shall be
Death; (b) Permanent in case of his inability, the President and to the discharged by the Vice-
Disability; (c) Removal Speaker of the House of Speaker of the House of President as Acting
Representatives his written President.
from office; or (d) Representatives, shall act
declaration that he is
Resigantion of both as President until the
unable to discharge the
the President and the President or Vice
powers and duties of his
57
office. (First paragraph, A: It is the power of the court to inquire into the
Section 11, Art VII) exercise of discretionary powers to determine
2. When a majority of all - The Vice-President whether there has been a grave abuse of discretion
the members of the shall immediately amounting to lack or excess of jurisdiction.
Cabinet transmit to the assume the powers and
Senate President and to duties of the office as 2. JUDICIAL REVIEW
the Speaker of the House Acting President.
of Representatives their
Q: What is the power of judicial review?
written declaration that
the President is unable to
discharge the powers and A: It is the power of the SC to declare a law, treaty,
duties of his office (Second ordinance and other governmental act
paragraph, Section 11, unconstitutional.
Article VII).
Note: When the judiciary mediates to allocate
Q: When No, 2 happens, can the President re- constitutional boundaries, it does not assert any
superiority over other departments; it does not in
assume the powers and duties of his office?
reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned
A: Yes, if he transmits to the Senate President and
to it by the Constitution to determine conflicting
to the Speaker of the House of Representatives his claims of authority under the Constitution and to
written declaration that no inability exists. (First establish for the parties in an actual controversy the
paragraph, Section 11m Article VII) rights which that instrument secures and guarantees
to them. This is in truth all that is involved in what is
(Suarez, Political Law Reviewer, p. 494, 2011) termed as ‘judicial supremacy’, which properly is the
power of judicial review under the Constitution.
JUDICIAL DEPARTMENT (Angara v. The Electoral Commission, et. al., July 15,
1936)
A. CONCEPTS
Q: What are the requisites of judicial review?
1. JUDICIAL POWER A:
1. Actual case –an existing case or controversy
Q: What is judicial power? which is both ripe for resolution and susceptible
of judicial determination, and that which is not
A: It includes the duty of the courts of justice to conjectural or anticipatory, or that which seeks
settle actual controversies involving rights, which to resolve hypothetical or feigned constitutional
are legally demandable and enforceable, and to problems.
determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of Note:But even with the presence of an actual case or
jurisdiction on the part of any branch or controversy, the Court may refuse judicial review
instrumentality of the Government. (Sec. 1[2], Art. unless a party who possesses locus standi or the
VIII) standing to challenge it brings the constitutional
question or the assailed illegal movement act before it.
Q: In what body is it vested? To have standing, one must show that 1) he has
suffered some actual or threatened injury as a result of
A: It is vested in one Supreme Court (SC) and such the allegedly illegal conduct of the government; 2) the
lower courts as may be established by law. (Sec. 1, injury is fairly traceable to the challenged action; 3) the
Art. VIII) injury is likely to be redressed by a favorable action.
(Francisco, Jr. & Hizon v. Toll Regulatory Board, et. al.,
Q: Can judicial power be shared? G.R. Nos. 166910, October 19, 2010)
A: No. The US SC declared that judicial power 2. Proper party – one who has sustained or is in
cannot be shared, as the powers of the legislature immediate danger of sustaining an injury as a
and executive cannot also thereby be shared. (US v. result of the act complained of.
Nixon, 418 US 683 41 Led 2d 1039, 94 SC t 3090,
1974) GR: If there is no actual or potential injury,
complainant has no legal personality to raise
Q: What is the power of judicial inquiry? constitutional questions.
58
POLITICAL LAW TEAM
XPN: If the question is of transcendental use for decision, constitutionality of the law will
importance.. not be touched.
Note: The Principle of Transcendental Q: What are the requisites before a law can be
Importance is determined by: declared partially unconstitutional?
a. The character of the funds or other
assets involved in the case; A:
b. The presence of a clear case of 1. The legislature must be willing to retain valid
disregard of a constitutional or statutory portion (separability clause)
prohibition by the public respondent 2. The valid portion can stand independently as
agency or instrumentality of the law
government;
c. The lack of any other party with a more Q: What is the Principle of Stare Decisis?
direct and specific interest in raising the
questions being raised. (Francisco, Jr. v. A: A principle underlying the decision in one case is
House of Representatives, G.R. No. deemed of imperative authority, controlling the
160261, Nov. 10, 2003) decisions of like cases in the same court and in
lower courts within the same jurisdiction, unless
3. Earliest opportunity – constitutional question and until the decision in question is reversed or
must be raised at the earliest possible overruled by a court of competent authority. (De
opportunity. If not raised in pleadings, it cannot Castro v. JBC, G.R. No. 191002, Apr. 20, 2010)
be considered in trial and on appeal. However,
such is not absolute. It is subject to the Q: Is the SC obliged to follow precedents?
following conditions:
A: No. The Court, as the highest court of the land,
a. Criminal case – it may be brought at any may be guided but is not controlled by precedent.
stage of the proceedings according to the Thus, the Court, especially with a new membership,
discretion of the judge (trial or appeal) is not obliged to follow blindly a particular decision
because no one shall be brought within the that it determines, after re-examination, to call for
terms of the law who are not clearly within a rectification. (De Castro v. JBC, G.R. No. 191002,
them and the act shall not be punished when April 20, 2010)
the law does not clearly punish them.
b. Civil case – it may be brought anytime if the Q: X filed a petition to set aside the award of the
resolution of the constitutional issue is ZTE-DOTC Broadband Deal. The OSG opposed the
inevitable in resolving the main issue. petition on the ground that the Legal Service of
c. When the jurisdiction of the lower court is in the DOTC has informed it of the Philippine
question except when there is estoppels. Government’s decision not to continue with the
ZTE-NBN Project. That said there is no more
Note: The earliest opportunity to raise a constitutional justiciable controversy for the court to resolve.
issue is to raise it in the pleadings before a competent Hence, the OSG claimed that the petition should
court that can resolve the same, such that, if not raised be dismissed. X countered by saying that despite
in the pleadings, it cannot be considered in trial and, if the mootness, the Court must nevertheless take
not considered in trial, it cannot be considered on cognizance of the case and rule on the merits due
appeal. to the Court’s symbolic function of educating the
bench and the bar by formulating guiding and
The Ombudsman has no jurisdiction to entertain
controlling principles, precepts, doctrines, and
questions regarding constitutionality of laws. Thus,
rules. Decide.
when the issue of constitutionality a law was raised
before the Court of Appeals (CA), which is the
competent court, the constitutional question was A: The OSG is correct. The petition should be
raised at the earliest opportune time. (Estarija v. dismissed for being moot. Judicial power
Ranada, G.R. No. 159314, June 26, 2006) presupposes actual controversies, the very
antithesis of mootness. In the absence of actual
4. Necessity of deciding constitutional questions – justiciable controversies or disputes, the Court
as a joint act of the legislative and executive generally opts to refrain from deciding moot issues.
authorities, a law is supposed to have been Where there is no more live subject of controversy,
carefully studied and determined to be the Court ceases to have a reason to render any
constitutional before it was finally enacted. As ruling or make any pronouncement. (Suplico v.
long as there are other bases which courts can NEDA, G.R. Nos. 178830, July 14, 2008)
59
because it has the force and effect of law.

Q: What are the functions of judicial review? (Hacienda Luisita Inc., v. Presidential Agrarian
Reform Council, et. al., G.R. No. 171101, Nov. 22,
A: They are: 2011)
1. Checking – invalidating a law or executive
act that is found to be contrary to the b. MOOT QUESTIONS
Constitution
2. Legitimizing – upholding the validity of the Q: What are moot questions?
law that results from a mere dismissal of a
case challenging the validity of the law A: Questions whose answers cannot have any
3. Symbolic – to educate the bench and bar as practical legal effect or, in the nature of things,
to the controlling principles and concepts on cannot be enforced. (Baldo, Jr. v. COMELEC, G.R.
matters of grave public importance for the No. 176135, June 16, 2009)
guidance of and restraint upon the future (Igot
v. COMELEC, G.R. No. L-352245, Jan. 22, 1980) Q: When is a case moot and academic?
Q: What is the extent of power of judicial review A: It is moot and academic when it ceases to
in impeachment proceedings? present a justiciable controversy by virtue of
supervening events so that a declaration thereon
A: The power of judicial review includes the power would be of no practical use or value.
of review over justiciable issues in impeachment
proceedings (Francisco, Jr. v. House of Q: Should courts decline jurisdiction over moot
Representatives, G.R. No. 160261, Nov. 10, 2003). and academic cases?
Q: What is the Doctrine of Relative A:

Constitutionality? GR: The courts should decline jurisdiction over such
cases or dismiss it on ground of mootness.
A: The constitutionality of certain rules may depend
upon the times and get affected by the changing of XPNs:
the seasons. A classification that might have been 1. There is a grave violation of the
perfectly all right at the time of its inception may be Constitution
considered dubious at a later time. 2. There is an exceptional character of the
situation and the paramount public
a. OPERATIVE FACT DOCTRINE interest is involved
3. When the constitutional issue raised
Q: What is meant by the operative fact doctrine? requires formulation of controlling
principles to guide the bench, the bar,
A: It is a rule of equity. Under this doctrine, the law and the public
is recognized as unconstitutional but the effects of 4. The case is capable of repetition yet
the unconstitutional law, prior to its declaration of evading review. (David v. Arroyo, G.R. No.
nullity, may be left undisturbed as a matter of 171396, May 3, 2006)
equity and fair play. (League of Cities of the
Philippines v. COMELEC, G.R. No. 176951, Nov. 18, c. POLITICAL QUESTIONS
2008)
Q: What is meant by the political question
Q: Will the invocation of this doctrine an doctrine?
admission that the law is unconstitutional?
A: The doctrine means that the power of judicial
A: Yes. (League of Cities of the Philippines v. review cannot be exercised when the issue is a
COMELEC, G.R. No. 176951, Nov. 18, 2008) political question. It constitutes another limitation
on such power of the judiciary.
Q: Is the Operative Fact Doctrine applicable to
executive acts? Q: What are political questions?
A: Yes. The Operative Fact Doctrine also applies to A: Those questions which, under the Constitution,
executive acts subsequently declared as invalid. are to be decided by the people in their sovereign
A decision made by the president or the capacity, or in regard to which full discretionary
administrative agencies has to be complied with authority has been delegated to the legislative or
60
POLITICAL LAW TEAM
executive branch of the government. (Tañada v. A:

Cuenco, G.R. No. L-10520, February 28, 1957) 1. The SC is a constitutional body and may not
be abolished by law
Q: Distinguish justiciable questions from political 2. Members are only removable by
questions. ** impeachment (Sec. 2, Art. XI, 1987
Constitution)
A: 3. The SC may not be deprived of its minimum
and appellate jurisdiction; appellate
JUSTICIABLE POLITICAL QUESTIONS jurisdiction may not be increased without its
QUESTIONS advice or concurrence (Sec. 2, Art VIII, 1987
Questions which involve Constitution)
the policy or the wisdom 4. The SC has administrative supervision over
of the law or act, or the all inferior courts and personnel (Sec. 6, Art.
morality or efficacy of the VIII, 1987 Constitution)
same. Generally it 5. The SC has exclusive power to discipline
cannot be inquired by the judges/justices of inferior courts (Sec, 22,
Imply a given right
courts. Further, these are Art. VIII, 1987 Constitution)
legally demandable 6. The members of the judiciary enjoy security
questions which under
and enforceable, an of tenure (Sec. 2 [2], Art. VIII, 1987
the Constitution:
act or omission
a. Are decided by the Constitution)
violative of such right, 7. The members of the judiciary may not be
people in their
and a remedy granted
sovereign capacity; designated to any agency performing quasi-
and sanctioned by law judicial or administrative functions (Sec 12,
and
for said breach of right
b. Where full Article VIII, 1987 Constitution)
discretionary authority 8. The salaries of judges may not be reduced;
has been delegated the judiciary enjoys fiscal autonomy (Sec. 3,
either to the executive Art. VIII, 1987 Constitution)
or legislative 9. The SC alone may initiate the promulgation
department. of the Rules of Court (Sec. 5 (5), Art. 8, 1987
Constitution)
Q: How does the definition of judicial power under 10. The SC alone may order temporary detail of
the present Constitution affect the political judges (Sec. 5 (3), Art. 8, 1987 Constitution)
question doctrine? 11. The SC can appoint all officials and
employees of the Judiciary. (Sec. 5 (6), Art.
A: The 1987 Constitution expands the concept of 8, 1987 Constitution)
judicial review. Under the expanded definition, the (Nachura, Reviewer in Political Law, pp. 310-
Court cannot agree that the issue involved is a 311)
political question beyond the jurisdiction of the
court to review. When the grant of power is Q: What does the mandate of the Constitution
qualified, conditional or subject to limitations, the that the judiciary shall enjoy fiscal autonomy
issue of whether the prescribed qualifications or contemplate?
conditions have been met or the limitations
respected is justiciable—the problem being one of A: In Bengzon v. Drilon, G.R. No. 103524, April 15,
legality or validity, not its wisdom. Moreover, the 1992, the SC explained that fiscal autonomy
jurisdiction to delimit constitutional boundaries has contemplates a guarantee of full flexibility to
been given to the SC. When political questions are allocate and utilize resources with the wisdom and
involved, the Constitution limits the delimitation as dispatch that the needs require. It recognizes the
to whether or not there has been a grave abuse of power and authority to deny, assess and collect
discretion amounting to lack or excess of fees, fix rates of compensation not exceeding the
jurisdiction on the part of the official whose action highest rates authorized by law for compensation
is being questioned. and pay plans of the government and allocate and
disburse such sums as may be provided by law or
B. SAFEGUARDS OF JUDICIAL prescribed by it in the course of the discharge of its
functions.
INDEPENDENCE
C. JUDICIAL RESTRAINT
Q: What are the constitutional safeguards that
guarantee independence of the judiciary?
61
Q: What does the Principle of Judicial Restraint Supreme Court. (De Castro v. JBC, G.R. No.
mean? 191002, Apr. 20, 2010)
A: It is a theory of judicial interpretation that Q: What is the composition of the JBC?

encourages judges to limit the exercise of their own
power. A: The JBC is composed of:
1. Chief Justice, as ex-officio chairman
In terms of legislative acts, the principle of judicial 2. Secretary of Justice, as an ex-officio
restraint means that every intendment of the law member
must be adjudged by the courts in favor of its 3. Representative of Congress, as an ex-
constitutionality, invalidity being a measure of last officio member
resort. In construing therefore the provisions of a 4. Representative of the Integrated Bar
statute, courts must first ascertain whether an 5. A professor of law
interpretation is fairly possible to sidestep the 6. A retired member of the SC
question of constitutionality. (Estrada v. 7. Private sector representative
Sandiganbayan, G.R. No. 148560, Nov. 19, 2001)
Q: What are the functions of the JBC?
The doctrine of separation of powers imposes upon
the courts proper restraint born of the nature of A: The principal function of the JBC is to
their functions and of their respect for the other recommend appointees to the judiciary. It may,
departments in striking down acts of the legislature however, exercise such functions as the SC may
as unconstitutional. (Francisco, Jr. v. The House of assign to it.
Representatives, G.R. No. 160261, Bellosillo J.,
Separate Opinion, Nov. 10, 2003) Q: How long can members of the SC and judges
hold office?
D. APPOINTMENTS TO THE JUDICIARY
A: Members of the SC and judges of lower courts
Q: How are members of the judiciary appointed? can hold office during good behavior until:
1. The age of 70 years old; or
A: The members of the judiciary are appointed by 2. They become incapacitated to discharge
the President of the Philippines from among a list of their duties.
at least three nominees prepared by the Judicial
and Bar Council (JBC) for every vacancy. Q: Does the prohibition against midnight
appointments (Sec. 15, Art. VII - two months
Note: The appointment shall need no confirmation immediately before the next presidential elections
from the Commission on Appointments. (Sec. 9, Art. and up to the end of his term, a President or acting
VIII) President shall not make appointments except
temporary appointments to executive positions
Q: What are the rules regarding vacancies in the when continued vacancies therein will prejudice
SC? public service or endanger public safety) affect
appointments to the Supreme Court?
A: They are the following:
1. Vacancies in the SC should be filled within A: It does not. The prohibition under Sec. 15, Art.
90 days from the occurrence of the VII does not apply to appointments to fill a vacancy
vacancy. in the SC. (De Castro v. JBC, G.R. No. 191002, Mar.
2. Vacancies in lower courts should be filled 17, 2010)
within 90 days from submission to the
President of the JBC list. Q: What are the general qualifications for
3. The filling of the vacancy in the Supreme appointments to the judiciary?
Court within the 90-day period is an
exception to the prohibition on midnight A: Of proven competence, integrity, probity and
appointments of the president. This means independence (Sec. 7 [3], Art. VIII)
that even if the period falls on the period
where the president is prohibited from Q: What are the qualifications for appointments to
making appointments (midnight the SC?
appointments), the president is allowed to
make appointments to fill vacancies in the A:
1. Natural born citizen of the Philippines;
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POLITICAL LAW TEAM
2. At least 40 years of age; deliberations on the issues and voted thereon, but in
3. A judge of a lower court or engaged in the no case without the concurrence of at least three such
practice of law in the Philippines for 15 years or members.
more (Sec. 7 [1], Art. VIII)
No law shall be passed increasing the appellate
Q: What are the qualifications for appointments to jurisdiction of the SC as provided in the Constitution
lower collegiate courts? without its advice and concurrence. (Sec. 30, Art. VI)
A: 2. PROCEDURAL RULE-MAKING POWER

1. Natural born citizen of the Philippines
2. Member of the Philippine Bar Q: What is the scope of the rule making power of
the SC?
Q: What are the qualifications for appointments to
lower courts? A: Promulgate rules concerning:
1. The protection and enforcement of
A: constitutional rights
1. Citizen of the Philippines 2. Pleadings, practice and procedure in
2. Member of the Philippine Bar all courts
3. Admission to the practice of law
Note: For both lower collegiate courts and lower 4. The Integrated Bar
courts, Congress may prescribe other qualifications. 5. Legal assistance to the
(Sec. 7 [1] and [2], Art. VIII) underprivileged
E. SUPREME COURT Q: What are the limitations on its rule making

power?
1. EN BANC DECISIONS
A:
1. It should provide a simplified and
Q: What are the cases that should be heard by the
inexpensive procedure for the speedy
SC en banc?
disposition of cases.
2. It should be uniform for all courts of
A:
the same grade.
1. All cases involving the constitutionality
3. It should not diminish, increase, or
of a treaty, international or executive
modify substantive rights.
agreement, or law;
2. All cases which under the Rules of
Court may be required to be heard en
3. ADMINISTRATIVE SUPERVISION
banc; OVER LOWER COURTS
3. All cases involving the constitutionality,
application or operation of presidential Q: Who holds the power of disciplinary action over
decrees, proclamations, orders, judges of lower courts?
instructions, ordinances, and other
regulations; A:
4. Cases heard by a division when the 1. Only the SC en banc has jurisdiction to
required majority in the division is not discipline or dismiss judges of lower
obtained; courts.
5. Cases where the SC modifies or 2. Disciplinary action/dismissal – majority
reverses a doctrine or principle of law vote of the SC Justices who took part in
previously laid either en banc or in the deliberations and voted therein
division; (Sec. 11, Art. VIII)
6. Administrative cases involving the
discipline or dismissal of judges of Note: The Constitution provides that the SC is given
lower courts; exclusive administrative supervision over all courts and
7. Election contests for president or vice- judicial personnel.
president.
Q: Does the CSC have jurisdiction over an
Note: Other cases or matters may be heard in division, employee of the judiciary for acts committed
and decided or resolved with the concurrence of a while said employee was still in the executive
majority of the members who actually took part in the branch?
63
A: No. Administrative jurisdiction over a court 7. Salaries of chairmen and members are
employee belongs to the SC, regardless of whether relatively high and may not be decreased
the offense was committed before or after during continuance in office
employment in the Judiciary. (Ampong v. CSC, G.R. 8. Commissions enjoy fiscal autonomy
No. 167916, Aug. 26, 2008) 9. Each commission may promulgate its own
procedural rules
CONSTITUTIONAL COMMISSIONS 10. Chairmen and members are subject to
certain disqualifications calculated to
Q: What are the Constitutional Commissions? strengthen their integrity
11. Commissions may appoint their own
A: officials and employees in accordance
1. Civil Service Commission (CSC) with Civil Service Law
2. Commission on Elections (COMELEC)
3. Commission on Audit (CoA) Note: The Supreme Court held that the “no report, no
release” policy may not be validly enforced against
Note: The CSC, COMELEC, and CoA are equally pre- offices vested with fiscal autonomy, without violating
eminent in their respective spheres. Neither one may Sec. 5, Art. IX-A of the Constitution. The automatic
claim dominance over the others. In case of conflicting release of approved annual appropriations to a
rulings, it is the Judiciary, which interprets the meaning Constitutional Commission vested with fiscal
of the law and ascertains which view shall prevail (CSC autonomy should thus be construed to mean that no
v. Pobre, G.R. No. 160508, Sept. 15, 2004) condition to fund releases may be imposed. (CSC v.
DBM, G.R. No. 158791, July 22, 2005)
Q: Discuss the creation of the Constitutional
Commission. Q: What are the requisites for the effective
operation of the rotational scheme of terms of
A: The creation of the Constitutional Commissions constitutional bodies?
is established in the Constitution because of the
extraordinary importance of their functions and the A:
need to insulate them from the undesired political 1. The original members of the Commission
interference or pressure. Their independence shall begin their terms on a common date
cannot be assured if they were to be created 2. Any vacancy occurring before the
merely by statute. expiration of the term shall be filled only
for the balance of such term. (Republic v.
A. CONSTITUTIONAL SAFEGUARDS TO Imperial, G.R. No. L-8684, Mar. 31, 1995)
ENSURE INDEPENDENCE OF
B. POWERS AND FUNCTIONS OF EVERY
COMMISSIONS
COMMISSION
Q: What are the guarantees of independence
provided for by the Constitution to the 3 a. Civil Service Commission
Commissions?
Q: What are the functions of the CSC?
A:
1. They are constitutionally-created; may A: As the central personnel agency of the
not be abolished by statute government, it:
2. Each is conferred certain powers and 1. Establishes a career service
functions which cannot be reduced by 2. Adopts measures to promote morale,
statute efficiency, integrity, responsiveness,
3. Each is expressly described as progressiveness and courtesy in the Civil
independent Service
4. Chairmen and members are given fairly 3. Strengthens the merits and rewards
long term of office for 7 years system
5. Chairmen and members cannot be 4. Integrates all human resources and
removed except by impeachment development programs for all levels and
6. Chairmen and members may not be ranks
reappointed or appointed in an acting 5. Institutionalizes a management climate
capacity conducive to public accountability (Sec. 3,
Art. IX-B)
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POLITICAL LAW TEAM
b. Commission on Elections purpose of ensuring free, orderly, honest,

peaceful and credible elections.
Q: What are the constitutional powers and
functions of the COMELEC? 5. Registration of political parties,
organizations, or coalitions and
A: accreditation of citizens’ arms of the
1. Enforce and administer all laws and regulations COMELEC.
relative to the conduct of an election,
plebiscite, initiative, referendum, and recall. 6. File, upon a verified complaint, or on its
own initiative, petitions in court for
2. Exercise: inclusion or exclusion of voters;
a. Exclusive original jurisdiction over all investigate and, where appropriate,
contests relating to the election, returns prosecute cases of violations of election
and qualifications of all elective: laws, including acts or omissions
i. Regional constituting election frauds, offenses and
ii. Provincial malpractices.
iii. City officials a. COMELEC has exclusive
b. Exclusive appellate jurisdiction over all jurisdiction to investigate and
contests involving: prosecute cases for violations of
i. Elective municipal officials election laws.
decided by trial courts of b. COMELEC can deputize
general jurisdiction prosecutors for this purpose.
ii. Elective barangay officials The actions of the prosecutors
decided by courts of limited are theactions of the COMELEC.
jurisdiction.
c. Contempt powers Note: Preliminary investigations conducted
i. COMELEC can exercise this by the COMELEC arevalid.
power only in relation to its
adjudicatory or quasi-judicial 7. Recommend to the Congress effective
functions. It cannot exercise this measures to minimize election spending,
in connection with its purely including limitation of places where
executive or ministerial propaganda materials shall be posted,
functions and to prevent and penalize all forms of
ii. If it is pre-proclamation election frauds, offenses, malpractices,
controversy, the COMELEC and nuisance candidacies.
exercises quasi-judicial/
administrative powers. 8. Recommend to the President the removal
iii. Its jurisdiction over contests of any officer or employee it has
(after proclamation), is in deputized, or the imposition of any other
exercise of its judicial functions. disciplinary action, for violation or
disregard of, or disobedience to its
Note: The COMELEC may issue writs of directive, order, or decision.
certiorari, prohibition, and mandamus in
exercise of its appellate functions. 9. Submit to the President and the Congress
a comprehensive report on the conduct of
3. Decide, except those involving the right to each election, plebiscite, initiative,
vote, all questions affecting elections, referendum, or recall.
including determination of the number
and location of polling places, Q: All election cases, including pre-proclamation
appointment of election officials and controversies, must be decided by the COMELEC in
inspectors, and registration of voters. division. Should a party be dissatisfied with the
decision, what remedy is available?
Note: Questions involving the right to vote
fall within the jurisdiction of ordinary courts. A: The dissatisfied party may file a motion for
reconsideration before the COMELEC en banc. If the
4. Deputize, with the concurrence of the en banc’s decision is still not favorable, the same, in
President, law enforcement agencies and accordance with Article IX-A, Sec. 7, “may be
instrumentalities of the government, brought to the Supreme Court on certiorari.”
including the AFP, for the exclusive
65
(Reyes v. RTC of Oriental Mindoro, G.R. No. 108886, subsidiaries which are subject to audit by the COA.
May 5, 1995) However, in accordance with Sec. 2(1), Art. IX-D,
the COA can audit the PNB with respect to its
Note: The fact that decisions, final orders or rulings of accounts because the Government still has equity in
the COMELEC in contests involving elective municipal it. (PAL vs. COA, G.R. No. 91890, June 9, 1995)
and barangay offices are final, executory and not
appealable, (Art. IX-C, Sec. 2[2]) does not preclude a C. PROHIBITED OFFICES & INTERESTS
recourse to the Supreme Court by way of a special civil
action of certiorari. (Galido v. COMELEC, G.R. No.
Q: What are the prohibitions and inhibitions
95346, Jan. 18, 1991)
attached to the officers of Constitutional
Commissions?
Q: Can the COMELEC exercise its power of
contempt in connection with its functions as the
A: No member of a Constitutional Commission shall,
National Board of Canvassers during the elections?
during his tenure:
1. Hold any other office or employment
A: Yes. The effectiveness of the quasi-judicial power
2. Engage in the practice of any profession
vested by law on a government institution hinges
3. Engage in the active management and
on its authority to compel attendance of the parties
control of any business which in any way
and/or their witnesses at the hearings or
may be affected by the function of his
proceedings. In the same vein, to withhold from the
office
COMELEC the power to punish individuals who
4. Be financially interested, directly or
refuse to appear during a fact-finding investigation,
indirectly, in any contract with, or in any
despite a previous notice and order to attend,
franchise or privilege granted by the
would render nugatory the COMELEC’s investigative
Government, any of its subdivisions,
power, which is an essential incident to its
agencies or instrumentalities, including
constitutional mandate to secure the conduct of
GOCCs or their subsidiaries
honest and credible elections. (Bedol v. COMELEC,
G.R. No. 179830, Dec. 3, 2009)
D. JURISDICTION OF EACH
c. Commission on Audit CONSTITUTIONAL COMMISSION
Q: What are the powers and duties of COA? a. CIVIL SERVICE COMMISSION
A: Q: What is the scope of the Civil Service?

1. Examine, audit and settle all accounts
pertaining to revenue and receipts of, and A: The civil service embraces all branches,
expenditures or uses of funds and property subdivisions, instrumentalities, and agencies of the
owned or held in trust or pertaining to Government, including government-owned or
government controlled corporations with original charters.
2. Keep general accounts of government and (Article IV-B, Section 2[1])
preserve vouchers and supporting papers
3. Authority to define the scope of its audit and b. COMMISSION ON ELECTION
examination, establish techniques and
methods required therefore Q: What cases fall under the jurisdiction of
4. Promulgate accounting and auditing rules and COMELEC by division?
regulations, including those for prevention and
disallowance. (Sec. 2, Art. IX-D) A: Election cases should be heard and decided by a
division. If a division dismisses a case for failure of
Q: The PNB was then one of the leading counsel to appear, the MR may be heard by the
government-owned banks and it was under the division.
audit jurisdiction of the COA. A few years ago, it
was privatized. What is the effect, if any, of the Note: According toBalajonda v. COMELEC, G.R. No.
privatization of PNB on the audit jurisdiction of the 166032, Feb. 28, 2005, the COMELEC can order
COA? immediate execution of its own judgments.
A: Since the PNB is no longer owned by the Q: What cases fall under the jurisdiction of
Government, the COA no longer has jurisdiction to COMELEC en banc?
audit it as an institution. Under Sec. 2(2), Art. IX-D
of the Constitution, it is a GOCC and their
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POLITICAL LAW TEAM
A: Motion for Reconsideration of decisions should question on

be decided by COMELEC en banc. It may also “qualifications” should
directly assume jurisdiction over a petition to be decided only after a
correct manifest errors in the tallying of results by full-dress hearing).
Board of Canvassers.
Note: Hence, even in the case of regional or provincial
Note: Any decision, order or ruling of the COMELEC in or city offices, it does make a difference whether the
the exercise of its quasi-judicial functions may be COMELEC will treat it as a pre-proclamation
brought to the SC on certiorari under Rules 64 and 65 controversy or as a contest.
of the Revised Rules of Court within 30 days from
receipt of a copy thereof. c. COMMISSION ON AUDIT
These decisions or rulings refer to the decision or final Q: Can the COA be divested of its power to
order of the COMELEC en banc and not of any division examine and audit government agencies?
thereof.
A: No law shall be passed exempting any entity of
Q: What are the acts that fall under the the Government or its subsidiary in any guise
COMELEC’s power to supervise or regulate? whatsoever, or any investment of public funds,
from the jurisdiction of the Commission on Audit.
A: The mere fact that private auditors may audit
1. The enjoyment or utilization of all government agencies does not divest the COA of its
franchises or permits for the operation of power to examine and audit the same government
transportation and other public utilities, agencies. (DBP v. COA, G.R. No. 88435, Jan. 16,
media of communication or information. 2002)
2. Grants, special privileges or concessions
granted by the government or any E. REVIEW OF FINAL ORDERS, RESOLUTION &
subdivision, agency or instrumentality DECISIONS
thereof, including any GOCC or its
subsidiary. (Sec. 4, Art. IX-C) 1. RENDERED IN THE EXERCISE OF QUASI-
JUDICIAL FUNCTION
Q: When can COMELEC exercise its constitutional
powers and functions? Q: How does the SC review decisions of the
commissions?
A:
1. During election period – 90 days before A:
the day of the election and ends 30 days 1) COA: Judgments or final orders of the
thereafter. In special cases, COMELEC can Commission on Audit may be brought by
fix a period. an aggrieved party to the Supreme Court
2. Applies not only to elections but also to on certiorari under Rule 65. Only when
plebiscites and referenda. COA acts without or excess in jurisdiction,
or with grave abuse of discretion
Q: What is the difference between the jurisdiction amounting to lack or excess of
of the COMELEC before the proclamation and its jurisdiction, may the SC entertain a
jurisdiction after proclamation? petition for certiorari under Rule 65.
A: The difference lies in the due process 2) CSC: In the case of decisions of the CSC,
implications. Administrative Circular 1-95538 which
took effect on June 1, 1995, provides that
OVER PRE- OVER CONTESTS (AFTER final resolutions of the CSC shall be
PROCLAMATION PROCLAMATION) appealable by certiorari to the CA within
CONTROVERSY 15 days from receipt of a copy thereof.
COMELEC’s jurisdiction COMELEC’s jurisdiction From the decision of the CA, the party
is administrative or is judicial and is adversely affected thereby shall file a
quasi-judicial and is governed by the petition for review on certiorari under
governed by the less requirements of judicial Rule 45 of the Rules of Court.
stringent requirements process.
of administrative due 3) COMELEC: only decision en banc may be
process (although the brought to the Court by certiorari since
SC has insisted that Article IX-C, says that motions for
67
reconsideration of decisions shall be A: CSC. It is the intent of the Civil Service Law, in
decided by the Commission en banc. requiring the establishment of a grievance
(Reyes v. Mindoro, G.R. No. 108886, May procedure, that decisions of lower officials (in cases
5, 1995) involving personnel actions) be appealed to the
agency head, then to the CSC. The RTC does not
Q: What is the proeduralrequisite before certiorari have jurisdiction over such personal actions. (G. R.
to the Supreme Court may be availed of? No. 140917. October 10, 2003)
A: Rule 65, Section 1 says that certiorari may be Q: What is the jurisdiction of the COMELEC?
resorted to when there is no other plain or speedy
and adequate remedy. But reconsideration is a A:The COMELEC hasexclusive original jurisdiction
speedy and adequate remedy. Hence, a case may over all contests relating to returns, and
be brought to the Supreme Court only after qualifications of all elective regional, provincial, and
reconsideration. city officials.It also hasappellate jurisdiction over all
contests involving elective municipal officials
Q: Discuss the decision-making process in these decided by trial courts of general jurisdiction, or
Commissions. involving elective barangay officials decided by trial
courts of limited jurisdiction.
A: 1. Each Commission shall decide matter or cases
by a majority vote of all the members within Q: Discuss the certiorari jurisdiction of the SC over
60 days from submission. these Commissions.
a. COMELEC may sit en banc or in 2
divisions. A: Proceedings are limited to issues involving grave
b. Election cases, including pre- abuse of discretion resulting in lack or excess of
proclamation controversies are jurisdiction and does not ordinarily empower the
decided in division, with motions for Court to review the factual findings of the
reconsideration filed with the Commissions. (Aratuc v. COMELEC, G.R. No. L-
COMELEC en banc. 49705-09, Feb. 8, 1979)
c. The SC has held that a majority G. BILL OF RIGHTS
decision decided by a division of the
COMELEC is a valid decision. a. FUNDAMENTAL POWERS OF THE STATE
2. As collegial bodies, each Commission
must act as one, and no one member can Q: What are the fundamental powers of the State?
decide a case for the entire commission
A:
Q: Discuss the rule on appeals. 1. Police Power
2. Power of Eminent Domain
A: 3. Power of Taxation
1. Decisions, orders or rulings of the
COMELEC/CoA may be brought on certiorari to Note: These powers are considered inherent because
the SC under Rule 65. they belong to the very essence of government and
2. Decisions, orders or rulings of the CSC should without them no government can exist. (Bernas, The
be appealed to the CA under Rule 43. 1987 Philippine Constitution: A Comprehensive
Reviewer, 2006)
2. RENDERED IN THE EXERCISE OF
Q: What are the similarities among the
ADMINISTRATIVE FUNCTION
fundamental powers of the State?
Q; Does the CSC have the power to hear and
A:
decide administrative cases?
1. They are inherent in the State and may be
exercised by it without need of express
A: Yes. Under the Administrative Code of 1987, the
constitutional grant.
CSC has the power to hear and decide
2. They are not only necessary but also
administrative cases instituted before it directly or
indispensable. The State cannot continue
on appeal, including contested appointments.
or be effective unless it is able to exercise
them.
Q: Which body has the jurisdiction on personnel
3. They are methods by which the State
actions, covered by the civil service?
interferes with private rights.
68
POLITICAL LAW TEAM
4. They all presuppose an equivalent most pervasive, the least limitable, and the most
compensation for the private rights demanding of the three powers. It may be
interfered with. exercised as long as the activity or property sought
5. They are exercised primarily by the to be regulated has some relevance to the public
legislature. welfare. (Gerochi v. Department of Energy, G. R.
159796, July 17, 2007)
Q: What are the common limitations of these
powers? Q: What is the scope of police power?
A: A: Police Power rests upon public necessity and

1. May not be exercised arbitrarily to the upon the right of the State and of the public to self-
prejudice of the Bill of Rights protection. For this reason, its scope expands and
2. Subject at all times to the limitations and contracts with the changing needs.(Churchill vs.
requirements of the Constitution and may Rafferty, 32 Phil. 580, 602-603, 1915)
in proper cases be annulled by the courts,
i.e. when there is grave abuse of Q: What are the aspects of police power?
discretion.
A: Generally, police power extends to all the great
Q: How do these powers differ from one another? public needs. However, its particular aspects are
the following:
A: 1. Public health
Eminent 2. Public morals
Police Power Taxation
Domain 3. Public safety
Extent of power 4. Public welfare
Regulates
Affects only Affects only Q: Who exercises police power?
liberty and
property rights property rights
property
Power exercised by whom A: GR: Police power is lodged primarily in the
national legislature.
Exercised only Exercised only Maybe
by the by the exercised by
XPN: By virtue of a valid delegation of
government government private entities
legislative power, it may be exercised by
Purpose
the:
Property Property is Property is
1. President
taken is taken for taken for
2. Administrative bodies
destroyed public use public use
3. Lawmaking bodies on all municipal levels,
Compensation
including the barangay. Municipal
Intangible; Protection and Value of the governments exercise this power under
general public property the general welfare clause. (Gorospe,
welfare improvements expropriated Constitutional Law: Notes and Readings
on the Bill of Rights, Citizenship and
1. POLICE POWER Suffrage, Vol. 2.)
Q: What is police power? Q: Can the MMDA exercise police power?
A: Police power is that inherent and plenary power A: No, the MMDA’s powers are limited to the
of the State which enables it to prohibit all that is formulation, coordination, regulation,
hurtful to the comfort, safety, and welfare of implementation, preparation, management,
society. (Ermita-Malate Hotel and Motel Operators monitoring, setting of policies, installing a system,
Association, Inc. vs. Mayor of Manila, L-24693, July and administration. Nothing in RA No. 7924 granted
31, 1967) the MMDA police power, let alone legislative
power. (MMDA vs. Trackworks GR. No. 179554,
Q: What are the characteristics of police power as December 16, 2009)
compared to the powers of taxation and eminent
domain? Q: What are the requisites for the valid exercise of
police power by the delegate?
A: Police power easily outpaces the other two
powers. It regulates not only property, but also the A:
liberty of persons. Police power is considered the
69
1. Express grant by law Q: Who exercises the power of eminent domain?

2. Must not be contrary to law
3. GR: Within territorial limits of LGUs A: Congress. However, the following may exercise
XPN: When exercised to protect water this power by virtue of a valid delegation:
supply (Wilson v. City of Mountain Lake 1. The President of the Philippines
Terraces, 417 P.2d 632, 1966) 2. Various local legislative bodies
3. Certain public corporations like the Land
Q: Can anyone compel the government to exercise Authority and National Housing Authority
police power? 4. Quasi-public corporations like the
Philippine National Railways
A: No. The exercise of police power lies within the
discretion of the legislative department. The only Q: Distinguish the power of expropriation as
remedy against legislative inaction is a resort to the exercised by Congress from the power of
courtof public opinion, a refusal of the electorate to expropriation as exercised by delegates.
turn to the legislative members who, in their view,
have been remiss in the discharge of their duties. A: When exercised by Congress, the power is
pervasive and all-encompassing. It can reach every
Q: Can the courts interfere with the exercise of form of property which may be needed by the State
police power? for public use. In fact, it can reach even private
property already dedicated to public use, or even
A: No. If the legislature decides to act, the choice of property already devoted to religious worship.
measures or remedies lies within its exclusive (Barlin v. Ramirez, 7 Phil. 41) But when exercised by
discretion, as long as the requisites for a valid delegates, it can only be broad as the enabling law
exercise of police power have been complied with. and the conferring authorities want it to be.
Q: What are the requisites for a valid exercise of As to the question of necessity, the same is a
police power? political question when the power is exercised by
Congress. On the other hand, it is a judicial question
A: when exercised by delegates. The courts can
1. Lawful subject – The interests of the determine whether there is genuine necessity for
public generally, as distinguished from its exercise, as well as the value of the property.
those of a particular class, require the
exercise of the police power Q: What are the requisites for a valid taking?
2. Lawful means – The means employed are
reasonably necessary for the A: PMAPO
accomplishment of the purpose and not 1. The expropriator must enter a Private
unduly oppressive upon individuals. (NTC property
vs. Philippine Veterans Bank, 192 SCRA 2. Entry must be for more than a
257). Momentary period
3. Entry must be under warrant or color of
2. EMINENT DOMAIN legal Authority
4. Property must be devoted to Public use or
Q: What is the power of eminent domain? otherwise informally appropriated or
injuriously affected
A: It is the power of the state to forcibly acquire the 5. Utilization of property must be in such a
needed property in order to devote it to the way as to Oust the owner and deprive
intended public use, upon payment of just him of beneficial enjoyment of the
compensation. (Cruz, Constitutional Law, p.62) property (Republic v. vda. De Castellvi,
G.R. No. L-20620, Aug. 15, 1974)
Q: What are the conditions for the exercise of the
power of eminent domain? Q: What properties can be taken?
A: A: All private property capable of ownership,

1. Taking of private property including services.
2. For public use
3. Just compensation Q: What properties cannot be taken?
4. Observance of due process
70
POLITICAL LAW TEAM
A: Money and choses in action, personal right not A: It is the process by which the government,
reduced in possession but recoverable by a suit at through its legislative branch, imposes and collects
law, right to receive, demand or recover debt, revenues to defray the necessary expenses of the
demand or damages on a cause of action ex government, and to be able to carry out, in
contractu or for a tort or omission of duty. particular, any and all projects that are supposed to
be for the common good. (Political Law Reviewer,
Note: A chose in action is a property right in something Suarez , 2011). Simply put, taxation is the method
intangible, or which is not in one’s possession but by which these contributions are exacted. (Gorospe,
enforceable through legal or court action. Ex. cash, a Constitutional Law: Notes and Readings on the Bill
right of action in tort or breach of contract, an of Rights, Citizenship and Suffrage, Vol. 2)
entitlement to cash refund, checks, money, salaries,
insurance claims Q: Does the power to tax include the power to
destroy?
Q: Distinguish eminent domain from destruction
from necessity. A: Yes, only if it is used as a valid implement of the
police power in discouraging and in effect,
A: ultimately prohibiting certain things or enterprises
Destruction from inimical to public welfare. But where the power to
Eminent domain
necessity tax is used solely for the purpose of raising
Who can exercise revenues, the modern view is that it cannot be
Only authorized May be validly allowed to confiscate or destroy. If this is sought to
public entities or undertaken by private be done, the tax may be successfully attacked as an
public officials individuals inordinate and unconstitutional exercise of the
Kind of right discretion that is usually vested exclusively in the
Right of self-defense, legislature in ascertaining the amount of tax (Cruz,
self-preservation, Constitutional Law, 2006 Ed., p. 88)
Public right
whether applied to
persons or to property
Requirement Q: What is the nature of the power of taxation?
No need for conversion;
Conversion of
no just compensation A:
property taken for
but payment in the 1. The power to tax is primarily vested in the
public use; payment
form of damages when legislature. This power, however, may now be
of just compensation
applicable exercised by local legislative bodies, no longer
Beneficiary by virtue of a valid delegation as before, but
State/public Private pursuant to a direct authority conferred by
(Gorospe, Constitutional Law: Notes and Readings Article X, Section 5 of the 1987 Constitution.
on the Bill of Rights, Citizenship and Suffrage, Vol. 2) 2. The power to tax is subject to the limitations
imposed by the Constitution.
****For complete discussion of the power of 3. The power of taxation is inherent in the State
eminent domain, please refer to letter L. of Bill of and the State therefore can still exercise this
Rights power even if the constitution had not
mentioned about it. (Political Law Reviewer,
3. TAXATION Suarez , 2011).
Q: What are taxes? Q: What is the source of the obligation to pay

taxes?
A: Taxes are:
1. Enforced proportional contributions from A: Payment of taxes is an obligation based on law,
persons and property and not on contract. It is a duty imposed upon the
2. Levied by the State by virtue of its individual by the mere fact of his membership in
sovereignty the body politic and his enjoyment of the benefits
3. For the support of the government available from such membership.
4. For public needs
Note: Except only in the case of poll (community)
Q: What is taxation? taxes, non-payment of a tax may be the subject of
criminal prosecution and punishment. The accused
cannot invoke the prohibition against imprisonment
for debt as taxes are not considered debts.
71
Q: Do local government units have the power of

Q: What are the matters left to the discretion of taxation?
the legislature?
A: Yes. Each LGU shall have the power to create its
A: own sources of revenues and to levy taxes, fees and
1. Whether to tax in the first place charges subject to such guidelines and limitations
2. Whom or what to tax as the Congress may provide, consistent with the
3. For what public purpose basic policy of local autonomy. Such taxes, fees, and
4. Amount or rate of the tax charges shall accrue exclusively to the local
governments (Sec. 5, Art. X).
Q: What are the limitations, in general, on the
power of taxation? Q: Should there be notice and hearing for the
enactment of tax laws?
A: Inherent and Constitutional limitations.
A: From the procedural viewpoint, due process
Q: What are inherent limitations? does not require previous notice and hearing
before a law prescribing fixed or specific taxes on
A: certain articles may be enacted. But where the tax
1. Public purpose to be collected is to be based on the value of
2. Non-delegability of power taxable property, the taxpayer is entitled to be
3. Territoriality or situs of taxation notified of the assessment proceedings and to be
4. Exemption of government from taxation heard therein on the correct valuation to be given
5. International comity the property.
Q: What are Constitutional limitations? Q: What is the meaning of uniformity in taxation?
A: A: It refers to geographical uniformity, meaning it

1. Due process of law (Art. III, Sec.1) operates with the same force and effect in every
2. Equal protection clause (Art. III, Sec.1) place where the subject of it is found.
3. Uniformity, equitability and progressive
system of taxation (Art. VI, Sec 28) Q: What is a progressive system of taxation?
4. Non-impairment of contracts (Art. III, Sec.
10) A: It means that the tax rate increases as the tax
5. Non-imprisonment for non-payment of base increases.
poll tax (Art. III, Sec. 20)
6. Revenue and tariff bills must originate in Q: When is there double taxation?
the House of Representatives (Art I, Sec.
7) A: It occurs when:
7. Non-infringement of religious freedom 1. Taxes are laid on the same subject
(Art. III, Sec.4) 2. By the same authority
8. Delegation of legislative authority to the 3. During the same taxing period
President to fix tariff rates, import and 4. For the same purpose
export quotas, tonnage and wharfage
dues Note: There is no provision in the Constitution
9. Tax exemption of properties actually, specifically prohibiting double taxation, but it will not
directly and exclusively used for religious, be allowed if it violates equal protection. (Gorospe,
charitable and educational purposes Constitutional Law: Notes and Readings on the Bill of
(NIRC, Sec 30) Rights, Citizenship and Suffrage, Vol. 2)
10. Majority vote of all the members of
Congress required in case of legislative Q: What are the kinds of tax exemptions?
grant of tax exemptions
11. Non-impairment of SC’s jurisdiction in tax A: Tax exemptions may either be:
cases 1. Constitutional
12. Tax exemption of revenues and assets of, 2. Statutory
including grants, endowments, donations
or contributions to educational Q: Once an exemption is granted by the
institutions legislature, may such exemption be revoked at
will?
72
POLITICAL LAW TEAM
A: relation between private individuals. What it does is

1. If exemption is granted gratuitously – to declare some forbidden zones in the private
revocable sphere inaccessible to any power holder. (People v.
2. If exemption is granted for valuable Marti, G.R. No. 81561, Jan. 18, 1991)
consideration (non-impairment of
contracts) – irrevocable Q: Can the Bill of Rights be invoked against private
individuals?
Q: What is the nature of a license fee?
A: No. In the absence of governmental interference,
A: Ordinarily, license fees are in the nature of the the liberties guaranteed by the Constitution cannot
exercise of police power because they are in the be invoked. Put differently, the Bill of Rights is not
form of regulation by the State and considered as a meant to be invoked against acts of private
manner of paying off administration costs. individuals.(Yrasegui vs. PAL, G.R. No. 168081, Oct.
However, if the license fee is higher than the cost of 17, 2008)
regulating, then it becomes a form of taxation
(Ermita-Malate Hotel and Motel Operators Assoc., Note: However, according to the Supreme Court in
Inc. vs. City Mayor of Manila, G.R. No. L-24693, Oct. Zulueta v. CA, G.R. No. 107383, Feb. 20 1996, where
23, 1967). the husband invoked his right to privacy of
communication and correspondence against a private
Q: Distinguish tax from license fee. individual, his wife, who had forcibly taken from his
cabinet and presented as evidence against him
documents and private correspondence, held these
TAX LICENSE FEE
papers inadmissible in evidence, upholding the
-Levied in exercise of -Imposed in the exercise
husband’s right to privacy.
the taxing power of the police power of
the state c. DUE PROCESS
-The purpose of the tax -License fees are
is to generate revenues imposed for regulatory Q: What is due process?
purposes which means
that it must only be of A: Due process means:
sufficient amount to 1. That there shall be a law prescribed in
include expenses in harmony with the general powers of the
issuing a license; cost of legislature
necessary inspection or 2. That it shall be reasonable in its operation
police surveillance, etc. 3. That it shall be enforced according to the
-If its primary purpose -If regulation is the regular methods of procedure prescribed,
is to generate revenue, primary purpose, the and
and regulation is fact that incidental 4. That it shall be applicable alike to all
merely incidental revenue is also obtained citizens of the State or to all of a
does not make the class.(People v. Cayat, G.R. No. L-45987,
imposition a tax May 5, 1939)
b. PRIVATE ACTS AND THE BILL OF RIGHTS Q: What are the two kinds of due process?
Q: What is the Bill of Rights? A: They are:

1. Procedural Due Process
A: It is the set of prescriptions setting forth the 2. Substantive Due Process
fundamental civil and political rights of the
individual, and imposing limitations on the powers 1. Relativity of Due Process
of government as a means of securing the
enjoyment of those rights. Q: Explain the concept of relativity of due process?
Q: When can the Bill of Rights be invoked? A: The definition of due process has been left to the
best judgment of our judiciary considering the
A: In the absence of governmental interference, the peculiarity and the circumstances of each case. In a
liberties guaranteed by the Constitution cannot be litany of cases that have been decided in this
invoked against the State. The Bill of Rights jurisdiction, the common requirement to be able to
guarantee governs the relationship between the conform to due process is fair play, respect for
individual and the State. Its concern is not the justice and respect for the better rights of others. In
73
accordance with the standards of due process, any decision rendered. (Ang Tibay vs CIR, Gr.
court at any particular time, will be well guided, No. L-46496, February 27, 1940).
instead of being merely confined strictly to a
precise definition which may or may not apply in Note: When a regulation is being issued under the
every case. (Political Law Reviewer, Suarez , 2011). quasi-legislative authority of an administrative agency,
the requirements of notice, hearing and publication
Q: What are the requirements of due process in must be observed. (Commissioner of Internal Revenue
judicial proceedings? v. CA, G.R. No. 119761, Aug. 29, 1996)
A: Whether in civil or criminal judicial proceedings, Q: Is the right to appeal part of due process?
due process requires that there be:
A:
1. An impartial and disinterested court GR: The right to appeal is not a natural right or a
clothed by law with authority to hear and part of due process.
determine the matter before it.
XPN: In cases where the right to appeal is
Note: The test of impartiality is whether the guaranteed by the Constitution (Art. VIII, Sec.
judge’s intervention tends to prevent the XIV) or by a statute.
proper presentation of the case or the
ascertainment of the truth. Q: Distinguish due process in administrative
proceedings from due process in judicial
2. Jurisdiction lawfully acquired over the proceeding.
defendant or the property which is the
subject matter of the proceeding A:
ADMINISTRATIVE JUDICIAL
3. Notice and opportunity to be heard be Essence
given to the defendant Opportunity to explain A day in court
one’s side
4. Judgment to be rendered after lawful Means
hearing, clearly explained as to the factual Usually through Submission of
and legal bases (Art. VII, Sec. 14, 1987 seeking a pleadings and oral
Constitution) reconsideration of the arguments
ruling or the action
Q: What are the requisites of administrative due taken, or appeal to a
process? superior authority
Notice and Hearing
A:
When exercising quasi- Both are essential:
1. The right to hearing which includes the
judicial function 1. Notice
right to present one’s case and submit
(PhilCom-Sat v. Alcuaz, 2. Hearing
evidence to support thereof.
G.R. No. 84818, Dec.
2. Tribunal or body or any of its judges must
18, 1989)
act on its own independent consideration
of the law and facts of the controversy.
Q: What is the nature of procedural due process in
3. Tribunal must consider the evidence
student discipline proceedings?
presented.
4. Evidence must be substantial, which
A: Student discipline proceedings may be summary
means relevant evidence as a reasonable
and cross-examination is not an essential part
man might accept as adequate to support
thereof. However, to be valid, the following
a conclusion
requirements must be met:
5. The decision must have something to
1. Written notification sent to the student/s
support itself
informing the nature and cause of any
6. Decision must be based on evidence
accusation against him/her;
presented during hearing or at least
2. Opportunity to answer the charges, with
contained in the record and disclosed by
the assistance of a counsel, if so desired;
the parties
3. Presentation of one’s evidence and
7. Decision must be rendered in a manner
examination of adverse evidence;
that the parties can know the various
4. Evidence must be duly considered by the
issues involved and the reason for the
investigating committee or official
74
POLITICAL LAW TEAM
designated by the school authorities to vs. Hiu Ching Tsai Pao Hao, G.R. No. L-29646, Nov.
hear and decide the case.(Guzman v. 10, 1978)
National University, G.R. No. L-68288, July
11, 1986) 2. Procedural and Substantive Due Process
5. The student has the right to be informed
of the evidence against him Q: What are the two aspects of due process?
6. The penalty imposed must be
proportionate to the offense. A:
SUBSTANTIVE DUE PROCEDURAL DUE
Q: What kind of due process is required in PROCESS PROCESS
deportation proceedings? This serves as a Serves as a restriction on
restriction on the actions of judicial and
A: Although deportation proceedings are not government’s law and quasi-judicial agencies of
criminal in nature, the consequences can be as rule-making powers the government
serious as those of a criminal prosecution. The Requisites
provisions of the Rules of Court for criminal cases 1. The interests of the 1. Impartial court or
are applicable. (Lao Gi alias Chia, Jr. vs. CA, GR. No. public in general, as tribunal clothed with
81789, Dec. 29, 1989.) distinguished from judicial power to hear
those of a particular and determine the
Q: What are the instances when hearings are not class, require the matters before it.
necessary? intervention of the 2. Jurisdiction properly
state acquired over the
A: 2. The means employed person of the
1. When administrative agencies are are reasonably defendant and over
exercising their quasi-legislative necessary for the property which is the
functions. accomplishment of subject matter of the
2. Abatement of nuisance per se. the purpose and not proceeding
3. Granting by courts of provisional unduly oppressive 3. Opportunity to be
remedies. upon individuals. heard
4. Cases of preventive suspension. 4. Judgment rendered
5. Removal of temporary employees in the upon lawful hearing
government service. and based on
6. Issuance of warrants of distraint and/or evidence adduced.
levy by the BIR Commissioner.
7. Cancellation of the passport of a person Substantive Due Process
charged with a crime.
8. Suspension of a bank’s operations by the Q: What is Substantive due process?
Monetary Board upon a prima facie
finding of liquidity problems in such bank.
A: It is a guarantee that life, liberty and property
shall not be taken away from anyone without due
Q: Ordinance No. 6537 of City of Manila makes it
process of law. If a law is invoked to take away
unlawful for non- Filipino citizens to be employed one’s life, liberty or property, the more specific
or to be engaged in any kind of trade, business or
concern of substantive due process is not to find
occupation within the City of Manila, without out whether said law is being enforced in
securing an employment permit from the Mayor of
accordance with procedural formalities but
Manila. Hiu Chiong Tsai Pao Hao sought to enjoin whether or not the said law is a proper exercise of
its enforcement. Is the said ordinance
legislative power. (Political Law Reviewer, Suarez,
unconstitutional? Decide. 2011).
A: The ordinance is unconstitutional. While it is true
Q: The City of Manila enacted Ordinance No. 7783
that the Philippines as a State is not obliged to which prohibited the establishment or operation
admit aliens within its territory, once an alien is
of business “providing certain forms of
admitted, he cannot be deprived of life without due amusement, entertainment, services and facilities
process of law. This guarantee includes the means
where women are used as tools in entertainment
of livelihood. The ordinance amounts to a denial of and which tend to disturb the community, among
the basic right of the people of the Philippines to
the inhabitants and adversely affect the social and
engage in the means of livelihood. (Mayor Villegas moral welfare of community”. Owners and
operators concerned were given three (3) months
75
to wind up their operations or to transfer to any A: No. The essence of due process is to be found in
place outside the Ermita-Malate area, or convert the reasonable opportunity to be heard and to
said business to other kinds of business which are submit any evidence one may have in support of
allowed. Does the ordinance violate the due one’s defense. “To be heard” does not always mean
process clause? verbal arguments in court. One may be heard also
through pleadings. Where opportunity to be heard,
A: Yes, these lawful establishments may only be either through oral arguments or pleadings, is
regulated. They cannot be prohibited from carrying accorded, there is no denial of due process
on their business. This is a sweeping exercise of (Zaldivar v. Sandiganbayan, G.R. No. L-32215, Oct.
police power which amounts to interference into 17, 1988).
personal and private rights which the court will not
countenance. There is a clear invasion of personal Note: The meetings in the nature of consultations and
or property rights, personal in the case of those conferences cannot be considered as valid substitutes
individuals desiring of owning, operating and for the proper observance of notice and hearing
patronizing those motels and property in terms of (Equitable Banking Corporation v. NLRC, G.R. No.
investments made and the salaries to be paid to 102467, June 13, 1987).
those who are employed therein. If the City of
Manila desired to put an end to prostitution, Q: An investigating committee was created to
fornication, and other social ills, it can instead inquire into the charges against Mr. A. Is he
impose reasonable regulations such as daily entitled to be informed of the findings and
inspections of the establishments for any violation recommendations of the investigating committee?
of the conditions of their licenses or permits, it may
exercise its authority to suspend or revoke their A: No, but Mr. A is entitled to meet the charges and
licenses for these violations; and it may even the evidence presented against him during the
impose increased license fees. (City of Manila vs. hearing of the investigating committee. (Pefianco
Laguio, Jr. GR. No. 1118127, April 12, 2005) vs. Moral, GR. No. 132248, January 19, 2000)
Procedural Due Process 3. Constitutional and Statutory Due Process
Q: What is procedural due process? Q: Differentiate constitutional due process from

statutory due process.
A: Procedural due process relates to the mode of A:
procedure which government agencies must follow Constitutional due Statutory due process
in the enforcement and application of laws. process
(Bernas, 1987 Philippine Constitution: A While found in the
Comprehensive Reviewer, 2006) Labor Code and
Protects the individual Implementing Rules
Q: What are the fundamental elements of from the government protects employees
procedural due process? and assures him of his from being unjustly
rights in criminal, civil or terminated without just
A: administrative cause after notice and
1. Notice (to be meaningful, must be as to proceedings hearing (Agabon v.
time and place) NLRC, G.R. No. 158693,
2. Opportunity to be heard November 17, 2004)
3. Court/tribunal must have jurisdiction
Q: What are the standards of due process in all
Q: Does an extraditee have a right of access to the cases of termination of employment?
evidence against him?
A:
A: During the executive phase of an extradition
proceeding an extraditee does not have the right of I. For Termination of Employment Based On Just
access to evidence in the hands of the government. Causes (Article 282, Labor Code)
But during the judicial phase he has. (Secretary vs.
Judge Lantion, GR. No. 139465, Oct. 17, 2000) The following standards of due process shall be
substantially observed.
Q: Does due process require a trial-type
proceeding? 1. Written Notice Served on the Employee–
specifying the grounds of termination and giving to
76
POLITICAL LAW TEAM
said employee reasonable opportunity within which alternative means by which the objectives
to explain his side. could be achieved
2. Intermediate review – the substantiality
2. Hearing or conference– During which the of the governmental interest is seriously
employee concerned, with the assistance of looked into and the availability of less
counsel, If the employee so desires, is given the restrictive alternatives are considered.
opportunity to respond to the charge, present his 3. Strict scrutiny – the focus is on the
evidence or rebut the evidence against him. presence of compelling, rather than
substantial governmental interest and on
3. Written Notice of Termination Served on the the absence of less restrictive means for
Employee– Indicatingthat upon due consideration achieving that interest (Separate opinion
of the circumstances, grounds have been of Justice Mendoza in Estrada v.
established to justify his termination. In case of Sandiganbayan, G.R. No. 148965, Feb. 26,
termination, the foregoing notices shall be served 2002)
on the employee’s last address.
6. Void-for-Vagueness Doctrine
II. If the dismissal is based on authorized causes
under Articles 283 and 284 Q: What is the void for vagueness doctrine?
The employer must give the employee and the A: It holds that a law is vague when it lacks
Department of Labor and Employment written comprehensive standards that men of common
notices 30 days prior to the effectivity of his intelligence must necessarily guess at its common
separation.(Political Law Reviewer, Suarez ,p. 129 meaning and differ as to its application. In such
2011). instance, the statute is repugnant to the
Constitution because:
4. Hierarchy of Rights 1. It violates due process for failure to
accord persons, especially the parties
Q: Is there a hierarchy of constitutional rights? targeted by it, fair notice of what conduct
to avoid
A: Yes. While the Bill of Rights also protects 2. It leaves law enforcers an unbridled
property rights, the primacy of human rights over discretion in carrying out its provisions
property rights is recognized. Property and property (People v. de la Piedra, G.R. No. 128777,
rights can be lost thru prescription; but human Jan. 24, 2001)
rights are imprescriptible. In the hierarchy of civil
liberties, the rights of free expression and of Q: Is legislation couched in imprecise language
assembly occupy a preferred position as they are void for vagueness?
essential to the preservation and vitality of our civil
and political institutions (Philippine Blooming Mills A: No. The "void-for-vagueness" doctrine does not
Employees Organization v. Philippine Blooming Mills apply as against legislations that are merely
Co., Inc., G.R. No. L-31195, June 5, 1973). couched in imprecise language but which specify a
standard though defectively phrased; or to those
5. Judicial Standards of Review that are apparently ambiguous yet fairly applicable
to certain types of activities. The first may be
Q: Given the fact that not all rights and freedoms "saved" by proper construction, while no challenge
or liberties under the Bill of Rights and other may be mounted as against the second whenever
values of society are of similar weight and directed against such activities.
importance, governmental regulations that affect
them would have to be evaluated based on The Supreme Court held that the doctrine can only
different yardsticks, or standards of review. What be invoked against that species of legislation that is
are these standards of review? utterly vague on its face, i.e., that which cannot be
clarified either by a saving clause or by
A: construction. (Estrada v. Sandiganbayan, G.R. No.
1. Deferential review – laws are upheld if 148560, Nov. 19, 2001)
they rationally further a legitimate
governmental interest, without courts Q: What is the test in determining whether a
seriously inquiring into the substantiality criminal statute is void for uncertainty?
of such interest and examining the
77
A: The test is whether the language conveys a A: The classification must:

sufficiently definite warning as to the proscribed 1. Rest on substantial distinctions
conduct when measured by common 2. Be germane to the purpose of the law
understanding and practice. It must be stressed, 3. Not be limited to existing conditions only;
however, that the "vagueness" doctrine merely 4. Apply equally to all members of the same
requires a reasonable degree of certainty for the class. (People v. Cayat, GR. No. L-45987,
statute to be upheld - not absolute precision or May 5, 1939)
mathematical exactitude. (Estrada vs.
Sandiganbayan, G.R. No. 148560, Nov. 19, 2001) Q: Does equal protection of the laws apply to both
citizens and aliens?
Note: The void-for-vagueness doctrine cannot be
used to impugn the validity of a criminal statute A:
using “facial challenge’ but it may be used to GR: It applies to all persons, both citizens and
invalidate a criminal statute “as applied” to a aliens. The Constitution places the civil rights of
particular defendant. aliens on equal footing with those of the
citizens.
d. EQUAL PROTECTION OF THE LAWS
XPN: Statutes may validly limit exclusively to
1. CONCEPT citizens the enjoyment of rights or privileges
connected with public domain, the public
Q: What is the concept of equal protection of the works, or the natural resources of the State
laws?
Note: The rights and interests of the State in these
things are not simply political but also proprietary in
A: It means that all persons or things similarly
nature and so citizens may lawfully be given
situated should be treated alike, both as to rights
preference over aliens in their use or enjoyment.
conferred and responsibilities imposed. It
guarantees equality, not identity of rights. It does Aliens do not enjoy the same protection as regards
not forbid discrimination as to persons and things political rights. (Inchong v. Hernandez,G.R. No. L-7995,
that are different. What it forbids are distinctions May 31, 1957)
based on impermissible criteria unrelated to a
proper legislative purpose, or class or Q: Is classification of citizens by the legislature
discriminatory legislation, which discriminates unconstitutional?
against some and favors others when both are
similarly situated. (2 Cooley, Constitutional A:
Limitations, 824-825) GR: The legislature may not validly classify the
citizens of the State on the basis of their origin,
Q:Executive Order No. 1 was issued by President race, or parentage.
Noynoy Aquino to investigate reported cases of
graft and corruption of the Arroyo administration. XPN: The difference in status between citizens
Is such action valid? and aliens constitutes a basis for reasonable
classification in the exercise of police power.
A: No, it must be borne in mind that the Arroyo (Demore v. Kim, 538 U.S. 510, 2003)
administration is but just a member of a class, that
is, a class of past administrations. It is not a class of Q: What is the rationale for allowing, in
its own. Not to include past administrations exceptional cases, valid classification based on
similarly situated constitutes arbitrariness which citizenship?
the equal protection clause cannot sanction. Such
discriminating differentiation clearly reverberates A: Aliens do not naturally possess the sympathetic
to label the commission as a vehicle for consideration and regard for customers with whom
vindictiveness and selective retribution. (Biraogo v. they come in daily contact, nor the patriotic desire
The Philippine Truth Commission of 2010, G.R. No. to help bolster the nation’s economy, except in so
192935, Dec. 7, 2010) far as it enhances their profit, nor the loyalty and
allegiance which the national owes to the land.
2. REQUISITES FOR VALID CLASSIFICATION These limitations on the qualifications of aliens
have been shown on many occasions and instances,
Q: What are the requisites for a valid especially in times of crisis and emergency. (Ichong
classification? v. Hernandez, G.R. No. L-7995, May 31, 1957)
78
POLITICAL LAW TEAM
Q: What is the intensified means test or the group are immediately suspect. That is
balancing of interest/equality test? not to say that all such restrictions are
unconstitutional. It is to say that courts
A: It is the test which does not look solely into the must subject them to the most rigid
government’s purpose in classifying persons or scrutiny. The presumption of
things (as done in Rational Basis Test) nor into the constitutionality is reversed; that is,
existence of an overriding or compelling such legislation is assumed to be
government interest so great to justify limitations unconstitutional until the government
of fundamental rights (Strict Scrutiny Test) but demonstrates otherwise. (Central Bank
closely scrutinizes the relationship between the Employees Association Inc. vs. BSP, GR.
classification and the purpose, based on spectrum No. 148208. December 15, 2004)
of standards, by gauging the extent to which
constitutionally guaranteed rights depend upon the Q: What are the differences between the tests to
affected individual’s interest. determine compliance with the equal protection
clause?
3. Standards of judicial review
A:
Q: What is the doctrine of Relative
Constitutionality or Principle of Altered Rational Basis Test Strict Scrutiny
Circumstance? - applies to legislative -applies to legislative
classifications in classifications affecting
A: A statute may be valid at one time as applied to a general, such as those fundamental rights or
set of facts but it may become void at another time pertaining to economic suspect classes.
because of altered circumstances. or social legislation,
which do not affect
Example: Republic Act 7653 exempted the BSP fundamental rights of
Officers from the salary standardization law, but did suspect classes; or is not
not exempt rank and file employees. There was a based on gender or
valid measure of legislative power, but illegitimacy
subsequently, there was a law exempting all rank Legislative purpose Legislative purpose
and file employees of all government financial must be legitimate must be compelling
institutions from the Salary Standardization Law. Classification must be Classification must be
Hence, the law which was valid initially becomes rationally related to thenecessary and narrowly
void for being a violation of the equal protection legislative purpose tailored to achieve the
clause. (Central Bank Employees Association, Inc. vs. legislative purpose
Bangko Sentral ng Pilipinas, 446 SCRA 229) (Central Bank Employees Association Inc. vs. BSP,
GR. No. 148208, December 15, 2004)
Q: What are the tests in determining compliance
with the equal protection clause? e. SEARCHES AND SEIZURES
A: 1. Concept
1. Rational Basis Test
-The guaranty of the equal protection of the Q: What is the concept of searches and seizures?
laws is not violated by legislation based on
reasonable classification. This standard of review is A: The right of the people to be secure in their
typically quite deferential; legislative classifications persons, houses, papers, and effects against
are “presumed to be valid” largely for the reason unreasonable searches and seizures of whatever
that “the drawing of lines that create distinctions is nature and for any purpose shall be inviolable, and
peculiarly a legislative task and unavoidable one” no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
2. Strict Scrutiny Test personally by the judge after examination under
- It is applied when the challenged statute oath or affirmation of the complainant and the
either witnesses he may produce, and particularly
a. classifies on the basis of an inherently describing the place to be searched and persons or
suspect characteristic things to be seized. (1987 Constitution, Article 3,
b. infringes fundamental constitutional Section 2)
rights; that all legal restrictions which
curtail the civil rights of a single racial Q: What is the essence of privacy?
79
A: For warrant of arrest, this requirement is

A: The essence of privacy is the right to be left complied with if it contains the name of the
alone. In context, the right to privacy means the person/s to be arrested. If the name of the person
right to be free from unwarranted exploitation of to be arrested is not known, a John Doe warrant
one’s person or from intrusion into ones’ private may be issued. A John Doe warrant will satisfy the
activities in such a way as to cause humiliation to a constitutional requirement of particularity of
person’s ordinary sensibilities. description if there is some descriptio personae
which is sufficient to enable the officer to identify
2. Warrant Requirement the accused.
a. Requisites For a search warrant, the requirement is complied

with:
Q: What are the requisites of a valid search
warrant and warrant of arrest? 1. When the description therein is as specific
as the circumstances will ordinarily allow;
A: or
1. There should be a search warrant or warrant of 2. When the description expresses a
arrest conclusion of fact, not of law, by which
2. Probable cause supported the issuance of such the warrant officer may be guided in
warrant making the search and seizure; or
3. Such probable cause had been determined 3. When the things described are limited to
personally by a judge those which bear direct relation to the
4. Judge personally examined the complainant and offense for which the warrant is being
his witnesses issued
5. The warrant must particularly describe the place
to be searched and the persons or things to be Note: If the articles desired to be seized have any
seized.(Gorospe, Constitutional Law: Notes and direct relation to an offense committed, the applicant
Readings on the Bill of Rights, Citizenship and must necessarily have some evidence other than those
articles to prove said offense. The articles subject of
Suffrage, Vol. 2., p.334)
search and seizure should come in handy merely to
strengthen such evidence.
Note: General warrant is not allowed. It must be
issued pursuant to specific offense.
Q: What are the properties subject to seizure?
Q: What are general warrants?
A:
A: These are warrants of broad and general 1. Property subject of the offense
characterization or sweeping descriptions which 2. Stolen or embezzled property and other
will authorize police officers to undertake a fishing proceeds or fruits of the offense
expedition to seize and confiscate any and all kinds 3. Property used or intended to be used as
of evidence or articles relating to an offense. means for the commission of an offense
Q: What is the purpose of particularity of Q: What is probable cause?

description?
A: Probable cause is such facts and circumstances
A: The purpose is to enable the law officers serving antecedent to the issuance of a warrant that in
the warrant to: themselves are sufficient to induce a cautious man
to rely on them and act in pursuance thereof.
1. Readily identify the properties to be seized
and thus prevent them from seizing the Q: How is probable cause determined personally
wrong items by the judge?
2. Leave said peace officers with no discretion
regarding the articles to be seized and thus A:
prevent unreasonable searches and seizures. SEARCH WARRANT WARRANT OF ARREST
(Bache and Co. v. Ruiz, 37 SCRA 823) The judge must It is not necessary that
personally examine in the judge should
Q: When is particularity of description complied the form of searching personally examine the
with? questions and answers, complainant and his
in writing and under witnesses; the judge
80
POLITICAL LAW TEAM
oath, the complainant would simply personally 3. Search of passengers made in airports
and the witnesses he review the initial 4. When things seized are within plain view
may produce on facts determination of the of a searching party
personally known to prosecutor to see if it is 5. Stop and frisk (precedes an arrest)
them. supported by substantial 6. When there is a valid express waiver
evidence. made voluntarily and intelligently
The determination of
probable cause Note: Waiver is limited only to the arrest
He merely determines and does not extend to search made as an
depends to a large
the probability, not the incident thereto, or to any subsequent
extent upon the finding
certainty of guilt of the seizure of evidence found in the search.
or opinion of the judge
accused and, in so doing, (People v. Peralta, G.R. 145176, March 30,
who conducted the
he need not conduct a 2004)
required examination
new hearing.
of the applicant and
7. Customs search
the witnesses.
8. Exigent and emergency circumstances.
(People v. De Gracia, 233 SCRA 716))
Q: What constitutes personal knowledge?
Q: What is the Plain View Doctrine?
A:
1. The person to be arrested must execute
A: Objects falling in plain view of an officer who has
an overt act indicating that he had just
a right to be in the position to have that view are
committed, is actually committing, or is
subject to seizure even without a search warrant
attempting to commit a crime; and
and may be introduced as evidence. Requisites for
2. Such overt act is done in the presence or
the application of the doctrine are the following:
within the view of the arresting officer.
a. The law enforcer in search of the
Q: What constitutes searching questions?
evidence has a prior justification for an
intrusion, or is in a position from which he
A: Examination by the investigating judge of the
can view a particular area;
complainant and the latter’s witnesses in writing
b. The discovery of the evidence in plain
and under oath or affirmation, to determine
view is inadvertent;
whether there is a reasonable ground to believe
that an offense has been committed and whether
Q: What is a “stop-and-frisk” search?
the accused is probably guilty thereof so that a
warrant of arrest may be issued and he may be held
A: It is a limited protective search of outer clothing
liable for trial.
for weapons. Probable cause is not required but a
genuine reason must exist in light of a police
3. Warrantless Searches
officer’s experience and surrounding conditions to
warrant the belief that the person detained has
Q: What are the instances of a valid warrantless
weapons concealed. (Malacat v. CA, G.R. No.
search?
123595, Dec. 12, 1997)
A:
Q: Are searches conducted in checkpoints lawful?
1. Visual search is made of moving vehicles
at checkpoints
A: Yes, provided the checkpoint complies with the
2. Search is an incident to a valid arrest
following requisites:
Note: An officer making an arrest may take
1. The establishment of checkpoint must be
from the person:
a. Any money or property found upon his
pronounced
person which was used in the 2. It must be stationary, not roaming
commission of the offense 3. The search must be limited to visual
b. Was the fruit thereof search and must not be an intrusive
c. Which might furnish the prisoner with search.
the means of committing violence or
escaping Note: Not all searches and seizures are prohibited.
d. Which might be used as evidence in Between the inherent right of the State to protect its
the trial of the case existence and promote public welfare and an
individual’s right against warrantless search which is
81
however reasonably conducted, the former should by the person arrested, who might be armed with a
prevail. concealed weapon, and to prevent the latter from
destroying evidence within reach. In this case,
A checkpoint is akin to a stop-and-frisk situation whose search was made in the locked cabinet which
object is either to determine the identity of suspicious cannot be said to have been within Valeroso's
individuals or to maintain the status quo momentarily immediate control. Thus, the search exceeded the
while the police officers seek to obtain more bounds of what may be considered as an incident
information. (Valmonte vs. De Villa, GR.83988, Sept.
to a lawful arrest. (Valeroso v. Court of Appeals,
29, 1989)
G.R. No. 164815, Sept. 3, 2009)
Q: When may motorists and their vehicles passing
Q: A police officer posed as a buyer and bought
though checkpoints be stopped and extensively
marijuana from the accused in her store.
searched?
Thereafter, he arrested the accused without a
warrant. The other police officer seized a plastic
A: While, as a rule, motorists and their vehicles
container on the table inside the store from which
passing though checkpoints may only be subjected
the accused took the marijuana. Six marijuana
to a routine inspection, vehicles may be stopped
stocks were found in the plastic container. The
and extensively searched when there is probable
accused was charged with selling marijuana. Is the
cause which justifies a reasonable belief among
warrantless seizure of marijuana legal?
those at the checkpoints that either the motorist is
a law offender or the contents of the vehicle are or
A: Yes. The search being an incident to a lawful
have been instruments of some offense. (People v.
arrest, it needed no warrant for its validity. The
Vinecario, G.R. No. 141137, Jan. 20, 2004)
accused having been caught in flagrante delicto, the
arresting officers were duty bound to apprehend
Q: Ramirez was a lady frisker whose duty is to frisk
her immediately. The warrantless search and
departing passengers, employees, and crew and
seizure, as an incident to a lawful arrest, may
check for weapons, bombs, prohibited drugs,
extend to include the premises under the
contraband goods, and explosives. When she
immediate control of the accused. The accused may
frisked Johnson, a boarding passenger, she felt
not successfully invoke the right against a
something hard on Johnson’s abdominal area
warrantless search, even as regards the plastic
which was later found to be 3 packs of shabu. Can
container with dried marijuana leaves found on the
Leila Johnson invoke a violation of the search and
table in her store. (People vs. Salazar, G.R. No.
seizure clause?
98060, Jan. 27, 1997)
A: No. Persons may lose the protection of the
4. Warrantless Arrests
search and seizure clause by exposure of their
persons or property to the public in a manner
reflecting a lack of subjective expectation of Q: What are the instances of a valid warrantless
arrest?
privacy, which expectation society is prepared to
recognize as reasonable. Such recognition is implicit
A:
in airport security procedures. With increased
concern over airplane hijacking and terrorism has 1. In flagrante delicto – The person to be
come increased security at the nation’s airport. arrested has either committed, is actually
committing, or is about to commit an
(People vs. Leila Johnson, G.R. No.138881, Dec. 18, 2000)
offense in the presence of the arresting
office
Q: Valeroso was arrested, by virtue of a warrant of
arrest, in his room while sleeping. Thereafter,
Note: Membership in organizations like
some police officers remained inside the room and
ransacked the locked cabinet where they found a the NPA is a continuing offense, thus, a
person can be arrested anytime.(Umil vs.
firearm and ammunition. Is the warrantless search
and seizure of the firearm and ammunition Ramos, GR. No. 79731, July 9, 1990)
justified as an incident to a lawful arrest?
2. Hot Pursuit – When an offense has in fact
A: No. The scope of the warrantless search is not just been committed and the arresting
officer has probable cause to believe,
without limitations. A valid arrest allows the seizure
of evidence or dangerous weapons either on the based on personal knowledge of the facts
and circumstances indicating, that the
person of the one arrested or within the area of his
immediate control. The purpose of the exception is person to be arrested has committed it
to protect the arresting officer from being harmed
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POLITICAL LAW TEAM
3. Escaped Prisoner or Detainee – When the may issue a search warrant where the filing of such
person to be arrested is a prisoner who is necessitated and justified by compelling
has escaped from a penal establishment considerations of urgency, subject, time, and place.
or place where he is serving final
judgment or temporarily confined while Q: Does the Constitution limit only to judges the
his case is pending, or has escaped while authority to issue warrants of arrests?
being transferred from one confinement
to another. (Sec. 5, Rule 113, Rules of A: No. The Commissioner of Immigration is also
Court) given, by legislative delegation, the power to issue
warrants of arrests.
4. Waiver – Whenthe right is waived by the
person arrested, provided he knew of Note: Section 1 (3), Article III of the Constitution does
such right and knowingly decided not to not require judicial intervention in the execution of a
invoke it. final order of deportation issued in accordance with
law. The constitutional limitation contemplates an
Q: Can there be a waiver of the right to question order of arrest in the exercise of judicial power as a
an invalid arrest? step preliminary or incidental to prosecution or
proceedings for a given offense or administrative
action, not as a measure indispensable to carry out a
A: When a person who is detained applies for bail,
valid decision by a competent official, such as a legal
he is deemed to have waived any irregularity of his
order of deportation, issued by the Commissioner of
arrest which may have occurred. However, if the Immigration, in pursuance of a valid legislation.
accused puts up bail before he enters his plea, he is (Morano vs. Vivo, G.R. No. L-22196, June 30, 1967)
not barred from later questioning the legality of his
arrest. Q: What is the nature of a search warrant
proceeding?
Note: The waiver is limited to invalid arrest and does
not extend to illegal search.
A: It is neither a criminal action nor a
commencement of a prosecution. It is solely for the
Q: Are there any other instances where a peace
possession of personal property. (United
officer can validly conduct a warrantless arrest?
Laboratories, Inc. v. Isip, G.R. No. 163858, June 28,
2005)
A: Yes, in cases of continuing offenses. The crimes
of rebellion, subversion, conspiracy or proposal to
5. Administrative Arrest
commit such crimes, and crimes or offenses
committed in furtherance thereof, or in connection
Q: When is there an administrative arrest?
therewith constitute direct assaults against the
State, are in the nature of continuing crimes.
A: There is an administrative arrest as an incident to
deportation proceedings.
Q: Can the place to be searched, as set out in the
warrant be amplified or modified by the officers’
Q: Who are the persons that may be validly
personal knowledge of the premises or evidence
arrested in a deportation proceeding?
they adduce in support of their application for the
warrant?
A: The following aliens shall be arrested upon the
warrant of the Commissioner of Immigration or of
A: No. Such a change is proscribed by the
any other officer designated by him for the purpose
Constitution which requires a search warrant to
and deported upon the warrant of the
particularly describe the place to be searched;
Commissioner of Immigration after a determination
otherwise it would open the door to abuse of the
by the Board of Commissioners of the existence of
search process, and grant to officers executing the
the ground for deportation as charges against the
search that discretion which the Constitution has
alien.
precisely removed from them.
1. Any alien who enters the Philippines after
the effective date of this Act by means of
Q: Which court has the primary jurisdiction in
false and misleading statements or
issuing search warrants?
without inspection and admission by the
immigration authorities at a designated
A: The RTC where the criminal case is pending or if
port of entry or at any place other than at
no information has yet been filed, in RTC in the
a designated port of entry; [As amended
area/s contemplated. However, an RTC not having
by Republic Act No. 503, Sec. 13]
territorial jurisdiction over the place to be searched
83
2. Any alien who enters the Philippines after such amount as the Commissioner may fix
the effective date of this Act, who was not and approved by the Department Head;
lawfully admissible at the time of entry; [Paragraph added pursuant to Republic
3. Any alien who, after the effective date of Act No. 144, Sec. 3]
this Act, is convicted in the Philippines 10. Any alien who, at any time within five
and sentences for a term of one year or years after entry, shall have been
more for a crime involving moral convicted of violating the provisions of
turpitude committed within five years the Philippine Commonwealth Act
after his entry to the Philippines, or who, Numbered Six hundred and fifty-three,
at any time after such entry, is so otherwise known as the Philippine Alien
convicted and sentenced more than once; Registration Act of 1941**(now Alien
4. Any alien who is convicted and sentenced Registration Act of 1950, Republic Act No.
for a violation of the law governing 562, as amended) or who, at any time
prohibited drugs; [As amended by after entry, shall have been convicted
Republic Act No. 503, Sec. 13] more than once of violating the provisions
5. Any alien who practices prostitution or is of the same Act; [Added pursuant to
an inmate of a house of prostitution or is Republic Act No. 503, Sec. 13]
connected with the management of a 11. Any alien who engages in profiteering,
house of prostitution, or is a procurer; hoarding, or black-marketing,
6. Any alien who becomes a public charge independent of any criminal action which
within five years after entry from causes may be brought against him; [Added
not affirmatively shown to have arisen pursuant to Republic Act No. 503, Sec. 13]
subsequent to entry; 12. Any alien who is convicted of any offense
7. Any alien who remains in the Philippines penalized under Commonwealth Act
in violation of any limitation or condition Numbered Four hundred and seventy-
under which he was admitted as a non- three, otherwise known as the Revised
immigrant; Naturalization Laws of the Philippines, or
8. Any alien who believes in, advises, any law relating to acquisition of
advocates or teaches the overthrow by Philippine citizenship; [Added pursuant to
force and violence of the Government of Republic Act No. 503, Sec. 13]
the Philippines, or of constituted law and 13. Any alien who defrauds his creditor by
authority or who disbelieves in or is absconding or alienating properties to
opposed to organized government, or prevent them from being attached or
who advises, advocates or teaches the executed. [Added pursuant to Republic
assault or assassination of public officials Act No. 503, Sec. 13] (Philippine
because of their office, or who advises, Immigration Act of 1940)
advocates, or teaches the unlawful
destruction of property, or who is a 6. Drug, Alcohol, and Blood Tests
member of or affiliated with any
organization entertaining, advocating or Q: Is a law requiring mandatory drug testing for
teaching such doctrines, or who in any students of secondary and tertiary schools
manner whatsoever lends assistance, unconstitutional?
financial or otherwise, to the
dissemination of such doctrines; A: No. It is within the prerogative of educational
9. Any alien who commits any of the acts institutions to require, as a condition for admission,
described in sections forty-five of this Act, compliance with reasonable school rules and
independent of criminal action which may regulations and policies. To be sure, the right to
be brought against him: Provided, that in enroll is not absolute; it is subject to fair,
the case of alien who, for any reason, is reasonable, and equitable requirements. In sum:
convicted and sentenced to suffer both 1. Schools and their administrators stand in
imprisonment and deportation, said alien loco parentis with respect to their
shall first serve the entire period of his students;
imprisonment before he is actually 2. Minor students have contextually fewer
deported: Provided, however, that the rights than an adult, and are subject to
imprisonment may be waived by the the custody and supervision of their
Commissioner of Immigration with the parents, guardians, and schools;
consent of the Department Head, and 3. Schools acting in loco parentis, have a
upon payment by the alien concerned of duty to safeguard the health and well-
84
POLITICAL LAW TEAM
being of their students and may adopt reasonable expectation of privacy inside his cell.
such measures as may reasonably be The curtailment of certain rights is necessary to
necessary to discharge such duty; and accommodate institutional needs and objectives of
4. Schools have the right to impose prison facilities, primarily internal security. As long
conditions on applicants for admission as the letters are not confidential communication
that are fair, just and non-discriminatory. between the detainee and his lawyer the detention
(SJS v. DDB, G.R. No. 157870, Nov. 3, officials may read them. But if the letters are
2008) marked confidential communication between
detainee and lawyer the officer must not read them
Q: Is a law requiring mandatory drug testing for but only inspect them in the presence of detainees.
officers and employees of public and private A law is not needed before an executive officer may
offices unconstitutional? intrude into the rights of privacy of a detainee or a
prisoner. By the very fact of their detention, they
A: No. As the warrantless clause of Sec. 2, Art. III of have diminished expectations of privacy rights.
the Constitution is couched and as has been held, (Alejano vs. Cabuay, G.R. No. 160792,Aug. 25, 2005)
“reasonableness” is the touchstone of the validity
of a government search or intrusion. And whether a
search at issue hews to the reasonableness
standard is judged by the balancing of the Q: What does the anti-wiretapping act (RA 4200)
government-mandated intrusion on the individual’s prohibit?
privacy interest against the promotion of some
compelling state interest. In the criminal context, A: It prohibits any person, not being authorized by
reasonableness requires showing probable cause to all the parties to any private communication or
be personally determined by a judge. Given that the spoken word, to tap any wire or cable, or by using
drug-testing policy for employees—and students any other device or arrangement, to secretly
for that matter—under R.A. 9165 is in the nature of overhear, intercept, or record such communication
administrative search needing what was referred to or spoken word by using a device commonly known
in Veronia case as “swift and informal procedures,” as a dictaphone or dictagraph or dictaphone or
the probable cause standard is not required or walkie-talkie or tape recorder, or however
even practicable. (SJS v. DDB and PDEA, G.R. No. otherwise described:
157870, Nov. 3, 2008)
It also prohibits any person, be he a participant or
f. RIGHT TO PRIVACY IN COMMUNICATION AND not in the act or acts penalized in the next
CORRESPONDENCE preceding sentence, to knowingly possess any tape
record, wire record, disc record, or any other such
1. Private and public communications record, or copies thereof, of any communication or
spoken word secured either before or after the
Q: The general rule is that the right to privacy of effective date of this Act in the manner prohibited
communication and correspondence is inviolable. by this law; or to replay the same for any other
What are the exceptions? person or persons; or to communicate the contents
thereof, either verbally or in writing, or to furnish
A: transcriptions thereof, whether complete or partial,
1. By lawful order of the court; to any other person: Provided, That the use of such
2. Public safety or public order as prescribed record or any copies thereof as evidence in any
by law civil, criminal investigation or trial of offenses
mentioned in section 3 hereof, shall not be covered
Note: Any evidence in violation of this or the preceding by this prohibition.
section shall be inadmissible for any purpose in any
proceedings. Under Section 3 of RA 4200, a peace officer, who is
authorized by a written order of the Court, may
2. Intrusion, when allowed execute any of the acts declared to be unlawful in
the said law in cases involving the crimes of:
Q: Is a regulation mandating the opening of mail 1. Treason
or correspondence of detainees violative of the 2. Espionage
constitutional right to privacy? 3. Provoking war and disloyalty in case of
war
A: No. There is no longer a distinction between an 4. Piracy and mutiny in the high seas
inmate and a detainee with regard to the
85
5. Rebellion (conspiracy and proposal and individuals.(People v. Marti, G.R. No. 78109. Jan.
inciting to commit included) 18,1991)
6. Sedition (conspiracy, inciting included)
7. Kidnapping 3. Writ of Habeas Data
8. Violations of C.A. No. 616 (punishing
espionage and other offenses against Q: What is the writ of habeas data?
national security)
A: It is a remedy available to any person whose
Q: Is the use of telephone extension a violation of right to privacy in life, liberty or security is violated
R.A. 4200 (Anti-Wire Tapping Law)? or threatened by an unlawful act or omission of a
public official or employee, or of a private individual
A: No. The use of a telephone extension to or entity engaged in the gathering, collecting or
overhear a private conversation is neither among storing of data or information regarding the person,
those devices, nor considered as a similar device, family, home and correspondence of the aggrieved
prohibited under the law. (Gaanan v. IAC, G.R. No.L- party.(Sec. 1, The Rule on the Writ of Habeas Data,
69809 Oct. 16, 1986) A. M. No. 08-1-16-SC, Jan. 22, 2008)
Note: Anti-Wiretapping Act only protects letters,

messages, telephone calls, telegrams and the like.
Q: What are the reliefs that may be obtained in
The law does not distinguish between a party to the the petition for issuance of writ of habeas data?
private communication or a third person. Hence, both
a party and a third person could be held liable under
A: The reliefs may include the updating,
R.A. 4200 if they commit any of the prohibited acts
rectification, suppression or destruction of the
under R.A. 4200. (Ramirez v. CA, G.R. No. 93833 Sept.
database or information or files kept by the
28, 1995)
respondent and in case of threats of the unlawful
act, the relief may include a prayer for an order
Q: Is the tape recording of a telephone
conversation containing a person’s admission enjoining the act complained of. A general prayer
for other reliefs that are just and equitable under
admissible in evidence? Why?
the circumstances is also allowed.
A: No. The tape-recorded conversation is not
admissible in evidence. R.A. 4200 makes the tape- Q: May a writ of habeas data be issued to protect
recording of a telephone conversation done purely property or commercial concerns?
without the authorization of all the parties to the
conversation inadmissible in evidence. In addition, A: No. It bears reiteration that like the writ of
amparo, habeas data was conceived as a response,
the taping of the conversation violated the
guarantee of privacy of communications enunciated given the lack of effective and available remedies,
to address the extraordinary rise in the number of
in Section 3, Article III of the Constitution.(Salcedo-
Ortanez v. CA, G.R. No. 110662, Aug. 4, 1994) killings and enforced disappearances. Its intent is to
address violations of or threats to the rights to life,
Q: Are letters of a husband’s paramour kept inside liberty or security as a remedy independently from
the husband’s drawer, presented by the wife in those provided under prevailing rules. Writs of
amparo and habeas data will not issue to protect
the proceeding for legal separation, admissible in
evidence? purely property or commercial concerns nor when
the grounds invoked in support of the petitions
A: No, because marriage does not divest one of therefore are vague or doubtful. Employment
constitutes a property right under the context of
his/her right to privacy of communication. (Zulueta
v. CA, G.R. No. 107383, Feb. 20, 1996) the due process clause of the constitution. It is
evident that respondent’s reservations on the real
Q: What does the exclusionary rule state? reasons for her transfer-a legitimate concern
respecting the terms and conditions of one’s
A: Any evidence obtained in violation of the employment- are what prompted her to adopt the
Constitution shall be inadmissible for any purpose extraordinary remedy of habeas data. (Manila
Electric Company vs. Lim, GR. No. 184769, Oct. 5,
in any proceeding. However, in the absence of
governmental interference, the protection against 2010)
unreasonable search and seizure cannot be
extended to acts committed by private g. FREEDOM OF EXPRESSION
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1. Concept and Scope interference from the government in their thoughts

and words. The guarantee basically flows from the
Q: What is the concept of freedom of expression? philosophy that the authorities do not necessarily
know what is best for the people. (R.B. Gorospe,
A: No law shall be passed abridging the freedom of Constitutional Law: Notes And Readings On The Bill
speech, of expression, or of the press, or of the Of Rights, Citizenship And Suffrage, 2004)
right of the people peaceably to assemble and
petition the government for redress of grievances. Q: What are the limitations of freedom of
expression?
Q: What is the scope of protected freedom of
expression under the Constitution? A: It should be exercised within the bounds of laws
enacted for the promotion of social interests and
A: the protection of other equally important individual
1. Freedom of speech rights such as:
2. Freedom of the press 1. Laws against obscenity, libel and slander
3. Right of assembly and to petition the (contrary to public policy)
government for redress of grievances 2. Right to privacy of an individual
4. Right to form associations or societies not 3. Right of state/government to be
contrary to law protected from seditious attacks
5. Freedom of religion 4. Legislative immunities
6. Right to access to information on matters 5. Fraudulent matters
of public concern. 6. Advocacy of imminent lawless conducts
7. Fighting words
Q: What are considered protected speech? 8. Guarantee implies only the right to reach
a willing audience but not the right to
A: Protected speech includes every form of compel others to listen, see or read
expression, whether oral, written, tape or disc
recorded. It includes motion pictures as well as Q: What are the four aspects of freedom of speech
what is known as symbolic speech such as the and press?
wearing of an armband as a symbol of protest.
Peaceful picketing has also been included within A:
the meaning of speech. 1. Freedom from censorship or prior
restraint
Q: Does a violation of any law justify the 2. Freedom from subsequent punishment
suppression of exercise of freedom of speech and 3. Freedom of access to information
of the press? 4. Freedom of circulation
A: Not every violation of a law will justify Note: There need not be total suppression; even
straitjacketing the exercise of freedom of speech restriction of circulation constitutes censorship.
and of the press. There are laws of great
significance but their violation, by itself and without Q: Can the live TV coverage of a trial pursuant to
more, cannot support suppression of free speech the right of the public to information and the free
and free press. The totality of the injurious effects press be prohibited?
of the violation to private and public interest must
be calibrated in light of the preferred status A: Yes. Live TV coverage may be prohibited since
accorded by the Constitution and by related the right of the accused must prevail over the right
international covenants protecting freedom of of the public to information and freedom of the
speech and of the press. The need to prevent the press.(Re: Request for Radio-TV Coverage of the
violation of a law cannot per se trump the exercise Trial in the Sandiganbayan of the Plunder Cases
of free speech and free press, a preferred right Against the Former President Joseph E. Estrada,
whose breach can lead to greater evils. (Francisco A.M. No. 01-4-03-SC, June 29, 2001)
Chavez v. Raul M. Gonzales, G.R. No. 168338, Feb.
15, 2008) Q: Is the right of the accused to a fair trial
incompatible to free press?
Q. What is the concept behind the provision?
A: No. Respecting the possible influence of media
A. Consistent with its intended role in society, it coverage on the impartiality of trial court judges,
means that the people are kept from any undue the prejudicial publicity insofar as it undermines the
right to a fair trial must pass the “totality of
87
circumstances” test, as applied in People v. permit allowing the IBP to stage a rally on the
Teehankee, Jr. and Estrada v. Desierto, that the given date, but instead of granting the venue, as
right of an accused to a fair trial is not incompatible requested, he changed the venue of the rally to
to a free press, that pervasive publicity is not per se Plaza Miranda. The IBP claims that such action of
prejudicial to the right of an accused to a fair trial, Mayor Atienza is violative of the constitutional
and that there must be allegation and proof of the right of members of IBP to freedom of expression
impaired capacity of a judge to render a bias-free and public assembly because it is provided under
decision. Mere fear of possible undue influence is the Public Assembly Act that if the mayor is of the
not tantamount to actual prejudice resulting in the view that there is imminent and grave danger of a
deprivation of the right to a fair trial.(In Re: Petition substantive evil warranting the denial or
for Radio and Television Coverage of the Multiple modification of the permit, he shall immediately
Murder Cases against Maguindanao Governor Zaldy inform the applicant who must be heard on the
Ampatuan, et al., A.M. No. 10-11-5-SC, June 14, matter. Is the contention of IBP valid and tenable?
2011)
A: Yes. Mayor Atienza committed grave abuse of
a. Prior Restraint (censorship) discretion for failure to inform immediately the IBP
about the change in venue. The IBP should have
Q: What is the first prohibition of the free speech been given the opportunity to be heard first on the
and press clause? Mayor’s alleged perception of imminent danger of
substantive evil that led to the changing of venue.
A: It is the prohibition of prior restraint. Prior The opportunity to be heard precedes the action on
Restraint means official government restrictions on the permit, since the applicant may go directly to
the press or other forms of expression in advance of the court after an unfavorable action on the permit.
actual publication or dissemination. (Bernas, The (IBP vs. Atienza, G.R. No. 175241, Feb. 24, 2010)
1987 Philippine Constitution A Comprehensive
Reviewer, 2006) b. Subsequent Punishment
Q: Is the prohibition of prior restraint absolute? Q. What is the second basic prohibition of the free
speech and press clause?
A: No. There are exceptions to the rule.
A: The free speech and press clause also prohibits
In Chavez v. Gonzales G.R. No. 168338, Feb. 15, systems of subsequent punishment which have the
2008), Justice Carpio in his concurring opinion effect of unduly curtailing expression. (Bernas, The
named four exceptions: 1987 Philippine Constitution A Comprehensive
1. Pornography Reviewer, 2006, p.64)
2. False or Misleading Advertisement
3. Advocacy of Imminent Lawless Actions Q. Is freedom from subsequent punishment
4. Danger to National Security absolute?
Near v. Minnesota, 283 US 697 (1931) adds the A: No, it may be properly regulated in the interest
following to the enumeration: of the public. The State may validly impose penal
5. When a nation is at war, many things that and/or administrative sanctions such as in the
might be said in time of peace are such a following:
hindrance to its effort that their utterance 1. Libel – a public and malicious imputation
will not be endured so long as men fight of a crime, vice or defect, real or
and that no court could regard them as imaginary or any act omission, status
protected by any constitutional right. tending to cause dishonor, discredit or
6. The primary requirements of decency contempt of a natural or judicial person,
may be enforced against obscene or blacken the memory of one who is
publications. dead (Art 353, Revised Penal Code)
7. The security of community life may be 2. Obscenity – in Pita v Court of Appeals, the
protected against incitements to acts of Supreme Court declared that the
violence and the overthrow by force of determination of what is obscene is a
orderly government. judicial function.
3. Criticism of Official Conduct – In New York
Q: The National President of IBP requested for a Times v. Sullivan, 376 US 254 (1964), the
permit to rally at the foot of Mendiola Bridge on constitutional guarantee requires a
June 22, 2006. Mayor Joselito Atienza issued a federal rule that prohibits a public official
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POLITICAL LAW TEAM
from recovering damages for a with reckless disregard of whether it was false or
defamatory falsehood relating to his not, the defendants are not liable for
official conduct unless he proves that the damage.(Borjal v. CA, G.R. No. 126466, Jan. 14,
statement was made with actual malice. 1999)
4. Rights of students to free speech in school
premises not absolute – the school cannot Q: Is the Borjal doctrine applicable in a case where
suspend or expel a student solely on the the allegations against a public official were false
basis of the articles he has written except and that the journalist did not exert effort to
when such article materially disrupts class verify the information before publishing his
work or involves substantial disorder or articles?
invasion of rights of others.(Miriam
College Foundation v. CA, GR 127930, A: No. Borjal may have expanded the protection of
Dec. 15, 2000) qualified privileged communication beyond the
instances given in Art. 354 of the RPC, but this
Q: Discuss the Doctrine of Fair Comment. expansion does not cover such a case. The
expansion speaks of "fair commentaries on matters
A: The doctrine provides that while as a general of public interest." While Borjal places fair
rule, every discreditable public imputation is false commentaries within the scope of qualified
because every man is presumed innocent, thus privileged communication, the mere fact that the
every false imputation is deemed malicious, as an subject of the article is a public figure or a matter of
exception, when the discreditable imputation is public interest does not automatically exclude the
directed against a public person in his public author from liability. His articles cannot even be
capacity, such is not necessarily actionable. For it to considered as qualified privileged communication
be actionable, it must be shown that either there is under the second paragraph of Art. 354 of the RPC
a false allegation of fact or comment based on a which exempts from the presumption of malice a
false supposition. However, if the comment is an fair and true report. Good faith is lacking. (Tulfo v.
expression of opinion, based on established facts; it People, G.R. No. 161032, Sept. 16, 2008)
is immaterial whether the opinion happens to be
mistaken, as long as it might reasonably be inferred Q: Amado Macasaet penned several articles in
from facts. (Borjal v. CA, G.R. No. 126466, Jan. 14, Malaya newspaper regarding alleged bribery
1999) incidents in the Supreme Court and characterizing
the justices as “thieves” and “a basket of rotten
Q: A national daily newspaper carried an exclusive apples”. The Court En Banc required Macasaet to
report stating that Senator XX received a house explain why no sanction should be imposed on
and lot located at YY Street, Makati, in him for indirect contempt of court. Is the freedom
consideration for his vote to cutcigarette taxes by of the press violated by judicial independence and
50%. The Senator sued the newspaper, its maintaining the dignity of the judiciary? Decide.
reporter, editor and publisher for libel, claiming
the report was completely false and malicious. A: No. While freedom of speech, of expression and
According to the Senator, there is no YY Street in of the press are at the core of civil liberties and
Makati, and the tax cut was only 20%. He claimed have to be protected at all costs for the sake of
one million pesos in damages. The defendants democracy, these freedoms are not absolute. For,
denied "actual malice," claiming privileged if left unbridled, they have the tendency to be
communication and absolute freedom of the press abused and can translate to licenses, which could
to report on public officials and matters of public lead to disorder and anarchy. Macasaet crossed the
concern. If there was any error, the newspaper line, as his are baseless scurrilous attacks which
said it would publish the correction promptly. Is demonstrate nothing but an abuse of press
there "actual malice" in the newspaper’s freedom. They leave no redeeming value in
reportage? How is "actual malice" defined? Are furtherance of freedom of the press. They do
the defendants liable for damages? nothing but damage the integrity of the High Court,
undermine the faith and confidence of the people
A: Since Senator XX is a public person and the in the judiciary, and threaten the doctrine of judicial
questioned imputation is directed against him in his independence. (In Re: Allegations Contained in the
public capacity, in this case actual malice means the Columns of Mr. Amado P. Macasaet, A.M. No. 07-
statement was made with knowledge that it was 09-13-SC, Aug. 8, 2008)
false or with reckless disregard of whether it was
false or not. Since there is no proof that the report 2. Content-Based & Content-Neutral Regulation
was published with knowledge that it is false or
89
Q: Distinguish content-neutral regulation from government wants to prevent is the airing of a tape
content-based restraint or censorship. recording in alleged violation of the anti-
wiretapping law.
A:
CONTENT-NEUTRAL CONTENT-BASED The evidence falls short of satisfying the clear and
REGULATION RESTRAINT present danger test. Firstly, the various statements
Substantial governmental They are given the of the Press Secretary obfuscate the identity of the
interest is required for their strictest scrutiny voices in the tape recording. Secondly, the integrity
validity, and they are not in light of their of the taped conversation is also suspect. The Press
subject to the strictest form of inherent and Secretary showed to the public two versions, one
judicial scrutiny rather only an invasive impact. supposed to be a “complete” version and the other,
intermediate approach- an “altered” version. Thirdly, the evidence on the
somewhere between the who’s and the how’s of the wiretapping act is
rationality that is required of a ambivalent, especially considering the tapes’
law and the compelling different versions. The identity of the wire-tappers,
interest standard applied to the manner of its commission and other related and
content-based restrictions. relevant proofs are some of the invisibles of this
case. Fourthly, given all these unsettled facets of
Note: When the prior restraint partakes of a content- the tape, it is even arguable whether its airing
neutral regulation, it is subject to an intermediate would violate the anti-wiretapping law. There is no
review. A content-based regulation or any system or showing that the feared violation of the anti-
prior restraint comes to the Court bearing a heavy wiretapping law clearly endangers the national
presumption against its unconstitutionality and thus security of the State. (Chavez v. Gonzales, G.R. No.
measured against the clear and present danger rule, 168338, Feb. 15, 2008)
giving the government a heavy burden to show
justification for the imposition of such restraint and
3. Facial Challenges and Overbreadth
such is neither vague nor overbroad.
Doctrine
Q: The NTC issued a warning that that the
Q: What do you mean by Facial Challenges?
continuous airing or broadcast by radio and
television stations of the an alleged wiretapped
A. A facial challenge is a challenge to a statute in
conversation involving the President allegedly
court, in which the plaintiff alleges that the legislation
fixing votes in the 2004 national elections is a
is always, and under all circumstances,
continuing violation of the Anti-Wiretapping Law
unconstitutional, and therefore void.
and shall be just cause for the suspension,
revocation and/or cancellation of the licenses or
Note: Facial challenge to a statute is allowed only when it
authorizations issued to the said companies. Were
operates in the area of freedom of expression.
the rights to freedom of expression and of the Invalidation of the statute on its face, rather than as
press, and the right of the people to information applied, is permitted in the interest of preventing a
on matters of public concern violated? chilling effect on freedom of expression.(Separate
opinion of Justice Mendoza in Cruz v. Secretary of
A: Yes, said rights were violated applying the clear Environment and Natural Resources, GR. 135385, Dec. 6,
and present danger test. The challenged acts need 2000),
to be subjected to the clear and present danger
rule, as they are content-based restrictions. The Q: How is "facial" challenge different from "as-
acts of NTC and the DOJ Sec. focused solely on but applied" challenge?
one object—a specific content— fixed as these
were on the alleged taped conversations between A: Distinguished from an as-applied challenge which
the President and a COMELEC official. Undoubtedly considers only extant facts affecting real litigants,
these did not merely provide regulations as to the a facial invalidation is an examination of the entire
time, place or manner of the dissemination of law, pinpointing its flaws and defects, not only on the
speech or expression. basis of its actual operation to the parties, but also on
the assumption or prediction that its very existence
A governmental action that restricts freedom of may cause others not before the court to refrain from
speech or of the press based on content is given constitutionally protected speech or
the strictest scrutiny, with the government having activities.(Southern Hemisphere Engagement
the burden of overcoming the presumed Network, Inc. v. Anti-Terrorism Council, G.R. No.
unconstitutionality by the clear and present danger 178552, Oct. 5, 2010)
rule. It appears that the great evil which
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POLITICAL LAW TEAM
overbroad statute on third parties not courageous

Q: Are facial challenges allowed in penal statutes? enough to bring suit.The Court assumes that an
overbroad law’s “very existence may cause others not
A: No. Criminal statutes have general in before the court to refrain from constitutionally
terrorem effect resulting from their very existence, protected speech or expression.” An overbreadth
and, if facial challenge is allowed for this reason ruling is designed to remove that deterrent effect on
alone, the State may well be prevented from enacting the speech of those third parties. .(Southern
laws against socially harmful conduct. In the area of Hemisphere Engagement Network, Inc. v. Anti-
criminal law, the law cannot take chances as in the Terrorism Council, G.R. No. 178552, Oct. 5, 2010)
area of free speech.(KMU v. Ermita, G.R. No. 17855,
Oct. 5, 2010 4. Tests
Note: A litigant cannot thus successfully mount a facial Q: What are the tests for valid governmental
challenge against a criminal statute on either vagueness interference to freedom of expression?
or overbreadth grounds.
A:
The rule established in our jurisdiction is, only statutes on 1. Clear and Present Danger test
free speech, religious freedom, and other fundamental
rights may be facially challenged.(Southern Hemisphere
Question: Whether the words are used in such
Engagement Network, Inc. v. Anti-Terrorism Council,
circumstances and are of such a nature as to
G.R. No. 178552, Oct. 5, 2010)
create a clear and present danger that they will
bring about the substantive evils that Congress
Q: What is the Overbreadth Doctrine?
has a right to prevent. It is a question of
proximity and degree (Schenck v. US, 249 US 47,
A: The overbreadth doctrine permits a party to
1919)
challenge the validity of a statute even though as
applied to him it is not unconstitutional but it might
Emphasis: The danger created must not only be
be if applied to others not before the Court whose
clear and present but also traceable to the ideas
activities are constitutionally protected. (Separate
expressed. (Gonzales v. COMELEC, G.R. No. L-
opinion of Justice Mendoza in Cruz v. Secretary of
27833, April 18, 1969)
Environment and Natural Resources, GR. 135385, Dec.
6, 2000) It is a type of facial challenge that prohibits Note: This test has been adopted by our SC, and is
the government from achieving its purpose by means most applied to cases involving freedom of
that “sweep unnecessarily broadly, reaching expression.
constitutionally protected as well as unprotected
activity. 2. Dangerous Tendency test
Note: The application of the overbreadth doctrine is Question: Whether the speech restrained has a
limited to a facial kind of challenge rational tendency to create the danger
apprehended, be it far or remote, thus
The most distinctive feature of the overbreadth government restriction would then be allowed. It
technique is that it marks an exception to some of the is not necessary though that evil is actually
usual rules of constitutional litigation. Ordinarily, a created for mere tendency towards the evil is
particular litigant claims that a statute is enough.
unconstitutional as applied to him or her; if the
litigant prevails, the courts carve away the Emphasis: Nature of the circumstances under
unconstitutional aspects of the law by invalidating its which the speech is uttered, though the speech
improper applications on a case to case basis. per se may not be dangerous.
Moreover, challengers to a law are not permitted to
raise the rights of the third parties and can only assert 3. Grave-but-Improbable Danger test
their own interests. In overbreadth analysis, those
rules give way; challenges are permitted to raise the Question: Whether the gravity of the evil,
rights of third parties; and the court invalidates the discounted by its improbability, justifies such an
entire statute “on its face”, not merely “as applied invasion of free speech as is necessary to avoid
for” so that the overbroad law becomes the danger (Dennis v. US, 341 US 494, 1951)
unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates Note: This test was meant to supplant the clear and
court to depart from the normal adjudicatory rules is present danger test.
the concern with the “chilling”, deterrent effect of the
91
4. Balancing of interest test A: Yes. In Soriano v. MTRCB, G.R. No. 165636, Apr.
29, 2009, the Court, applying the balancing of
Question: which of the two conflicting interests (not interest doctrine, ruled that the government’s
involving national security crimes) demands the interest to protect and promote the interests and
greater protection under the particular welfare of the children adequately buttresses the
circumstances presented: reasonable curtailment and valid restraint on
petitioner’s prayer to continue as program host
a. When particular conduct is regulated in of Ang Dating Daan during the suspension period.
the interest of public order Soriano’s offensive and obscene language uttered
on prime-time television broadcast, without doubt,
b. And the regulation results in an indirect, was easily accessible to the children. His
conditional and partial abridgement of statements could have exposed children to a
speech (Gonzales v. COMELEC, G.R. No. L- language that is unacceptable in everyday use. As
27833, Apr. 18, 1969). such, the welfare of children and the State’s
mandate to protect and care for them, as parens
5. O’Brien test patriae, constitute a substantial and compelling
government interest in regulating Soriano’s
Question: in situations when “speech” and “non- utterances in TV broadcast.
speech” elements are combined in the same course
of conduct, whether there is a sufficiently Q: Is broadcast media entitled to the same
important governmental interest that warrants treatment under the free speech guarantee of the
regulating the non-speech element, incidentally Constitution as the print media? If not, what are
limiting the “speech” element. the bases for such treatment?
Note: A government regulation is valid if: A: No. The dichotomy between print and broadcast
a. It is within the constitutional power of media traces its origin in the United States. There,
the government; broadcast radio and television have been held to
b. In furtherance of an important or have limited the First Amendment protection, and
substantial governmental interest; US courts have excluded broadcast media from the
c. Governmental interest is unrelated to application of the ‘strict scrutiny’ standard that they
the suppression of free expression; and would otherwise apply to content-based
d. The incidental restriction on the freedom
restrictions. According to US courts, the three major
is essential to the furtherance of that
reasons why broadcast media stands apart from
interest. (US v. O’Brien, 391 US 367,
1968; SWS v. COMELEC, G.R. 147571,
print media are: (a) scarcity of the frequencies by
May 5, 2001) which the medium operates [i.e. airwaves are
physically limited while print medium are limitless];
6. Direct Incitement test (b) its ‘pervasiveness’ as a medium; and (c) its
unique accessibility to children. (Chavez v.
Question: What words did a person utter and what Gonzales, G.R. No. 168338, Feb. 15, 2008)
is the likely result of such utterance
Q: Can the trial of Estrada in the Sandiganbayan or
Emphasis: The very words uttered, and their ability any other court be broadcasted in TV or radio?
to directly incite or produce imminent lawless
action. A: No. An accused has a right to a public trial, but it
is not synonymous with a publicized trial. Freedom
Note: It criticizes the clear and present danger test for of the press and the accused’s protection from a
being too dependent on the specific circumstances of possible prejudicial publicized trial must be taken
each case. into consideration. And unless there are safety nets
to prevent this event, broadcast media cannot be
5. State Regulation of Different Types of Mass allowed to publicize the trial. (Re: Request for
Media Radio-TV Coverage of the Estrada Trial, A.M. No 01-
4-03-SC, June 29, 2001)
Q: Can an offensive and obscene language uttered
in a prime-time television broadcast which was 6. Commercial Speech
easily accessible to the children be reasonably
curtailed and validly restrained? Q: What is the meaning of commercial speech?
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POLITICAL LAW TEAM
A: It is communication which “no more than the basis of the cost needed to keep order in view
proposes a commercial transaction. Advertisements of the expected opposition by persons holding
of goods or of services is an example of contrary views. (Gorospe, 2006, citing Forsyth
this.”(Bernas, the 1987 Constitution of the Republic County v. Nationalist Movement, 315 U.S. 568,
of the Philippines Comprehensive Reviewer 2006) 1942)
Q: In order for government to curtail commercial FREEDOM OF ASSEMBLY AND PETITION

speech what must be shown?
Q: Is the right to assembly subject to prior
A: To enjoy protection, commercial speech: restraint?
1. Must not be false or misleading
(Friedman v. Rogers, 440 US 1, 1979) A: No. It may not be conditioned upon the prior
2. Should not propose an illegal issuance of a permit or authorization from
transaction(Pittsburgh Press Co. v Human government authorities. However, the right must
Relations Commissions, 413 US 376, be exercised in such a way as will not prejudice the
1973) public welfare.
Note: However, even truthful and lawful commercial Q: What is the so-called permit system?
speech maybe regulated if (1) government has a
substantial interest to protect; (2) the regulation A: Under the permit system, before one can use a
directly advances that interest; and (3) it is not more public place, one must first obtain prior permit from
than extensive than is necessary to protect that the proper authorities. Such is valid if:
interest. (Central Hudson Gas & Electric Corp v. Public
Service Commission of NY, 447 US 557 (1980))
1. It is concerned only with the time, place,
and manner of assembly; and
7. Private v. Government Search
2. It does not vest on the licensing authority
unfettered discretion in choosing the
Q: Differentiate Government Speech From Private
groups which could use the public place
Speech.
and discriminate others.
A: Note: Permits are not required for designated freedom
Government Speech Private Speech parks.
A speech where the The right of a person to
government may freely speak one’s mind Q: What are the rules on assembly in public
advance or restrict its is a highly valued places?
own speech in a manner freedom in a republican
that would clearly be and democratic society. A:
forbidden were it (Ashcroft v. Free Speech 1. The applicant should inform the licensing
regulating the speech of Coalition, 535 U.S. 234 authority of the date, the public place
a private citizen. (2002)) where and the time when the assembly
(doctrine was implied will take place.
in Wooley v. Maynard in 2. The application should be filed ahead of
1971) time to enable the public official
concerned to apprise whether there are
valid objections to the grant of the permit
8. Heckler’s Veto or to its grant, but in another public place.
The grant or refusal should be based on
Q: What is a Heckler’s Veto? the application of the Clear and Present
Danger Test.
A: A heckler's veto occurs when an acting party's 3. If the public authority is of the view that
right to freedom of speech is curtailed or restricted there is an imminent and grave danger of
by the government in order to prevent a reacting a substantive evil, the applicants must be
party's behavior. The term Heckler’s Veto was heard on the matter.
coined by University of Chicago professor of law 4. The decision of the public authority,
Harry Kalven. whether favorable or adverse, must be
transmitted to the applicants at the
It may be in the guise of a permit requirement in earliest opportunity so that they may, if
the holding of rallies, parades, or demonstrations they so desire, have recourse to the
conditioned on the payment of a fee computed on proper judicial authority (Reyes vs.
93
Bagatsing, G.R. No. L-65366, Nov. 9,

1983). Q: Executive Secretary Eduardo Ermita issued a
policy via press release. The policy pertains to the
Q: What is the rule on assembly in private strict implementation of Batas Pambansa 880 also
properties? known as the Public Assembly Act of 1985. It
provides for the strict enforcement of “no permit,
A: Only the consent of the owner of the property or no rally policy”, and arrest of all persons violating
person entitled to possession thereof is required. the laws of the land, and dispersal of unlawful
mass actions. Is BP Blg. 880 unconstitutional on
Q: What are the two tests applicable to the the ground that it violates the constitutionality
exercise of the right to assembly? guaranteed right to peaceful assembly?
A: A: No, BP 880 is constitutional. It does not curtail or

1. Purpose Test – looks into the purpose of unduly restrict freedom. It merely regulates the use
the assembly regardless of its backers. of public places as to the time, place and manner of
(De Jonge v. Oregon, 299 US 353, 365, assemblies. Far from being insidious, “maximum
1937) tolerance” is for the benefit of the rallyists, not the
2. Auspices Test – looks into the government. The delegation to the mayors of the
backers/supporters. power to issue rally “permits” is valid because it is
subject to the constitutionally sound “clear and
Note: The ruling in Evangelista v. Earnshaw (G.R. No. present danger” standard. (Bayan Karapatan vs.
36453, Sept. 28, 1932) hasnot yet been abrogated Eduardo Ermita, et al., G.R. No. 169838, April 25,
where the Mayor revoked permits he already granted 2006)
because the group, the Communist Party of the
Philippines, was found by the fiscal to be an illegal Q: Is the Calibrated Preemptive Response (CPR)
association. When the intention and effect of the act is legal?
seditious, the constitutional guaranties of freedom of
speech and press and of assembly and petition must
A: CPR Policy is illegal. In view of the maximum
yield to punitive measures designed to maintain the
tolerance policy mandated by BP Blg. 880, CPR
prestige of constituted authority, the supremacy of the
Constitution and the laws, and the existence of the
serves no valid purpose if it means the same thing
State. as maximum tolerance, and is illegal if it means
something else. Accordingly, what is to be followed
Q: Is the concept of people power recognized in is and should be that mandated by law itself,
the Constitution? Discuss briefly. namely, maximum tolerance, which specifically
means “the highest degree of restraint that the
A: Yes. The Constitution: military, police and other peace keeping authorities
1. Guarantees the right of the people to shall observe during a public assembly or in
peaceably assemble and petition the dispersal of the same. (Bayan Karapatan vs.
government for redress of grievances Eduardo Ermita, et al., G.R. No. 169838, April 25,
(Sec. 4, Article III,). 2006)
2. Requires Congress to pass a law allowing
the people to directly propose and enact Q. Mayor Atienza modified the permit to rally of
laws through initiative and to approve or IBP outright without informing the applicants. Is it
reject any act or law or part of it passed valid?
by Congress or a local legislative body
(Sec. 32, Article VI). A: In modifying the permit outright, respondent
3. Provides that the right of the people and gravely abused his discretion when he did not
their organizations to participate at all immediately inform the IBP who should have been
levels of social, political, and economic heard first on the matter of perceived imminent
decision-making shall not be abridged and and grave danger of a substantive evil that may
that the State shall, by law, facilitate the warrant the changing of the venue. Respondent
establishment of adequate consultation failed to indicate how he had arrived at modifying
mechanisms (Sec. 16, Article XIII). the terms of the permit against the standard of
4. Provides that subject to the enactment of clear and present danger which is an indispensable
an implementing law, the people may condition to such modification. ( IBP v. Atienza GR
directly propose amendments to the No. 175241 Feb
Constitution through initiative (Sec. 2,
Article XVII). h. FREEDOM OF RELIGION
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POLITICAL LAW TEAM
1. Has the statute or government action

Q: What is religion? created a burden on the free exercise of
religion? – Courts often look into the
A: A profession of faith to an active power that sincerity of the religious belief, but
binds and elevates man to his creator. (Aglipay vs. without inquiring into the truth of the
Ruiz, GR. No. L-45459, Mar. 13, 1937) belief since the free exercise clause
prohibits inquiring about its truth.
Q: What are the two guarantees contained in Sec.
5 Article III of the 1987 Constitution? 2. Is there a sufficiently compelling state
interest to justify this infringement of
A: religious liberty? – In this step, the
1. Non-establishment clause; government has to establish that its
2. Free exercise clause, or the freedom of purposes are legitimate for the State and
religious profession and worship that they are compelling.
1. Non-establishment Clause 3. Has the State in achieving its legitimate

purposes used the least intrusive means
a. Concept and Basis possible so that the free exercise is not
infringed any more than necessary to
Q: What is the basis of the non-establishment achieve the legitimate goal of the State? –
clause? The analysis requires the State to show
that the means in which it is achieving its
A: Article III, Sec. 5- “No law shall be made legitimate State objective is the least
respecting an establishment of religion, or intrusive means, or it has chosen a way to
prohibiting the free exercise thereof”. achieve its legitimate State end that
imposes as little as possible intrusion on
Q: What is the concept of the non- establishment religious beliefs.
clause?
Q: What are the constitutional provisions which
A: It means that the state should adopt a “position express the non-establishment clause?
of neutrality” when it comes to religious matters.
(Political Law Reviewer, Suarez ,p. 252 citing CJ A:
Fernando, 2011). 1. Art VI, Sec 29- no public money/property
given to religious sect or
b. Acts permitted and not permitted by the clause minister/religious personnel (except for
those assigned to army, penal institution,
Q: What acts are not permitted under the non- government orphanage and leprosarium)
establishment clause? 2. Art II, Sec 6- Separation of church and
state is inviolable
A: The non-establishment clause states that the 3. Art IX(C), Sec 2 (5)- No religious sects can
State cannot: be registered as political parties
1. Set up a church
2. Pass laws which aid one or all religions or Q: What are the constitutional created exceptions
prefer one over another to the non-establishment clause?
3. Influence a person to go to or stay away
from church against his will A:
4. Force him to profess a belief or disbelief 1. Article 6, Section 29
in any religion 2. Article 6, Section 28 (3) (exemption from
taxation of properties actually, directly
c. Tests and exclusively used for religious
purposes
Q: What is the Compelling State Interest test? 3. Article 14, Section 3 (3) (optional religious
instruction in public elementary and high
A: It is the test used to determine if the interests of schools)
the State are compelling enough to justify 4. Article 14, Section 4 (2) (citizenship
infringement of religious freedom. It involves a requirement of ownership of educational
three-step process: institutions, except those established by
religious groups and mission boards)
95
5. Article 6, Section 29 (2) (appropriation Q: X, a court interpreter, is living with a man not
allowed where ecclesiastic is employed in her husband. Y filed the charge against X as he
armed forces, in a penal institution, or in believes that she is committing an immoral act
a government-owned orphanage or that tarnishes the image of the court, thus she
leprosarium) should not be allowed to remain employed therein
as it might appear that the court condones her act.
2. Free-Exercise Clause X admitted that she has been living with Z without
the benefit of marriage for twenty years and that
Q: What are the aspects of freedom of religious they have a son. But as a member of the religious
profession and worship? sect known as the Jehovah’s Witnesses and the
Watch Tower and Bible Tract Society, their
A: These are the right to believe, which is absolute, conjugal arrangement is in conformity with their
and the right to act on one’s belief, which is subject religious beliefs. In fact, after ten years of living
to regulation. together, she executed on July 28, 1991 a
“Declaration of Pledging Faithfulness. Should X’s
Q: Give some exceptions to the non-establishment right to religious freedom carve out an exception
clause as held by jurisprudence. from the prevailing jurisprudence on illicit
relations for which government employees are
A: held administratively liable?
1. Tax exemption on property actually,
directly and exclusively used for religious A: Yes. X’s conjugal arrangement cannot be
purposes; penalized as she has made out a case for exemption
2. Religious instruction in public schools: from the law based on her fundamental right to
a. At the option of parents/guardians freedom of religion. The Court recognizes that State
expressed in writing; interests must be upheld in order that freedoms –
b. Within the regular class hours by including religious freedom – may be enjoyed. In
instructors designated or approved the area of religious exercise as a preferred
by religious authorities of the freedom, however, man stands accountable to an
religion to which the children belong; authority higher than the State, and so the State
c. Without additional costs to the interest sought to be upheld must be so compelling
government; that its violation will erode the very fabric of the
3. Financial support for priest, preacher, State that will also protect the freedom. In the
minister, or dignitary assigned to the absence of a showing that such State interest exists,
armed forces, penal institution or man must be allowed to subscribe to the Infinite
government orphanage or leprosarium; (Estrada v. Escritor, A.M. No. P-02-1651, June 22,
4. Government sponsorship of town fiestas, 2006).
some purely religious traditions have now
been considered as having acquired Q: Ang Ladlad is an organization composed of men
secular character; and and women who identify themselves as lesbians,
5. Postage stamps depicting Philippines as gays, bisexuals, or trans-gendered individuals
the venue of a significant religious event – (LGBTs). Ang Ladlad applied for registration with
benefit to the religious sect involved was the COMELEC. The COMELEC dismissed the
merely incidental as the promotion of petition on moral grounds, stating that definition
Philippines as a tourist destination was of sexual orientation of the LGBT sector makes it
the primary objective. crystal clear that petitioner tolerates immorality
which offends religious beliefs based on the Bible
Q: What is the Lemon test? and the Koran. Ang Ladlad argued that the denial
of accreditation, insofar as it justified the exclusion
A: It is a test to determine whether an act of the by using religious dogma, violated the
government violates the non-establishment clause. constitutional guarantees against the
To pass the Lemon test, a government act or policy establishment of religion. Is this argument correct?
must:
1. Have a secular purpose; A: Yes. It was grave violation of the non-
2. Not promote or favor any set of religious establishment clause for the COMELEC to utilize the
beliefs or religion generally; and Bible and the Koran to justify the exclusion of Ang
3. Not get the government too closely Ladlad. Our Constitution provides in Article III,
involved (“entangled”) with religion. Section 5 that “no law shall be made respecting an
establishment of religion, or prohibiting the free
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POLITICAL LAW TEAM
exercise thereof.” At bottom, what our non- to be free of law. However, a law will be upheld
establishment clause calls for is government only if the government’s interest is strong enough.
neutrality in religious matters. Clearly,
governmental reliance on religious justification is Note: In Howe v. Brown, 319 F. Supp. 862 (N.D. Ohio
inconsistent with this policy of neutrality (Ang 1970), it was held that, the compelling-state-interest-
Ladlad LGBT Party v. COMELEC, G.R. No. 190582, test is mostly applied in all voting rights cases and
Apr. 8, 2010). equal protection cases. It is also applied when a
disputed law requires strict scrutiny.
The government must act for secular purposes and
in ways that have primarily secular effects. That is, c. Conscientious Objector Test
the government proscribes this conduct because it
is "detrimental (or dangerous) to those conditions Q: Who is a conscientious objector?
upon which depend the existence and progress of
human society" and not because the conduct is A: A conscientious objector is an "individual who
proscribed by the beliefs of one religion or the has claimed the right to refuse to perform military
other.(Estrada v. Escritor, A.M. No. P-02-1651, June service on the grounds of freedom of thought,
22, 2006) conscience, and/or religion.(International
Covenant on Civil and Political Rights, Article 18)
Q: The petitioners, led by A, members of the
Philippine Independent church, clamored for the Q: What are the requisites for one to be
transfer of Fr. B to another parish but Bishop X considered a conscientious objector?
denied their request. The problem was
compounded when Bishop X told A not to push A:
through with his plan to organize an open mass to 1. The person is opposed to war in any
be celebrated by Fr. M during the town fiesta of form
Socorro. Bishop X failed to stop A from proceeding 2. He must show that this opposition is
with his plan. A and his sympathizers proceeded based upon religious training and belief
with their plan. Subsequently, Bishop X declared 3. And he must show that this objection is
petitioners expelled/excommunicated from the sincere. (Clay v. United States, 403
Philippine Independent Church. Petitioners filed a U.S.698 (1971)
complaint for damages with preliminary Injunction
against Bishop X. Is it within the jurisdiction of the Q: Boxer Muhammad Ali, a muslim, refused to
courts to hear the case involving the report for induction into the United States
expulsion/excommunication of members of a military forces during the Vietnam War. He
religious institution? applied to be exempted based on the teachings of
Islam. His local draft board had rejected his
A: No. The church and the state are separate and application for conscientious objector
distinct from each other. Said matter involving the classification. Is the denial correct?
Expulsion/excommunication of members of the
Philippine Independent Church should be left to the A: No, the United States Supreme Court held that
discretion of the officials of said religious institution there is no dispute that Ali’s professed beliefs were
in line with the doctrine that the court should not founded on basic tenets of the Muslim religion, as
interfere on doctrinal and disciplinary differences. he understood them, and derived in substantial
(Dominador Taruc, et al. vs. Bishop Perfirio Dela part from his devotion to Allah as the Supreme
Cruz, GR. No. 044801, Mar. 10, 2005) Being. Thus, his claim unquestionably was within
the `religious training and belief' clause of the
3. Tests exemption provision." (Clay v. United States, 403
U.S.698 (1971)
a. Clear and Present Danger Test
i. LIBERTY OF ABODE AND RIGHT TO TRAVEL
b. Compelling State Interest Test
Q: What are the rights guaranteed under Section 6
Q: What is the compelling state interest test? of the Bill of Rights?
A: The compelling-state-interest-test refers to a A:

method of determining the constitutional validity of a. Freedom to choose and change one’s
a law. Under this test, the government’s interest is place of abode; and
balanced against the individual’s constitutional right b. Freedom to travel within the country and
outside.
97
deployment of Filipino Domestic and household

Q: What is the meaning of liberty of abode? workers abroad. PASEI contends that it impairs the
constitutional right to travel. Is the contention
A: It is the right of a person to have his home or to correct?
maintain or change his home, dwelling, residence
or habitation in whatever place he has chosen, A: No, the consequence the deployment ban has on
within the limits prescribed by law. (Political Law the right to travel does not impair the right. The
Reviewer, Suarez, 2011). right to travel is subject, among other things, to the
requirements of "public safety," "as may be
1. Limitations provided by law." Department Order No. 1 is a valid
implementation of the Labor Code, in particular, its
Q: What is the limitation on the liberty of abode? basic policy to "afford protection to labor,"
pursuant to the Department of Labor's rule-making
A: The liberty of abode may be impaired only upon authority vested in it by the Labor Code. (Philippine
lawful order of the court and within the limits Association of Service Exporters, Inc. vs. Drilon, G.R.
prescribed by law. No. 81958, June 30, 1988)
Example: 3. Return to One’s Country

1. Persons in the danger zone areas (i.e. Mt.
Pinatubo, Taal Volcano) may be relocated to Q: Is the right to return to one’s country
safer areas and evacuation centers in case of guaranteed in the Bill of Rights?
danger and emergency to save lives and
property. A: The right to return to one’s country is not among
2. Insane persons who roam around in Roxas the rights specifically guaranteed in the Bill of
Boulevard may be committed by the Rights, which treats only of the liberty of abode and
government to the National Mental Hospital the right to travel. Nevertheless, the right to return
for appropriate treatment and medical may be considered as a generally accepted principle
attention. (Political Law Reviewer, Suarez, of International law, and under the Constitution, is
2011) part of the law of the land. However, it is distinct
and separate from the right to travel and enjoys a
2. Right to Travel different protection under the Intl. Covenant of Civil
and Political Rights. (Marcos v. Manglapus, G.R. No.
Q: What is the right to travel? 88211, Sept. 15, 1989 & Oct. 27, 1989)
A: It is the right of a person to go where he pleases Q: The military commander in charge of the
without interference from anyone. (Political Law operation against rebel groups directed the
Reviewer, Suarez, 2011). inhabitants of the island which would be the
target of attack by government forces to evacuate
Q: What is the limitation on the right to travel? the area and offered the residents temporary
military hamlet. Can the military commander force
A: The limitations are the interest of national the residents to transfer their places of abode
security, public safety or public health, as may be without a court order?
provided by law.
A: No, the military commander cannot do so
With respect to the right to travel, it is settled that without a court order. Under Sec. 6, Art. III of the
only a court may issue a hold departure order Constitution, a lawful order of the court is required
against an individual addressed to the Bureau of before the liberty of abode and of changing the
Immigration and Departure. However, same can be impaired.
administrative authorities, such as passport-
officers, may likewise curtail such right in the j. RIGHT TO INFORMATION AND ACCESS TO PUBLIC
interest of national security, public safety, or public RECORDS
health, as may be provided by law.
Q: What is the scope of the right?
Q: PASEI is engaged in the recruitment of Filipino
workers, male and female, for overseas A: This covers information on matters of public
employment. It challenged the validity of concern. It pertains to access to official records,
Department Order No. 1 of the Department of documents and papers pertaining to official acts,
Labor and Employment because it suspends the
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POLITICAL LAW TEAM
transactions or decisions, as well as to government 3. Access to Court Records

research data used as basis for policy development.
Q: During the pendency of the intestate
The SC has held in Chavez v. PEA and AMARI (G.R. proceedings, Ramon, a creditor of the deceased,
No. 133250, July 9, 2002) that the right to filed a motion with a prayer that an order be
information contemplates inclusion of negotiations issued requiring the Branch Clerk of Court to
leading to the consummation of the transaction. furnish him with copies of all processes and orders
and to require the administratrix to serve him
Note: The right only affords access to records, copies of all pleadings in the proceedings. The
documents and papers, which means the opportunity judge denied the motion because the law does not
to inspect and copy them at his expense. The exercise
give a blanket authority to any person to have
is also subject to reasonable regulations to protect the
access to official records and documents and
integrity of public records and to minimize disruption
of government operations.
papers pertaining to official acts. The judge said
that his interest is more of personal than of public
concern. Is the judge correct?
1. Limitations
A: No. The right to information on matters of public
Q: What are the limitations and exceptions to the
concern is a constitutional right. However, such is
right to information and access to public records?
not absolute. Under the Constitution, access is
subject to limitations as may be provided by law.
A:
Therefore, a law may exempt certain types of
GR: The access must be for a lawful purpose
information from public scrutiny such as national
and is subject to reasonable conditions by the
security. The privilege against disclosure is
custodian of the records.
recognized with respect to state secrets bearing on
the military, diplomatic and similar matters. Since
XPNS: The right does not extend to the
intestate proceedings do not contain any military or
following:
diplomatic secrets which will be disclosed by its
1. Information affecting national security,
production, it is an error on the part of the judge to
military and diplomatic secrets. It also
deny Ramon’s motion. (Hidalgo v. Reyes, AM No.
includes inter-government exchanges prior
RTJ-05-1910, Apr. 15, 2005)
to consultation of treaties and executive
agreement as may reasonably protect the
Right to information relative to:
national interest
2. Matters relating to investigation,
apprehension, and detention of criminals a. Government Contract Negotiations
which the court may not inquire into prior
to arrest, prosecution and detention Q: May the government, through the PCGG, be
3. Trade and industrial secrets and other required to reveal the proposed terms of a
banking transactions as protected by the compromise agreement with the Marcos heirs as
Intellectual Property Code and the Secrecy regards their alleged ill-gotten wealth?
of Bank Deposits Act
4. Other confidential information falling A: It is incumbent upon the PCGG, and its officers,
under the scope of the Ethical Safety Act as well as other government representatives, to
concerning classified information disclose sufficient public information on any
proposed settlement they have decided to take up
2. Publication of Laws and Regulations with the ostensible owners and holders of ill-gotten
wealth. Such information must pertain to definite
Q: Is there a need for publication of laws to propositions of the government. (Chavez v. PCGG,
reinforce the right to information? G.R. No. 130716, Dec. 9, 1998)
A: Yes. In Tanada v. Tuvera, the Court said Laws b. Diplomatic Negotiations

must come out in the open in the clear light of the
sun instead of skulking in the shadows with their Q: Petitioners request that they be given a copy of
dark, deep secrets. Mysterious pronouncements the text of the JPEPA and the offers and
and rumored rules cannot be recognized as binding negotiations between the Philippines and Japan.
unless their existence and contents are confirmed Are these matters of public concern? Can they be
by a valid publication intended to make full disclosed?
disclosure and give proper notice to the people.
99
A: There is a distinction between the text of the 28, 1989) The only available remedy for them is to
treaty and the offers and negotiations. They may lobby for better terms of employment with Congress.
compel the government to disclose the text of the
treaty but not the offers between RP and Japan, l. EMINENT DOMAIN
because these are negotiations of executive
departments. Diplomatic Communication 1. Concept
negotiation is privileged information. (Akbayan v.
Aquino, G.R. No. 170516, July 16, 2008) Q: What is the power of eminent domain?
k. FREEDOM OF ASSOCIATION A: It is the power of the state to forcibly acquire the

needed property in order to devote it to the
Q: What does the freedom of association mean? intended public use, upon payment of just
compensation. (Cruz, Constitutional Law, p.62)
A: It means that the right to form associations shall
not be impaired without due process of law. It is 2. Expansive concept of “public use”
therefore an aspect of the general right of liberty.
More specifically, it is an aspect of freedom of Q: Does the requisite of public use mean “use by
contract; and in so far as associations may have for the public at large?
their object the advancement of beliefs and ideas,
freedom of association is an aspect of freedom of A: No. Whatever may be beneficially employed for
expression and of belief. The guarantee also covers the general welfare satisfies the requirement.
the right not to join an association. (Bernas, The Moreover, that only few people benefits from the
1987 Philippine Constitution: A Comprehensive expropriation does not diminish its public-use
Reviewer, 2006, p. 97) character because the notion of public use now
includes the broader notion of indirect public
Q: What is the difference between the right to benefit or advantage.(Manosca v. CA, G.R. 166440,
unionize and the right to association? Jan. 29, 1996).
A: The right to unionize is an economic and labor 3. Just compensation

right while the right to association in general is a
civil-political right. Q: What is just compensation?
Q: What constitutes freedom of association? A: It is the full and fair equivalent of the property
taken from the private owner (owner’s loss) by the
A: Freedom of association includes the freedom not expropriator. It is usually the fair market value
to associate, or, if one is already a member, to (FMV) of the property and must include
disaffiliate from the association consequential damages (damages to the other
interest of the owner attributed to the
Q: Is the right to strike included in the right to expropriation) minus consequential benefits
form unions or freedom of assembly by (increase in the value of other interests attributed
government employees? to new use of the former property).
A: No, the right to strike is not included. Their Note: FMV is the price fixed by the parties willing but
employment is governed by law. It is the Congress not compelled to enter into a contract of sale.
and administrative agencies which dictate the
terms and conditions of their employment. The Q: Does compensation have to be paid in money?
same is fixed by law and circulars and thus not
subject to any collective bargaining agreement. A:
GR: Yes.
Note: Pursuant to Sec. 4, Rule III of the Rules and XPN: In cases involving CARP, compensation
Regulations to Govern the Exercise of the Right of may be in bonds or stocks, for it has been held
Government Employees to Self-Organization, the as a non-traditional exercise of the power of
terms and conditions of employment in the eminent domain. It is not an ordinary
Government, including any of its instrumentalities, expropriation where only a specific property of
political subdivision and government owned and relatively limited area is sought to be taken by
controlled corporations with original charters, are
the State from its owner for a specific and
governed by law and employees therein shall not
perhaps local purpose. It is rather a
strike for the purpose of securing changes thereof.
(SSS Employees Association v. CA, GR. No. 85279, July
revolutionary kind of expropriation (Association
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POLITICAL LAW TEAM
of Small Landowners in the Philippines, Inc. v. and dishonor the judgment. (Republic v.
Secretary of Agrarian Reform, G.R. No. 78742, Lim, G.R. No. 161656, June 29, 2005)
14 July 1989).
4. Abandonment of Intended Use and Right of
Q: Is the owner entitled to the payment of Repurchase
interest? How about reimbursement of taxes paid
on the property? Q. When a particular public use is abandoned,
does its former owner acquire a cause of action for
A: Yes, the owner is entitled to the payment of recovery of the property?
interest from the time of taking until just
compensation is actually paid to him. Taxes paid by A: When land has been acquired for public use in
him from the time of the taking until the transfer of fee simple, unconditionally, either by the exercise
title (which can only be done after actual payment of eminent domain or by purchase, the former
of just compensation), during which he did not owner retains no rights in the land, and the public
enjoy any beneficial use of the property, are use may be abandoned or the land may be devoted
reimbursable by the expropriator. to a different use, without any impairment of the
estate or title acquired, or any reversion to the
Q: What legal interest should be used in the former owner. (ATO v. Apolonio Gopuco, Jr. G.R No.
computation of interest on just compensation? 158563,June 30, 2005)
A: An interest of 12% per annum on the just 5. Miscellaneous Application

compensation due the landowner. (LBP v. Wycoco
G.R. No. 140160, January 13, 2004) Q: An ordinance of Quezon City requires memorial
park operators to set aside at least 6% of their
a. Determination cemetery for charity burial of deceased persons. Is
this a valid exercise of police power?
Q: When should assessment of the value of the
property be determined? A: No, it constitutes taking of property without just
compensation. Instead of building or maintaining a
A: The value of the property must be determined public cemetery for this purpose, the city passes
either at the time of taking or filing of the the burden to private cemeteries. (City Government
complaint, whichever comes first.(EPZA v. Dulay, of Quezon City v. Ericta, G.R. No. L-34915, Jun. 24,
G.R. No. 59603, April 29, 1987). 1983)
b. Effect of delay Q: Can there be expropriation in right of way

easement?
Q: Does non-payment of just compensation entitle
the private owner to recover possession of the A: Yes. Expropriation is not limited to the
expropriated property? acquisition of real property with a corresponding
transfer of title or possession – the right of way
A: easement resulting in a restriction of limitation on
GR: Non-payment by the government does not property right over the land traversed by
entitle private owners to recover possession of transmission lines also falls within the ambit of the
the property because expropriation is an in rem term expropriation. (NPC v. Maria Mendoza San
proceeding, not an ordinary sale, but only Pedro, G.R. No. 170945 Sept. 26, 2006)
entitle them to demand payment of the fair
market value of the property. Q: Causby sued the United States for trespassing
on his land, complaining specifically about how
XPNS: "low-flying military planes caused the plaintiffs'
1. When there is deliberate refusal to pay chickens to 'jump up against the side of the
just compensation chicken house and the walls and burst themselves
2. Government’s failure to pay open and die. Are they entitled to compensation
compensation within 5 years from the by reason of taking clause?
finality of the judgment in the
expropriation proceedings. This is in A: There is taking by reason of the frequency and
connection with the principle that the altitude of the flights. Causby could not use his land
government cannot keep the property for any purpose.(US v. Causby, 328 U.S. 256 , 1946)
101
Q: The National Historical Institute declared the remedy for its enforcement, impairs the contract.
parcel of land owned by Petitioners as a national (Black’s Law Dictionary)
historical landmark, because it was the site of the
birth of Felix Manalo, the founder of Iglesia ni Note: Franchises, privileges, licenses, etc. do not come
Cristo. The Republic of the Philippines filed an within the context of the provision, since these things
action to appropriate the land. Petitioners argued are subject to amendment, alteration or repeal by
that the expropriation was not for a public Congress when the common good so requires.
purpose. Is this correct?
Q: PAL (a former GOCC) and Kuwait Airways
A: Public use should not be restricted to the entered into a Commercial Agreement and Joint
traditional uses. The taking is for a public use Services Agreement. Can the execution of the
because of the contribution of Felix Manalo to the Commercial Memorandum of Understanding
culture and history of the Philippines. (Manosca v. between Kuwait and Philippine Government
CA , G.R. No. 106440, Jan. 29, 1996) automatically terminate the aforementioned
agreement?
Q: Is expropriation of private lands for slum
clearance and urban development for public A: No, because an act of the Phil. Gov’t negating the
purpose? commercial agreement between the two airlines
would infringe the vested rights of a private
A: Yes, it is for public purpose even if the developed individual. Since PAL was already under private
area is later sold to private homeowners, ownership at the time the CMU was entered into,
commercial firms, entertainment and service the Court cannot presume that any and all
companies and other private concerns. (Reyes v. commitments made by the Phil. Gov’t are
NHA,G.R. No. 47511, Jan. 20, 2003) unilaterally binding on the carrier even if this comes
at the expense of diplomatic embarrassment. Even
m. CONTRACT CLAUSE or NON-IMPAIRMENT granting that the police power of the State may be
CLAUSE exercised to impair the vested rights of privately-
owned airlines, the deprivation of property still
Q: May laws be enacted even if the result would requires due process of law. (Kuwait Airline
be the impairment of contracts? Corporation v. PAL, G.R. No. 156087, May 8, 2009)
A: GR: Valid contracts should be respected by the Q: May there be a valid impairment of contracts
legislature and not tampered with by subsequent even if the act in question is done by an entity
laws that will change the intention of the parties or other than the legislature?
modify their rights and obligations. The will of the
parties to a contract must prevail. A later law which A: Yes. The act need not be by a legislative office;
enlarges, abridges, or in any manner changes the but it should be legislative in nature. (Philippine
intent of the parties to the contract necessarily Rural Electric Cooperatives Assoc. v. DILG Sec, G.R.
impairs the contract itself and cannot be given No. 143076, June 10, 2003)
retroactive effect without violating the
constitutional prohibition against impairment of n. LEGAL ASSISTANCE AND FREE ACCESS TO
contracts. (Sangalang v. IAC, G.R. No. 71169, Dec. COURTS
22, 1988)
Q. What is the significance of this provision?
XPN: Enactment of laws pursuant to the
exercise of police power because public welfare A. It is the basis for the provision of Section 17, Rule
prevails over private rights. It is deemed 5 of the New Rules of Court allowing litigation in
embedded in every contract a reservation of the forma pauperis. Those protected include low paid
State’s exercise of police power, eminent employees, domestic servants and laborers.
domain and taxation, so long as it deals with a (Cabangis v. Almeda Lopez,G.R. No. 47685, Sept. 20,
matter affecting the public welfare.(PNB v 1940)
Remigio, G.R. No 78508, Mar. 21, 1994)
They need not be persons so poor that they must
Q: What constitutes impairment? be supported at public expense. It suffices that the
plaintiff is indigent. And the difference between
A: Any statute which introduces a change into the paupers and indigent persons is that the latter are
express terms of the contract, or its legal persons who have no property or sources of income
construction, or its validity, or its discharge, or the sufficient for their support aside from their own
102
POLITICAL LAW TEAM
labor though self-supporting when able to work and A: During custodial investigation or as soon as the
in employment. (Acar v. Rosal, G.R. No. L-21707, investigation ceases to be a general inquiry unto an
March 18, 1967) unsolved crime and direction is aimed upon a
particular suspect, as when the suspect who has
o. RIGHTS OF SUSPECTS been taken into police custody and to whom the
police would then direct interrogatory questions
Q: What are the Miranda rights? which tend to elicit incriminating statements.
A: These are the rights to which a person under Note: Sec. 2 of R.A. 7438 provides that custodial
custodial investigation is entitled. These rights are: investigation shall include the practice of issuing an
1. Right to remain silent invitation to a person who is under investigation in
2. Right to competent and independent connection with an offense he is suspected to have
counsel, preferably of his own choice committed
3. Right to be reminded that if he cannot
Rights during custodial investigation apply only
afford the services of counsel, he would
against testimonial compulsion and not when the
be provided with one
body of the accused is proposed to be examined
4. Right to be informed of his rights
(i.e. urine sample; photographs; measurements;
5. Right against torture, force, violence,
garments; shoes) which is a purely mechanical act.
threat, intimidation or any other means
which vitiate the free will
In the case of Galman v. Pamaran, it was held that
6. Right against secret detention places,
the constitutional safeguard is applied
solitary, incommunicado, or similar forms
notwithstanding that the person is not yet arrested
of detention
or under detention at the time. However, Fr. Bernas
7. Right to have confessions or admissions
has qualified this statement by saying that
obtained in violation of these rights
jurisprudence under the 1987 Constitution has
considered inadmissible in evidence
consistently held, following the stricter view, that
(Miranda v Arizona, 384 U.S. 436, 1966)
the rights begin to be available only when the
Note: Even if the person consents to answer questions person is already in custody. (People v. Ting LanUy,
without the assistance of counsel, the moment he asks G.R. No. 157399, Nov.17, 2005)
for a lawyer at any point in the investigation, the
interrogation must cease until an attorney is present. Furthermore, in the case of People v. Reyes, GR No.
178300, Mar. 17, 2009 , we can find this line: “The
The “Miranda Rights” are available to avoid mantle of protection afforded by the above-quoted
involuntary extrajudicial confession. provision covers the period from the time a person
is taken into custody for the investigation of his
The purpose of providing counsel to a person under possible participation in the commission of a crime
custodial investigation is to curb the police-state of from the time he was singled out as a suspect in
practice of extracting a confession that leads appellant the commission of the offense although not yet in
to make self-incriminating statements. (People vs. custody.
Rapeza, G.R. 169431, April 3, 2007)
Q: When are the Miranda rights unavailable?
Q: What are the rights and limitations of a person
in a preliminary investigation? A:
1. During a police line-up, unless admissions
A: or confessions are being elicited from the
1. He cannot cross-examine suspect (Gamboa Vs. Cruz, G.R. No. L-
2. No right to counsel except when 56291, June 27, 1988)
confession is being obtained 2. During administrative investigations
3. He cannot file complaint or information (Sebastian, Jr v Garchitorena, G.R. No
without authority 114028)
4. Right to be present not absolute 3. Confessions made by an accused at the
5. No dismissal without approval time he voluntarily surrendered to the
6. Right to discovery proceedings police or outside the context of a formal
investigation; (People v Baloloy, G.R. No
1. Availability 140740, April 12, 2002) and
4. Statements made to a private person
Q: When do these rights become available? (People v Tawat, G.R. No 62871, May 25,
1985)
103
2. Requisites A: This doctrine states that once the primary source

(the tree) is shown to have been unlawfully
Q: What are the requisites for a valid waiver of obtained, any secondary or derivative evidence (the
these rights? fruit) derived from it is also inadmissible. The rule is
based on the principle that evidence illegally
A: obtained by the State should not be used to gain
1. Made voluntarily, knowingly and other evidence, because the originally illegally
intelligently obtained evidence taints all evidence subsequently
2. Waiver should be made in writing obtained.
3. Made with the presence of counsel
(People vs Galit, GR. No. L-51770, Mar. 3. Waiver
20, 1985)
Q: What are the rights that may be waived?
Q: Is a confession given to a mayor admissible in
court? A:
1. Right to remain silent
A: Yes, if such confession was given to the mayor as 2. Right to counsel
a confidant and not as a law enforcement officer. In
such case, the uncounselled confession did not Notes:
violate the suspect’s constitutional rights. (People v 1. However, the right to be informed of these rights
Zuela, G.R. No 112177, Jan. 28, 2000) cannot be waived.
2. The waiver must be in writing and in the presence of
Note: What the Constitution bars is the compulsory counsel. (Political Law Reviewer, Suarez, p. 295, 2011).
disclosure of the incriminating facts or confessions.
The rights under Sec. 12 are guarantees to preclude
the slightest use of coercion by the State, and not to p. RIGHTS OF THE ACCUSED
prevent the suspect from freely and voluntarily telling
the truth. (People v. Andan, G.R. No. 116437, Mar. 3, Q: What are the rights of the accused?
1997)
A: Right to:
Q: Decide on the admissibility as evidence of 1. Due process
confessions given to news reporters and/or media 2. Be presumed innocent
and videotaped confessions. 3. Be heard by himself and counsel
4. Be informed of the nature and cause of
A: Confessions given in response to a question by the accusation against him
news reporters, not policemen, are admissible. 5. A speedy, impartial and public trial
Where the suspect gave spontaneous answers to a 6. Meet the witnesses face to face
televised interview by several press reporters, his 7. Have compulsory process to secure the
answers are deemed to be voluntary and are attendance of witnesses and production
admissible. of evidence on his behalf
8. Against double jeopardy
Videotaped confessions are admissible, where it is 9. Bail
shown that the accused unburdened his guilt
willingly, openly and publicly in the presence of the 1. Criminal Due Process
newsmen. Such confessions do not form part of
confessions in custodial investigations as it was not Q: What are the requisites of criminal due
given to police men but to media in attempt to process?
solicit sympathy and forgiveness from the public.
A:
However, due to inherent danger of these 1. Accused is heard by a court of competent
videotaped confessions, they must be accepted jurisdiction
with extreme caution. They should be presumed 2. Accused is proceeded against under the
involuntary, as there may be connivance between orderly processes of law
the police and media men. (People v. Endino, G.R. 3. Accused is given notice and opportunity
No. 133026, Feb. 20, 2001) to be heard
4. Judgment rendered was within the
Q: What is the fruit of the poisonous tree authority of a constitutional law
doctrine?
104
POLITICAL LAW TEAM
be filed.(Teehankee v. Rovira, G.R.No. L-101, Dec.

Q: Is right to appeal a part of due process? 20, 1945)
A: The right to appeal is not a natural right or part Q: When is bail a matter of right?
of due process. It is a mere statutory right, but once
given, denial constitutes violation of due process A: All persons in custody shall be admitted to bail as
a matter of right, with sufficient sureties, or be
2. Right to Bail released on recognizance as prescribed by law or
the Rules of Court.
Q: What is meant by bail?
Q: When is bail a matter of discretion?
A: It is the security given for the release of a person
in custody of law, furnished by him or a bondsman, A: Upon conviction by the RTC of an offense not
conditioned upon his appearance before any court punishable by death, reclusion perpetua, or life
as required. imprisonment, bail becomes discretionary. (Sec. 5,
Rule 114, Revised Rules of Criminal Procedure)
Q: What are the constitutional principles on bail?
Should the court grant the application, the accused
A: may be allowed to continue on provisional liberty
a. GR: All persons shall, before conviction, during the pendency of the appeal under the same
be bailable bail subject to the consent of the bondsman.
XPN: Those who are charged with Q: When shall bail be denied?
offenses punishable by reclusion
perpetua when the evidence of guilt is A: If the penalty imposed by the trial court is
strong. (Political Law Reviewer, Suarez , imprisonment exceeding six (6) years, the accused
2011). shall be denied bail, or his bail shall be cancelled
upon a showing by the prosecution, with notice to
b. The suspension of the privilege of the writ the accused, of the following or other similar
of habeas corpus does not impair the circumstances:
right to bail. a. That he is a recidivist, quasi-recidivist, or
habitual delinquent, or has committed
c. Excessive bail is not required. (Criminal the crime aggravated by the circumstance
Procedure, Riano, p. 312) of reiteration;
b. That he has previously escaped from legal
Q: What is the rationale behind the right to bail? confinement, evaded sentence, or
violated the conditions of his bail without
A: An accused is presumed innocent until his guilt is valid justification;
proven beyond reasonable doubt by final judgment. c. That he committed the offense while
The right to bail gives the accused not only an under probation, parole, or conditional
opportunity to obtain provisional liberty but also pardon;
the chance to prepare for trial while continuing his d. That the circumstances of his case
usual work or employment. The bail posted by the indicate the probability of flight if
accused for his provisional liberty is, in effect, an released on bail; or
assurance that the accused will attend the court e. That there is undue risk that he may
proceedings, particularly when his presence is commit another crime during the
required. In short, the purpose of the bail is to pendency of the appeal.
relieve the accused from imprisonment until his
conviction and at the time his appearance at the The appellate court may, motu proprio or on
trial is secured.(Almeda vs. Villaluz, 66 SCRA 38 motion of any party, review the resolution of the
(1975) (Suarez, Political Law Reviewer, p. 302, RTC after notice to the adverse party in either case.
2011). (Sec. 5, Rule 114, Rules of Court)
Q: When may the right to bail be invoked? Note: The conduct of petitioner in applying for bail
indicated that he had waived his objection to whatever
A: The right to bail may be invoked once detention defect, if any, in the preliminary examination
commences even if no formal charges have yet to conducted by respondent judge (Luna v. Plaza, G.R.
No.L-27511, Nov. 29, 1968) The right to bail is available
from the very moment of arrest (which may be before
105
or after the filing of formal charges in court) up to the by the judge to determine whether or not the
time of conviction by final judgment (which means evidence of guilt is strong. (Baylon v. Judge Sison,
after appeal). No charge need be filed formally before A.M. No. 92-7-360-0, Apr. 6, 1995)
one can file for bail, so long as one is under arrest.
(Heras Teehankee v. Rovira, G.R. No. L-101, Dec. 20 Q: Is the right to bail available to an alien during
1945)
the pendency of deportation proceedings?
Q: Who are not entitled to bail?
A: Yes, provided that potential extraditee must
prove by clear and convincing proof that he is not a
A:
flight risk and will abide with all orders and
1. Persons charged with offenses
processes of the extradition court. (Government of
punishable by reclusion perpetua or
Hong Kong Special Administrative Region v. Olalia
death, when evidence of guilt is strong
Jr., G.R 153675, Apr. 19, 2007)
2. Persons convicted by the trial court. Bail
is only discretionary pending appeal
Q: Does the posting of a bail bond constitute a
3. Persons who are members of the AFP
waiver of any irregularity attending the arrest of
facing a court martial
the person?
Q: Why are capital offenses or offenses punishable
A: No, the application or admission of the accused
by reclusion perpetua not bailable?
to bail shall not bar him from challenging both the
validity of his arrest or the legality of the warrant
A: Due to the gravity of the offenses committed,
issued therefore, provided that he raises them
the confinement of a person accused of said
before he enters his plea. It shall not likewise bar
offenses insures his attendance in the court
the accused from assailing the regularity or
proceedings than if he is given provisional liberty on
questioning the absence of a preliminary
account of a bail posted by him. (Suarez, Political
investigation of the charge against him provided the
Law Reviewer, p. 302 , 2011).
same is raised before he enters his plea. (Rule 114,
Sec. 26, Rules of Court)
Q: What are the factors to be considered in setting
the amount of bail?
3. Presumption of Innocence
A:
Q: How is the presumption applied?
1. Financial ability of accused
2. Nature and circumstances of offense
A: Every circumstance favoring the innocence of the
3. Penalty for offense
accused must be taken into account. The proof
4. Character and reputation of accused
against him must survive the test of reason; the
5. Age and health of accused
strongest suspicion must not be permitted to sway
6. Weight of evidence against him
judgment (People v. Austria, G.R. No. 55109, Apr. 8,
7. Probability of appearance at trial
1991)
8. Forfeiture of other bail
9. Whether he was a fugitive from justice
Q: Who may invoke the presumption of
when arrested
innocence?
10. Pendency of other cases where he is on
bail (Sunga v. Judge Salud, A.M. No. 2205-
A: It can be invoked only by an individual accused of
MJ, Nov. 19, 1981)
a criminal offense; a corporate entity has no
personality to invoke the same.
Q: Should there be a hearing?
Q: What are the rules regarding presumption of
A: Whether bail is a matter of right or of discretion,
innocence?
reasonable notice of hearing is required to be given
the prosecutor, or at least he must be asked for his
A:
recommendation, because in fixing the amount of
1. The prosecution has the burden to prove
bail, the judge is required to take into account a
the guilt of the accused beyond
number of factors. (Cortes v. Judge Catral, A.M. No.
reasonable doubt. (People vs. Colcol., Jr.,
RTJ-97-1387, Sept. 10, 1997)
219 SCRA 107, February 19, 1993)
2. The prosecution must rely on the strength
When the accused is charged with an offense
of its evidence and not in the weakness of
punishable by reclusion perpetua or higher, a
hearing on the motion for bail must be conducted
106
POLITICAL LAW TEAM
the defense. (People vs. Solis, 182 SCRA

182, February 14, 1990) A: No, an accused has the constitutional right “to be
3. The right to be presumed innocent must heard by himself and counsel” and the right “to
be offset by guilt beyond reasonable testify as a witness in his own behalf “. The denial of
doubt. (People vs. Ortiz, 198 SCRA 836, such rights is a denial of due process. The
December 3, 1990) constitutional right of the accused to be heard in his
4. Any doubt as to the guilt of the accused defense is inviolate. “No court of justice under our
must be resolved in his favor and against system of government has the power to deprive
the state. (People vs. Mortos, 226 SCRA him of that right.”(People vs. Lumague, G.R. No. L-
29, September 1, 1993) 53586)
Q: The RTC QC rendered a decision convicting 5. Assistance of Counsel

Judge Angeles of violation of R.A. 7610. The
criminal cases are now on appeal before the Court Q: What is the meaning of the right to counsel?
of Appeals. Meanwhile, Senior State Prosecutor
Velasco (SSP Velasco) suggested the immediate A: The right of a person under investigation is to
suspension of Angeles. SSP Velasco posited that have a “competent and independent counsel
since Judge Angeles stands convicted of two preferably of his own choice”. The purpose is to
counts of child abuse, her moral qualification as a preclude the slightest coercion as would lead the
judge is in question. Judge Angeles manifested accused to admit something else. (People vs
that she still enjoys the presumption of innocence Evanoria, 209 SCRA 577, June 8, 1992)
since the criminal cases are on appeal. Does she
still enjoy the presumption of innocence if the Q: Does this right pertain to mere presence of a
judgment convicting her is on appeal? lawyer in the courtroom?
A: Judge Angeles still enjoys constitutional A: No. The accused must be amply accorded legal
presumption of innocence. Since her conviction of assistance extended by a counsel who commits
the crime of child abuse is currently on appeal himself to the cause of the defense and acts
before the CA, the same has not yet attained accordingly; an efficient and truly decisive legal
finality. As such, she still enjoys the constitutional assistance, and not simply a perfunctory
presumption of innocence. It must be remembered representation. (People v. Bermas, G.R. No. 120420,
that the existence of a presumption indicating the Apr. 21, 1999)
guilt of the accused does not in itself destroy the
constitutional presumption of innocence unless the Q: Several individuals were tried and convicted of
inculpating presumption, together with all the Piracy in Philippine Waters as defined in PD 532.
evidence, or the lack of any evidence or However, it was discovered that the lawyer, Mr.
explanation, proves the accused’s guilt beyond a Posadas, who represented them was not a
reasonable doubt. Until the accused’s guilt is shown member of the bar although evidence shows that
in this manner, the presumption of innocence he was knowledgeable in the rules of legal
continues. (Re: Conviction of Judge Adoracion G. procedure.
Angeles, A.M. No. 06-9-545-RTC, Jan. 31, 2008) The accused now allege that their conviction
should be set aside since they were deprived of
Q: What is the Equipoise Rule? due process. Are they correct?
A: Under the equipoise rule, when the evidence of A: No. Sec. 1of Rule 115 of the Revised Rules of
both sides are equally balanced, the constitutional Criminal Procedure states that "upon motion, the
presumption of innocence should tilt the scales in accused may be allowed to defend himself in
favor of the accused (Corpuz v. People, G.R. No. person when it sufficiently appears to the court
74259, Feb. 14, 1991) that he can properly protect his rights without the
assistance of counsel." By analogy, but without
4. Right to be Heard prejudice to the sanctions imposed by law for the
illegal practice of law, it is amply shown that the
Q: In a murder case, accused was convicted in the rights of accused were sufficiently and properly
trial court but was not given the right to testify protected by the appearance of Mr. Posadas. An
and to present additional evidence on their behalf. examination of the record will show that he knew
Is the conviction correct? the technical rules of procedure. Hence, there was
a valid waiver of the right to sufficient
representation during the trial, considering that it
107
was unequivocally, knowingly, and intelligently said waiver shall be made in writing and in the
made and with the full assistance of a bona fide presence of counsel. (Gamboa vs Judge Cruz GR.
lawyer, Atty. Abdul Basar. Accordingly, denial of No. L-56291, Jun. 27, 1988) ,
due process cannot be successfully invoked where a
valid waiver of rights has been made. (People v. Q: A is in police custody. Bothered and remorseful,
Tulin, G.R. 111709, Aug. 30, 2001) he spontaneously admitted guilt and that he is the
one who killed Dr. X. Is his confession admissible?
Note: In Flores v. Ruiz, G.R. No. L-35707, May 31, 1979, A: Yes. A’s statement is a spontaneous statement. It
the Supreme Court held that the right to counsel was not elicited through questioning by the
during the trial cannot be waived, because “even the authorities. (People vs. Cabiles, G.R. No. 112035,
most intelligent or educated man may have no skill in Jan. 16, 1998)
the science of law, particularly in the rules of
procedure, and without counsel, he may be convicted Q: A had no counsel while giving his statement
not because he is guilty but because he does not know because Atty. X whom he called by telephone
how to establish his innocence.”
encountered heavy traffic along Sucat Road. The
interrogation was about to end when Atty. X
Q: X was criminally charged in court. He hired as
arrived. Atty. X immediately requested the police
counsel Y, who has many high-profile clients. Due
investigator to allow him to talk to A. He discussed
to his many clients, Y cannot attend the hearing of
with A regarding the statements he already made.
the case of X. He requested many times to have
Thereafter, A signed the statement. Is the
the hearings postponed. The case dragged on
constitutional requirement about the presence of
slowly. The judge, in his desire to finish the case as
counsel complied with?
early as practicable under the continuous trial
system, appointed a counsel de officio and
A: No, the right to counsel was a right to effective
withdrew the counsel de parte. Is the action of the
counsel from the first moment of questioning and
judge valid?
all throughout. (People vs. De Jesus, G.R. No. 91535,
Sept. 2, 1992)
A: The appointment of counsel de officio under
such circumstances is not proscribed under the
Q: Mayor Trinidad arrived and proceeded to the
Constitution. The preferential discretion is not
investigation room. Upon seeing the mayor,
absolute as would enable an accused to choose a
appellant approached him and whispered a
particular counsel to the exclusion of others equally
request to talk privately. The mayor led appellant
capable. The choice of counsel by the accused in a
to the office of the Chief of Police and there,
criminal prosecution is not a plenary one. If the
appellant broke down and said "Mayor, patawarin
counsel deliberately makes himself scarce the court
mo ako! I will tell you the truth. I am the one who
is not precluded from appointing a counsel de
killed Marianne." The mayor opened the door of
officio whom it considers competent and
the room to let the public and media
independent to enable the trial to proceed until the
representatives witness the confession. The mayor
counsel of choice enters his appearance. Otherwise
first asked for a lawyer to assist appellant but
the pace of criminal prosecution will entirely be
since no lawyer was available he ordered the
dictated by the accused to the detriment of the
proceedings photographed and videotaped. In the
eventual resolution of the case. (People v.
presence of the mayor, the police, representatives
Larranaga, G.R. No. 138874-75, Feb. 3, 2004)
of the media and appellant's own wife and son,
appellant confessed his guilt. His confession was
Q: A police officer told A, B, C, D and E to be in a
captured on videotape and covered by the media
police line-up with other five suspects. E told the
nationwide. Did such uncounselled confession
police that he wants to be excused in the police
violate the suspect’s constitutional rights?
line-up until his lawyer, Atty. Sagsag, arrives. Is E
entitled to the right to counsel at that stage?
A: No, a confession given to the mayor, may be
admitted in evidence if such confession by the
A: No. The investigation has not yet commenced.
suspect was given to the mayor as a confidant and
not as a law enforcement officer. In such a case, the
uncounselled confession did not violate the
Q: At what stage shall E have the right to counsel?
suspect’s constitutional rights. What the
constitution bars is the compulsory disclosure of
A: E shall have the right to counsel from the
incriminating facts or confessions. The rights under
moment the investigating officer starts to ask
Section 12 are guarantees to preclude the slightest
questions to illicit information or confession or
use of coercion by the State and not to prevent the
admission. This right, however, can be waived but
108
POLITICAL LAW TEAM
suspect from freely and voluntarily telling the truth.

(People vs. Andan,G.R. No. 116437, March 3, 1997) A:
1. To furnish the accused with such a
Q: Gerry Galgarin stabbed Dennis Aquino to death. description of the charge against him as
Video footages of the interview were taken will enable him to make his defense
showing Galgarin admitting his guilt. His interview 2. To avail himself of his conviction or
was shown over the ABS-CBN evening news acquittal for protection against further
program TV Patrol. Is the videotaped confession prosecution for the same cause
admissible in evidence? 3. To inform the court of the facts alleged so
that it may decide whether they are
A: Yes, videotaped confessions are admissible in sufficient in law to support a conviction, if
evidence where it is shown that the accused one should be had (US v. Karelsen G.R.
unburdening his guilt willingly, openly and publicly No. 1376, Jan. 21, 1904)
in the presence of newsmen.Such confession does
not form part of custodial investigation as it was Q: What would determine the nature and cause of
not given to police officers but to media men in an accusation?
attempt to elicit sympathy and forgiveness from the
public. Besides, if he had indeed been forced into A: Description, not designation of the offense, is
confessing, he could have easily sought succor from controlling. The real nature of the crime charged is
the newsmen who, in all likelihood, would have determined from the recital of facts in the
been sympathetic with him. However, because of information. It is neither determined based on the
the inherent danger in the use of television as a caption or preamble thereof nor from the
medium for admitting one’s guilt, and the specification of the provision of the law allegedly
recurrence of this phenomenon in several cases, it violated.
is prudent that trial courts are reminded that
extreme caution must be taken in further admitting Q: What are the requisites for properly informing
similar confessions. For in all probability, the police, the accused of the nature and cause of accusation?
with the connivance of unscrupulous media
practitioners, may attempt to legitimize coerced A:
extrajudicial confessions and place them beyond 1. Information must state the name of the
the exclusionary rule by having an accused admit an accused
offense on television. Such a situation would be 2. Designation given to the offense by
detrimental to the guaranteed rights of the accused statute
and thus imperil our criminal justice system. 3. Statement of the acts or omission so
(People vs. Endino, G.R. No. 133026, Feb. 20, 2001) complained of as constituting the offense
4. Name of the offended party
Q: Accused Antonio Lauga was charged and 5. Approximate time and date of
convicted of the crime of rape of his thirteen-year commission of the offense
old daughter, AAA. During the proceedings, 6. Place where offense was committed
Moises Boy Banting, a bantaybayan in the 7. Every element of the offense must be
barangay, testified that the accused confessed alleged in the complaint or information
that he had in fact raped AAA. The trial court
found him guilty of the crime of rape. Lauga Q: What happens if the information fails to allege
contends that the confession he made to Banting the material elements of the offense?
is inadmissible in evidence. Is his contention
tenable? A: The accused cannot be convicted thereof even if
the prosecution is able to present evidence during
A: Yes. A barangay bantaybayan is considered a the trial with respect to such elements.
public officer and any extrajudicial confession made
to him without the assistance of counsel is Q: How is the void for vagueness doctrine related
inadmissible in evidence as provided for under to this right?
Section 12, Article III of the Constitution. (People vs.
Lauga, GR. No. 186228, March 15, 2010) A: The accused is also denied the right to be
informed of the charge against him, and to due
6. Right to be Informed of the Nature and Cause process as well, where the statute itself is couched
of Accusation in such indefinite language that it is not possible for
men of ordinary intelligence to determine
Q: What is the rationale for this right?
109
therefrom what acts or omissions are punished. In

such a case, the law is deemed void. A: Yes, under Section 21, Rule 119 of the Rules of
Criminal Procedure it is provided that the judge
Q: May a person be convicted of the crime proved may motu propio exclude the public from the
if the same is different from the crime charged? courtroom when the evidence to be adduced is
offensive to decency and public morals.
A: Under the variance doctrine, in spite of the
difference between the crime that was charged and Q: Is there a difference between the right to
that which was eventually proved, the accused may speedy trial, as guaranteed in Section 14 (2),
still be convicted of whatever offense that was Article III, and speedy disposition of cases, as
proved even if not specifically set out in the guaranteed in Section 16?
information provided it is necessarily included in
the crime charged. (Teves v. Sandiganbayan, G.R. A: There is a difference. The right to speedy trial
No. 154182, Dec. 17, 2004) particularly refers to criminal prosecutions which
are at the trial stage, while the right to speedy
Q: May the right to be informed of the nature and disposition of cases applies to all cases before
cause of accusation be waived? judicial, quasi-judicial or administrative bodies.
(Political Law Reviewer, Suarez , p. 362, 2011).
A: No. However, the defense may waive the right to
enter a plea and let the court enter a plea of “not 8. Right of Confrontation
guilty”.
Q: What is the purpose of the right of
7. Right to Speedy, Impartial and Public Trial confrontation?
Q: What is meant by speedy trial? A: Primarily, to afford the accused an opportunity

to test the testimony of a witness by cross-
A: The term “speedy” means free from vexatious, examination, and secondarily, to allow the judge to
capricious and oppressive delays. The factors to be observe the deportment of the witness.
considered are:
1. Time expired from the filing of Q: What is the effect of failure to cross-examine?
information
2. Length of delay A: If the failure of the accused to cross-examine a
3. Reasons for the delay witness is due to his own fault or was not due to
4. Assertion or non-assertion of the right by the fault of the prosecution, the testimony of the
the accused witness should not be excluded.
5. Prejudice caused to the defendant
Q: Are affidavits of witnesses who are not
Q: What is meant by impartial trial? presented during trial admissible?
A: The accused is entitled to cold neutrality of an A: No. They are inadmissible for being hearsay. The
impartial judge, one who is free from interest or accused is denied the opportunity to cross-examine
bias. the witnesses.
Q: Why must the trial be public? Note: Depositions are admissible under circumstances
provided by the Rules of Court.
A: It is in order to prevent possible abuses which
may be committed against the accused. The 9. Right to Compulsory Process to Secure
attendance at the trial is open to all, irrespective of Attendance of Witness and Production of Evidence
their relationship to the accused. However, if the
evidence to be adduced is “offensive to decency or Q: What are the means available to the parties to
public morals,” the public may be excluded. compel the attendance of witnesses and the
production of documents and things needed in the
Note: The denial of the right to speedy trial is a ground prosecution or defense of a case?
for acquittal.
A:
Q: Can the public be excluded from the courtroom 1. Subpoena ad testificandum and subpoena
without violating the right of the accused to a duces tecum
public trial? 2. Depositions and other modes of discovery
110
POLITICAL LAW TEAM
3. Perpetuation of testimonies 1. Accused has been validly arraigned

2. Accused has been duly notified of the
Q: What is the difference between subpoena ad dates of hearing
testificandum and subpoena duces tecum? 3. Failure to appear is unjustifiable
A: Q: Is the presence of the accused mandatory?

Ad Testificandum Duces Tecum
A process directed to a person The person is also A: Yes, in the following instances:
requiring him to attend and to required to bring 1. During arraignment and plea
testify at the hearing or trial of with him any 2. During trial, for identification, unless the
an action, or at any books, accused has already stipulated on his
investigation conducted by documents, or identity during the pre-trial and that he is
competent authority, or for other things the one who will be identified by the
the taking of his deposition. under his control. witnesses as the accused in the criminal
case
Q: What is the requirement for the issuance of 3. During promulgation of sentence, unless
subpoena duces tecum? for a light offense
A: The subpoena shall contain a reasonable Note: While the accused is entitled to be present
description of the books, documents or things during promulgation of judgment, the absence of his
demanded which must appear to the court as prima counsel during such promulgation does not affect its
facie relevant. validity.
Q: Can there be promulgation of judgment in

Q: What are the requirements for the exercise of
absentia?
the right to secure attendance of witness?
A: Promulgation of judgment in absentia is valid
A:
provided that the essential elements are present:
1. The witness is really material
1. Judgment be recorded in the criminal
2. The attendance of the witness was
docket
previously obtained
2. Copy be served upon accused or counsel
3. The witness will be available at the time
desired
Note: Recording the decision in the criminal docket of
4. No similar evidence could be obtained
the court satisfies the requirement of notifying the
accused of the decision wherever he may be. (Estrada
Q: When is the right to cross-examine v. People, G.R. No. 162371, Aug. 25, 2005)
demandable?
q. WRIT OF HABEAS CORPUS
A: It is demandable only during trials. Thus, it
cannot be availed of during preliminary
Q: What is the Writ of Habeas Corpus?
investigations.
A: The writ of habeas corpus is a writ directed to
Q: What are the principal exceptions to the right
the person detaining another, commanding him to
of confrontation?
produce the body of the detainee at a designated
time and place, and to show the cause of his
A:
detention.
1. Admissibility of dying declarations and all
exceptions to the hearsay rule
Q: What is the Privilege of the Writ of Habeas
2. Trial in absentia under Sec.14 (2) of Art. III
Corpus?
of the Constitution
3. With respect to child testimony
A: It is the right to have an immediate
determination of the legality of the deprivation of
10. Trial in Absentia
physical liberty.
Q: When may trial in absentia proceed?
Q: When may the privilege of the writ be
suspended?
A: Trial in absentia may proceed if the following
requisites are present:
111
A: The privilege of the writ may be suspended by extralegal killings and enforced disappearances or
the President, provided that the following threats thereof. (Rule on Writ of Amparo)
requisites are present:
1. Existence of actual invasion or rebellion Q: What are extralegal killings?
2. Public safety requires the suspension
A: Killings committed without due process of law,
Q: To what situations does the writ apply? i.e., without legal safeguards or judicial
proceedings.
A: The writ of habeas corpus extends to all cases of
illegal confinement or detention by which any Q: What constitutes enforced disappearances?
person is deprived of his liberty, or by which the
rightful custody of any person is withheld from the A: An arrest, detention or abduction of a person by
one entitled thereto. a government official or organized groups or private
individuals acting with the direct or indirect
Q: May the Writ of Habeas Corpus be used as a acquiescence of the government. It is further
means of obtaining evidence on the whereabouts characterized by the refusal of the State to disclose
of a person? the fate or whereabouts of the person concerned
or a refusal to acknowledge the deprivation of
A: In Martinez v. Mendoza (499 SCRA 234 2006), liberty which places such persons outside the
the Court held that the grant of relief in a habeas protection of law.
corpus proceeding is not predicated on the
disappearance of a person, but on his illegal Q: What are the main advantages of the Writ of
detention. It may not be used as a means of Amparo over the Writ of Habeas Corpus?
obtaining evidence on the whereabouts of a
person, or as a means of finding out who has A:
specifically abducted or caused the disappearance Writ of Amparo Writ of Habeas Corpus
of a certain person. When forcible taking and Interim reliefs, such as
disappearance – not arrest and detention – have temporary protection
been alleged, the proper remedy is not habeas order, witness
corpus proceedings, but criminal investigation and protection order, No interim reliefs
proceedings. inspection order and
production order, are
Q: X was arrested by the military on the basis of a available
mission order issued by the Department of Covers acts which Limited to cases
Defense. A petition for habeas corpus was filed. violate or threaten to involving actual
The writ was issued. Later,an information for violate the right to life, violation of right to
rebellion was filed against X. The military moved liberty and security liberty
that the petition should be dismissed for having General denial is not
become moot and academic. Decide. Mere denial is a ground
allowed; detailed return
for dismissal of the
is required of the
A: The function of the special proceeding of habeas petition
respondent
corpus is to inquire into the legality of one’s No presumption of
detention. Now that the detainee’s incarceration is Presumption of regular
regularity; must prove
by virtue of a judicial order in relation to criminal performance of official
observance of
cases subsequently filed against them, the remedy duty
extraordinary diligence
of habeas corpus no longer lies. The writ has served Only enforceable
its purpose. (Ilagan v. Enrile, G.R. No. 70748, Oct. Enforceable anywhere anywhere in the Phil. if
21, 1985) in the Philippines filed with the CA or SC
justice
r. Writ of Amparo Exempted from
Not exempted
payment of docket fees
Q: What is the Writ of Amparo? Release of detained
Release of detained
person does not render
A: It is a remedy available to any person whose person renders it moot
the petition moot and
right to life, liberty, and security has been violated and academic
academic
or is threatened with violation by an unlawful act or
omission of a public official or employee, or of a Q: Engr. Tagitis disappeared one day and his wife
private individual or entity. The writ covers filed a petition for the Writ of Amparo with the CA
112
POLITICAL LAW TEAM
directed against the PNP, claiming that the A: Yes. While X and Y were detained, they were
“unexplained uncooperative behaviour” of the threatened that if they escaped, their families,
respondents request for help and their failure and including them, would be killed. In time, they were
refusal to extend assistance in locating the able to escape. The condition of the threat to be
whereabouts of Tagitis were indicative of their killed has come to pass. It should be stressed that
actual physical possession and custody of the they are now free from captivity not because they
missing engineer.” The PNP was held responsible were released by virtue of a lawful order or
for the “enforced disappearance” of Engr. Tagitis. voluntarily freed by their abductors. It ought to be
Is this valid? recalled that towards the end of their ordeal their
captors even told them that they were still deciding
A: Yes. The government in general, through the PNP whether they should be executed.
and the PNP-CIDG, and in particular, the Chiefs of
these organizations together with Col. Kasim, The possibility of X and Y being executed stared
should be held fully accountable for the enforced them in the eye while they were in detention. With
disappearance of Tagitis. Given their mandates, the their escape, this continuing threat to their life is
PNP and the PNP-CIDG officials and members were apparent, more so now that they have surfaced
the ones who were remiss in their duties when the and implicated specific officers in the military not
government completely failed to exercise only in their own abduction and torture, but also in
extraordinary diligence that the Amparo rule those of other persons known to have disappeared
requires. (Razon v. Tagitis, G.R. No. 182498, Dec. 3, such as A, B, and C, among others.
2009)
Understandably, since their escape, they have been
Q: Fr. Reyes was charged with rebellion and his under concealment and protection by private
name was included in the hold departure list. The citizens because of the threat to their life, liberty
case was later on dismissed but the Hold and security. The threat vitiates their free will as
Departure Order still subsisted. Can the Writ of they are forced to limit their movements or
Amparo be invoked to protect his right to travel? activities. Precisely because they are being
shielded from the perpetrators of their abduction,
A: No. The restriction on his right to travel as a they cannot be expected to show evidence of overt
consequence of the pendency of the criminal case acts of threat such as face-to-face intimidation or
filed against him was not unlawful. Fr. Reyes also written threats to their life, liberty and security.
failed to establish that his right to travel was Nonetheless, the circumstances of their abduction,
impaired in the manner and to the extent that it detention, torture and escape reasonably support a
amounted to a serious violation of his right to life, conclusion that there is an apparent threat that
liberty, and security, for which there exists no they will again be abducted, tortured, and this
readily available legal remedy. (Reyes v. CA, G.R. time, even executed. These constitute threats to
No. 182161, Dec. 3, 2009) their liberty, security, and life, actionable through a
petition for a Writ of Amparo. (Sec. of National
Q: X and Y were abducted by the Citizens Armed Defense and AFP Chief of Staff v. Manalo, G.R. No.
Forces Geographical Unit (CAGFU). They were 180906, Oct. 7, 2008)
taken to various military camps, put in chains, and
tortured. While detained, they were threatened Q: What are the requisites for a president to be
that if they escape, they and their families would liable under the principle of command
be killed. While in captivity, they met A, B, and C responsibility in connection with threatened
who were also prisoners. Eventually, X and Y were violation by an unlawful act or omission of a
able to escape. public official or employee or extralegal killings
and enforced disappearances or threats thereof?
Presently, X and Y are now in protective custody
under private individuals. X and Y then filed a A:
petition for the issuance of the Writ of Amparo, 1. The existence of a superior-subordinate
implicating several officers of the military as their relationship between the accused as
abductors. They allege that their cause of action superior and the perpetrator of the crime
consists in the threat to their right to life and as his subordinate;
liberty, and a violation of their right to security. 2. The superior knew or had reason to know
Considering the fact that they have already that the crime was about to be or had
escaped, will the petition still prosper? been committed;
3. The superior failed to take the necessary
and reasonable measures to prevent the
113
criminal acts or punish the perpetrators It does not give a witness the right to disregard a
thereof. subpoena, to decline to appear before the court at
4. The superior has knowledge that a crime the time appointed.
or offense shall be committed, is being
committed, or ha been committed by his The privilege against self-incrimination is not self-
subordinates, or by others within his area executing or automatically operational. It must be
of responsibility and, despite such claimed. It follows that the right may be waived,
knowledge, he did not take preventive or expressly, or impliedly, as by a failure to claim it at
corrective action either before, during, or the appropriate time.
immediately after its commission; and
5. President ceases to occupy the office by Q: What is the difference between an accused and
impeachment or expiration of term and an ordinary witness with respect to the right
shown by substantial evidence against self-incrimination?
Note: Knowledge of the commission of irregularities, A:

crimes or offenses is presumed when:
1. The acts are widespread within the Accused Ordinary Witness
government official’s area of jurisdiction; Cannot refuse to take
2. The acts have been repeatedly or regularly Can refuse to take the the witness stand; can
committed within his area of responsibility;
witness stand only refuse to answer
and
altogether by invoking specific questions which
3. Members of his immediate staff or office
the right against self- would incriminate him
personnel is involved.(In Re: Petition for the
Writ of Amparo and Habeas Data in Favor incrimination in the commission of an
of Noriel H. Rodriguez vs. Macapagal- offense
Arroyo, GR. No. 193160, Nov. 15, 2011)
2. Application
S. SELF-INCRIMINATION CLAUSE
Q: What is the scope of the Privilege against Self-
1. Scope and Coverage incrimination?
Q: When is the right available? A: This constitutional privilege has been defined as
a protection against testimonial compulsion, but
A: The right is available not only in criminal this has since been extended to any evidence
prosecutions but also in all other government “communicative in nature” acquired under
proceedings, including civil actions and circumstances of duress (People v. Olvis, G.R. No.
administrative or legislative investigations that 71092, Sept. 30, 1987)
possess a criminal or penal aspect—but not to
private investigations done by private individual What is prohibited is the use of physical or moral
(BPI vs. CASA, GR.No.149454, May 28, 2004) . It compulsion to extort communication from the
may be claimed not only by the accused but also by witness or to otherwise elicit evidence which would
any witness to whom a question calling for an not exist were it not for the actions compelled from
incriminating answer is addressed. the witness.
Q: When is a question incriminating? Note: The privilege applies only to testimonial

compulsion and production of documents, papers and
A: A question tends to incriminate when the answer chattels in court except when books of account are to
be examined in the exercise of police power and the
of the accused or the witness would establish a fact
power of taxation. An accused may be compelled to be
which would be a necessary link in a chain of
photographed or measured, his garments may be
evidence to prove the commission of a crime by the
removed, and his body may be examined. However, an
accused or the witness. order requiring the accused to write so that his
handwriting may be validated with the documentary
Q: When is the right against self-incrimination evidence is covered by the constitutional proscription
applied? against self-incrimination.
A: The privilege against self-incrimination can be Q: Do re-enactments violate a person's right

claimed only when the specific question, against self-incrimination?
incriminatory in character, is actually addressed to
the witness. It cannot be claimed at any other time.
114
POLITICAL LAW TEAM
A: Yes. A person who is made to re-enact a crime A:

may rightfully invoke his privilege against self- Derivative-Use Transactional Immunity
incrimination, because by his conduct of acting out Immunity
how the crime was supposedly committed, he - Only prevents the
thereby practically confesses his guilt by action prosecution from
which is as eloquent, if not more so, than words. using the witness'
own testimony, or
Q: Fiscal A petitioned the lower court to order X to any evidence derived
appear before the former to take dictation in X’s from the testimony,
own handwriting to determine whether or not it against him. -Completely protects
was X who wrote certain documents supposed to However, should the the witness from
be falsified. The lower court granted the petition prosecutor acquire future prosecution
of the fiscal. X refused what the fiscal demanded evidence for crimes related to
and sought refuge in the constitutional provision substantiating the his or her testimony.
of his right against self-incrimination. Is X’s supposed crime—
contention valid? independent of the
witness's testimony—
A: X’s contention is tenable. Under Article III, the witness may then
Section 17 of the 1987 Constitution, “no person be prosecuted for
shall be compelled to be a witness same.
against himself.” Since the provision prohibits - Does not protect the
compulsory testimonial incrimination, it does witness quite as
not matter whether the testimony is taken by oral much, because here
or written. Writing is not purely a mechanical act the witness is only - Gives the witness the
because it requires the application of intelligence protected from future most protection from
and attention. The purpose of the privilege is to prosecution based on prosecution because
avoid and prohibit thereby the repetition and exactly what he or that witness can
recurrence of compelling a person, in a criminal she says on the never be prosecuted
or any other case, to furnish the missing witness stand, and in the future for any
evidence necessary for his conviction. not from any crimes related to his
(Bermudez v. Castillo, July 26, 1937; Beltran v. evidence the or her testimony.
Samson, G.R. No. 32025, Sept. 23, 1929) prosecutor finds to
substantiate the
Note: There is similarity between one who is witness’ crime.
compelled to produce a private document (Boyd vs. Also known as
US, 1886), and one who is compelled to furnish a blanket or total
specimen of his handwriting, for in both cases, the
immunity
witness is required to furnish evidence against himself.
Q: Republic of the Philippines filed a case against
Q: Is the right against self-incrimination available
Westinghouse Corporation before the US District
to juridical persons?
Court due to the belief that Westinghouse contract
for the construction of the Bataan Nuclear power
A: The said right is not available to juridical persons
plant, which was brokered by Herminio Disini’s
as “it would be a strange anomaly to hold that a
company, had been attended by anomalies.
state having chartered a corporation to make use of
Having worked as Herminio’s executive in the
certain franchises, could not, in the exercise of
latter’s company for 15 years, the Republic asked
sovereignty, inquire how these franchises had been
Jesus Disini to give his testimony regarding the
employed, and whether they have been abused,
case.
and demand the production of the corporate books
and papers for that purpose.” (Bataan Shipyard and
An immunity agreement was entered between
Engineering Corporation vs. PCG, GR. No. 75885,
Jesus and the Republic which Disini undertook to
May 27, 1987)
testify for his government and provide its lawyers
with information needed to prosecute the case.
3. Immunity Statutes
Said agreement gave Jesus an assurance that he
shall not be compelled to give further testimonies
Q: Distinguish Derivative-Use Immunity from
in any proceeding other than the present matter.
Transactional Immunity. Jesus complied with his undertaking but 18 years
after the Sandiganbayan issued a subpoena
115
against him, commanding to testify and produce compulsion, meaning, the witness cannot be
documents before said court in an action filed compelled to answer UNLESS a co-extensive
against Herminio. protection in the form of IMMUNITY is offered. The
only way to cure the law of its unconstitutional
Can Jesus be compelled to testify before the effects is to construe it in the manner as if
Sandiganbayan? IMMUNITY had in fact been offered. The
applicability of the immunity granted by P.D. 1886
A: No. A contract is the law between the parties. It cannot be made to depend on a claim of the
cannot be withdrawn except by their mutual privilege against self-incrimination which the same
consent. In the case at bar, the Republic, through law practically strips away from the witness.
the PCGG, offered Jesus not only criminal and civil (Galman vs. Pamaran, G.R. Nos. 71208-09, Aug. 30,
immunity but also immunity against being 1985)
compelled to testify in any proceeding other than
the civil and arbitration cases identified in the Note: Sec. 5, P.D. 1886, grants merely immunity from
agreement, just so he would agree to testify. When use of any statement given before the Agrava Board,
the Republic entered in such agreement, it needs to but not immunity from prosecution by reason or on
fulfill its obligations honorably as Jesus did. The the basis thereof. (ibid.)
government should be fair. (Disini v.
Sandiganbayan, G.R. No. 180564, June 22, 2010) Q: What is the effect of denial of privilege against
self-incrimination?
Q: X and Y were called before the AGRAVA Board
to elicit and determine the surrounding facts and A: When the privilege against self-incrimination is
circumstances of the assassination of Benigno violated outside of court, say, by the police, then
Aquino Sr. Section 5 of the same law (P.D. 1886) the testimony, as already noted, is not admissible
creating the Board compels a person to take the under the exclusionary rule. When the privilege is
witness stand, testify or produce evidence, under violated by the court itself, that is, by the judge, the
the pain of contempt if they failed or refused to do court is ousted of its jurisdiction, all its proceedings
so. X and Y gave their testimonies without having are null and void, and it is as if no judgment has
been informed of their right to remain silent and been rendered.(Chavez v. CA, G.R. No. L-29169,
that any statement given by them may be used Aug. 19, 1968)
against them. The Board then used the
information from the testimonies of X and Y to Q: R.A. 9165 requires mandatory drug testing for
support the prosecution's case against them in persons charged before the prosecutor’s office
Sandiganbayan. The Board contends that the fact with criminal offenses punishable with 6 years and
that X and Y testified before the Board constituted 1 day imprisonment. Petitioner SJS questions the
as a valid waiver of their constitutional rights to constitutionality of the law on the ground that it
remain silent and not to be compelled to be a violates the rights to privacy and against self-
witness against themselves. incrimination of an accused. Decide.
1. Was there a valid waiver of the rights?
2. Are the testimonies of X and Y admissible in A: The Court finds the situation entirely different in
court? the case of persons charged before the public
3. How can the unconstitutional effects be prosecutor’s office with criminal offenses
reconciled? punishable with imprisonment. The operative
concepts in the mandatory drug testing are
A: “randomness” and “suspicionless”. In the case of
1. None. In the case at bar, X and Y were under the persons charged with a crime before the
directive of law and under the compulsion of fear prosecutor’s office, a mandatory drug testing can
for the contempt powers of the Board. They were never be random or suspicionless. The ideas of
left with no choice but to provide testimonies randomness and being suspicionless are antithetical
before the Board. to their being made defendants in a criminal
complaint. They are not randomly picked; neither
2. No. The manner in which testimonies were taken are they beyond suspicion. When persons
from X and Y falls short of the constitutional suspected of committing a crime are charged, they
standards both under the due process clause and are singled out and are impleaded against their will.
under the exclusionary rule. The persons thus charged, by the bare fact of being
hauled before the prosecutor’s office and
3. As a rule, such infringement of constitutional peaceably submitting themselves to drug testing, if
right renders inoperative the testimonial that be the case, do not necessarily consent to the
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POLITICAL LAW TEAM
procedure, let alone waive their right to privacy. To A: A penalty is degrading if it exposes a person to
impose mandatory drug testing on the accused is a public humiliation. (ex. Being tarred and feathered,
blatant attempt to harness a medical test as a tool then paraded throughout town)
for criminal prosecution, contrary to the stated
objectives of R.A. 9165. Drug testing in this case Q: What are the standards used to determine if
would violate a person’s right to privacy guaranteed the penalty is cruel and inhuman?
under Sec. 2, Art. III of the Constitution. Worse still,
the accused persons are veritably forced to A:
incriminate themselves. (SJS v. DDB, G.R. No. 1. The punishment must not be so severe as
157870, Nov. 3, 2008) to be degrading to the dignity of human
beings
t. INVOLUNTARY SERVITUDE AND POLITICAL 2. It must not be applied arbitrarily
PRISONERS 3. It must not be unacceptable to
contemporary society
Q: What is involuntary servitude? 4. It must not be excessive, and it must
serve a penal purpose more effectively
A: It is the condition where one is compelled by than a less severe punishment would
force, coercion, or imprisonment, and against his 5. Excessive fine, or one which is
will, to labor for another, whether he is paid or not. disproportionate to the offense
GR: No involuntary servitude shall exist. Note: Mere severity does not constitute cruel or
inhuman punishment. To violate constitutional
XPNs: guarantee, penalty must be flagrant and plainly
1. Punishment for a crime for which the oppressive, disproportionate to the nature of the
party has been duly convicted offense as to shock the senses of the community.
2. Personal military or civil service in the
interest of national defense v. NON-IMPRISONMENT FOR DEBTS
3. In naval enlistment, a person who enlists
in a merchant ship may be compelled to Q: What is the coverage of this section?
remain in service until the end of a
voyage A:
4. Posse comitatusor the conscription of 1. Debt – any civil obligation arising from
able-bodied men for the apprehension of contract
criminals 2. Poll tax – a specific sum levied upon any
5. Return to work order issued by the DOLE person belonging to a certain class
Secretary or the President without regard to property or occupation
6. Minors under patria potestas are obliged (e.g. Community tax)
to obey their parents
Note: A tax is not a debt since it is an obligation arising
from law. Hence, its non-payment maybe validly
u. EXCESSIVE FINES AND CRUEL AND
punished with imprisonment. Only poll tax is covered
INHUMAN PUNISHMENTS
by the constitutional provision.
Q: What are the punishments covered? If an accused fails to pay the fines imposed upon him,
this may result in his subsidiary imprisonment because
A: Cruel, degrading, and inhuman form, extent, and his liability is ex delicto and not ex contractu.
duration punishments
Q: If the debtor contracted the debt through fraud,
may he be imprisoned?
Q: When is a penalty cruel and inhuman? A: Generally, a debtor cannot be imprisoned for
failure to pay his debt. However, if he contracted
A: A penalty is cruel and inhuman if it involves his debt through fraud, he can be validly punished
torture or lingering suffering. (ex. Being drawn and in a criminal action as his responsibility arises not
quartered) from the contract of loan but from commission of a
crime. (Lozano v. Martinez, G.R. No. L-63419,
Q: When is a penalty degrading? Dec.18, 1986)
117
w. DOUBLE JEOPARDY A: No. Conviction will not bar prosecution for

another offense if the graver offense developed
Q: What is Double Jeopardy? due to supervening facts arising from the same act
or omission, facts constituting the graver offense
A: When a person was charged with an offense and arose or discovered only after the filing of the
the case was terminated by acquittal or conviction former complaint or information, and plea of guilty
or in any other manner without his consent, he to a lesser offense was made without the consent
cannot again be charged with the same or identical of prosecutor or offended party. (People v. Judge
offense. (Melo v.People, G.R. No. L-3580, Mar. 22, Villarama, G.R. No. 99287, June 23, 1992).
1950)
Q: X was charged with a criminal case in the court.
Q: What is the reason for the rule? He was arraigned and he pleaded not guilty. Later
the prosecution moved to dismiss the case. The
A: It is a safeguard against a second prosecution for counsel for the accused wrote “No Objection” at
the same offense. Without the rule on double the bottom of the prosecutor’s motion. The court
jeopardy, an accused will be at the mercy of the granted the motion and dismissed the case against
complainant and his witnesses thereby subjecting X. A year after, X was later charged for the same
him to a never ending charge which the malice of case. May X invoke the right against double
the complaining witnesses might hold indefinitely jeopardy?
suspended over his head. (Julia vs. Sotto, GR. No.
1044, May 15, 1903) A: No. The act of the X’s counsel in writing “No
Objection” constituted an express consent to the
Q: What are the two types of double jeopardy? termination within the meaning of Sec. 9 of Rule
117 Rules of Court. He could not thereafter revoke
A: that conformity since the court had already acted
1. No person shall be twice put in jeopardy upon it by dismissing the case. X was bound by his
of punishment for the same offense counsel’s consent to the dismissal. (People v. Pilpa,
2. If an act is punished by a law and an G.R. No. L-30250, Sept. 22, 1977)
ordinance, conviction or acquittal under
either shall constitute a bar to another Q: Two policemen were charged before the
prosecution for the same act Sandiganbayan for the death of two men.
However, the prosecution was ordered to amend
Q: When will double jeopardy attach? the information and the accused were arraigned
anew and consequestly convicted. Were they
A: placed in double jeopardy?
1. The first jeopardy must have attached
prior to the second A: No. The first requirement for jeopardy to attach
2. The first jeopardy must have been validly – that the informations were valid – has not been
terminated complied with. (Herrera v. Sandiganbayan, G.R.
3. The second jeopardy must be for the Nos. 119660-61, Feb. 13, 2009)
commission of the same offense or the
second offense must include or is Q: If the first case was dismissed due to
necessarily included in the first insufficiency of evidence without giving the
information, or is an attempt to commit prosecution the opportunity to present its
the same or a frustration thereof evidence, has jeopardy attached?
Q: What is the Doctrine of Supervening Event? A: The first jeopardy has not yet attached. There is
no question that four of the five elements of legal
A: It allows the prosecution of another offense if jeopardy are present. However, the last element –
subsequent development changes the character of valid conviction, acquittal, dismissal or termination
the first indictment under which he may have of the case – is wanting since the right to due
already been charged or convicted. process was violated. (People v. Dumlao, G.R. No.
168918, Mar. 2, 2009)
Q: Will the conviction of an accused bar another
prosecution for an offense which necessarily Q: Upon arraignment, A pleaded not guilty to the
includes the offense originally charged? charge of serious physical injuries. Then days later,
the victim died. Hence, the Fiscal moved for the
amendment of the information so as to charge the
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POLITICAL LAW TEAM
accused with the crime of homicide. The accused (Rule 121, Sec. 1 of the Revised Rules of Criminal
objected on the ground that he had been put in Procedure)
jeopardy of being convicted of the crime of serious
physical injuries; and that another prosecution for Q: What is a motion for reconsideration?
homicide for the same act under the amended
information would constitute double jeopardy. If A: It is a motion generally filed by the accused
you were the judge, how would you resolve the whereby he seeks the modification of the
motion? Explain. conclusions of the court in the judgment of
conviction on the basis of what is already on record.
A: There is no double jeopardy and the motion of It does not call for the introduction of evidence
the accused should be therefore be denied. His plea unlike in new trial. (Pineda, The Revised Rules of
was only with respect to the charge of physical Criminal Procedure, 2006 ed., 536-537)
injuries but not with respect to the crime of
homicide. (1984 BAR QUESTION, Political Law Q: Who may appeal?
Reviewer, Suarez , 2011).
A: Any party may appeal from a judgment or final
Q: After a long and protracted trial, the accused order, unless the accused will be placed in double
involved in the murder of then Senator Benigno S. jeopardy. (Rule 122, Sec. 1 of the Revised Rules of
Aquino were acquitted by an independent Criminal Procedure)
commission whose members were appointed by Note: If a criminal case is dismissed by the trial court or if
then President Ferdinand E. Marcos. After the there is an acquittal, an appeal therefrom on the criminal
EDSA People Power Revolution, a commission aspect may be undertaken only by the State through the
Solicitor General. Only the Solicitor General may
presided by retired Justice Conrado Vasquez,
represent the People of the Philippines on appeal. The
appointed by then President Corazon C. Aquino, private offended party or complainant may not take such
recommended the re-opening of the Galman- appeal. However, the said offended party or complainant
Aquino murder case. Was there double jeopardy? may not take such appeal. However, the said offended
party or complainant may appeal the civil aspect despite
A: No, There was no double jeopardy, the the acquittal of the accused.
proceedings that took place before was a sham and
a mock trial which resulted in the denial of the In a special civil action for certiorari, filed under Rule 65
wherein it is alleged that the trial court committed grave
State’s right to due process. (Galman vs.
abuse of discretion, the rules state that the petition may
Sandiganbayan, GR. No. 72670, Sept. 12, 1986) be filed by the person aggrieved. In such case, the
aggrieved parties are the State and the private offended
1. Requisites party or complainant. The complainant has an interest in
the civil aspect of the case as he may file such special civil
Q: What are the requisites of double jeopardy? action questioning the decision or action of the
respondent court on jurisdictional grounds. In so doing,
complainant should notbring the action in the name of
A:
the People of the Philippines. The action in the name of
1. Court of competent jurisdiction the People of the Philippines. The action may be
2. A Complaint or Information sufficient in prosecuted in the said complainant. (Rodriguez v.
form and substance to sustain a conviction Gadiane GR No. 152903 Jul.17,2006)
3. Arraignment and plea by the accused;
4. Conviction, acquittal, or dismissal of the Q: May the prosecution appeal an acquittal?
case without the express consent of the
accused. (Sec 7, Rule 117, Rules of Court; A: GR:The prosecution may not appeal an acquittal
People v. Obsania, G.R. No. L-24447, June and an acquittal is immediately final
29, 1968) XPNs:
1. The dismissal is on motion or with the
2. Motions for reconsideration and appeals express consent of the accused
XXPN: If motion is based on violation
Q: When may the court grant a new trial or of the right to a speedy trial or on
reconsideration? demurrer to evidence
2. The dismissal does not amount to an
A: At any time before a judgment of conviction acquittal or dismissal on the merits
becomes final, the court may on motion of the 3. The question to be passed upon is purely
accused, or on its own instance with the consent of legal
the accused, grant a new trial or reconsideration. 4. The dismissal violates the right of due
process of the prosecution
119
5. The dismissal is made with grave abuse of substitution of legislative fiat for a judicial
discretion. determination of guilt.(People vs. Ferrer)
3. Dismissal with consent of accused Note: It is only when a statute applies either to a
named individuals or easily ascertainable members of
Q: When is the defense of double jeopardy not a group in such a way as to inflict punishment on them
available? without a judicial trial that it becomes a bill of
attainder.
A:
GR: Double jeopardy is not available when the Q: What are the two kinds of bill of attainder?
case is dismissed other than on the merits or
other than by acquittal or conviction upon A:
motion of the accused personally, or through 1. Bill of attainder proper (legislative
counsel, since such dismissal is regarded as with imposition of the death penalty)
express consent of the accused, who is
therefore deemed to have waived the right to 2. Bill of pains and penalties (imposition of a
plea double jeopardy. lesser penalty).
XPNs: Q: X was charged with illegal possession of

1. Dismissal based on insufficiency of firearms. When X committed the offense, the
evidence governing law was PD 1866, which provided for
2. Dismissal because of denial of accused’s the penalty of reclusion temporal to reclusion
right to speedy trial perpetua. However, while the case was pending,
3. Accused is discharged to be a State PD 1866 was amended by RA 8294, which reduced
witness the penalty to prision correccional but increasing
the amount of fine. If X is convicted, which penalty
shall be imposed?
x. EX POST FACTO LAW AND
BILL OF ATTAINDER
A: R.A. 8294 is the applicable law. As a general rule,
penal laws should not have retroactive application,
Q: What are the kinds of ex post facto law?
lest they acquire the character of an ex post facto
law. An exception to this rule, however, is when the
A: It can be a law that:
law is advantageous to the accused. Although an
1. Makes an act, which was innocent when
additional fine of P15,000.00 is imposed by R.A.
done, criminal and punishes such action
8294, the same is still advantageous to the accused,
2. Aggravates a crime or makes it greater
considering that the imprisonment is lowered to
than when it was committed
prision correccional in its maximum period from
3. Changes the punishment and inflicts a
reclusion temporal in its maximum period to
greater punishment than the law annexed
reclusion perpetua under P.D. 1866.
to the crime when it was committed
4. Alters the legal rules of evidence and
Hence, R.A. 8294 should be applied, without
receives less or different testimony than
prejudice to the application of the Indeterminate
the law required at the time of the
Sentence Law. (Valeroso v. People, G.R. No. 164815,
commission of the offense in order to
Feb. 22, 2008)
convict the defendant
5. Assumes to regulate civil rights and
F. CITIZENSHIP
remedies only. In effect imposes penalty
or deprivation of a right for something
Q: What is citizenship?
which when done was lawful
6. Deprives a person accused of a crime of
A: It is membership in a political community which
some lawful protection to which he has
is personal and more or less permanent in
become entitled, such as the protection
character.
of a former conviction or acquittal, or a
proclamation of amnesty
Q: Who are citizens of the Philippines?
Q: What is a bill of attainder?
A:
1. Those who are Filipino citizens at the time
A: A “bill of attainder” is a legislative act that inflicts
of the adoption of the 1987 Constitution:
punishment without trial, its essence being the
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POLITICAL LAW TEAM
a. Those who are citizens under the Note: Jus sanguinis and naturalization are the modes
Treaty of Paris; followed in the Philippines.
b. Those declared citizens by judicial
declaration applying the jus soli Q: Can there be judicial declaration that a person
principle, before Tio Tam v. Republic, is a Filipino citizen? Why?
25 Apr. 1957, G.R. No. L-9602.
c. Those who are naturalized in A: No. He has to apply for naturalization and
accordance with law. (Act 2927) adduce evidence of his qualifications. (Yung Uan
d. Those who are citizens under the Chu v. Republic, G.R. No. L-34973, Apr. 14, 1988)
1935 Constitution.
e. Those who are citizens under the Q: What are the statutory formalities in selecting
1973 Constitution. Philippine citizenship?
2. Those whose fathers or mothers are A:

Filipino citizens 1. A statement of election under oath
2. An oath of allegiance to the Constitution
3. Those born before January 17, 1973, of and Government of the Philippines; and
Filipino mothers, who elect Philippine 3. Registration of the statement of election
citizenship upon reaching the age of and of the oath with the nearest civil
majority; registry.(Balgamelo Cabiling Ma, et al. vs.
Commissioner Alipio F. Fernandez, Jr., et
Note: Time to elect: within 3 years from al. G.R. No. 183133, July 26, 2010)
reaching the age of majority.
Q: Is it the registration of the act of election that
4. Those naturalized in accordance with law. confers Philippines citizenship?
(Sec.1, Art. IV, 1987 Constitution)
A:No. It is not the registration of the act of election,
Q: What is the Caram Rule? although a valid requirement under Commonwealth
Act No. 625 that will confer Philippine citizenship on
A: Under the 1935 Constitution, those born in the the petitioners. It is only a means of confirming the
Philippines of foreign parent, who before the fact that citizenship has been claimed. In other
adoption of the Constitution had been elected to words, the actual exercise of Philippine citizenship
public office, are considered Filipino citizens. for over half a century by the petitioners is actual
(Chiongbian v. de Leon, G.R. No. L-2007, Jan. 31, notice to the Philippine public, which is equivalent
1949) to formal registration of the election of Philippine
citizenship. (Balgamelo Cabiling Ma, et al. vs.
The 1935, Constitution, during which regime FPJ Commissioner Alipio F. Fernandez, Jr., et al. G.R. No.
had seen first light, confers citizenship to all 183133, July 26, 2010)
persons whose fathers are Filipino citizens
regardless of whether such children are legitimate Q: When should the registration of documents of
or illegitimate. (Tecson v. COMELEC, G.R. No. election beyond the time frame be allowed?
161434, Mar. 3, 2004)
A: It should be allowed if in the meanwhile positive
Q: What are the modes of acquiring citizenship? acts of citizenship have been done publicly,
consistently and continuously. These acts
A: constitute constructive registration.(Balgamelo
1. By birth Cabiling Ma, et al. vs. Commissioner Alipio F.
1. Jus sanguinis – acquisition of Fernandez, Jr., et al. G.R. No. 183133, July 26, 2010)
citizenship on the basis of blood
relationship. Q: Should the failure to register the election in the
2. Jus soli – acquisition of citizenship on civil registry defeat the election and negate the
the basis of the place of birth. permanent fact that petitioners have a Filipino
mother.
2. By naturalization – the legal act of
adopting an alien and clothing him with A:No. Having a Filipino mother is permanent. It is
the privilege of a native-born citizen. the basis of the right of the petitioners to elect
Philippine citizenship. (Balgamelo Cabiling Ma, et
3. By marriage al. vs. Commissioner Alipio F. Fernandez, Jr., et
al. G.R. No. 183133, July 26, 2010)
121
6. Enrolled minor children in any public or

Q: What is naturalization? private school recognized by the
government where Philippine history,
A:Naturalization signifies the act of formally government and civics are taught as part
adopting a foreigner into the political body of a of the curriculum, during the entire
nation by clothing him or her with the period of residence prior to hearing of
privileges of a citizen petition.
Q:Give the modes of becoming a citizen by Q: Who are disqualified from Judicial
naturalization. Naturalization (C.A. No. 473)?
A: A:
1. Administrative naturalization pursuant to 1. Persons opposed to organized
R.A. No. 9139 government or affiliated with any
2. Judicial naturalization pursuant to C.A. association or group of persons which
No. 473, as amended uphold and teach doctrines opposing all
3. Legislative naturalization in the form of a organized governments
law enacted by Congress bestowing 2. Persons defending or teaching necessity
Philippine citizenship to an alien.(So v. or propriety of violence, personal assault
Rep., G.R. No. 170603, Jan. 29, 2007) or assassination for the success or
predominance of their ideas
Q: State the qualifications for Judicial 3. Polygamists or believers of polygamy
Naturalization (C.A. No. 473) 4. Persons suffering from mental alienation
or incurable contagious disease
A: 5. Persons convicted of crime involving
1. Not less than 18 years of age on the date moral turpitude
of hearing the petition (as amended by 6. Persons who, during residence in the
R.A. 6809); Philippines, have not mingled socially with
2. Resided in the Philippines for not less Filipinos, or did not evince sincere desire
than 10 years; may be reduced to 5 years, to learn and embrace customs, traditions
if; and ideals of Filipinos
a. Honorably held office in the 7. Citizens or subjects of nations with whom
Philippines the Philippines is at war, during the
b. Established new industry or period of such war
introduced a useful invention 8. Citizens or subjects of a foreign country
c. Married to a Filipino woman whose laws do not grant Filipinos the
d. Engaged as teacher in Philippine right to become naturalized citizens or
public or private school not subjects thereof (no reciprocity)
established for exclusive instruction
of a particular nationality or race, or Q: State the qualifications for Administrative
in any branches of education or naturalization (R.A. No. 9139)?
industry for a period of not less than
2 years; and A:
e. Born in the Philippines 1. The applicant must be born in the
3. Character Philippines and residing therein since
1. Good moral character birth;
2. Believes in the Constitution 2. The applicant must not be less than
3. Conducted himself in an eighteen (18) years of age, at the time of
irreproachable conduct during his filing of his/her petition;
stay in the Philippines 3. The applicant must be of good moral
4. Owns real estate in the Philippines not character and believes in the underlying
less than P5,000 in value; or has some principles of the Constitution, and must
lucrative trade, profession or lawful have conducted himself/herself in a
occupation that can support himself and proper and irreproachable manner during
his family his/her entire period of residence in the
5. Speaks and writes English or Filipino and Philippines in his relation with the duly
any principal Philippine dialects (as constituted government as well as with
amended by Sec. 6 Art. XIV); and the community in which he/she is living;
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POLITICAL LAW TEAM
4. The applicant must have received his/her and embrace the customs, traditions and
primary and secondary education in any ideals of the Filipinos;
public school or private educational 7. Citizens or subjects with whom the
institution dully recognized by the Philippines is at war, during the period of
Department of Education, Culture and such war; and
Sports, where Philippine history, 8. Citizens or subjects of a foreign country
government and civics are taught and whose laws do not grant Filipinos the
prescribed as part of the school right to be naturalized citizens or subjects
curriculum and where enrollment is not thereof.
limited to any race or
nationality: Provided, That should he/she C.A. No. 473 R.A. No. 9139
have minor children of school age, he/she Judicial act Administrative act
must have enrolled them in similar Covers all aliens Less tedious, less technical
schools; regardless of class and more encouraging.
5. The applicant must have a known trade, An alien who is not Applies only to aliens who
business, profession or lawful occupation, qualified under R.A. were born in
from which he/she derives income No. 9139 may still be the Philippines and have
sufficient for his/her support and if naturalized under been residing here.
he/she is married and/or has dependents, C.A. No. 473
also that of his/her family:Provided, (So v. Rep., G.R. No. 170603, January 29, 2007)
however, That this shall not apply to
applicants who are college degree holders Q: Differentiate a Direct naturalization from
but are unable to practice their profession Derivative naturalization.
because they are disqualified to do so by
reason of their citizenship; A:
6. The applicant must be able to read, write Direct Naturalization Derivative
and speak Filipino or any of the dialects of Naturalization
the Philippines; and is effected: is conferred:
7. The applicant must have mingled with the 1. By individual 1. On the wife of
Filipinos and evinced a sincere desire to proceedings, the
learn and embrace the customs, usually naturalized
traditions and ideals of the Filipino judicial, under husband
people. general 2. On the minor
naturalization children of
Q: Who are disqualified for Administrative laws the
naturalization (R.A. No. 9139)? 2. By specific act naturalized
of the parent
A: legislature, 3. On the alien
1. Those opposed to organized government often in favor woman upon
or affiliated with any association of group of marriage to a
of persons who uphold and teach distinguished national
doctrines opposing all organized foreigners 4. The
governments; who have unmarried
2. Those defending or teaching the necessity rendered child whether
of or propriety of violence, personal some notable legitimate,
assault or assassination for the success or service to the illegitimate or
predominance of their ideas; local state adopted,
3. Polygamists or believers in the practice of 3. By collective below 18
polygamy; change of years of age,
4. Those convicted of crimes involving moral nationality of those who
turpitude; (naturalizatio re-acquire
5. Those suffering from mental alienation or n en masse) Philippine
incurable contagious diseases; as a result of citizenship
6. Those who, during the period of their cession or upon
residence in the Philippines, have not subjugation effectivity of
mingled socially with Filipinos, or who 4. In some R.A. 9225
have not evinced a sincere desire to learn cases, by shall be
adoption of deemed
123
orphan citizens of the support or by transferring them to

minors as Philippines. another school
nationals of 5. Allowing himself to be used as a dummy.
the State
where they Q: What are the effects of denaturalization?
are born
A:
1. If ground affects intrinsic validity of
Note: Derivative naturalization does not always follow proceedings, denaturalization shall divest
as a matter of course, for it is usually made subject to wife and children of their derivative
stringent restrictions and conditions. Our own laws, for naturalization
instance, provide that an alien woman married to a 2. If the ground is personal, the wife and
Filipino shall acquire his citizenship only if she herself children shall retain citizenship.
might be lawfully naturalized.
Q: Distinguish dual citizenship from dual
Q: What are the effects of naturalization? allegiance.
A: A:
ON THE WIFE Dual Citizenship Dual Allegiance
Vests citizenship on the wife who might herself be Arises when, as a result of
lawfully naturalized; She need not prove her Refers to the situation
concurrent application of
qualifications but only that she is not disqualified. where a person
the different laws of two
(Moy Ya Lim Yao v. Comm. of Immigration, G.R. No. simultaneously owes,
or more States, a person
L-21289, Oct. 4, 1971.) by some positive act,
is simultaneously
ON THE MINOR CHILDREN loyalty to two or more
considered a citizen of
Born in the Philippines States.
said states.
Automatically becomes a citizen Result of an
Born Abroad individual’s volition
Involuntary
Before the naturalization of the father and is prohibited by
If residing in the Phil. At Automatically the Constitution.
the time of naturalization becomes a citizen.
Q: What are the grounds for loss of Philippine
GR: Considered
citizenship?
citizen only during
If not residing in the Phil. minority
A:
At the time of
1. Naturalization in a foreign country; or
naturalization XPN: He begins to
2. Express renunciation of citizenship
reside permanently in
(expatriation); or
the Phil.
After parents’ naturalization Note: The mere application or possession of
Considered Filipino, an alien certificate of registration does not
provided registered as such before any Phil. amount to renunciation (Mercado v.
consulate within 1 year after attaining majority age Manzano, G.R. No. 135083, May 26, 1999).
and takes oath of allegiance.
3. Subscribing to an oath of allegiance to the
Q: What are the grounds for denaturalization? constitution or laws of a foreign country
upon attaining 21 years of age; or
A:
1. Naturalization certificate obtained Note: Citizens may not divest citizenship
fraudulently or illegally when the Philippines is at war.
2. If, within 5 years, he returns to his native
country or to some foreign country and 4. Rendering service to or accepting
establishes residence therein commission in the armed forces of a
3. Naturalization obtained through invalid foreign country; or
declaration of intention
4. Minor children failed to graduate through Note: It shall not divest a Filipino of his
the fault of parents either by neglecting citizenship if: (a) the Philippines has a
defensive and/or offensive pact of alliance
with the said foreign country; (b) the said
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POLITICAL LAW TEAM
foreign country maintains armed forces in Very cumbersome and

the Philippine territory with its consent Simpler process
tedious
provided that at the time of rendering said
service, or acceptance of said commission, Q: How is repatriation effected?
and taking the oath of allegiance incident
thereto, states that he does so only in
A: Repatriation shall be effected by taking the
connection with its service to said foreign
necessary oath of allegiance to the Republic of the
country.
Philippines and registration in the proper civil
registry and in the Bureau of Immigration. The
5. Cancellation of certificate of
Bureau of Immigration shall thereupon cancel the
naturalization (Denaturalization); or
pertinent alien certificate of registration and issue
the certificate of identification as Filipino citizen to
6. Having been declared by final judgment a
the repatriated citizen.
deserter of the armed forces of the
Philippines in times of war.
Q: What is the effect of repatriation?
7. In case of a woman, upon her marriage,
A: Repatriation results in the recovery of the
to a foreigner if, by virtue of the laws in
original nationality. This means that a naturalized
force in her husband’s country, she
Filipino who lost his citizenship will be restored to
acquires his nationality.
his prior status as a naturalized Filipino citizen. On
the other hand, if he was originally a natural-born
Q: How is citizenship renounced?
citizen before he lost his Philippine citizenship, he
will be restored to his former status as a natural-
A: Expressly. (Mercado v. Manzano, G.R. No.
born Filipino. (Bengzon v. HRET and Cruz, G.R. No.
135083, May 26, 1999)
142840, May 7, 2001)
Q: Does res judicata set in citizenship cases?
Q: What is an example of reacquisition of
citizenship by the direct act of congress?
A:
GR: No.
A: R.A. 9225 also known as the “Citizenship
Retention and Re-acquisition Act of 2003,”
XPN:
approved on August 29, 2003 provides that, upon
1. Person’s citizenship is resolved by a court or
taking the oath of allegiance to the Republic:
an administrative body as a material issue in
the controversy, after a full-blown hearing
1. Natural-born citizens of the Philippines
who have lost their naturalization as
2. With the active participation of the Solicitor
citizens of a foreign country are deemed
General or his representative; and
to have re-acquired Philippine
citizenship; and
3. Finding of his citizenship is affirmed by the
Supreme Court. (Burca v. Republic G.R. No.
2. Natural-born citizens of the Philippines
L-24252, Jan. 30, 1967)
who, after the effectivity of said RA,
become citizens of a foreign country shall
Q: What are the ways to reacquire citizenship?
retain their Philippine citizenship.
A: By:
Q: What is the effect of re-acquisition of
1. Naturalization
citizenship on civil and political rights?
2. Repatriation
3. Direct act of Congress
A: Those who retain or re-acquire Philippine
citizenship shall enjoy full civil and political rights
Q: Distinguish naturalization from repatriation.
subject to the following conditions:
A:
1. Right to vote: must meet the
Naturalization Repatriation
requirements of Section 1, Article V of the
Nature
Constitution, and of Republic Act No.
A mode of acquisition 9189 (The Overseas Absentee Voting Act
Mode of reacquisition of
and reacquisition of of 2003) and other existing laws;
Philippine Ccitizenship
Philippine citizenship
As to process
125
2. Elective Public Office:

i. Possess qualification for holding such Q: What is the rule regarding marriage of a Filipino
public office as required by the with an alien?
Constitution and existing laws
A:
ii. Make a personal and sworn GR: The Filipino retains Philippine citizenship.
renunciation of any and all foreign
citizenship before any public officer XPN: If, by their act or omission they are
authorized to administer an oath, at deemed, under the law, to have renounced it.
the time of the filing of the (Sec.4, Art. IV, 1987 Constitution)
certificate of candidacy.
Q: Who are the government officials required to
iii. Appointive Public Office - subscribe be natural-born Filipino citizens?
and swear to an oath of allegiance to
the Republic of the Philippines and A:
its duly constituted authorities prior 1. President (Sec.2, Art VII)
to their assumption of 2. Vice-President (Sec. 3, Art VII)
office: Provided, That they renounce 3. Members of Congress (Secs. 3 and 6, Art
their oath of allegiance to the VI)
country where they took that oath; 4. Justices of Supreme Court and lower
collegiate courts (Sec. 7(1), Art VIII)
Note: That right to vote or be elected or 5. Ombudsman and his deputies (Sec. 8, Art
appointed to any public office in the XI)
Philippines cannot be exercised by, or 6. Members of Constitutional Commissions
extended to, those who: 7. Members of the Central Monetary
Authority (Sec. 20, Art XII)
a. are candidates for or are occupying 8. Members of the Commission on Human
any public office in the country of Rights (Sec 17 (2), Art XIII)
which they are naturalized citizens;
and/or
Q: Are persons possessing dual citizenship by
b. are in active service as
virtue of birth barred from running for public
commissioned or non-commissioned
officers in the armed forces of the
office?
country which they are naturalized
citizens.(R.A. 9225) A: No, the fact that a person has dual citizenship
does not disqualify him from running for public
iv. Practice of profession: apply with the office. (Cordora v. COMELEC, G.R. No. 176947, Feb.
proper authority for a license or 19, 2009)
permit to engage in such practice
(R.A. 9225). Q: Dickie, a naturalized US citizen, sought to
reacquire his Philippine citizenship. He took his
Q: Who are natural-borncitizens? oath of allegiance to the Republic of the
Philippines before the Vice Consul. He then ran
A: and won as Vice Mayor of a municipality. The
1. Citizens of the Philippines from birth COMELEC, however, disqualified him on the
without having to perform any act to ground that he failed to renounce his US
acquire or perfect their Philippine citizenship.
citizenship
Is Dickie disqualified from running as a candidate
2. Those born before January 17, 1973 of in the local elections for his failure to make a
Filipino mothers, who elect Philippine personal and sworn renunciation of his US
citizenship upon reaching the age of citizenship?
majority
A: Yes.Section 5(2) of R.A. 9225 (on the making of a
Note: The term “Natural-born citizens,” is define to personal and sworn renunciation of any and all
include “those who are citizens of the Philippines from foreign citizenship) requires the Filipinos availing
birth without having to perform any act to acquire or themselves of the benefits under the said Act to
perfect their Philippine citizenship.” [Tecson vs. accomplish an undertaking other than that which
COMELEC, GR. No. 161434, Mar. 3, 204) they have presumably complied with under Section
126
POLITICAL LAW TEAM
3 thereof (oath of allegiance to the Republic of the allegiance, constituted as a renunciation of his
Philippines). There is little doubt, therefore, that foreign citizenship under R.A. No. 9225?
the intent of the legislators was not only for
Filipinos reacquiring or retaining their Philippine A: No. the filing of a certificate of candidacy does
citizenship under R.A. 9225 to take their oath of not ipso facto amount to a renunciation of his
allegiance to the Republic of the Philippines, but foreign citizenship because R.A. No. 9225 provides
also to explicitly renounce their foreign citizenship for more requirements. It requires the twin
if they wish to run for elective posts in the requirements of swearing to an Oath of
Philippines. To qualify as a candidate in Philippine Allegiance and executing a Renunciation of Foreign
elections, Filipinos must only have one citizenship, Citizenship. (Roseller De Guzman vs. Commission on
namely, Philippine citizenship. Elections, et al., G.R. No. 180048, June 19, 2009)
The oath of allegiance contained in the Certificate IX. LAW ON PUBLIC OFFICERS
of Candidacy, does not constitute the personal and
sworn renunciation sought under Section 5(2) of A. GENERAL PRINCIPLES
R.A. No. 9225. It bears to emphasize that the said
oath of allegiance is a general requirement for all Q: Define public office.
those who wish to run as candidates in Philippine
elections; while the renunciation of foreign A: It is the right, authority, and duty created and
citizenship is an additional requisite only for those conferred by law, by which for a given period,
who have retained or reacquired Philippine either fixed by law or enduring at the pleasure of
citizenship under R.A. No. 9225 and who seek the creating power, an individual is invested with
elective public posts, considering their special some portion of the sovereign functions of the
circumstance of having more than one citizenship. government, to be exercised by him for the benefit
(Jacot v. Dal, G.R. No. 179848, Nov.27, 2008) of the public (Fernandez v. Sto. Tomas, G.R. No.
116418, Mar. 7, 1995).
Q: “Hero” is a naturalized citizen of another
country who reacquires Filipino citizenship. On the Q: What is the purpose and nature of a public
other hand, “Prince” possesses dual citizenship by office?
birth. If they desire to run for elective public office,
what requirement must they comply as regards A:A public office is created to effect the end for
their citizenship? which government has been instituted which is the
common good; not profit, honor, or private
A: Hero must comply with the requirements set in interest of any person, family or class of persons (63
R.A 9225. Sec 5(3) of R.A. 9225 states that A Am Jur 2d 667)
naturalized citizens who reacquire Filipino
citizenship and desire to run for public office shall With regard to its nature:
“…make a personal and sworn renunciation of any 1. A public office is a public trust. (Art. XI, Sec. 1,
and all foreign citizenship before any public officer 1987 Consti)
authorized to administer an oath” aside from the 2. It is a responsibility and not a right. (Morfe v.
oath of allegiance prescribed in Section 3 of R.A. Mutuc,G.R. No. L-20387, Jan. 31, 1968)
9225.
Q: How are public offices created?
Prince need not comply with the twin requirements
of swearing an oath of allegiance and executing a A:VAT
renunciation of foreign citizenship because he is a By:
natural-born Filipino who did not subsequently 1. The Constitution
become a naturalized citizen of another country. It 2. Valid statutory enactments
is sufficed, if upon the filing of his certificate of 3. Authority of law (Secretary of Department
candidacy, he elects Philippine citizenship to of Transportation and Communications v.
terminate his status as person with dual citizenship Mabalot, G.R. No. 138200, Feb. 27, 2002)
considering that his condition in the unavoidable
consequence of conflicting laws of different States. Q: What are the elements of a public office?
(Cordora v. COMELEC, G.R. No. 176947, Feb. 19,
2009) A:PILAC
1. Created by Constitution or by law or by
Q: Is filing by a person with dual citizenship of a somebody or agency to which the power
certificate of candidacy, containing an oath of to create the office has been delegated;
2. Invested with Authority to exercise some
127
portion of the sovereign power of the contracting

State parties, subject
3. The powers conferred and the duties to to the
be discharged must be defined directly or limitations
impliedly by the Legislature or through imposed by
legislative authority; law.
4. Duties are performed Independently As to object Has for its object Imposes
without control unless those of a the carrying out obligations
subordinate. of sovereign as only upon
5. Continuing and Permanent well as persons who
(Fernandez v. Sto. Tomas, G.R. No. governmental entered the
116418, Mar. 7, 1995; Tejada v. Domingo, functions same.
G.R. No. 91860, Jan. 13, 1992) affecting even
persons not
Q: What are the characteristics of a public office? bound by
contract
A: As to Embraces the Is almost
1. It is a public trust. subject idea of tenure, always limited
2. It is not a property and is outside the matter and duration, and in its duration
commerce of man. It cannot be the scope continuity, and and specific in
subject of a contract. the duties its objects. Its
3. It is not a vested right. connected terms define
4. It cannot be inherited. therewith are and limit the
(Sec. 1, Art. XI, Constitution; Santos v. generally rights and
Secretary of Labor, G.R. No.L-21624, Feb continuing and obligations of
27, 1968) permanent. the parties,
and neither
Q. What is the principle of "public office is a public may depart
trust?" therefrom
without the
A: It means that the officer holds the public office in consent of the
trust for the benefit of the people—to whom such other.
officers are required to be accountable at all times,
and to serve with utmost responsibility, loyalty, and Q: What are the classifications of a public officer?
efficiency, act with patriotism and justice, and lead
modest lives. (Sec. 1, Art. XI, Constitution) A: A public officer may be:
1. Constitutional or statutory
Q: What does the concept "public office is not a 2. National or local
property” mean? 3. Legislative, executive, or judicial
4. Lucrative or honorary
A: It means no officer can acquire vested right in 5. Discretionary or ministerial
the holding of a public office, nor can his right to 6. Appointive or elective
hold the office be transmitted to his heirs upon his 7. Civil or military
death. Nevertheless, the right to hold a public office 8. De jure or de facto
is a protected right—secured by due process and
the provision of Constitution on security of tenure. Q: What are the classifications of government
(Santos v. Secretary of Labor, G.R. No.L-21624, Feb employment?
27, 1968)
A:
Q: What are the differences between public office 1. Career Service
and public contract? 2. Non-career Service
A: Q: What are included in the career service?

PUBLIC OFFICE PUBLIC
CONTRACT A:
As to Incident of Originates 1. Open career positions for appointment to
creation sovereignty from the will which prior qualifications in an
of the appropriate examination is required
128
POLITICAL LAW TEAM
2. Closed career positions which are President’s power of reorganization under the
scientific or highly technical in nature Administrative Code and the President’s power of
3. Positions in the Career executive service control. The OSG likewise contends that Congress
4. Career officers other than those in the has delegated to the President the power to create
career executive service, who are public offices by virtue of P.D. 1416, as amended
appointed by the President by P.D. 1772.
5. Commissioned officers and enlisted men
of the Armed Forces Does the creation of the PTC fall within the ambit
6. Personnel of GOCCs, whether performing of the power to reorganize as expressed in Section
governmental or proprietary functions, 31 of the Revised Administrative Code?
who do not fall under the non-career
service; and A: No. The provision refers to reduction of
7. Permanent laborers, whether skilled, personnel, consolidation of offices, or abolition
semi-skilled, or unskilled (Sec. 5, P.D. No. thereof by reason of economy or redundancy of
807). functions. These points to situations where a body
or an office is already existent but a modification or
Q: What are the distinctions between career alteration thereof has to be effected. The creation
service and non-career service? of an office is nowhere mentioned, much less
envisioned in said provision. To say that the PTC is
A: borne out of a restructuring of the Office of the
CAREER SERVICE NON-CAREER SERVICE President under Section 31 is a misplaced
supposition, even in the plainest meaning
Entrance is based on attributable to the term ‘restructure’-an ‘alteration
merits and fitness of an existing structure.’ Evidently, the PTC was not
except positions which Entrance is based on part of the structure of the Office of the President
are qualifications other prior to the enactment of Executive Order No. 1.
1. primarily confidential, thanmerit and fitness. (Biraogo v. Philippine Truth Commission of 2010,
2. highly technical, and G.R. No. 192935, December 7, 2010)
3. policy determining.
Determined by Determined not by Q: Is the creation of the PTC justified by the
competitive competitive President’s power of control.
examination examination
Opportunity for A: No, control is essentially the power to alter or
advancement to higher No such opportunity modify or nullify or set aside what a subordinate
career position officer had done in the performance of his duties
Tenure is limited to a and to substitute the judgment of the former with
period specified by law, that of the latter. Clearly, the power of control is
coterminous with the entirely different from the power to create public
appointing authority or offices. The former is inherent in the Executive,
subject to his pleasure, while the latter finds basis from either a valid
There is security of or which is limited to delegation from Congress, or his inherent duty to
tenure the duration of a faithfully execute the laws. (Ibid.)
particular purpose
(Jocom v. Regalado, Q: Can P.D. 1416 be used as justification for the
G.R. No. 77373, Aug. President’s power to create public offices,
22, 1991). particularly the PTC?
A: No, said decree is already stale, anachronistic

Q: President Benigno Aquino III issue Executive and inoperable. P.D. No. 1416 was a delegation to
Order No. 1 creating the Philippine Truth then President Marcos of the authority to
Commission (PTC). The legality of the creation of reorganize the administrative structure of the
the PTC was assailed before the Supreme Court. national government including the power to create
The petitioners contend that the PTC is a public offices and transfer appropriations pursuant to one
office and thus the president is without authority of the purposes of the decree embodies in its last
to create it. It was further contended that the ‘Whereas’ clause: ‘WHEREAS, the transition
creation of a public office lies within the province towards the parliamentary form of government will
of the legislature. The Office of the Solicitor necessitate flexibility in the organization of the
General (OSG) countered that the creation of a national government.’
fact-finding body like the PTC is covered by the
129
or additional duties upon an officer to be

Clearly, as it was only for the purpose of providing performed by him in a special manner.
manageability and resiliency during the interim,
P.D. No. 1416, as amended by P.D. No. 1772, Note: A public office, being a trust or agency created
became functus oficio upon the convening of the for the benefit of the people, can be obtained only in
First Congress, as expressly provided in Section 6, the manner prescribed by the Constitution or by law.
Article XVIII of the 1987 Constitution. (Ibid.) (The law on Public officers by Hector S. De Leon, 2008
edition, Chapter 3, page 48)
Q: What then could be the justification for the
President’s creation of the PTC? The manner of selecting persons for public office is
generally by election or by appointment. (63A Am. Jur.
2d 733)
A: The creation of the PTC finds justification under
Section 17, Article VII of the Constitution, imposing
C. MODES AND KINDS OF APPOINTMENT
upon the President the duty to ensure that the laws
are faithfully executed. The President’s power to
Q: What is the meaning of Appointment?
conduct investigations to aid him in ensuring the
faithful execution of laws – in this case,
A:
fundamental laws on public accountability and
1. Appointment is the act of designation by
transparency – is inherent in the President’s powers
the executive officer, board or body to
as the Chief Executive. That the authority of the
whom that power has been delegated, of
President to conduct investigations and to create
the individual who is to exercise the
bodies to execute this power is not explicitly
powers and functions of a given office. In
mentioned in the Constitution or in statutes does
this sense, it is to be distinguished from
not mean that he is bereft of such authority.
the selection or designation by a popular
TheExecutive is given much leeway in ensuring that vote. [Borromeo v. Mariano, G.R. No. L-
our laws are faithfully executed. The powers of the 16808, Jan. 3, 1921.); F. MECHEM, A
President are not limited to those specific powers Treaties on the Law of Public and Officers,
under the Constitution. One of the recognized p.42 (1890)]
powers of the President granted pursuant to this 2. Appointment is, in law, equivalent to
constitutionally-mandated duty is the power to “filling a vacancy”. [Conde v. National
create ad hoc committees. This flows from the Tobacco Corp., G.R. No. L-11985 Jan. 28,
obvious need to ascertain facts and determine if 1961]
the laws have been faithfully executed. It should be 3. The term “appoint,” whether regarded in
stressed that the purpose of allowing ad hoc its legal or ordinary acceptation, is applied
investigating bodies to exist is to allow an inquiry to the nomination or designation of an
into matters which the President is entitled to know individual to an office.[Borromeo v
so that he can be properly advised and guided in Mariano, G.R. No. L-16808, Jan. 3, 1921]
the performance of his duties relative to the
execution and enforcement of the laws of the land. Q: Who has the power to appoint?
(Ibid.)
A:
Note: The SC declared the creation of PTC as 1. Inherently belongs to the people. It
unconstitutional for violating the equal protection belongs to where the people have chosen
clause. to place it by their Constitution or laws.
[63A Am. Jur. 2d 738].
B. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE 2. Entrusted to designated elected and
appointed public officials. The
Q: What are the modes of filling up public offices? appointment of public officials is generally
looked upon as properly belonging to the
A: Public offices are filled up either by: executive department. Appointments
1. Appointment may also be made by Congress or the
2. Election courts, but when so made should be
3. In some instances by contract or by some taken as an incident to the discharge of
other modes authorized by law. (Preclaro functions within their respective spheres.
v. Sandiganbayan, G.R. No. 111091, Aug. [Government v. Springer, 50 Phil. 259
21, 1995) (1927), affirmed in Springer v.
4. Designation – the mere imposition of new Government, 277 U.S. 189, 72 Ed. 845, 48
S.CT. 480 (1928)].
130
POLITICAL LAW TEAM
appointment give the appointee the right to claim

Note: Absent any contrary statutory provision, the that the appointment will, in time, ripen into a
power to appoint carries with it the power to remove permanent one? Explain.
or discipline. [Aguirre, Jr. v. De Castro, G.R. No.
127631, Dec. 17, 1999]. A: According to Sevilla v. CA, G.R. No. 88498, June 9,
1992, an acting appointment is merely temporary.
Q: Is appointee’s acceptance of the office As held in Marohombsar v. Alonto, G.R. No. 93711,
necessary to the completion or validity of Feb. 25, 1991, a temporary appointment cannot
appointment? become a permanent appointment, unless a new
appointment which is permanent is made. This
A: No. Where there is no express provision of the holds true unless the acting appointment was made
law to the contrary, it is not necessary. because of a temporary vacancy. In such a case, the
temporary appointee holds office until the
Note: Acceptance is necessary to enable the appointee assumption of office by the permanent appointee.
to have FULL possession, enjoyment, and responsibility
of an office. (Borromeo v Mariano, G.R. No. L-16808, It is well-settled that one who holds a temporary or
Jan. 3, 1921; Lacson v. Romero, G.R. No. L-3081,Oct.
acting appointment has no fixed tenure of office,
14, 1949)
and, therefore, his enjoyment can be terminated at
the pleasure of the appointing power even without
Q: What are the classifications of appointments?
hearing or cause. [ Erasmo v. Home Insurance &
Guaranty Corporation, 388 SCRA 112 (2002)]. But
A:
such an appointment cannot be used by the
1. Permanent – Extended to a person who
appointing authority as a device or justification in
meets all the requirements for the
order to evade or avoid the security of tenure
position to which he is being appointed,
principle in the Constitution and the Civil Service
including the appropriate eligibility
Law. [Gayatao v. Civil Service Commission, G.R. No.
required, for the position and thus enjoys
93064, June 22, 1992)].
security of tenure.
Q: What is a provisional appointment?
2. Temporary – Extended to a person who
may not possess the requisite
A: It is one which may be issued, upon the prior
qualifications or eligibility and is
authorization of the Commissioner of the Civil
revocable at will without necessity of just
Service Commission, to a person who has not
cause or investigation. However, if the
qualified in an appropriate examination but who
appointment is for a specific period, the
otherwise meets the requirements for appointment
appointment may not be revoked until
to a regular position in the competitive service,
the expiration of the term.
whenever a vacancy occurs and the filling thereof is
necessary in the interest of the service and there is
Note: Temporary appointments shall not
exceed 12 months.Acquisition of civil service
no appropriate register of eligibles at the time of
eligibility will not automatically convert the appointment.(Jimenea v. Guanzon, G.R. No. L-
temporary appointment into a permanent 24795, Jan. 29, 1968)
one (Prov. Of Camarines Sur v. CA, G.R. No.
104639, July 14, 1995). Q: Can the President submit to the Commission on
Appointments an appointment for confirmation
3.Regular appointment – one made by the when it does not need the consent of the same?
President while the Congress is in session,
takes effect only after confirmation by the A: No. The Constitution made an exclusive
CA, and once approved, continues until enumeration of the appointments that are to be
the end of the term of the appointee. approved by the CA. Only in the first sentence of
Sec. 16 Art. VII does consent of the CA is needed for
4. Ad interim appointment – one made by the the appointments made by the President.
President while Congress is not in session,
takes effect immediately, but ceases to be Q: When is an appointment in the civil service
valid if disapproved by the CA or upon the permanent?
next adjournment of Congress.
A: Under Section 25(a) of the Civil Service Decree,
Q: What is the nature of an "acting appointment" an appointment in the civil service is permanent
to a government office? Does such an when issued to a person who meets all the
131
requirements for the position to which he is being 1. Disapproved by the CA; or

appointed, including the appropriate eligibility 2. Next adjournment of the Congress, either
prescribed, in accordance with the provisions of in regular or special session (inaction by
law, rules and standards promulgated in pursuance the CA).
thereof.
Note: Being a permanent appointment, an ad interim
Note: It lasts until lawfully terminated. appointee pending action by the Commission on
Appointments enjoys security of tenure.
Q: When is an appointment in the civil service (Marombhosar v. CA, G.R. No. 126481, Feb. 18, 2000)
temporary?
An ad interim appointee, whose term had expired by
A: When the appointee does not possess civil virtue of inaction by the Commission on
service eligibility. Appointments, may be reappointed to the same
position without violating the Constitutional provision
prohibiting an officer whose term has expired from
Note: Subsequent acquisition of the required eligibility
being re-appointed (Matibag v. Benipayo, G.R. No.
will not make a temporary appointment regular
130657, Apr. 1, 2002).
permanent.
Q: What is the rationale behind ad interim
Q: What is the nature of an ad interim
appointments?
appointment?
A: Ad interim appointments are intended to
A:Ad interim appointment is a permanent
prevent a hiatus in the discharge of official duties.
appointment. It is permanent because it takes
Obviously, the public office would be immobilized
effect immediately and can no longer be withdrawn
to the prejudice of the people if the President had
by the President once the appointee qualified into
to wait for Congress and the Commission of
office. The fact that it is subject to confirmation by
Appointments to reconvene before he could fill a
the CA does not alter its permanent character.
vacancy occurring during the recess. (Guevara v
(Matibag v. Benipayo, G.R. No. 130657, Apr. 1,
Inocentes, G.R. No. L-25577, Mar. 15, 1966)
2002).
Ad interim appointments are permanentuntil:
132
POLITICAL LAW TEAM
Q: Distinguish regular, ad interim, temporary appointments and designation?
A:
Regular Ad Interim Temporary Or Acting Designation
The mere imposition of
new or additional duties
Those which last until a upon an officer to be
Made when Congress is in Made when Congress is in
permanent appointment performed by him in a
session recess
is issued. special manner while he
performs the function of
his permanent office.
The officer is already in
Cannot be validly
Made only after the service by virtue of an
Made before such confirmed by the CA
nomination is confirmed earlier appointment,
confirmation because there was no
by CA performing other
valid nomination.
functions.
May be terminated at the
Shall cease to be valid if
Continues until the pleasure of appointing Maybe terminated
disapproved by CA. (Sec.
expiration of the term power without hearing or anytime
16, Art. VII, Constitution)
cause.
Q: Distinguish between an "appointment in an Note: Provisional appointments in general have

acting capacity" extended by a Department already been abolished by R.A. No. 6040. However, it
Secretary from an ad interim appointment still applies with regard to teachers under the Magna
extended by the President. Carta for Public School Teachers.
A: An appointment in an acting capacity extended * Concepts on appointments are discussed under the
by a Department Secretary is not permanent but Chapter on Executive Department.
temporary. Hence, the Department Secretary may
terminate the services of the appointee at any time. Q: Can the CSC revoke an appointment by the
appointing power and direct the appointment of
On the other hand, an ad interim appointment an individual of its choice?
extended by the President is an appointment which
is subject to confirmation by the Commission on A: No. The CSC cannot dictate to the appointing
Appointments and was made during the recess of power whom to appoint. Its function is limited to
Congress. As held in Summers v. Ozaeta (G.R. No. L- determining whether or not the appointee meets
1534, Oct. 24, 1948), an ad interim appointment is the minimum qualification requirements prescribed
permanent. for the position. Otherwise, it would be
encroaching upon the discretion of the appointing
Q: Distinguish between a provisional and a power.(Medalla v. Sto. Tomas, G.R. 94255, May 5,
temporary appointment. 1992)
A: Q: What is the concept of “protest to

TEMPORARY PROVISIONAL appointment”?
APPOINTMENT APPOINTMENT
Issued to a person to a A: Any person who feels aggrieved by the
Issued prior to appointment may file an administrative protest
position needed only for a
authorization of CSC against such appointment. Protests are decided in
limited period
Not to exceed 12 the first instance by the Department Head, subject
Regular position in the to appeal to the CSC.
months/no definite tenure
meantime that no
and is dependent on the
suitable eligible qualify
pleasure of the appointing The protest must be for a cause (i.e. appointee is
for the position
power not qualified; appointee was not the next-in-rank;
Has not qualified in an unsatisfactory reasons given by the appointing
Meets all requirements for appropriate examination authority in making the questioned appointment).
position except civil service but otherwise meets The mere fact that the protestant has the more
eligibility requirements for
impressive resume is not a cause for opposing an
appointments
133
appointment (Aquino v. CSC, G.R. No. 92403, April 4. Education

22, 1992). 5. Suffrage
6. Civil service examination
Q: What is the concept of “revocation” and“recall” 7. Ability to read and write
of appointment? 8. Political affiliation as a rule, it is not a
qualification
A: Where an appointment requires the approval of XPN: in Party-List, Membership in the
the CSC, such appointment may be revoked or Electoral Tribunal, Commission on
withdrawn by the appointing authority anytime appointment
before the approval by the CSC.After an
appointment is completed, the CSC has the power Note: The qualifications for public office are continuing
to recall an appointment initially approved on any requirements and must be possessed not only at the
of the following grounds: time of appointment or election or assumption of
1. Non-compliance with procedures/criteria office but during the officer’s entire tenure. Once any
in merit promotion plan; of the required qualification is lost, his title may be
2. Failure to pass through the selection reasonably challenged. [Frivaldo V. COMELEC, G.R. No.
board; 87193, June 23, 1989; Labo v. COMELEC, G.R. No.
86564 August 1, 1989]
3. Violation of existing collective relative
agreement to promotion;
Q: Who has the power to prescribe qualifications?
4. Violation of CSC laws, rules and
regulations (Debulgado v. CSC, G.R. No.
A: Congress is generally empowered to prescribe
111471, Sept. 26, 1994)
the qualifications for holding public office, provided
it does not exceed thereby its constitutional powers
D. ELIGIBILITY AND QUALIFICATION
or impose conditions of eligibility inconsistent with
REQUIREMENTS
constitutional provisions. (De Leon, Law on Public
Officers 2008 ed.)
Q: What are the requirements for public office?
Q: When is Congress without power to prescribe
A:
qualifications?
1. Eligibility – It is the state or quality of
A:When office is created by the Constitution.
being legally fit or qualified to be chosen.
Congress may have no power to require different
2. Qualification – This refers to the act which
qualifications for constitutional offices other than
a person, before entering upon the
those qualifications specifically set out in the
performance of his duties, is by law
Constitution. Such Constitutional criteria are
required to do such as the taking, and
exclusive. (De Leon, Law on Public Officers 2008 ed.)
often, subscribing and filing of an official
oath, and, in some cases, the giving of an
Q: What is the rule regarding the power of
official bond. It may refer to:
Congress to prescribe disqualifications?
a. Endowments, qualities or attributes
A: In the absence of constitutional inhibition,
which make an individual eligible for
Congress has the same right to provide
public office, (e.g. citizenship); or
disqualifications that it has to provide qualification
b. The act of entering into the
for office.
performance of the functions of a
public office, (i.e. taking oath of
However, Congress may not add disqualification
office).
where the Constitution has provided them in such a
way as to indicate intention that the
Note: These qualifications must be possessed at the
disqualifications provided shall embrace all that are
time of the appointment or election and continuously
for as long as the official relationship continues (Aguila to be permitted. Moreover, when the Constitution
v. Genato, G. R No. L-55151, Mar. 17, 1981). has attached a disqualification to the holding of any
office, Congress cannot remove it under the power
Q: What are the formal requirements of public to prescribe qualifications as to such offices as it
officers? may create. (46 C.J. 936-937)
A: Q: When does the right of the public officer to

1. Citizenship enter in office perfected?
2. Age
3. Residence A: Upon his oath of office, it is deemed perfected.
Only when the public officer has satisfied this
134
POLITICAL LAW TEAM
prerequisite can his right to enter into the position

be considered complete. Until then, he has none at D. Unless otherwise allowed by law or by the
all, and for as long as he has not qualified, the primary functions of his position, no appointive
holdover officer is the rightful occupant. (Lecaroz v. official shall hold any other office or employment in
Sandiganbayan, G.R. No. 130872, Mar. 25, 1999) the Government or any subdivision, agency or
instrumentality thereof, including Government-
E. DISABILITIES AND INHIBITIONS OF PUBLIC owned or controlled corporations or their
OFFICERS subsidiaries.(Art. IX – B, Sec. 7;Flores vs. Drilon,G.R.
No. 104732 June 22, 1993)
Q: State the prohibitions imposed under the 1987
Constitution against the holding of 2 or more E. No member of the armed forces in the active
positions. service shall, at any time, be appointed or
designated in any capacity to a civilian position in
A: the government including GOCCs or any of their
A.Members of Congressshall not: subsidiaries.(Art XVI Sec. 5 par. 4)
1. Appear as counsel before any court,
electoral tribunal, or quasi-judicial and Q: What are the grounds for disqualification to
other administrative bodies; hold office?
2. Shall not be interested in any contract
with, or in any franchise, or special A:
privilege granted by the Government, or 1. Mental or physical incapacity
any subdivision, agency or instrumentality 2. Misconduct or commission of a crime
thereof, including GOCCs, or its 3. Impeachment
subsidiary; 4. Removal or suspension from office
3. Shall not intervene in any matter before 5. Previous tenure of office
any office of the Government for his 6. Consecutive terms exceeding the
pecuniary benefit or where he may be allowable number of terms
called upon to act on account of his office 7. Holding more than one office (except ex
officio)
B. The President, Vice President, Members of the 8. Relationship with the appointing power
Cabinet, and their deputies or assistants, unless (nepotism)
otherwise allowed by the Constitution,shall not: 9. Office newly created or the emoluments
1. Directly or indirectly practice any other of which have been increased (forbidden
profession; office)
2. Participate in any business, or be 10. Being an elective official (Flores v Drilon,
financially interested in any contract with G.R. No. 104732, June 22, 1993)
or in any franchise, or special privilege 11. Losing candidate in the election within 1
granted by the Government, or any year following the date of election
subdivision, agency or instrumentality (prohibitions from office not
thereof, including GOCCs, or its employment); and
subdivisions; shall avoid conflict of 12. Grounds provided for under the local
interest in the conduct of their office government code.
C. Members of the Constitutional Commissionshall Q: State the two classes of office which a member
not: of Congress is disqualified to hold under Article VI,
1. Hold any other office or employment or Section 13 of the constitution.
engage in the practice of any profession
or in the active management or control of A:
any business which in anyway may be 1. Incompatible Office
affected by the functions of his office; 2. Forbidden Office
2. Be financially interested, directly or
Note: See further discussion under Legislative
indirectly, in any contract with, or in any
Department chapter.
franchise, or special privilege granted by
the Government, or any subdivision,
Q: What is the rule against the appointment of
agencies or instrumentalities including
members of the official family of the President?
GOCCs, or their subsidiaries. These shall
also apply to the Ombudsman and his
A: The spouses and relatives by consanguinity or
deputies during his term. th
affinity within the 4 civil degree of the President
135
shall not be appointed as members of the 2. Scholarship or fellowship grant or medical

Constitutional Commissions, Office of the treatment;
Ombudsman, or as Secretaries, Undersecretaries, 3. Travel grants or expenses for travel
chairmen or heads of bureaus or offices, including outside the Philippines (Sec. 7(d), R.A. No.
GOCCs and their subsidiaries during his tenure. 6713)
(Sec. 13, Art. VII, Constitution)
Q: What is meant by “partisan political activity”?
Q: As an exception to the rule against holding 2 or
more positions, which public officers are allowed A: It is an act designed to promote the election or
by the Constitution to hold other positions in the defeat of a particular candidate/s to a public office.
Government? It is also known as “electioneering” (Sec. 79,
Omnibus Election Code).
A: The Vice-President being appointed as a member
of the Cabinet under Section 3, par. (2), Article VII; Q: Can appointive officials engage in partisan
or acting as President in those instances provided political activities?
under Section 7, pars. (2) and (3), Article VII; and,
the Secretary of Justice being ex-officio member of A: No. Officers or employees in the Civil Service
the Judicial and Bar Council by virtue of Section 8 including members of the Armed Forces cannot
(1), Article VIII. Thus, the Supreme Court held in engage in such activity except to vote. They shall
Civil Liberties Union v Executive Secretary (194 not use their official authority or influence to
SCRA 317), thatwhile all other appointive officials in coerce the political activity of any person (Sec. 55,
the Civil Service are allowed to hold other office or Subtitle A, Title I, Book V, 1987 Administrative
employment in the government during their tenure Code).
when such is allowed by law or by the primary
functions of their positions, members of the Note: Officers and employees in the Civil Service can
Cabinet, their deputies and assistants may do so nonetheless express their views on current political
only when expressly authorized by the Constitution issues and mention the names of the candidates they
itself. support.
Q: What are the other prohibitions imposed on Q: What kind of public officers may engage in
public officers? partisan political activities?
A: A:
1. Prohibition against solicitation of gifts 1. Those holding political offices, such as the
(Sec. 7(d), R.A. No. 6713) President of the Philippines;Vice
2. Prohibition against partisan political President of the Philippines;Executive
activities (Sec. 2(4), Art. IX(B), Secretary/Department Secretaries and
Constitution) other Members of the Cabinet;All other
3. Prohibition against engaging in strike elective officials at all levels; and those in
(Social Security System Employees Assn. v. the personal and confidential staff of the
CA, G.R No. 85279, Jul 28,1989). above officials. However, it shall be
4. Restriction against engaging in the unlawful for them to solicit contributions
practice of law (Sec. 90, R.A. No. 7160) from their subordinates or subject them
5. Prohibition against practice of other to any of the acts involving subordinates
professions (Sec. 90, R.A. No. 7160) prohibited in the Election Code.
6. Restriction against engaging in private 2. National, provincial, city and municipal
business (Abeto v. Garces, A.M. No. P-88- elective officials. (Santos v. Yatco, G.R.
269, Dec. 29, 1995) No. L- 16133, Nov. 6, 1959)
7. Restriction against accepting certain
employment (Sec. 7(b), R.A. No. 6713) Q: Describe the extent of the right to self-
organization of employees in the public service?
Q: What kind of gifts or grants may public officers
accept from foreign governments? A: While the Constitution recognizes the right of
public employees to organize, they are prohibited
A: from staging strikes, demonstrations, mass leaves,
1. Gifts of nominal value received as walk-outs and other forms of mass action which
souvenir or mark of courtesy; may result to temporary cessation of work or
disturbance of public service. Their right to self-
136
POLITICAL LAW TEAM
organization is limited only to form unions or to the national or local Govt. is accused of an
associate without including the right to strike. Labor offense committed in relation to his
unions in the government may bargain for better office;
terms and conditions of employment by either 3. Shall not collect any fee for their
petitioning the Congress for better terms and appearance in administrative proceeding
conditions, or negotiating with the appropriate involving the LGU of which he is an
government agencies for the improvement of those official; and
not fixed by law. (SSS Employees Assn. v. CA, G.R 4. May not use property and personnel of
No. 85279, July 28,1989) the Govt., except when defending the
interest of the Govt.
Q: Does the election or appointment of an
attorney to a government office disqualify him Q: Under the Local Government Code, what are
from engaging in the private practice of law? the prohibitions against the practice of other
professions?
A: As a general rule, judges, other officials of the
superior courts, of the office of the Solicitor General A:
and of other Government prosecution offices; the 1. Local Chief Executives (governors, city and
President; Vice-President, and members of the municipal mayors) are prohibited from
cabinet and their deputies or assistants; members practicing their profession
of constitutional commissions; and civil service 2. Sanggunian members may practice their
officers or employees whose duties and profession, engage in any occupation, or
responsibilities require that their entire time be at teach in schools except during session
the disposal of the government are strictly hours
prohibited from engaging in the private practice of 3. Doctors of medicine may practice their
th
law. (Ruben E. Agpalo, Legal Ethics, 6 1997 ed., profession even during official hours of
pp.42 et. seq.) work in cases of emergency provided that
they do not derive monetary
Q: Combo, a lawyer is also a member of the compensation therefrom.
Legislature. Is Combo absolutely prohibited from
engaging the private practice of law? Q: What are the prohibitions under RA 6713 or
Code of Conduct and Ethical Standards for Public
A: No. He is only prohibited from “appearing” as Officials and Employees?
counsel before any court of justice or before the
Electoral Tribunals, or quasi-judicial and other A: Prohibition against financial and material
administrative bodies. The word appearance interest- Directly or indirectly having any financial
includes not only arguing a case before any such or material interest in any transaction requiring the
body but also filing a pleading on behalf of a client approval of their office.
such as filing a motion, plea or answer. Neither is
his name allowed to appear in such pleadings by Prohibition against outside employment and other
itself or as part of a firm name under the signature activities related thereto-
of another qualified lawyer. (Ruben E. Agpalo,
Administrative Law, Law on Public Officers and 1. Owning, controlling, managing or
Election Law, 2005 ed., p. 410) accepting employment as officer,
employee, consultant, counsel, broker,
Q: Under the Local Government Code, can the agent, trustee or nominee in any private
members of Sanggunian engage in the practice of enterprise regulated, supervised or
law? licensed by their office.
2. Engaging in the private practice of their
A: profession
GR: Yes. 3. Recommending any person to any
position in any private enterprise which
XPNs: has a regular or pending official
1. Cannot appear as counsel in any civil case transaction with their office. These
where in a local government unit or any prohibitions shall continue to apply for a
office, agency or instrumentality of the period of one year after resignation,
Govt. is the adverse party; retirement, or separation from public
2. Cannot appear as counsel in any criminal office, except in the case of
case wherein an officer or employee of subparagraph (b) (2) above, but the
137
professional concerned cannot practice otherwise provided by law

his profession in connection with any Q: What is the Doctrine of Ratification? When
matter before the office he used to be does it not apply?
with, in which case the one-year
prohibition shall likewise apply. A: It provides that, although the acts of a public
office may not be binding on the State because he
F. POWERS AND DUTIES OF PUBLIC OFFICERS has exercised his powers defectively, his acts may
be ratified.
Q: What powers may be exercised by public
officers? The doctrine does not apply where:
1. There is a want of power in the public officer
A: to perform the original act.
1. Expressly conferred upon him by the Act 2. An act which was absolutely void at the time it
appointing him; was done.
2. Expressly annexed to the office by law; 3. If the principal himself could not lawfully have
3. Attached to the office by common law as done the act, or
incidents to it. 4. If it could not have lawfully been done by
anyone. (De Leon, Law on Public Officers 2008
Note: In general, the powers and duties of public ed.)
officers are prescribed by the Constitution or by
statute or both. Public officers have only those powers Q: What are the duties of public officers?
expressly granted or necessarily implied by law. If
broader powers are desirable, they must be conferred A: To:
by the proper authority. They cannot merely be 1. be accountable to the people;
assumed by administrative officers, nor can they be
2. serve the people with utmost
created by the courts in the proper exercise of their
responsibility, integrity, and efficiency;
judicial functions. (63A Am. Jur. 2d 883)
3. act with patriotism and justice and to lead
modest lives;
Q: What is the Doctrine of Necessary Implication?
4. submit a declaration under oath of his
assets, liabilities, and net worth upon
A: All powers necessary for the effective exercise of
assumption of office and as often
the express powers are deemed impliedly granted.
thereafter as may be required by law;
(Pimentel v. COMELEC, G.R. No. L-53581, Dec. 19,
5. owe the State and the Constitution
1980)
allegiance at all times.
Q: Is there any protection in the exercise of this
Q: What are the reasons for the imposition of the
power?
duty to disclose financial records?
A: Yes. A public officer has some measures of
A: To:
immunity and he would not incur liabilities
provided he does an act within the scope of his 1. maintain public confidence in government
authority and in good faith. (Sanders v. Veridiano and in public officials and employees;
II,G.R. No. L-46930, June 10, 1988) 2. avoid conflicts of interest from arising;
3. to deter corruption;
4. provide the citizens with information
Q: What are the kinds of duties of public officers? concerning a public officer’s financial
affairs and thus enable them to better
A: judge his integrity and fitness for office
MINISTERIAL DISCRETIONARY (De Leon, Law on Public Officers 2008 ed.)
Public officer may do
Discharge is imperative whichever way he wants G. RIGHTS OF PUBLIC OFFICCERS
and it must be done by provided it is in
the public officer accordance with law and Q: What are the rights and privileges of public
not whimsical officers?
Cannot be compelled by
Can be compelled by mandamus except when A:
mandamus there is grave abuse of 1. Right to office
discretion 2. Right to compensation/salary
Can be delegated Cannot be delegated unless 3. Right to appointments
138
POLITICAL LAW TEAM
4. Right to vacation and sick leave S. De Leon, 2008 ed., p. 181)

5. Right to maternity leave Q: Can public officials avail of the services of the
6. Right to retirement pay Solicitor General?
7. Right to longevity pay
8. Right to pension A: If the public official is sued for damages arising
9. Right to self-organization out of a felony for his own account, the State is not
10. Right to protection of liable and the SolGen is not authorized to
temporaryemployees. represent him therefore. The SolGen may only do
so in suits for damages arising not from a crime
Q: Can the de jure officer recover the salary but from the performance of a public officer’s
received by the de facto officer? duties. (Vital- Gozon v. Court of Appeals, G.R No.
101428, Aug. 5, 1992)
A: Yes. As a rule, the rightful incumbent of the
public office may recover from a de facto officer the H. LIABILITIES OF PUBLIC OFFICERS
salaries received by the latter during the time of the
latter's wrongful tenure even though he entered 1. Preventive Suspension and Back Salaries
into the office in good faith and under a colorable 2. Illegal Dismissal, Reinstatement and Back
title. The de facto officer takes the salaries at his Salaries
risks and must therefore account to the de jure
officer for the amounts he received. However, Q: What are the Liabilities of a Public Officer?
where there is no de jure officer, a de facto officer
shall be entitled to the salaries and emoluments A:
accruing during the period when he actually GR: A Public officer is not liable for injuries
discharged the duties.(Monroy v. CA, G.R. No. L- sustained by another due to official acts done
23258, Jul 1, 1967) within the scope of authority
Note: The de facto doctrine has been formulated, not XPNs:

for the protection of the de facto officer principally, 1. Bad Faith
but rather for the protection of the public and
2. Malice
individuals who get involved in the official acts of
3. Negligence
persons discharging the duties of an office without
being lawful officers.
4. Death or injury to persons or damage to
property
Q: May the salary of a public officer or employee
be subject to garnishment? Why? Q: State the three-fold responsibility/liability of
public officers.
A: No. It may not, by garnishment, attachment, or
order of execution, be seized before being paid to A:
him, and appropriated for the payment of his debts, 1. Criminal liability
because of the following reasons: 2. Civil liability
1. While it is still in the hands of the 3. Administrative liability
disbursing officer, it belongs to the
government; Q: Are public officers liable for injuries sustained
2. Public policy forbids such practice since it by another in the performance of his official acts
would be fatal to the public service; and done within the scope of his authority?
3. It would be tantamount to a suit against
the State in its own court, which is A:
prohibited except with its consent. (De GR: No.
Leon, Law on Public Officers 2008 ed.)
XPNs:
Q: State the rule regarding prohibition against 1. Otherwise provided by law;
diminution of salary. 2. Statutory liability under the Civil Code
(Articles 27, 32, & 34);
A: Under the Constitution, Congress is given the 3. Presence of bad faith, malice, or
power to fix the salaries of certain constitutional negligence;
officers, but after it has done so, it may not reduce 4. Liability on contracts entered into in
the salary of any of them during his term or tenure. excess or without authority;
This provision is intended to secure their 5. Liability on tort if the public officer acted
independence.(The Law on Public officers by Hector beyond the limits of authority and there is
139
bad faith (United States of America v.

Reyes, G.R. No. 79253, Mar. 1, 1993). Q: What is the doctrine of Command
Responsibility?
Note: Absent of any showing of bad faith or malice,
every public official is entitled to the presumption of A: This doctrine provides that a superior officer is
good faith as well as regularity in the performance or liable for the acts of his subordinate in the following
discharge of official duties. [Blaquera v. Alcala, G.R. instances:
No. 109406, Sept. 11, 1998 1. He negligently or willfully employs or
retains unfit or incompetent
Q: The RTC of Cadiz declared void a resolution that subordinates;
reorganized the city government and effectively 2. He negligently or willfully fails to require
purged the city government of Cadiz of all his subordinates to conform to prescribed
employees who opposed the mayor politically or regulations;
disagreed with him in his policies. The RTC ordered 3. He negligently or carelessly oversees the
the payment of moral damages to the workers, business of the office as to give his
but it was not clear if the payment was to be made subordinates the opportunity for default;
by the city government or by Mayor Valera, in his 4. He directed, cooperated, or authorized
personal capacity. The Court held that Valera is the wrongful act;
personally liable to pay moral damages. 5. The law expressly makes him liable.
(Sec.38-39, Chap. 9, Book I, E.O. No. 292,
Is Valera personally liable to pay moral damages? Administrative Code of 1987)
A: Settled is the principle that a public official may Q: What are the grounds for the discipline of
be liable in his personal capacity for whatever public officers?
damage he may have caused by his act done with
malice and in bad faith or beyond the scope of his A:
authority or jurisdiction. In the complaint, the 1. Dishonesty
employees stated that, “due to the illegal acts of 2. Oppression
the Defendant, Plaintiffs suffered mental torture 3. Neglect of duty
and anguish, sleepless nights, wounded feelings, 4. Misconduct
besmirched reputation and social humiliation.” The 5. Disgraceful and immoral conduct
State can never be the author of illegal acts. The 6. Discourtesy in the course of official duties
complaint merely identified Valera as the mayor of 7. Inefficiency and incompetence in the
Cadiz City. It did not categorically state that Valera performance of official duties
was being sued in his official capacity. The 8. Conviction of a crime involving moral
identification and mention of Valera as the mayor turpitude
of Cadiz City did not automatically transform the 9. Being notoriously undesirable
action into one against Valera in his official 10. Falsification of official documents
capacity. The allegations in the complaint 11. Habitual drunkenness
determine the nature of the cause of action. (Valera 12. Gambling
vs. Revalez, G.R. No. 171705, July 29, 2010) 13. Refusal to perform official duty or render
overtime service
Q: What are the liabilities of ministerial officers? 14. Physical or mental incapacity due to
immoral or vicious habits
A: 15. Willful refusal to pay just debts or willful
1. Non-feasance – Neglect to perform an act failure to pay taxes
which is the officer's legal obligation to
perform. Q: What is the concept of security of tenure?
2. Misfeasance – The failure to observe the
proper degree of care, skill, and diligence A: It means that no officer or employee in the civil
required in the performance of official service shall be suspended or dismissed except for a
duty; and cause provided by law and after due process or
3. Malfeasance – Performance of an act after he shall have been given the opportunity to
which the officer had no legal right to defend himself.
perform.
Note: Once an appointment is issued and completed
Note: The plaintiff must show: that he has suffered an and the appointee assumes the position, he acquires a
injury, and that it results from a breach of duty which legal right, not merely an equitable right to the
the officer owed to him.
140
POLITICAL LAW TEAM
position. (Lumigued v. Exevea, G.R. No. 117565, Nov.

18, 1997) Note: When a public officer is charged with violation of
the Anti-Graft and Corrupt Practices Act or R. A No.
Regardless of the characterization of the position held 3019, a pre-suspension hearing is required solely to
by a government employee covered by civil service determine the applicability of such law and for the
rules, be it career or non-career position, such accused be given a fair and adequate opportunity to
employee may not be removed without just cause challenge the validity of the criminal proceedings
(Jocom v. Regalado, G.R. No. 77373,Aug. 22, 1991). against him. This may be done through various
pleadings. (Torres v. Garchitorena, G.R. No. 153666,
Q: Discuss the two legal ramifications of Dec. 27, 2002)
constitutional guaranty of security of tenure in the
civil service. Q: What are the periods for preventive
A: In Tria v. Chairman Patricia Sto. Tomas, et al., the suspension? Under what law are they imposable?
Supreme Court held that the prohibition against
suspension or dismissal of an officer or employee of A:
the Civil Service “except for cause provided by law” 1. For administrative cases:
is “a guaranty of both procedural and substantive a. Civil Service Law – 90 days
due process.” “Not only must removal or b. Local Government Code (R.A. 7160) –
suspension be in accordance with the procedure i. Sec.85: 60 days for appointive
prescribed by law, but also they can only be made officials ( suspension to be
on the basis of a valid cause provided by law.” imposed by the local chief
[Land Bank of the Philippines vs. Rowena O. executive)
Paden, G.R. No. 157607, July 7, 2009] ii. Sec. 63: 60 or 90 days for
elective officials
Q: In what instance may a transfer be considered c. Ombudsman Act – 6 months
violative of employee’s security of tenure?
2. For criminal cases: Anti-Graft and Corrupt
A: When the transfer is a preliminary step toward Practices Act (R.A. 3019) – 90 days by
his removal, or a scheme to lure him away from his analogy.(Gonzaga vs. Sandiganbayan G.R.
permanent position, or when it is designed to No. 96131 September 6, 1991)
indirectly terminate his service, or force his
resignation. Such a transfer would in effect Note: Service of preventive suspension will not be
circumvent the provision which safeguards the credited to the penalty of suspension after having
tenure of office of those who are in the Civil been found guilty because they are of different
Service. (CSC v. PACHEO, G.R. No. 178021, Jan. 25, character. If however the preventive suspension is
2012) indefinite wherein his term is about to expire and
suspension is not lifted such will be considered
unconstitutional for being violated of due process of
Note:Acceptance of a temporary appointment or
assignment without reservation or upon one’s own law. (Layno, Sr. v. Sandiganbayan, G.R. No. L-65848,
May 24, 1985)
volition is deemed waiver of security of tenure
(Palmera v. Civil Service Commission, G.R. No. 110168,
Aug.4, 1994). Q: What are the distinctions between preventive
suspension pending investigation and pending
Q: What is the nature of preventive suspension? appeal?
A: Preventive suspension is not a penalty by itself; it A:

is merely a measure of precaution so that the PENDING
PENDING APPEAL
employee who is charged may be separated from INVESTIGATION
the scene of his alleged misfeasance while the same
Not a penalty but only a
is being investigated, to prevent him from using his
means of enabling the
position or office to influence prospective witnesses
disciplinary authority an Punitive in character
or tamper with the records which may be vital in
unhampered
the prosecution of the case against him. (Beja v. CA,
investigation
G.R. No. 91749, Mar. 31, 1992)
After the lapse of 90 If exonerated, he should
It can be ordered even without a hearing because days, the law provides be reinstated with full
this is only preliminary step in an administrative that he be automatically pay for the period of
investigation. (Alonzo v. Capulong, et al., G.R. No. reinstated suspension
110590, May 10, 1995)
141
PENDING fine in an amount not exceeding thirty

PENDING APPEAL days salary or reprimand are final and
INVESTIGATION
unappealable.
If during the appeal he
remains suspended and Note: Only the respondent in the administrative
the penalty imposed is disciplinary case, not the complainant, can appeal to
During such preventive only reprimand, the the CSC from an adverse decision. The complainant in
suspension, the suspension pending an administrative disciplinary case is only a witness,
employee is not entitled appeal becomes illegal and as such, the latter cannot be considered as an
to payment of salaries and he is entitled to aggrieved party entitled to appeal from an adverse
back salary decision. (Mendez v. Civil Service Commission, G. R. No.
corresponding to the 95575, Dec. 23, 1991)
period of suspension
Q: Is appeal available in administrative disciplinary
cases?
Q: Is a public officer entitled to back wages during
his suspension pending appeal when the result of
A: It depends on the penalty imposed:
the decision from such appeal does not amount to
complete exoneration but carries with it a certain
1. Appeal is available if the penalty is:
number of days of suspension?
a. Demotion
b. Dismissal, or
A:
c. Suspension for more than 30 days or
GR: No. Although entitled to reinstatement, he
fine equivalent to more than 30 day
is not entitled to back wages during such
salary (P.D. 807, Sec.37 par [a]).
suspension pending appeal. Only one who is
completely exonerated, or merely
2. Appeal is not available if the penalty is:
reprimanded is entitled to such back wages.
a. Suspension for not more than 30
(Sec. of Education, etc. v. CA. G.R. No. 128559,
days
Oct. 4, 2000)
b. Fine not more than 30 day salary
c. Censure
XPN: 2 conditions before an employee may be
d. Reprimand
entitled to back salaries:
e. Admonition
1) The employee must be found innocent of
the charges and Note: In the second case, the decision becomes final
2) His suspension must be unjustified or the and executory by express provision of law.
official was innocent (Civil Service
Commission v. Cruz GR No. 187858, Aug. I. IMMUNITY OF PUBLIC OFFICERS
9,2011)
Q: What is Immunity?
Q: What is a disciplinary action?
A: An exemption that a person or entity enjoys
A: It is a proceeding which seeks the imposition of
from the normal operation of the law such as a
disciplinary sanction against, or the dismissal or
legal duty or liability, either criminal or civil.
suspension of, a public officer or employee on any
of the grounds prescribed by law after due hearing.
Q: Are public officers immune from liabilities?
(Ruben E. Agpalo, Administrative Law, Law on
Public Officers and Election Law, 2005 ed., p 416)
A: It is well settled as a general rule that public
officers of the government, in the performance of
Q: Are decisions in a disciplinary action
their public functions, are not liable to third
appealable?
persons, either for the misfeasances or positive
wrongs, or for the nonfeasances, negligences, or
A:
omissions of duty of their official subordinates.
GR: Decisions are initially appealable to the
(McCarthy vs. Aldanese, G.R. No. L-19715, March 5,
department heads and then to the CSC.
1923)
XPNs: Decisions in a disciplinary action which:
Q: What is the rationale behind official immunity?
1. exonerate the respondent; or
2. impose upon him the penalty of
A: The promotion of fearless, vigorous, and
suspension for not more than 30 days or a
effective administration of policies of government.
142
POLITICAL LAW TEAM
The threat of suit could also deter competent its exercise, wherein such ineligibility, want of
people from accepting public office. (De Leon, Law power, or defect being unknown to the public.
on Public Officers 2008 ed.)
Q: What are the effects of the acts of de facto
Q: What is the basis for this immunity? officers?
A: The immunity of public officers from liability for A:

the non-feasances, negligence or omissions of duty 1. The lawful acts, so far as the rights of
of their official subordinates and even for the third persons are concerned are, if done
latter’s misfeasances or positive wrongs rests upon within the scope and by the apparent
obvious considerations of public policy, the authority of the office, considered valid
necessities of the public service and the perplexities and binding
and embarrassments of a contrary doctrine.
(Alberto V. Reyes, Wilfredo B. Domo-Ong and 2. The de facto officer cannot benefit from
Herminio C. Principio vs Rural Bank of San Miguel his own status because public policy
(Bulacan), INC., G.R. No. 154499, Feb. 27, 2004) demands that unlawful assumption of
public office be discouraged
Q: When is this doctrine applicable?
Note: The general rule is that a de facto
A: This doctrine is applicable only whenever a officer cannot claim salary and other
public officer is in the performance of his public compensations for services rendered by him
functions. On the other hand, this doctrine does not as such.
apply whenever a public officer acts outside the
scope of his public functions. However, the officer may retain salaries
collected by him for services rendered in
good faith when there is no de jure officer
Note: A public officer enjoys only qualified, NOT
absolute immunity. claiming the office.
Q: Distinguish official immunity from State 3. The de facto officer is subject to the same
immunity. liabilities imposed on the de jure officer in
the discharge of official duties, in addition
A: Immunity of public officials is a more limited to whatever special damages may be due
principle than governmental immunity, since its from him because of his unlawful
purpose is not directly to protect the sovereign, but assumption of office
rather to do so only collaterally, by protecting the
public official in the performance of his government Q: How is a challenge to a de facto officer made?
function, while, the doctrine of State immunity
principally rested upon the tenuous ground that the A:
king could do no wrong. It served to protect the 1. The incumbency may not be challenged
impersonal body politic or government itself from collaterally or in an action to which the de
tort liability. (The Law on Public officers by Hector facto officer is not a party
S. De Leon, 2008 ed, pp. 259-260) 2. The challenge must be made in a direct
proceeding where title to the office will
J. De Facto Officers be the principal issue
3. The authorized proceeding is quo
Q: Who is a de jure officer? warranto either by the Solicitor General in
the name of the Republic or by any
A: A de jure Officer is one who is in all respects person claiming title to the office
legally appointed or elected and qualified to
exercise the office. Q: Differentiate a de jure officer from a de facto
officer.
Q: Who is a de facto officer?
A:
A: A de facto officer is one who assumed office DE JURE OFFICER DE FACTO OFFICER
under the color of a known appointment or election Has possession and
but which appointment or election is void for performs the duties under a
Has lawful title to
reasons that the officer was not eligible, or that colorable title without
the office
there was want of power in the electing body, or being technically qualified
that there was some other defect or irregularity in in all points of law to act
143
Holding of office Holding of office rests on and allowances will result in making the
rests on right reputation government pay a second time. (Mechem,
Officer cannot be A Treatise on the Law of Public Offices
removed through a Officer may be ousted in a and Public Officers, [1890] pp. 222-223.)
direct direct proceeding against 2. BART is not required to refund to the
proceeding(quo him government the salaries and allowances
warranto) he received. As a de facto officer, he is
entitled to the salaries and allowances
Q: What are the differences between a de facto because he rendered services during his
officer and a mere usurper? incumbency.
3. The bills which BART alone authored and
A: were approved by the House of
DE FACTO OFFICER USURPER Representatives are valid because he was
a de facto officer during his incumbency.
Takes possession of an The acts of a de facto officer are valid
Complies with the 3
office and does official insofar as the public is concerned. (People
elements of a de jure
acts without any actual v. Garcia, G.R. No. 126252, Aug. 30, 1999)
officer
or apparent authority
Has color of right or title Has neither color of K. Termination of Official Relation
to office right or title to office
Q: What are the modes of terminating official
Acts are rendered valid as relationships?
to the public until his title Acts are absolutely void
is adjudged insufficient A:
Entitled to compensation Not entitled to 1. Expiration of term or tenure
for services rendered compensation 2. Reaching the age limit for retirement
3. Resignation
4. Recall
Q: AVE ran for Congressman of QU province. 5. Removal
However, his opponent, BART, was the one 6. Abandonment
proclaimed as the winner by the COMELEC. AVE 7. Acceptance of an incompatible office
filed seasonably a protest before HRET (House of 8. Abolition of office
Representatives Electoral Tribunal). After two 9. Prescription of the right to office
years, HRET reversed the COMELEC’s decision and 10. Impeachment
AVE was proclaimed finally as the duly elected 11. Death
Congressman. Thus, he had only one year to serve 12. Failure to assume office
in Congress. 13. Conviction of a crime
14. Filing for a certificate of candidacy
1. Can AVE collect salaries and allowances
from the government for the first two Q: What are the policies embodied in the
years of his term as Congressman? constitutional provision barring elective local
2. Should BART refund to the government officials, with the exception of barangay officials,
the salaries and allowances he had from serving more than three consecutive terms?
received as Congressman?
3. What will happen to the bills that BART A: To prevent the establishment of political
alone authored and were approved by dynasties is not the only policy embodied in the
the House of Representatives while he constitutional provision in question (barring
was seated as Congressman? Reason and elective local officials, with the exception of
explain briefly. barangay officials, from serving more than three
consecutive terms). The other policy is that of
A: enhancing the freedom of choice of the people. To
1. AVE cannot collect salaries and consider, therefore, only stay in office regardless of
allowances from the government for the how the official concerned came to that office –
first two years of his term, because in the whether by election or by succession by operation
meanwhile BART collected the salaries of law – would be to disregard one of the purposes
and allowances. BART was a de facto of the constitutional provision in question. (Borja,
officer while he was in possession of the Jr. v. COMELEC, G.R. No. 133495, Sept. 3, 1998)
office. To allow AVE to collect the salaries
144
POLITICAL LAW TEAM
Q: Suppose “DD” is a vice-mayor who becomes considered as an interruption in the continuity of

mayor by reason of the death of the incumbent. his service for the full term for which he was
Six months before the next election, he resigns elected. (Bolos v COMELEC, G.R. No. 184082, Mar.
and is twice elected thereafter. Can “DD” run 17, 2009)
again for mayor in the next election?
Q: Pollen was elected City Councilor for three
A: Yes, because although he has already first consecutive terms. During her last term, the
served as mayor by succession and subsequently Sandiganbayan preventively suspended her for 90
resigned from office before the full term expired, days in relation with a criminal case she then
he has not actually served three full terms in all for faced. The Court, however, subsequently lifted the
the purpose of applying the term limit. Under Art. suspension order; hence she resumed performing
X, Sec. 8, voluntary renunciation of the office is not her functions and finished her term. She filed her
considered as an interruption in the continuity of Certificate of Candidacy for the same position. SA
his service for the full term only if the term is one sought to deny due course to Pollen's COC on the
“for which he was elected.” Since “DD” is only ground that she had been elected and she served
completing the service of the term for which the for three terms. Does preventive suspension of an
deceased and not he was elected, “DD” cannot be elected local official an interruption of the three-
considered to have completed one term. His term limit rule?
resignation constitutes an interruption of the full
term. A: No. The intent of the three-term limit rule
demands that preventive suspension should not be
Q: The case of Vice Mayor Lexie who becomes considered an interruption that allows an elective
mayor by succession involves a total failure of the official's stay in office beyond three terms. A
two conditions to concur for the purpose of preventive suspension cannot simply be a term
applying Art. X, Sec. 8. Suppose she is twice interruption because the suspended official
elected after that term, is she qualified to run continues to stay in the office although he is barred
again in the next election? from exercising his functions and prerogatives of
the office within the suspension period. The best
A: Yes, because she was not elected to the office of indicator of the suspended official's continuity in
mayor in the first term but simply found herself office is the absence of a permanent replacement
thrust into it by operation of law. Neither had she and the lack of authority to appoint one since no
served the full term because she only continued the vacancy exists. (Aldovino v. COMELEC, G.R. No.
service, interrupted by the death, of the deceased 184836, Dec. 23, 2009)
mayor. (Borja, Jr. v. COMELEC, G.R. No. 133495,
Sept. 3, 1998) Q: What is the age limit for retirement?
Q: Hero, an elected Punong Barangay, ran for A:

Municipal Councilor while serving his last term as 1. For members of the judiciary – 70 y.o.
the PB. He won and later assumed office and 2. Gov't officers and employees – 65 y.o.
served the full term of the Sanggunian Bayan. 3. Optional retirement – must have
After serving his term as Municipal Councilor, he rendered at least 20 service years
filed his Certificate of Candidacy for PB. His
opponent filed a Petition for Disqualification on Q: What is resignation?
the ground the he had already served the three-
term limit. Does the assumption of office of Hero A: It is the act of giving up or declining a public
as Municipal Councilor considered as a voluntary office and renouncing the further right to use such
renunciation of the Office of PB so that he is office. It must be in writing and accepted by the
deemed to have fully served his third term as PB accepting authority as provided for by law.
warranting his disqualification from running for
the position of PB? Q: Who are the accepting authorities for
resignation?
A: Yes. Hero was serving his third term as PB when
he ran for SB member and, upon winning, assumed A:
the position of SB member, thus, voluntarily 1. For appointedofficers the tender of
relinquishing his office as PB which the Court deems resignation must be given to the
a voluntary renunciation of said office. Under Sec.8 appointing authority.
of Art X of the Constitution, voluntary renunciation
of the office for any length of time shall not be
145
2. For elected officers, tender to officer

authorized by law to call an election to fill A: It is the voluntary relinquishment of an office by
the vacancy. The following authorized the holder with the intention of terminating his
officers are: possession and control thereof. (Words and
a. Respective chambers – For members Phrases, Vol. 1, p. 127, citing Board of Com'rs of
of Congress; Dearbon County v Droege, Ind. App., 66 N.E. 2d 134,
b. President – For governors, vice- 138)
governors, mayors and vice-mayors
of highly urbanized cities and Q: Does the acceptance of an incompatible office
independent component cities; pertain to its physical impossibility or its nature?
c. Provincial governor – For municipal
mayors and vice-mayors, city mayors A: It refers to the nature and relation of the two
and vice-mayors of component offices to each other, they should not be held by
cities; one person from the contrariety and antagonism
d. Sanggunian concerned – For which would result in the attempt by one person to
sanggunian members; faithfully and impartially discharge the duties of
e. Municipal/city mayors – For one, toward the incumbent of the other. (Treatise
barangay officials. on the Law of Public Offices and Officers,
Mechem,1890 ed.)
Q: What is courtesy resignation?
Q: Does the acceptance of an incompatible office
A: Itcannot properly be interpreted as resignation in ipso facto vacate the other?
the legal sense for it is not necessarily a reflection
of a public official's intention to surrender his A: GR: Yes.
position. Rather, it manifests his submission to the
will of the political authority and the appointing XPN: Where such acceptance is authorized by
power. (Ortiz V. COMELEC, G.R. No. 78957 June 28, law.
1988)
Notes:
Q: What is removal? 1. It is contrary to the policy of the law that
the same individual should undertake to
A: Forcible and permanent separation of the perform inconsistent and incompatible
incumbent from office before the expiration of the duties. He who, while occupying one
public officer's term. (Feria, Jr.. v. Mison, G.R. No. office, accepts another incompatible
8196, August 8, 1989) with the first, ipso facto, absolutely
vacates the first office.
Q: What is recall?
2. That the second office is inferior to the
first doesnot not affect the rule.
A: It is an electoral mode of removal employed
directly by the people themselves through the Q: What is the prescriptive period for petitions for
exercise of their right of suffrage. It is a political reinstatement or recovery of public office?
question not subject to judicial review. It is a
political question that has to be decided by the A: It must be instituted within one (1) year from the
people in their sovereign capacity. (Evardone v. date of unlawful removal from the office.
COMELEC, G.R. No. 94010, Dec. 2, 1991)
Such period may be extended on grounds of equity.
Q: What are the limitations on recall?
Q: What is the period provided to take the oath of
A: office to avoid failure to assume office?
1. An elective official can be subjected to
recall only once A: Failure to take the oath of office within six (6)
2. No recall shall take place within one (1) months from proclamation of election shall cause
year from the assumption of office or one the vacancy of the office unless such failure is for a
year immediately preceding a regular cause beyond his control. (Sec. 11 B.P. 881)
local election.
(Section 74 (b) of Republic Act No. 7160) Q: When does conviction by final judgment
automatically terminate official relationship?
Q: What is abandonment?
146
POLITICAL LAW TEAM
A: When the penalty imposed carries with it the 1. Competitive positions – according to merit
accessory penalty of disqualification. and fitness to be determined by
competitive examinations, as far as
Q: Will the grant of plenary pardon restore the practicable.
public office to the officer convicted?
2. Non-competitive positions – do not have
A: No. Although a plenary pardon extinguishes the to take into account merit and fitness.No
accessory penalty of disqualification, she is not need for competitive examinations.
entitled to an automatic reinstatement on the basis It has 3 kinds:
of the absolute pardon granted to her but must a. Policy-determining – tasked to
secure an appointment to her former position and formulate a method of action for the
that, notwithstanding said absolute pardon, she is government or any of its
liable for the civil liability concomitant to her subdivisions.
previous conviction. (Monsanto v. Factoran, Jr. G.R. b. Primarily confidential – duties are
No. 78239 February 9, 1989) not merely clerical but devolve upon
the head of an office, which, by
L. The Civil Service reason of his numerous duties,
delegates his duties to others, the
Q: Describe the Civil Service Commission. performance of which requires skill,
judgment, trust and confidence.
A: The Civil Service Commission (CSC) is the central c. Highly technical – requires technical
personnel agency of the Philippine government. skill or training in the highest degree
One of the three independent constitutional
commissions with adjudicative responsibility in the
national government structure, it is also tasked to Notes:
render final arbitration on disputes and personnel 1. The test to determine whether
actions on Civil Service matters. The Commission is the position is non-competitive is
composed of a Chairman and two Commissioners the nature of the responsibilities,
appointed by the President for a term of 7 years not the description given to it.
2. The Constitution does not exempt
without reappointment and may be removed only
the above-given positions from
by impeachment (Cruz, Law on Public Officers)
the operation of the principle that
“no officer or employee of
1. Scope the civil service shall be removed
or suspended except for cause
Q: What is the scope of civil service? provided by law.”
A: The civil service embraces all branches, Q: What test is applied to determine whether a
subdivisions, instrumentalities, and agencies of the particular position is highly confidential?
Government, including GOCCs with original
charters.(Sec. 2(1), Art. IX-B, 1987 Const.) A: Proximity rule.The occupant of a particular
position could be considered a confidential
employee if the predominant reason why he was
2. Appointments to the Civil Service chosen by the appointing authority was the latter’s
belief that he can share a close intimate
relationship with the occupant which ensures
Q: How are appointments to civil service made? freedom of discussion without fear of
embarrassment or misgivings of possible betrayals
A: Appointments in the civil service shall be made of personal trust and confidential matters of State.
only according to merit and fitness to be (De los Santos v. Mallare, G.R. No. L-3881, Aug. 31,
determined, as far as practicable, and, except to 1950)
positions which are policy-determining, primarily
confidential, or highly technical, by competitive Q:What is the nature of an appointment?
examination. (Sec. 2(2), Art. IX-B, 1987 Const.)
A: Appointment is an essentially discretionary
Q: On the basis of appointment, what are the two power and must be performed by the officer in
principal groups of position in the Civil Service? which it is vested according to his best lights, the
only condition being that the appointee should
A: possess the qualifications required by law. If he
147
does, then the appointment cannot be faulted on

the ground that there are others better qualified Q: What characterizes security of tenure?
who should have been preferred. This is a political
question involving considerations of wisdom which A: It is the nature of the appointment that
only the appointing authority can decide. (Luego v. characterizes security of tenure and not the nature
CSC, G.R. No. L-69137, Aug. 5, 1986) of one’s duties or functions. Where the
appointment is permanent, it is protected by the
Q:What characterizes the career service and what security of tenure provision. But if it is temporary or
are included therein? in an acting capacity, which can be terminated at
any time, the officer cannot invoke the security of
A: Under Sec. 7, Chapter 2, Title 1, Book V of the tenure.
Administrative Code of 1987, the career service is
characterized by: Note: The holder of a temporary appointment cannot
1. Entrance based on merit and fitness to be claim a vested right to the station to which assigned,
determined as far as practicable by nor to security of tenure thereat. Thus, he may be
competitive examination or based on reassigned to any place or station. (Teotico v. Agda,
highly technical qualification; G.R. No. 87437, May 29, 1991)
2. Opportunity for advancement to higher
career position; and Q: When does security of tenure attach?
3. Security of tenure.
A: It attaches once an appointment is issued and
The career service includes: the moment the appointee assumes a position in
1. Open career position for appointment to the civil service under a completed appointment, he
which prior qualification in an appropriate acquires a legal, not merely equitable, right (to the
examination is required; position) which is protected not only by statute, but
2. Closed career positions which are also by the constitution, and cannot be taken away
scientific or highly technical in nature; from him either by revocation of the appointment,
3. Positions in the career executive service; or by removal, except for cause, and with previous
4. Career officers other than those in the notice and hearing. (Aquino v. CSC, G.R. No. 92403,
career executive service, who are April 22, 1992)
appointed by the President;
5. Commissioned officers and enlisted men Q: What is legal cause?
of the Armed Forces;
6. Personnel of GOCCs, whether performing A: It is a cause related to and affects the
governmental or proprietary functions, administration of office and must be substantial -
who do not fall under the non-career directly affects the rights and interests of the
service; and public.
7. Permanent laborers, whether skilled,
semi-skilled, or unskilled. Q: Discuss the security of tenure for non-
competitive positions.
Q: Who may be appointed in the civil service?
A:
A: Whoever fulfills all the qualifications prescribed 1. Primarily confidential officers and
by law for a particular position may be appointed employees hold office only for so long as
therein. confidence in them remains. If there is
genuine loss of confidence, there is no
Note: The CSC cannot disapprove an appointment just removal, but merely the expiration of the
because another person is better qualified, as long as term of office.
the appointee is himself qualified. It cannot add 2. Non-career service officers and
qualifications other than those provided by law. employees do not enjoy security of
(Cortez v. CSC, G.R. No. 92673, March 13, 1991) tenure.
3. Political appointees in the foreign service
Q: What does the security of tenure of officers or possess tenure coterminous with that of
employees of the civil service guarantee? the appointing authority or subject to his
pleasure.
A: Officers or employees of the Civil Service cannot
be removed or suspended except for cause Note: One must be validly appointed to enjoy security
provided by law. It guarantees both procedural and of tenure. Thus, one who is not appointed by the
substantive due process. (Sec. 32, R.A. 2260)
148
POLITICAL LAW TEAM
proper appointing authority does not acquire security In the light of the instant controversy, the Court's
of tenure. view is that the greater public interest is served if
the position of a corporate secretary is classified as
Q:Javier was first employed as private secretary in primarily confidential in nature. (CSC v. Javier, G.R.
the GSIS in 1960 on a “confidential” status. In No. 173264, Feb. 22, 2008)
1962 Javier was promoted to Tabulating
Equipment Operator with “permanent” status. In Q: What is Reorganization?
1986, she was appointed corporate secretary of
the Board of Trustees (BOT) of the corporation. In A: Reorganization involves the reduction of
2001, she opted for early retirement. In 2002, personnel, consolidation of offices, or abolition
Javier, who was 64 years old at the time, was thereof by reason of economy or redundancy of
reappointed by GSIS President (with approval of functions. It alters the existing structure of
BOT) as corporate secretary. The BOT classified government offices or the units therein, including
her appointment as “confidential in nature and the lines of control, authority and responsibility
the tenure of office is at the pleasure of the between them to make the bureaucracy more
Board.” responsive to the needs of the public clientele as
authorized by law. (Pan v. Pena GR. No. 174244,
On October 10, 2002, CSC issued a resolution Feb 13, 2009)
invalidating the reappointment of Javier as
corporate secretary, on the ground that the Note: The creation of the Truth Commission does not
position is a permanent, career position and not fall within the Presidents power to reorganize. Section
primarily confidential. 31 of the Revised Administrative Code refers to the
reduction of personnel, consolidation of offices, or
May the courts determine the proper classification abolition thereof by reason of economy or redundancy
of a position in government? Is the position of of functions. These refer to situations where a body or
corporate secretary in a GOCC primarily an office is already existent but a modification thereof
confidential in nature? has to be effected. (Biraogo v. The Philippine Truth
Commission of 2010, G.R. No. 192953, Dec. 7,2010)
A: The courts may determine the proper
classification of a position in government. A strict Q: What are the circumstances that may be
reading of the law (EO 292) reveals that primarily considered as evidence of bad faith in the
confidential positions fall under the non-career removals made as a result of reorganization, giving
service. It is also clear that, unlike career positions, rise to reinstatement or reappointment?
primarily confidential and other non-career
positions do not have security of tenure. The A:
tenure of a confidential employee is co-terminous 1. Where there is a significant increase in the
with that of the appointing authority, or is at the number of positions in the new staffing
latter's pleasure. However, the confidential pattern of the department or agency
employee may be appointed or remain in the concerned
position even beyond the compulsory retirement 2. Where an office is abolished and other
age of 65 years. performing substantially the same functions
is created
Jurisprudence establishes that the Court is not 3. Where incumbents are replaced by those less
bound by the classification of positions in the civil qualified in terms of status of appointment,
service made by the legislative or executive performance and merit
branches, or even by a constitutional body like the 4. Where there is reclassification of offices in the
CSC. The Court is expected to make its own department or Agency concerned and the
determination as to the nature of a particular classified offices perform substantially the
position, such as whether it is a primarily same function as the original offices
confidential position or not, without being bound 5. Where the removal violates the order of
by prior classifications made by other bodies. separation provided in Section 3 hereof.
(Cotiangco v. Province of Biliran, G.R. No.
In fine, a primarily confidential position is 157139, Oct. 19 2011)
characterized by the close proximityof the positions
of the appointer and appointee as well as the high Q: What are the requisites for a valid abolition of
degree of trust and confidence inherent in their office?
relationship.
A:
1. In good faith; (good faith is presumed)
149
2. Not for political or personal reasons; and

3. Not in violation of law. (Administrative Q: What are the disqualifications attached to the
Law, Law on Public Officers and Election civil service employees or officials?
Law, Agpalo, 2006)
Clear intent to do away with the office A:
Q: What rules apply to temporary employees? 1. Losing candidate in any election
a. cannot be appointed to any office in
A: the government or GOCCs or their
1. Not protected by security of tenure- can subsidiaries
be removed anytime even without cause. b. period of disqualification: 1 year
2. If they are separated, this is considered after such electionXPN: Losing
an expiration of term. But, they can only candidates in barangay elections
be removed by the one who appointed 2. Elective officials:
them. GR: not eligible for appointment or
3. Entitled to such protection as may be designation in any capacity to any
provided by law. (Sec. 2[6], Art. IX-B, 1987 public office or position during their
Constitution) tenure.
XPN: May hold ex officio positions. E.g.
Note: The Vice President may be appointed
1. No officer or employee in the civil service as a Cabinet member
shall engage in any electioneering or in 3. Appointive officials:
partisan political activity. However, they are GR: cannot hold any other office or
allowed to express views on political issues, agency, instrumentality, including
and to mention the names of the candidates GOCCs and their subsidiaries
whom he supports. (Sec. 2[4], Art. IX-B, 1987
XPN: unless otherwise allowed by law, or
Constitution)
by the primary functions of his position.
2. The Congress has the right to abolish an
office even during the term for which an
Note: The exception does not apply to Cabinet
existing incumbent may have been elected
EXCEPT when restrained by the Constitution. members, and those officers mentioned in Art. VII, Sec.
13. They are governed by the stricter prohibitions
contained therein.
Q: The Civil Service Commission passed a
Resolution abolishing the Career Executive Service
Q: What are the prohibitions attached to elective
Board (CESB). Is the resolution valid?
and appointive officials in terms of compensation?
A: No. The CESB was created by law (P.D. No. 1); it
A:
can only be abolished by the legislature. This
GR: They cannot receive:
follows an unbroken stream of rulings that the
1. Additional compensation – an extra
creation and abolition of public offices is primarily a
reward given for the same office e.g.
legislative function. (Eugenio v. Civil Service
bonus
Commission, et al., G.R. No. 115863, Mar. 31, 1995)
2. Double compensation – when an officer is
given 2 sets of compensation for 2
Q: Do employees of the civil service have the right
different offices held concurrently by 1
to organize?
officer.
3. Indirect compensation
A: Yes.The right to self-organization shall not be
denied to government employees. (Sec. 2(2), Art.
XPN: Unless specifically authorized by law.
IX-B, 1987 Const.)
Note: Specifically authorized means a specific
But, The right to self-organize accorded to authority particularly directed to the officer or
government employees shall not carry with it the employee concerned.
right to engage in any form of prohibited concerted
activity or mass action causing or intending to cause Pensions and gratuities, per diems and allowances are
work stoppage or service disruption, albeit of not considered as additional, double, or indirect
temporary nature. (Sec. 4, CSC Resolution No. compensation. (Sec. 7-8, Art. IX-B, 1987 Constitution)
021316, 2002)
3. Personnel actions
Note: The right to organize does NOT include the right
to strike. Q: What are Personnel Actions?
150
POLITICAL LAW TEAM
A: Any action denoting movement or progress of A: It is a method by which persons holding

personnel in the civil service. (City Mayor government positions of high authority, prestige,
Debulgado v. CSC, G.R. No. 111471, Sept. 26, 1994) and dignity and with definite tenure may be
removed from office for causes closely related to
Q: What does personnel action include? their conduct as public officials.
A: It includes the following: Note: It is a national inquest into the conduct of public
1. Appointment through Certification – issued men.(Outline on Political Law, Nachura, 2006)
to a person who has been selected from a
list of qualified person who has been It is primarily intended for the protection of the State,
selected from a list of qualified persons not for the punishment of the offender. The penalties
certified by the Commission from an attached to the impeachment are merely incidental to
appropriate register of eligible and who the primary intention of protecting the people as a
body politic. (The Law on Public officers by Hector S. De
meets all other requirements of the
Leon, 2008 ed.)
position
2. Promotion
Q: Who are the impeachable officers?
3. Transfer – a movement from one person to
another which is of equivalent rank, level
A:
or salary without break in service
1. President
involving issuance of an appointment.
2. Vice-President
4. Reinstatement – a person who has been
3. Members of the Supreme Court
permanently appointed to a position in
4. Members of the Constitutional Commissions
the career service and who has, through
5. Ombudsman
no delinquency or misconduct, been
separated therefrom, may be reinstated
Note: The enumeration is exclusive. (Sec. 2, Art. XI,
to a position in the same level for which 1987 Constitution)
he is qualified.
5. Reemployment – persons who have been Q: What are the grounds for impeachment?
appointed permanently to positions in the
career service and who have been A:
separated as result of reduction in force 1. Culpable violation of the Constitution
and or reorganization shall be entered in 2. Treason
a list from which selection for 3. Bribery
reemployment shall be made. 4. Other high crimes
6. Detail – a movement of an employee from 5. Betrayal of public trust (Sec. 2, Art. XI,
one agency to another without issuance 1987 Constitution)
of an appointment and shall be allowed,
only for a limited period in the case of Note: It is an exclusive list.
employees occupying professional,
technical and scientific positions. Q: What is Culpable Violation of the Constitution?
7. Reassignment – an employee may be
reassigned from one organizational unit A: Culpable violation of the Constitution is wrongful,
to another in the same agency, provided intentional or willful disregard or flouting of the
that such reassignment shall not involve a fundamental law. Obviously, the act must be
reduction in rank, status or salary. deliberate and motivated by bad faith to constitute a
8. Demotion – a movement from one position ground for impeachment. Mere mistakes in the
to another involving the issuance of an proper construction of the Constitution, on which
appointment with diminution in duties, students of law may sincerely differ, cannot be
responsibilities, status or rank which may considered a valid ground for impeachment. (Cruz,
or may not involve reduction in salary. Isagani. Philippine Political Law)
(Cruz, Law on Public Officers)
Q: What is Betrayal of Public Trust?
M. ACCOUNTABILITY OF PUBLIC OFFICERS
A: The 1987 Constitution has added “betrayal of
1. Impeachment public trust,” which means any form of violation of
the oath of office even if such violation may not be
Q: What is impeachment?
151
criminally punishable offense. (Bernas Primer, 2006 Justice of the SC shall preside but
ed.) shall not vote.
c. A decision of conviction must be
This is a catch-all to cover all manner of offenses concurred in by at least 2/3 of all the
unbecoming a public functionary but not punishable members of Senate.
by the criminal statutes, like “inexcusable negligence
of duty, tyrannical abuse of authority, breach of Note: The Senate has the sole power to try and decide
official duty by malfeasance or misfeasance, cronyism, all cases of impeachment. (Sec. 3(6), Art. XI, 1987
favoritism, obstruction of justice. (Cruz, Isagani. Constitution)
Philippine Political Law)
Q: When is an impeachment deemed initiated?
Q: What are the steps in the impeachment
process? A: The proceeding is initiated or begins, when a
verified complaint is filed and referred to the
A: Committee on Justice for action. This is the
1. Initiating impeachment case initiating step which triggers the series of step that
follow. The term “to initiate” refers to the filing of
a. Verified complaint filed by any the impeachment complaint coupled with Congress’
member of the House of taking initial action of said complaint. (Francisco v.
Representatives or any citizen upon House of Rep., G.R. No. 160261, November 10,
resolution of endorsement by any 2003)
member thereof.
b. Included in the order of business Q: Who has the power to determine the
within 10 session days. sufficiency of form and substance of an
c. Referred to the proper committee impeachment complaint?
within 3 session days from its
inclusion. A: Determination of sufficiency of form and
d. The committee, after hearing, and by substance of an impeachment complaint is an
majority vote of all its members, exponent of the express constitutional grant of
shall submit its report to the House rulemaking powers of the House of
of Representatives together with the Representatives. In the discharge of that power and
corresponding resolution. in the exercise of its discretion, the House has
e. Placing on calendar the Committee formulated determinable standards as to form and
resolution within 10 days from substance of an impeachment complaint.
submission; Furthermore the impeachment rules are clear in
f. Discussion on the floor of the report; echoing the constitutional requirements in
providing that there must be a “verified complaint
Note: If the verified complaint is filed by at or resolution” and that the substance requirement
least 1/3 of all its members of the House of is met if there is “a recital of facts constituting the
Representatives, the same shall constitute offense charged and determinative of the
the Articles of Impeachment, and trial by the jurisdiction of the committee”. (Ma.Merceditas
Senate shall forthwith proceed. (Sec. 3 (4), Gutierrez v. The House of Representatives
Art. XI, 1987 Constitution) Committee on Justice, G.R. No. 193459, Feb.
15,2011)
g. A vote of at least 1/3 of all the
members of the House of Q: What is the salutary reason of confining only
Representatives shall be necessary one impeachment proceeding in a year?
either to affirm a favorable
resolution with the Articles of A: Justice Azcuna stated that the purpose of the
Impeachment of the committee or one-year bar is two-fold:
override its contrary resolution. 1. To prevent undue or too frequent
(Sec. 3 (2-3), Art. XI. 1987 harassment
Constitution) 2. To allow the legislature to do its principal
2. Trial and Decision in impeachment task of legislation. (Francisco v. House of
proceedings Rep., G.R. No. 160261, Nov. 10, 2003)
a. The Senators take an oath or
affirmation The consideration behind the intended limitation
b. When the President of the refers to the element of time, and not the number
Philippines is on trial, the Chief
152
POLITICAL LAW TEAM
of complaints. The impeachable officer should within a one year period. (Gutierrez v. House of
defend himself in only one impeachment Representatives Committee on Justice, G.R. No.
proceeding, so that he will not be precluded from 193459, February 15, 2011)
performing his official functions and duties.
Similarly, Congress should run only one Q: Can A Supreme Court Justice be charged in a
impeachment proceeding so as not to leave it with criminal case or disbarment proceeding instead of
little time to attend to its main work of law-making. an impeachment proceeding?
The doctrine laid down in Francisco that initiation
means filing and referral remains congruent to the A: No, because the ultimate effect of either is to
rationale of the constitutional provision. (Gutierrez remove him from office, and thus circumvent the
v. The House of Representatives Committee on provision on removal by impeachment thus
Justice, G.R. No. 193459, Feb. 15, 2011) violating his security of tenure. (In Re: First
Indorsement from Hon. Raul Gonzalez, A.M. No. 88-
Q: What are the effects of conviction in 4-5433, April 15, 1988)
impeachment?
An impeachable officer who is a member of the
A: Philippine bar cannot be disbarred first without
1. Removal from office being impeached. (Jarque v. Desierto, 250 SCRA 11,
2. Disqualification to hold any other office 1995)
under the Republic of the Philippines
3. Party convicted shall be liable and subject 2. Ombudsman
to prosecution, trial and punishment
according to law. (Sec. 3 (7). Art. XI, 1987 Q: What are the qualifications for the Ombudsman
Constitution) and his Deputies?
A:
Q: What are the limitations imposed by the 1. Natural born Citizens of the Philippines
Constitution upon the initiation of impeachment 2. At least 40 years of age at the time of
proceedings? appointment
3. Of recognized probity and
A: independence
1. The House of Representatives shall have 4. Member of the Philippine Bar
the exclusive power to initiate all cases of 5. Must not have been candidate for any
impeachment. elective office in the immediately
2. Not more than one impeachment preceding election
proceeding shall be initiated against the 6. For Ombudsman: He must have been
same official within a period of one year. for ten years or more as a judge or
engaged in the practice of law in the
Note: An impeachment case is the legal controversy Philippines.
that must be decided by the Senate while an
impeachment proceeding is one that is initiated in the 2a. Functions
House of Representatives. For purposes of applying
the one year ban rule, the proceeding is initiated or Q: What is the function of an Ombudsman?
begins when a verified complaint is filed and referred
to the Committee on Justice for action. (Francisco v.
A: He is tasked to entertain complaints addressed
House of Representatives, et. al., G.R. No. 160261, Nov.
to him against erring public officers and take all
10, 2003)
necessary actions thereon.
The power to impeach is essentially a non-legislative
prerogative and can be exercised by Congress only Note: The powers of the Ombudsman are not merely
within the limits of the authority conferred upon it by recommendatory. His office was given teeth to render
the Constitution. (Francisco v. House of this constitutional body not merely functional but also
Representatives, et. al., G.R. No. 160261, Nov. 10, effective. Under R.A. No. 6770 and the 1987
2003) Constitution, the Ombudsman has the constitutional
power to directly remove from government service an
erring public official other than a member of Congress
Initiation takes place by the act of filing of the
and the Judiciary. (Estarija v. Ranada, G.R No. 159314,
impeachment complaint and referral to the House
June 26, 2006).
Committee on Justice. Once an impeachment
complaint has been initiated in the foregoing manner,
another may not be filed against the same official Q: Does the Ombudsman enjoy fiscal autonomy?
153
A: Yes. It shall enjoy fiscal autonomy. Its approved Note: According to the Local Government
annual appropriations shall be automatically and Code, elective officials may be dismissed
regularly released. (Section 14 of Article XI of the only by the proper court. “Where the
1987 Constitution) disciplining authority is given only the power
to suspend and not the power to remove, it
Q: What is the duration of the term of office of the should not be permitted to manipulate the
Ombudsman? law by usurping the power to
remove.”(Sangguniang Barangay v. Punong
Barangay,G.R. No. 170626, March 3, 2008)
A: 7 years without reappointment. (Section 11 of
Article XI of the 1987 Constitution)
4. The Special Prosecutor may not file
information without authority from the
Q: What are the disqualifications and inhibitions of
Ombudsman. (Perez v. Sandigabayan,
the Ombudsman?
G.R. No. 166062, Sept. 26, 2006)
5. The Ombudsman has been conferred rule
A:
making power to govern procedures
1. Shall not hold any other office or
under it. (703 Buencamino v. CA, GR
employment;
175895,April 4, 2007)
2. Shall not engage in the practice of any
6. The power to investigate or conduct a
profession or in the active management
preliminary investigation on any
or control of any business which in any
Ombudsman case may be exercised by an
way may be affected by the functions of
investigator or prosecutor of the Office of
his office;
the Ombudsman, or by any Provincial or
3. Shall not be financially interested, directly
City Prosecutor or their assistance, either
or indirectly, in any contract with, or in
in their regular capacities or as deputized
any franchise or privilege granted by the
Ombudsman prosecutors. (Honasan II v.
government, or any of its subdivisions,
Panel of Investigators of the DOJ, G.R.
etc.
No.159747, April 13, 2004)
4. Shall not be qualified to run for any office
7. A preventive suspension will only last
in the election immediately succeeding
ninety (90) days, not the entire duration
their cessation from office. (Section 9 of
of the criminal case. (Villasenor v
R.A. No. 6770)
Sandiganbayan G.R. No. 180700, March 4,
2008)
Q: What is the scope of the powers of the
Ombudsman?
Q: Are the powers of Ombudsman delegable?
A: Over the years the scope of the powers of the
A: The power to investigate or conduct a
Ombudsman under Section 12 has been clarified
preliminary investigation on any Ombudsman case
thus settling various disputed issues:
may be exercised by an investigator or prosecutor
1. The ombudsman can investigate only
of the Office of the Ombudsman, or by any
officers of government owned
Provincial or City Prosecutor or their assistance,
corporations with original charter. (Khan,
either in their regular capacities or as deputized
Jr v Ombudsman, G.R. No. 125296, July
Ombudsman prosecutors. (Honasan II v. Panel of
20. 2006)
Investigators of the DOJ, 2004)
2. The jurisdiction of the Ombudsman over
disciplinary cases involving public school
“In any form or manner”means thatthe fact that
teachers has been modified by Section 9
the Ombudsman may start an investigation on the
of R.A. 4670, otherwise known as the
basis of any anonymous letter does not violate the
Magna Carta for Public School Teachers,
equal protection clause. For purposes of initiating
which says that such cases must first go to
preliminary investigation before the Office of the
a committee appointed by the Secretary
Ombudsman, a complaint “in any form or manner”
of Education. (Ombudsman v. Estandarte,
is sufficient. (Garcia v. Miro, G.R. No. 148944. Feb.
GR 168670, April 13, 2007.)
5, 2003)
3. The Ombudsman Act authorizes the
Ombudsman to impose penalties in
Q: Can the Ombudsman directly dismiss a public
administrative cases. (Ombudsman v. CA,
officer from government service?
November 22, 2006; Ombudsman v.
A: Under Section 13(3) of Article XI, the
Lucero, Nov. 24, 2006)
Ombudsman can only recommend to the officer
154
POLITICAL LAW TEAM
concerned the removal of a public officer or

employee found to be administratively liable. A:
(Tapiador v. Office of the Ombudsman, G.R. No. 1. Investigate and prosecute on its own or
129124. March 15, 2002) Be that as it may, the on complaint by any person, any act or
refusal, without just cause, of any officer to comply omission of any public officer or
with such an order of the Ombudsman to penalize employee, office or agency, when such
erring officer or employee is a ground for act or omission appears to be illegal,
disciplinary action. Thus, there is a strong indication unjust, improper or inefficient. It has
that the Ombudsman’s recommendation is not primary jurisdiction over cases cognizable
merely advisory in nature but actually mandatory by the Sandiganbayan and, in the exercise
within the bounds of law. This should not be of his primary jurisdiction, it may take
interpreted as usurpation of the Ombudsman of the over, at any stage, from any investigatory
authority of the head of office or any officer agency of Government, the investigation
concerned. It has long been settled that the power of such cases (Sec. 15(1) R.A. No. 6770;
of the Ombudsman to investigate and prosecute see also
any illegal act or omission of any public official is Sec.13(1),ArticleXI,1987Constitution);
not an exclusive authority, but a shared or 2. Direct, upon complaint or at its own
concurrent authority in respect of the offense instance, any officer or employee of the
charged. (Ledesma v. CA, GR 161629, 29 July 2005) Government, or of any subdivision,
agency or instrumentality thereof, as well
Q: Is the power of the ombudsman to investigate as any government-owned or controlled
exclusive? corporations with original charter, to
perform and expedite any act or duty
A: No,While the Ombudsman’s power to investigate required by law, or to stop, prevent, and
is primary, it is not exclusive and, under the correct any abuse or impropriety in the
Ombudsman Act of 1989, he may delegate it to performance of duties (Sec. 15(2) R.A. No.
others and take it back any time he wants to. (Acop 6770; Sec 13(2) Article XI,
v. Ombudsman, G.R. No. 120422, Sept. 27, 1995). 1987Constitution);
3. Direct the officer concerned to take
Q: May the military deputy investigate civilian appropriate action against a public officer
police? or employee at fault or who neglects to
perform an act or discharge a duty
A: Because the power of the Ombudsman is broad required by law, and recommend his
and because the Deputy Ombudsman acts under removal, suspension, demotion, fine,
the direction of the Ombudsman, the power of the censure, or prosecution, and ensure
Military Deputy to investigate members of the compliance therewith; or enforce its
civilian police has also been affirmed. (Acop v. disciplinary authority as provided in
Ombudsman, G.R. No. 120422, Sept. 27, 1995) Section 21 or this Act: Provided, That the
refusal by any officer without just cause
Q: Can the Claim of Confidentiality prevent the to comply with an order of the
Ombudsman from demanding the production of Ombudsman to remove, suspend,
documents needed for the investigation? demote, fine, censure, or prosecute an
officer or employee who is at fault or who
A: No, In Almonte v. Vasquez, G.R. No. 95367 May neglects to perform an act or discharge a
23, 1995, the Court said that where the claim of duty required by law shall be ground for
confidentiality does not rest in the need to protect disciplinary action against said
military, diplomatic or the national security secrets officer (Sec. 15(3) R.A. No. 6770; see also
but on general public interest in preserving Sec 13(3), Article XI, 1987 Constitution);
confidentiality, the courts have declined to find in 4. Direct the officer concerned, in any
the Constitution an absolute privilege even for the appropriate case, and subject to such
President. (BernasPrimer, 2006 ed.) limitations as it may provide in its rules of
procedure, to furnish it with copies of
Moreover, even in cases where matters are really documents relating to contracts or
confidential, inspection can be done in camera. transactions entered into by his office
involving the disbursement or use of
Q: As “Protector of the People”, what are public funds or properties, and report any
the powers, functions & duties of the Office of the irregularity to the Commission on Audit
Ombudsman? for appropriate action (Sec. 15(4) R.A. No.
155
6770; see also Sec. 13(4),

ArticleXI,1987Constitution); Q:What is the authority granted to the
5. Request any government agency for Ombudsman under existing laws in reviewing
assistance and information necessary in Administrative proceedings?
the discharge of its responsibilities, and to
examine, if necessary, pertinent records A: Section 19 of the Ombudsman Act further
and documents (Sec. 15(5), R.A. No.6770; enumerates the types of acts covered by the
see also Sec. 13(5), Article XI, 1987 authority granted to the Ombudsman:
Constitution);
6. Publicize matters covered by its SEC. 19.Administrative Complaints. - The
investigation of the matters mentioned in Ombudsman shall act on all complaints relating, but
paragraphs (1), (2), (3) and (4) hereof, not limited to acts or omissions which:
when circumstances so warrant and with
due determine what cases may not be 1. Are contrary to law or regulation;
made public: Provided further, That any 2. Are unreasonable, unfair, oppressive or
publicity issued by the Ombudsman shall discriminatory;
be balanced, fair, and true (Sec 15(6) R.A. 3. Are inconsistent with the general course
No. 6770; see also Sec 13(6), of an agency's functions, though in
ArticleXI,1987Constitution); accordance with law;
7. Determine the causes of inefficiency, red 4. Proceed from a mistake of law or an
tape, mismanagement, fraud, and arbitrary ascertainment of facts;
corruption in the Government and make 5. Are in the exercise of discretionary
recommendations for their elimination powers but for an improper purpose; or
and the observance of high standards of 6. Are otherwise irregular, immoral or
ethics and efficiency (Sec 15(7) R.A. No. devoid of justification
6770; see also Sec 13(7), Article XI,
1987Constitution); In the exercise of its duties, the Ombudsman is
8. Administer oaths, issue subpoena and given full administrative disciplinary authority. His
subpoena duces tecum, and take power is not limited merely to receiving, processing
testimony in any investigation or inquiry, complaints, or recommending penalties. He is to
including the power to examine and have conduct investigations, hold hearings, summon
access to bank accounts and records (Sec witnesses and require production of evidence and
15(8), R.A.No.6770); place respondents under preventive suspension.
9. Punish for contempt in accordance with This includes the power to impose the penalty of
the Rules of Court and under the same removal, suspension, demotion, fine, or censure of
procedure and with the same penalties a public officer or employee. (Ombudsman v.
provided therein (Sec15(9),R.A.No.6770); Galicia, G.R. No. 167711, October 10, 2008)
10. Delegate to the Deputies, or its
investigators or representatives such Note: Appeals from resolutions of the Office of the
authority or duty as shall ensure the Ombudsman in administrative disciplinary cases
effective exercise of performance of the should be taken to the Court of Appeals via Petition for
powers, functions, and duties herein or Review under Rule 43 of the Rules of Court. (Fabian v.
hereinafter provided (Sec Desierto, G.R. No. 129742, Sept.16,1998)
15(10),R.A.No.6770);
11. Investigate and initiate the proper action 2c. Judicial Review in Penal Proceedings
for the recovery of ill-gotten and/or
unexplained wealth amassed after Q: What is the authority granted to the
February 25, 1986 and the prosecution of Ombudsman in reviewing Penal Proceedings?
the parties involved therein (Sec 15(11),
R.A. No. 6770); A: In the exercise of its investigative power, this
12. Promulgate its rules of procedure and Court has consistently held that courts will not
exercise such other powers or perform interfere with the discretion of the fiscal or the
such functions or duties as may be Ombudsman to determine the specificity and
provided by law (Sec 13(7), Article XI, adequacy of the averments of the offense charged.
1987 Constitution; see also Sec. 18, R.A. He may dismiss the complaint forthwith if he finds
No. 6770); it to be insufficient in form and substance or if he
otherwise finds no ground to continue with the
2b. Judicial Review in Administrative Proceedings inquiry; or he may proceed with the investigation of
156
POLITICAL LAW TEAM
the complaint if, in his view, it is in due and proper public officers or employees, they shall be tried
form. (Ocampo v. Ombudsman, 225 SCRA 725, jointly with said public officers and employees.
1993) (Section 4, PD 1606)”
Note: In Garcia-Rueda v. Pascasio, G.R. No. 118141, “Private persons may be charged together with
Sept. 5, 1997, the Court held that “while the public officers to avoid repeated and unnecessary
Ombudsman has the full discretion to determine presentation of witnesses and exhibits against
whether or not a criminal case is to be filed, the Court conspirators in different venues, especially of the
is not precluded from reviewing the Ombudsman’s issues involved are the same. It follows therefore
action when there is grave abuse of discretion.” that if a private person may be tried jointly with
public officers, he may also be convicted jointly
3. Sadiganbayan with them, as in the case of the present
petitioners.” (Balmadrid v. Sandiganbayan, 1991)
Q: What is the composition of the Sandiganbayan?
Q: What determines the jurisdiction whether or
A: Under PD 1606, it is composed of: not the Sandiganbayan or the RTC has jurisdiction
1. Presiding Justice over the case?
2. Eight Associate Justices, with the rank of
Justice of the Court of Appeals A: It shall be determined by the allegations in the
information specifically on whether or not the acts
Note: It sits in three [3] divisions with three members complained of were committed in relation to the
each. official functions of the accused. It is required that
the charge be set forth with particularity as will
Q: What is the nature of the Sandiganbayan? reasonably indicate that the exact offense which
the accused is alleged to have committed is one in
A: Sandiganbayan is NOT a constitutional court. It is relation to his office. (Lacson v. Executive
a statutory court; that is, it is created not only by Secretary¸G.R. No. 128096 January 20, 1999)
the Constitution but by statute, although its
creation is mandated by the Constitution. (Bernas Note: In Binay v. Sandiganbayan, G.R. Nos. 120681-83,
Primer at 443 2006 ed.) October 1, 1999, the Supreme Court discussed the
ramifications of Section 7, RA 8249, as follows:
Q: What are the requisites that must concur in 1. If trial of the cases pending before whatever
order that a case may fall under the exclusive court has already begun as of the approval
jurisdiction of the Sandiganbayan: of RA 8249, the law does not apply;
2. If trial of cases pending before whatever
A: court has not begun as of the approval of RA
1. The offense committed is a violation of 8249, then the law applies, and the rules
RA 1379, Chapter II, Section , Title VII, are:
Book II of the Revised Penal Code, i. If the Sandiganbayan has jurisdiction
Executive Orders Nos. 1, 2 14 and 14-A, over a case pending before it, then it
issued in 1986, or other offenses or retains jurisdiction;
ii. If the Sandiganbayan has no
felonies whether simple or complexed
jurisdiction over a cased pending
with other crimes
before it, the case shall be referred
2. The offender committing the offenses
to the regular courts;
(violating RA 3019, RA 1379, the RPC iii. If the Sandiganbayan has jurisdiction
provisions, and other offenses, is a public over a case pending before a regular
official or employee holding any of the court, the latter loses jurisdiction
positions enumerated in par. A, Section 4, and the same shall be referred to
RA 8249 the Sandiganbayan;
3. The offense committed is in relation to iv. If a regular court has jurisdiction
the office. (Lacson v. Executive over a case pending before it, then
Secretary,G.R. No. 128096 January 20, said court retains jurisdiction.
1999)
Q: How are pronouncements of decisions/review
Q: Can a private individual be charged jointly with made by the SB?
a public officer?
A: The unanimous vote of all the three members
A: Yes. “In case private individuals are charged as shall be required for the pronouncement of
co-principals, accomplices or accessories with the judgment by a division. Decisions of the
157
Sandiganbayan shall be reviewable by the Supreme employment in any business enterprise or

Court on a petition for certiorari. undertaking
5. By establishing agricultural, industrial or
Q: Is it mandatory for the Sandiganbayan to commercial Monopolies or other
suspend a public officer against whom a valid combinations and/or implementation of
information is filed? decrees and orders intended to benefit
particular persons or special interests
A: It is now settled that Section 13, RA 3019, makes 6. By taking Undue advantage of official
it mandatory for the Sandiganbayan to suspend any position, authority, relationship,
public officer against whom a valid information connection or influence to unjustly enrich
charging violation of that law, or any offense himself or themselves at the expense and
involving fraud upon the government or public to the damage and prejudice of the
funds or property is filed. (Bolastig v. Filipino people and the Republic of the
Sandiganbayan, 235 SCRA 103) Philippines. (RA 7080, “An Act Defining
and Penalizing the Crime of Plunder”)
Q: Can both questions of fact and law be raised
before the Supreme Court in an appeal of a Q: Can ill-gotten wealth be characterized by a
decision of the Sandiganbayan? series of events that would make a public officer
liable?
A: The appellate jurisdiction of the Supreme Court
over decisions and final orders of the A: Yes, in cases of plunder, any public officer who,
Sandiganbayan is limited to questions of law. by himself or in connivance with members of his
(Cabaron v.People, G.R. No. 156981, October 5, family, relatives by affinity or consanguinity,
2009 business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth
4. Ill-Gotten Wealth through a combination or series of overt or criminal
acts as described in Section 1 (d) of RA 7659, in the
Q: Define Ill-gotten wealth? aggregate amount or total value of at least fifty
million pesos (P50,000,000.00) shall be guilty of the
A: Ill-gotten wealth means any asset, property, crime of plunder. (Sec. 2 of RA 7659)
business enterprise or material possession of any
person within the purview of Section Two (2) Q: Can prosecution for the recovery of ill-gotten
hereof, acquired by him directly or indirectly wealth be barred by prescription, laches and
through dummies, nominees, agents, subordinates estoppel?
and/or business associates by any combination or A: Yes. The provision found in Section 15, Article XI
series of the following means or similar schemes: of the 1987 Constitution that "the right of the State
to recover properties unlawfully acquired by public
1. Through Misappropriation, conversion, officials or employees, from them or from their
misuse, or malversation of public funds or nominees or transferees, shall not be barred by
raids on the public treasury prescription, laches or estoppel," has already been
2. By Receiving, directly or indirectly, any settled in Presidential Ad Hoc Fact-Finding
commission, gift, share, percentage, Committee on Behest Loans v. Desierto. G.R. No.
kickbacks or any other form of pecuniary 130140, where the Court held that the above cited
benefit from any person and/or entity in constitutional provision "applies only to civil actions
connection with any government contract for recovery of ill-gotten wealth, and NOT to
or project or by reason of the office or criminal cases. (Presidential Ad Hoc Fact- Finding
position of the public officer concerned Committee On Behest Loans v. Desierto, G.R. No.
3. By the Illegal or fraudulent conveyance or 135715, April 13, 2011)
disposition of assets belonging to the
National Government or any of its N. Term Limits
subdivisions, agencies or instrumentalities
or government-owned or -controlled Q: What are the differences between Term and
corporations and their subsidiaries Tenure?
4. By Obtaining, receiving or accepting
directly or indirectly any shares of stock, A:
equity or any other form of interest or
participation including promise of future TERM TENURE
The time during which Represent the period
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POLITICAL LAW TEAM
the officer may claim to during which the consecutive terms in the same position. The Court
hold the office as of incumbent actually interpreted this sectionreferring to all localelective
right, and fixes the holds the office; officials without exclusions or exceptions.
interval after which the (COMELEC v. Cruz, G.R. No. 186616, 19 Nov. 2009)
several incumbents shall
succeed one another; Q: What are the policies embodied in the
It is fixed and definite It may be shorter than constitutional provision barring elective local
period of time to hold term. officials, with the exception of barangay officials,
office, perform its from serving more than three consecutive terms?
function;
It is not affected by A: To prevent the establishment of political
holding over of the dynasties is not the only policy embodied in the
incumbent after constitutional provision in question (barring
expiration of the term elective local officials, with the exception of
for which he was barangay officials, from serving more than three
appointed or elected. consecutive terms). The other policy is that of
enhancing the freedom of choice of the people. To
Note: Term of office is different from the right to hold consider, therefore, only stay in office regardless of
office. The latter is the just and legal claim to hold and how the official concerned came to that office –
enjoy the powers and responsibilities of the office. whether by election or by succession by operation
[Casibang v. Aquino, G.R. No. L-38025, Aug. 20, 1979] of law – would be to disregard one of the purposes
of the constitutional provision in question. (Borja,
Q: What are the three (3) kinds of terms? Jr. v. COMELEC, G.R. No. 133495, Sept. 3, 1998)
A: Q: Jhap occupied the position of mayor of

1. Term fixed by law Mabalacat for the following periods: 1 July 1995
2. Term dependent on good behavior until to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July
reaching retirement age 2001 to 30 June 2004, and 1 July 2004 to 16 May
3. Indefinite term, which terminates at the 2007. However, the SC ruled in a previous case
pleasure of the appointing authority. that Jhap was not the duly elected mayor for the
(Borres v. Court of Appeals, G.R. No. L- 2004-2007 term. Eventually, Jhap also won the
36845, Aug. 21, 1998; Ruben E. Agpalo, elections and assumed the mayoralty position for
Administrative Law, Law on Public Officers the 2007-2010 term. Sassy filed a petition to
and Election Law, 2005 ed., p. 304) disqualify Jhap as mayor on the ground that Jhap’s
assumption of the mayoralty position on 1 July
Q: What is the concept of “hold-over”? 2007 makes the 2007-2010 term his fifth term in
office, which violates the three-term limit rule. Is
A: In the absence of an express or implied Sassy correct?
constitutional or statutory provision to the
contrary, an officer is entitled to hold office until A: No. For purposes of determining the resulting
his successor is elected or appointed and has disqualification brought about by the three-term
qualified. (Lecaroz v. Sandiganbayan, G.R. No. limit, it is not enough that an individual has served
130872, Mar. 25,1999) three consecutive terms in an elective local office,
Q: What are the term limits of elective officers? he must also have been elected to the same
position for the same number of times. There
A: should be a concurrence of two conditions for the
1. President – 6 years, without reelection application of the disqualification: (1) that the
2. Vice President – 6 years, with 1 reelection official concerned has been elected for three
3. Senators – 6 years, with 1 reelection consecutive terms in the same local government
4. Representative – 3 years, with 2 reelections post and (2) that he has fully served three
5. Local Executive Officials – 3 years, with 2 consecutive terms.
reelections
Jhap cannot be deemed to have served the full
Q: What is the term limit of Barangay officials? term of 2004-2007 because he was ordered to
vacate his post before the expiration of the term.
A: The term of office of barangay officials was fixed Jhap’s occupancy of the position of mayor of
at three years under R.A. No. 9164 (19 March Mabalacat from 1 July 2004 to 16 May 2007 cannot
2002). Further, Sec.43 (b) provides that "no local be counted as a term for purposes of computing
elective official shall serve for more than three (3)
159
the three-term limit. Indeed, the period from 17

May 2007 to 30 June 2007 served as a gap for
purposes of the three-term limit rule. Thus, the
present 1 July 2007 to 30 June 2010 term is
effectively Jhaps’s first term for purposes of the
three-term limit rule. (Dizon v. COMELEC G.R. No.
182088, Jan. 30, 2009)
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POLITICAL LAW TEAM
EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS
X. ADMINISTRATIVE LAW
As to Applicability
a. GENERAL PRINCIPLES General Administrative Special/ particular
Law administrative law
Q: Define Administrative Law Part that is of general Part that pertains to
nature and common to particular services;
A: It is a branch of public law fixing the organization all, or most, admin proceeds from the
and determines the competence of administrative agencies; chiefly but not particular statute
authorities, and indicates the individual remedies exclusively procedural creating the individual
for the violation of the rights. aw. agency
Q: What is the scope of Administrative Law? Q: What are the kinds of Administrative Law?
A:
a. Fixes the administrative operation and A:
structure of the government  Statutes setting up administrative
b. Executes or enforces that which is entrusted authorities.
to administrative authorities (all those Example: Article IX on the Constitutional
public officers and organs of the Commissions, Administrative Code of
government charged with the amplification, 1987
application and execution of the law)  Body of doctrines and decisions dealing
c. Governs public officers with the creation, operation, and effect of
d. Creates administrative officers determinations and regulations of such
e. Provides the remedies to those aggrieved by administrative authorities.
these agencies  Rules, regulations, or orders of such
f. Governs Judicial Review administrative authorities in pursuance of
g. Includes rules, regulation, orders and the purposes, for which administrative
decisions made by administrative authorities authorities were created or endowed.
h. Includes the body of judicial/doctrines on Example: Omnibus Rules Implementing
any of the above the Labor Code, circulars of Central
Monetary Authority
Q: What are the Classifications of Administrative  Determinations, decisions, and orders of
Law? such administrative authorities in the
A: settlement of controversies arising in
their particular field.
As to Source Example: Awards of NLRC with respect to
money claims of employees
Law that controls Law made by the
administrative administrative b. ADMINISTRATIVE BODIES AND AGENCIES
authorities authorities
Constitution, statutes, General regulations and 1. Definition
judicial decisions, particular
Executive Orders, determinations; Q: What is an administrative agency?
Administrative constitute under
Orders,etc. delegations of power A: It is an organ of government, other than a court
embodied in statutory and the legislature, which affects the rights of
administrative law, and private parties either through adjudication or rule
imposing and constantly making.
expanding body of law.
Q: How should the powers of the administrative
As to Purpose agencies be interpreted?
Adjective or Procedural Substantive A: Administrative agencies have powers and

Administrative Law Administrative Law functions which may be administrative,
Establishes the Derived from same investigatory, regulatory, quasi legislative, or quasi-
procedure which an sources but contents judicial or mix of the five, as may be conferred by
agency must or may are different in that the the constitution or by the statute. They have in fine
follow in the pursuit of law establishes primary only such powers or authority as are granted or
its legal purpose. rights and duties. delegated, expressly or impliedly, by law. And in
161
determining whether an agency has certain powers, A: By:

the inquiry should be from the law itself. But once 1. Constitutional provision
ascertained as existing, the authority given should 2. Authority of law
be liberally construed. (Soriano v. MTRCB, G.R. No. 3. Legislative enactment
165785, April 29,2009)
Q: Cite reasons for the creation of administrative
Q: What is an instrumentality? agencies.
A: An instrumentality is deemed to refer “to any A: To:

agency of the National Government, not integrated 1. Help unclog court dockets
within the department framework, vested with 2. Meet the growing complexities of modern
special functions or jurisdiction by law, endowed society
with some if not all corporate powers, 3. Help in the regulation of ramified activities
administering special funds and enjoying of a developing country
operational autonomy, usually through a
charter. This term includes regulatory agencies, 3. Kinds
chartered institutions and government-owned or
controlled corporations.” (United Residents of
Dominican Hills v. Commission on The Settlement Of Q: What are the kinds of administrative bodies or
Land Problems, G.R. No. 135945, March 7, 2001) agencies?
Q: What is an Agency? A: The common kinds of administrative agencies

have been classified according to their purpose
A: An agency is any of the various units of the 1. Those created to function in situations
government, including a department, bureau, wherein the government is offering some
office, instrumentality, or government-owned or gratuity, grant, or special privilege
controlled corporations, or a local government or a Examples: GSIS, SSS, PAO
distinct unit therein. (Sec.2, Introductory Provisions, 2. Those set up to function in situations
E.O. No. 292 – Administrative Code of 1987) wherein the government is seeking to
carry on certain functions of government
Q: What is a department? Examples: BIR, BOC, BOI
3. Those set up in situations wherein the
A: A department refers to an executive department government is performing some business
created by law. (Sec.2 (7), Introductory Provisions, service for the public
E.O. No. 292 – Administrative Code of 1987) Examples: PNR, MWSS, NFA, NHA
4. Those set up to function in situations
Q: What is a bureau? wherein the government is seeking to
regulate businesses affected with public
A: A bureau refers to any principal subdivision or interest
unit of any department. (Sec.2 (8), Introductory Examples: Insurance Commission, LTFRB,
Provisions, E.O. No. 292 – Administrative Code of NTC
1987) 5. Those set up to function in situations
wherein the government is seeking under
Q: What is an office? the police power to regulate private
businesses and individuals
A: An office refers, within the framework of Examples: SEC,MTRCB
governmental organization, to any major functional 6. Those agencies set up to function in
unit of a department or bureau including regional situations wherein the government is
offices. It may also refer to any position held or seeking to adjust individual controversies
occupied by individual persons, whose functions are because of some strong social policy
defined by law or regulation. (Sec.2 (9), Introductory involved
Provisions, E.O. No. 292 – Administrative Code of Examples: NLRC, ECC, SEC
1987) (Source: De Leon, Jr., Administrative Law: Text and
Cases. 2010)
2. Manner of creation
Q: How are agencies created?
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POLITICAL LAW TEAM
c. POWERS OF ADMINISTRATIVE AGENCIES require prior notice and hearing (except

and hearing (except when the law requires
Q: What is the definition of administrative power when the law it)
or function? requires it).
An issuance pursuant
An issuance pursuant to
A: Those which involve the regulation and control to the exercise of
the exercise of quasi-
over the conduct and affairs of individuals for; their quasi-legislative
judicial function is
own welfare and the promulgation of rules and power may be
appealed to the Court
regulations to better carry out the policy of the assailed in court
of Appeals via petition
legislature or such as are devolved upon the through an ordinary
for review (Rule 43).
administrative agency by the organic law of its action.
existence. (In re: Rodolfo U. Manzano,A.M. No. 88-
7-1861-RTC, Oct. 5, 1988) Q: Do all administrative agencies perform the
same functions or exercise the same types of
Q. What are the two powers of Administrative powers?
Agencies?
A. A: No. Not all administrative agencies perform the
1. Discretionary – the law imposes a duty upon a same functions or exercise the types of powers.
public officer, and gives him the right to decide how While some act merely as investigative or advisory
or when the duty shall be performed. bodies, most administrative agencies have
2. Ministerial – is one which is as clear and specific investigative, rule-making, and determinative
as to leave no room for the exercise of discretion in functions, or at least two of such functions. (Source:
its performance. De Leon, Jr., Administrative Law: Text and Cases.
2010)
Q: What are the three basic powers of
administrative agencies? Q: What are the requirements for a valid
appropriation of public funds?
A:
1. Quasi-legislative power or rule-making A: The Administrative Code of 1987 expressly
power prohibits the entering into contracts involving the
2. Quasi-judicial or adjudicatory power expenditure of public funds unless two prior
3. Determinative power requirements are satisfied. First, there must be an
appropriation law authorizing the expenditure
required in the contract. Second, there must be
Q: Distinguish between quasi-legislative and quasi- attached to the contract a certification by the
judicial power. proper accounting official and auditor that funds
have been appropriated by law and such funds are
A: available. Failure to comply with any of these two
QUASI-LEGISLATIVE QUASI-JUDICIAL requirements renders the contract void. (Philippine
Operates on the National Railways v. Kanlaon Construction
Operates based on past
future Enterprises, Co., Inc., G.R. No. 182967. April 6, 2011)
facts
Has particular 1. Quasi-Legislative (Rule-Making) Power
Has general application (applies
application only to the parties Q: Define quasi-legislative power.
involved in a dispute)
Issuance pursuant to A:Quasi-legislative power or rule-making power is
Issuance pursuant to the exercise of delegated legislative power,
the exercise of quasi-
the exercise of quasi- involving no discretion as to what the law shall be,
legislative power may
judicial power may, as a but merely the authority to fix the details in the
be assailed in court
rule, only be challenged execution or enforcement of a policy set out in the
without subscribing
in court with prior law itself.
to the doctrine of
exhaustion of
exhaustion of
administrative
administrative
remedies.
remedies (DEAR).
A valid exercise of A valid exercise of
quasi-legislative quasi-judicial power
power does not requires prior notice
163
Q: Distinguish between legislative and quasi- The exception being where the legislature itself
legislative power. requires it and mandates that the regulation shall
be based on certain facts as determined at an
A: appropriate investigation (Administrative Code of
LEGISLATIVE QUASI-LEGISLATIVE 1987, Cruz)
involves the
Involves the discretion
discretion to Also, when, upon the other hand, the
to determine how the
determine what the administrative rule goes beyond merely providing
law shall be enforced
law shall be for the means that can facilitate or render least
CANNOT be cumbersome the implementation of the law but
CAN be delegated substantially adds to or increases the burden of
delegated
those governed, it behooves the agency to accord
Q: What are the limitations to the exercise of at least to those directly affected a chance to be
quasi-legislative power? heard, and thereafter to be duly informed, before
A: that new issuance is given the force and effect of
4. It must be within the limits of the powers law. (Commissioner of Internal Revenue v. CA, G.R.
granted to administrative agencies. No. 11976, Aug. 26, 1996)
5. Cannot make rules or regulations which
are inconsistent with the provision of the Q: Do administrative rules or regulations need to
Constitution or statute. be filed with the UP Law Center?
6. Cannot defeat the purpose of the statute.
7. May not amend, alter, modify, supplant, A: Yes. The Administrative Code of 1987,
enlarge, or limit the terms of the statute. particularly Section 3 thereof, expressly requires
8. A rule or regulation must be uniform in each agency to file with the Office of the National
operation, reasonable and not unfair or Administrative Register (ONAR) of the University of
discriminatory. the Philippines Law Center three certified copies of
every rule adopted by it. Administrative issuances
Q: What is an administrative rule? which are not published or filed with the ONAR are
ineffective and may not be enforced. (GMA vs.
A: An administrative rule is defined as any agency MTRCB, G.R. No. 148579, Feb.5, 2007)
statement of general applicability that implements
or interprets a law, fixes and describes procedures Q: Is publication necessary for the validity of an
in, or practice requirements of, an agency, including administrative rule or regulation?
its regulations. The term includes memoranda or
statements concerning the internal administration A: Yes. Publication is required as a condition
or management of an agency not affecting the precedent to the effectivity of a law to inform the
rights of, or procedure available to the public. public of the contents of the law or rules and
(Administrative Code of 1987, Cruz) regulations before their rights and interests are
affected by the same. (Philippine International
Q: What is the source of the power to promulgate Trading Corporation v. Commission on Audit, G.R.
administrative rules and regulations? No. 132593, June 25, 1999)
A: The power to promulgate regulations is derived Q: What are the exceptions to the requirement of
from the legislature, by virtue of a valid delegation, publication?
either expressed or implied. (Ibid.)
A:
Q: Is notice and hearing necessary for the validity 1. Interpretative regulations
of promulgating an administrative rule or 2. Internal regulations
regulation? 3. Letters of instructions(Tañada v. Tuvera
G.R. No. L-63915, Dec. 29, 1986)
A: As a general rule, in the performance of its
executive or legislative functions, such as issuing Q: When do administrative rules take effect?
rules and regulations, an administrative body need
not comply with the requirements of notice and A:
hearing. (Corona v. United Harbor Pilots Association GR: Administrative rules take effect depending on
of the Philippines, G.R. No. 111963, Dec. 12, 1997) the date provided by it.
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POLITICAL LAW TEAM
XPN: 15 days after publication if the administrative A: The construction placed upon the statute by an
rules is silent. executive or administrative officer called upon to
execute or administer such statute.
Q: May an administrative agency promulgate rules
providing for penal sanction? These interpretative regulations are usually in the
form of circulars, directives, opinions, and rulings.
A: Yes, provided the following requisites are
complied with: Note: Contemporaneous construction, while in no
4. The law must declare the act punishable; case binding upon the courts, is nevertheless entitled
5. The law must define the penalty; to great weight and respect in the interpretation of
6. The rules must be published in the Official ambiguous provisions of the law, unless it is shown to
Gazette. (The Hon. Secretary Vincent S. be clearly erroneous.
Perez v. LPG Refillers Association of the
Philippines, G.R. No. 159149, June 26, a. Kinds of Administrative Rules and
2006) Regulations
Q: Are administrative officers tasked to implement Q: What are the kinds of administrative rules and
the law also authorized to interpret the law? regulations?
A: Yes, because they have expertise to do so. (PLDT A:

v. NTC, G.R. No. 88404, Oct. 18, 1990) 1. Supplementary or detailed legislation
2. Interpretative legislation
Q: Are constructions of administrative officers 3. Contingent legislation
binding upon the courts? 4. Procedural
5. Interpretative
A: Such interpretations of administrative officer are 6. Internal
given great weight, unless such construction is 7. Penal
clearly shown to be in sharp contrast with the
governing law or statute. (Nestle Philippines Inc. v. b. Requisites for validity
CA, G.R. No. 86738, Nov. 13, 1991)
Q: What are the requisites for a valid delegation of
Q: What is the Doctrine of Subordinate quasi-legislative or rule-making power?
Legislation?
A:
A: Power of administrative agency to promulgate 1. The statute is complete in itself, setting
rules and regulations on matters within their own forth the policy to be executed by the
specialization. agency (Completeness test); and
2. Said statute fixes a standard, mapping out
Q: What is the reason behind the delegation? the boundaries of the agency’s authority
to which it must conform (Sufficient
A: It is well established in this jurisdiction that, standard test).
while the making of laws is a non-delegable activity XPNs:
that corresponds exclusively to Congress, 1. Handling of State of property of
nevertheless the latter may constitutionally funds
delegate authority to promulgate rules and 2. When the law does not involve
regulations to implement a given legislation and Personal or property rights
effectuate its policies, for the reason that the 3. Matters of internal administration
legislature often finds it impracticable (if not 4. Powers of the Board to make
impossible) to anticipate and provide for the Recommendation
multifarious and complex situations that may be 5. Matters involving Privileges ( like
met in carrying the law into effect. All that is use of property, engaging in
required is that the regulation should be germane profession)
to the objects and purposes of the law; that the 6. Regulation or Exercise of police
regulation be not in contradiction with it, but power to protect general welfare,
conform to the standards that the law prescribes. mortal and public policy.
Q: What is the concept of Contemporaneous

Construction?
165
2. Quasi-Judicial (Adjudicatory) Power without a judicial warrant to authorize

such action.
Q: Define quasi-judicial power. Examples: Abatement of nuisance,
summary restraint, levy of property of
A: It is the power of administrative authorities to delinquent tax payers
make determinations of facts in the performance of 5. Equitable powers – pertain to the power
their official duties and to apply the law as they to determine the law upon a particular
construe it to the facts so found. It partakes the state of facts has the right to, and must,
nature of judicial power, but is exercised by a consider and make proper application of
person other than a judge. the rules of equity.
Examples: Power to appoint a receiver,
Q: How is the jurisdiction of a quasi-judicial agency power to issue injunctions
construed?
2.a. Administrative Due Process
A: An administrative body to which quasi-judicial
power has been delegated is a tribunal of limited Q: What is the nature of administrative
jurisdiction and as such it could wield only such proceedings?
powers as are specifically granted to it by its
enabling statute. Its jurisdiction is interpreted A: It is summary in nature.
strictissimi juris.
Q: Is administrative proceedings bound by
Q: What are the conditions for the proper exercise technical rules of procedure and evidence?
of quasi-judicial power?
A: The technical rules of procedure and of evidence
A: The proper exercise of the quasi-judicial power prevailing in courts of law and equity are not
requires compliance with two conditions: controlling in administrative proceedings to free
1. Jurisdiction must be properly acquired by administrative boards or agencies from the
the administrative body; compulsion of technical rules so that the mere
2. Due process must be observed in the admission of matter which would be deemed
conduct of the proceedings. incompetent in judicial proceedings would not
invalidate an administrative order.
Q: What are the classifications of adjudicatory
powers? Note: The rules of procedure of quasi-judicial
bodies shall remain effective unless disapproved by
A: the Supreme Court.
1. Enabling powers – characterized by the
grant or denial of permit or authorization Q: What are the cardinal primary requirements of
Example: Issuance of licenses to engage in due process in administrative proceedings?
a particular business.
2. Directing powers – those that involve the A:
corrective powers of public utility 1. Right to a hearing which includes the right
commissions, powers of assessment to present one’s case and submit
under the revenue laws, reparations evidence in support
under public utility laws, and awards 2. The tribunal must consider the evidence
under workmen’s compensation laws, presented
and powers of abstract determination 3. The decision must be supported by
such as definition-valuation, classification evidence
and fact finding 4. Such evidence must be substantial
3. Dispensing powers – exemplified by the 5. The decision must be based on the
authority to exempt from or relax a evidence presented at the hearing or at
general prohibition, or authority to least contained in the record, and
relieve from an affirmative duty. Its disclosed to the parties affected
difference from licensing power is that 6. The tribunal or body of any of its judges
dispensing power sanctions a deviation must act on its own independent
from a standard. consideration of the law and facts of the
4. Summary powers – those that apply controversy in arriving at a decision;
compulsion or force against person or
property to effectuate a legal purpose
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POLITICAL LAW TEAM
7. The board or body should render decision 5. Preventive suspension of public officer or
that parties know the various issues employee facing administrative charges
involved and reason for such decision 6. Cancellation of a passport of a person
8. Officer or tribunal must be vested with sought for criminal prosecution
competent jurisdiction and must be 7. Summary proceedings of distraint and
impartial and honest. (Ang Tibay v. CIR, levy upon property of a delinquent
G.R. No. L-46496, Feb. 27, 1940) taxpayer
8. Replacement of a temporary or acting
Note: The essence of due process in administrative appointee
proceedings is the opportunity to explain one’s side or 9. Right was previously offered but not
seek a reconsideration of the action or ruling claimed
complained of. As long as the parties are given the
opportunity to be heard before judgment is rendered, Q: Does the due process clause encompass the
the demands of due process are sufficiently met. What right to be assisted by counsel during an
is offensive to due process is the denial of the administrative inquiry?
opportunity to be heard. (Flores v. Montemayor, G.R.
No. 170146, June 6, 2011)
A: No. The right to counsel which may not be
waived, unless in writing and in the presence of
Q: What is the effect of non-observance of notice
counsel, as recognized by the Constitution, is a right
and hearing?
of a suspect in a custodial investigation. It is not an
absolute right and may, thus, be invoked or
A: As a rule, the non-observance of notice and
rejected in criminal proceeding and, with more
hearing will invalidate the administrative
reason, in an administrative inquiry. (Lumiqued v.
proceedings. A failure to comply with the
Exevea, G.R No.. 117565, Nov. 18, 1997)
requirements may result in a failure to acquire
jurisdiction.
Q: What is the quantum of proof required in
administrative proceedings?
Note: Right to notice may be waived.
A: Only substantial evidence – that amount of
Q: Does administrative due process always entail
relevant evidence that a reasonable mind might
notice and hearing prior to the deprivation of a
accept as adequate to support a conclusion.
right?
Note: The right against self-incrimination may be
A: No.A hearing may occur after the deprivation.
invoked in administrative proceedings. (Cabal v.
What the law prohibits is not the absence of Kapunan, SCRA 1064; Pascual v. Board of Medical
previous notice but the absolute absence thereof Examiners, 28 SCRA 345)
and the lack of opportunity to be heard.
2.b. Administrative Appeal and Review
Note: There has been no denial of due process if any
irregularity in the premature issuance of the assailed
Q: What is the concept of Administrative Appeal?
decision has been remedied by an order giving the
petitions the right to participate in the hearing of the
MR. The opportunity granted by, technically, allowing
A: It refers to the review by a higher agency of
petitioners to finally be able to file their comment in decisions rendered by an administrative agency,
the case, resolves the procedural irregularity commenced by petition of an interested party.
previously inflicted upon petitioners. (Nasecore v. ERC,
G.R. No. 190795, July 6, 2011) Note: Under the 1987 Administrative Code,
administrative appeals from a decision of an agency
Q: When is the requirement of notice and hearing are taken to the Department Head, unless such appeal
not necessary? is governed by a special law.
A: Q: What is the concept of administrative review?

1. Urgency of immediate action
2. Tentativeness of administrative action A: Administrative appeals are not the only way by
3. Grant or revocation of licenses or permits which a decision of an administrative agency may
to operate certain businesses affecting be reviewed. A superior officer or department
public order or morals head may upon his or her own volition review a
4. Summary abatement of nuisance per se subordinate’s decision pursuant to the power of
which affects safety of persons or control.
property
167
Administrative reviews by a superior officer are, jurisprudence that the decisions and orders of
however, subject to the caveat that a final and administrative agencies, rendered pursuant to their
executory decision is not included within the power quasi-judicial authority, have upon their finality, the
of control, and hence can no longer be altered by force and binding effect of a final judgment within the
administrative review. purview of the doctrine of res judicata. (Fortrich vs.
Corona, G.R. No. 131457, April 24, 1998)
Q: What are the different types and kinds of
administrative appeal and review? Q: Is the application of res judicata in
administrative proceedings absolute?
A:
1. That which inheres in the relation of A: The doctrine of res judicata does not apply to the
administrative superior to administrative following administrative cases
subordinate 1. Naturalization proceedings or those
2. That embraced in statutes which provide involving citizenship and immigration;
for determination to be made by a 2. Labor relations
particular officer or body subject to 3. Family relations, personal status or
appeal, review or redetermination by condition, and capacity of persons
another officer or body in the same
agency or in the same administrative Note: It is well settled that findings of fact of quasi-
judicial agencies, such as the COA, are generally
system.
accorded respect and even finality by this Court, if
3. That in which the statute makes or
supported by substantial evidence, in recognition of
attempts to make a court a part of the their expertise on the specific matters under their
administrative scheme by providing in jurisdiction. (Reyna v. Commission on Audit, G.R. No.
terms or effect that the court, on review 167219, February 8, 2011)
of the action of an administrative agency.
4. That in which the statute provides that an 3. Fact-finding, investigative, licensing and rate-
order made by a division of a Commission fixing powers
or Board has the same force and effect as
if made by the subject to a rehearing by Q: Is the rule that findings of facts by
the Commission. administrative agencies are binding on the courts
5. That in which the statute provides for an subject to any exceptions?
appeal to an officer on an appeal to the
head of the department or agency. A:
6. That embraced in statutes which provide GR: Yes.
for appeal at the highest level namely, the
president. (De Leon, page 311) XPN: FIPE – GES
Q: How may administrative decisions be enforced? 1. Findings are vitiated by Fraud, imposition,
or collusion
A: It may be enforced. 2. Procedure which led to factual findings is
1. As provided for by law Irregular
2. May invoke the courts intervention 3. Palpable errors are committed
4. Factual findings not supported by
2.c. Administrative Res Judicata Evidence
5. Grave abuse of discretion, arbitrariness,
Q: Does the doctrine of res judicata apply to or capriciousness is manifest
administrative proceedings? 6. When expressly allowed by Statute; and
7. Error in appreciation of the pleadings and
A: The doctrine of res judicata applies only to in the interpretation of the documentary
judicial or quasi judicial proceedings and not to the evidence presented by the parties
exercise of purely administrative functions.
Administrative proceedings are non-litigious and Q: Define investigatory power
summary in nature; hence, res judicata does not
apply. A: It is the power to inspect, secure, or require the
disclosure of information by means of accounts,
Note: The doctrine of res judicata applies in records, reports, statements and testimony of
administrative cases which are characterized as witnesses. This power is implied and not inherent in
“adversarial” in nature. It is well-established in our
administrative agencies.
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POLITICAL LAW TEAM
certain past or present facts upon which a decision

Q: Is the power to issue subpoena inherent in is to be made and rights and liabilities determined.
administrative bodies?
Q: Define Rate-Fixing Power.
A: No. It is settled that these bodies may summon
witnesses and require the production of evidence A: It is the power usually delegated by the
only when duly allowed by law, and always only in legislature to administrative agencies for the latter
connection with the matter they are authorized to to fix the rates which public utility companies may
investigate. charge the public. (De Leon, Administrative Law,
2010)
Q: Do administrative agencies have the power to
declare persons in contempt? Q: What does the term “rate” mean?
A: The power to punish for contempt is not an A: It means any charge to the public for a service
inherent right by the administrative body. It must open to all and upon the same terms, including
be expressly conferred upon by the body, and individual or joint rates, tolls, classification or
additionally, must be used only in connection with schedules thereof, as well as communication,
its quasi-judicial as distinguished from its purely mileage, kilometrage and other special rates which
administrative or routinary functions. shall be imposed by law or regulation to be
observed and followed by a person.
Note: If there is no express grant, the agency must
invoke the aid of the RTC. Note: Fixing rates is essentially legislative but may be
delegated. (Philippine Inter-Island v. CA, G.R. No.
Q: May administrative agencies issue warrants of 100481, Jan. 22, 1997)
arrest or administrative searches?
Q: How is rate-fixing power performed?
A: As a rule, administrative agencies cannot issue
warrants of arrest. Under the 1987 Constitution, A: The administrative agencies perform this
only a judge may issue warrants. function either by issuing rules and regulations in
the exercise of their quasi-legislative power or by
The exception is only in cases of deportation of issuing orders affecting a specified person in the
illegal and undesirable aliens, whom the President exercise of its quasi-judicial power. (De Leon,
or the Commissioner of Bureau of Immigration and Administrative Law, 2010)
Deportation may order arrested following a final
order of deportation. (Salazar v. Achacoso, G.R. No. Q: May the function of fixing rates be either a
81510, March 14, 1990) legislative or adjudicative function?
Q: What is Licensing Power? A: Yes. The function of prescribing rates by an

administrative agency may be either a legislative or
A: The action of an administrative agency in and adjudicative function. (De Leon, Administrative
granting or denying, or in suspending or revoking, a Law, 2010)
license, permit, franchise, or certificate of public
convenience and necessity. (De Leon, Q: If the power to fix rates is exercised as a
Administrative Law, 2010) legislative function, are notice and hearing
required?
Q: What is the nature of an administrative
agency’s act if it is empowered by a statute to A: Where the rules and/or rates laid down are
revoke a license for non-compliance or violation of meant to apply to all enterprises of a given kind
agency regulations? throughout the country, they may partake of a
legislative character. If the fixing of rates were a
A: For procedural purposes, an administrative legislative function, the giving of prior notice and
action is not a purely administrative act if it is hearing to the affected parties is not a requirement
dependent upon the ascertainment of facts by the of due process, except where the legislature itself
administrative agency. Where a statute empowers requires it. (De Leon, Administrative Law, 2010)
an agency to revoke a license for non-compliance
with or violation of agency regulations, the Q: What if it is exercised as a quasi-judicial
administrative act is of a judicial nature, since it function?
depends upon the ascertainment if the existence of
169
A: Where the rules and the rate imposed apply the former being an undue delegation of legislative
exclusively to a particular party, based upon a power and the latter being the exercise if rule-
finding of fact, then its function is quasi-judicial in making without legal basis. (U.S. v. Ang Tang Ho, 43
character. Phil. 1, 1992)
As regards rates prescribed by an administrative Q: In connection with the evidence presented

agency in the exercise of its quasi-judicial function, before a fact-finding quasi-judicial body, do the
prior notice and hearing are essential to the validity latter have a power to take into consideration the
of such rates. But an administrative agency may be result of its own observation and investigation of
empowered by law to approve provisionally, when the matter submitted to it for decision?
demanded by urgent public need, rates of public
utilities without a hearing. (De Leon, Administrative A: A fact-finding quasi-judicial body (e.g., Land
Law, 2010) Transportation Franchising and Regulatory Board)
whose decisions (on questions regarding
Q: In case of a delegation of rate-fixing power, certificated of public convenience) are influenced
what is the only standard which the legislature is not only by the facts as disclosed by the evidence in
required to prescribe for the guidance of the case before it but also by the reports of its field
administrative authority? agents and inspectors that are periodically
submitted to it, has the power to take into
A: That the rate be reasonable and just. (American consideration the result of its own observation and
Tobacco Co. v Director of Patents, 67 SCRA 287, investigation of the matter submitted to it for
1975) decision, in connection with other evidence
presented at the hearing of the case (Pantranco
Q: In the absence of an express requirement as to South Express, Inc. v Board of Transportation, G.R.
reasonableness, may the standard be implied? No. L-49664, Nov. 22, 1990)
A: Yes. In any case, the rates must both be non- d. JUDICIAL RECOURSE AND REVIEW
confiscatory and must have been established in the
manner prescribed by the legislature. Even in the Q: What is the concept of judicial review?
absence of an express requirement as to
reasonableness, this standard may be implied. A A: Judicial review is the re-examination or
rate-fixing order, temporary or provisional though it determination by the courts in the exercise of their
may be, is not exempt from the procedural judicial power in an appropriate case instituted by a
requirements of notice and hearing when party aggrieved thereby as to whether the
prescribed by statute, as well as the requirement of questioned act, rule, or decision has been validly or
reasonableness. (De Leon, Administrative Law 2010, invalidly issued or whether the same should be
pp. 164-165) nullified, affirmed or modified.
Q: May the delegated power to fix rates be re- Note: The mere silence of the law does not necessarily
delegated? imply that judicial review is unavailable.
A: The power delegated to an administrative Q: What are the requisites of judicial review of
agency to fix rates cannot, in the absence of a law administrative action?
authorizing it, be delegated to another. This is
expressed in the maxim, potestas delagata non A:
delegari potest. (Kilusang Mayo Uno Labor Center v. 1. Administrative action must have been
Garcia, Jr., 39 SCRA386, 1994) completed (the principle of finality of
administrative action); and
Q: What are the requirements for the delegation 2. Administrative remedies must have been
of the power to ascertain facts to be valid? exhausted known as (the principle of
exhaustion of administrative remedies.)
A: The law delegating the power to determine some
facts or state of things upon which the law may Q: What are the limitations on judicial review?
take effect or its operation suspended must provide A:
the standard, fix the limits within which the 1. Final and executory decisions cannot be
discretion may be exercised, and define the made the subject of judicial review.
conditions therefor. Absent these requirements, 2. Administrative acts involving a political
the law and the rules issued thereunder are void, question are beyond judicial review,
170
POLITICAL LAW TEAM
except when there is an allegation that question of fact for purposes of review
there has been grave abuse of discretion. and the courts will not ordinarily review
3. Courts are generally bound by the the decision of the administrative
findings of fact of an administrative tribunal.
agency.
Q: Can courts render a decree in advance of
Q: What is the Doctrine of Ripeness for Review? administrative action?
A: This doctrine is the similar to that of exhaustion A: Courts will not render a decree in advance of
of administrative remedies except that it applies to administrative action. Such action would be
the rule making and to administrative action which rendered nugatory.
is embodied neither in rules and regulations nor in
adjudication or final order. It is not for the court to stop an administrative
officer from performing his statutory duty for fear
Q: When does the doctrine apply? that he will perform it wrongly.
A:VICS 1. Doctrine of Primary Administrative

1. When the Interest of the plaintiff is Jurisdiction
subjected to or imminently threatened
with substantial injury. Q: What is the doctrine of primary jurisdiction or
2. If the statute is Self-executing. doctrine of prior resort?
3. When a party is immediately confronted
with the problem of complying or A: Under the principle of primary jurisdiction,
violating a statute and there is a risk of courts cannot or will not determine a controversy
Criminal penalties. involving question within the jurisdiction of an
4. When plaintiff is harmed by the administrative body prior to the decision of that
Vagueness of the statute. question by the administrative tribunal where:
Q: What are the questions reviewable by the 1. The question demands administrative
courts? determination requiring special
knowledge, experience and services of
A: the administrative tribunal;
1. Questions of fact 2. The question requires determination of
technical and intricate issues of a fact;
GR: Courts will not disturb the findings of 3. The uniformity of ruling is essential to
administrative agencies acting within the comply with purposes of the regulatory
parameters of their own competence, statute administered
special knowledge, expertise, and
experience. The courts ordinarily accord Note: In such instances, relief must first be obtained in
respect if not finality to factual findings of administrative proceeding before a remedy will be
administrative tribunals. supplied by the courts even though the matter is
within the proper jurisdiction of a court. The judicial
XPN: If findings are not supported by process is accordingly suspended pending referral of
substantial evidence. the claim to the administrative agency for its view.
2. Questions of Law – administrative Q: What are the reasons for this doctrine?
decisions may be appealed to the courts
independently of legislative permission. It A:
may be appealed even against legislative 1. To take full advantage of administrative
prohibition because the judiciary cannot expertness; and
be deprived of its inherent power to 2. To attain uniformity of application of
review all decisions on questions of law. regulatory laws which can be secured only
if determination of the issue is left to the
3. Mixed ( law and fact) – when there is a administrative body
mixed question of law and fact and the
court cannot separate the elements to
see clearly what and where the mistake of
law is, such question is treated as
171
Q: When is the doctrine inapplicable? 2. Courts should refrain from disturbing the
findings of administrative bodies in
A: deference to the doctrine of separation of
1. When, by the court's determination, the powers.
legislature did not intend that the issues 3. Courts should not be saddled with the
be left solely to the initial determination review of administrative cases.
of the administrative body. 4. Judicial review of administrative cases is
2. When the issues involve purely questions usually effected through special civil
of law. actions which are available only if there is
3. When courts and administrative bodies no other plain, speedy, and adequate
have concurrent jurisdiction. remedy.
5. To avail of administrative remedy entails
Q: Can the court motu proprio raise the issue of lesser expenses and provides for a
primary jurisdiction? speedier disposition of controversies.
A: The court may motu proprio raise the issue of Q: What are the exceptions to the application of
primary jurisdiction and its invocation cannot be the doctrine?
waived by the failure of the parties to argue it, as
the doctrine exists for the proper distribution of A:
power between judicial and administrative bodies 1. Violation of Due process
and not for the convenience of the parties. In such 2. When there is Estoppel on the part of the
case the court may: administrative agency concerned
1. Suspend the judicial process pending 3. When the issue involved is a purely Legal
referral of such issues to the question
administrative body for its review, or 4. When there is Irreparable injury
2. If the parties would not be unfairly 5. When the administrative action is
disadvantaged, dismiss the case without patently illegal amounting to Lack or
prejudiced. (Euro-Med laboratories Phil. excess of jurisdiction
vs. Province of Batangas, G.R No. 148706, 6. When the respondent is a Department
July 17, 2006) Secretary whose acts as an Alter ego of
the President bears the implied and
2. Doctrine of Exhaustion of Administrative assumed approval of the latter
Remedies 7. When the subject matter is a Private land
case proceedings
Q: What is the doctrine of exhaustion of 8. When it would be Unreasonable
administrative remedies? 9. When no administrative review is
provided by Law
A: This doctrine calls for resort first to the 10. When the rule does not provide a Plain,
appropriate administrative authorities in the speedy, and adequate remedy
resolution of a controversy falling under their 11. When the issue of non-exhaustion of
jurisdiction and must first be appealed to the administrative remedies has been
administrative superiors up to the highest level rendered Moot
before the same may be elevated to the courts of 12. When there are circumstances indicating
justice for review. the Urgency of judicial intervention
13. When it would amount to a Nullification
The premature invocation of court intervention is of a claim; and
fatal to one’s cause of action. Exhaustion of 14. Where the rule of Qualified political
administrative remedies is a prerequisite for judicial agency applies. (Laguna CATV Network v.
review; it is a condition precedent which must be Maraan, G.R. No. 139492, Nov. 19, 2002)
complied with.
Q: What is the effect of non-exhaustion of
Q: What are the reasons for exhausting administrative remedies?
administrative remedies?
A: It will deprive the complainant of a cause of
A: action, which is a ground for a motion of dismiss.
1. To enable the administrative superiors to
correct the errors committed by their
subordinates.
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POLITICAL LAW TEAM
Q: Is non-compliance with the doctrines of primary 2. When it is Essential to the protection of

jurisdiction or exhaustion of administrative the rights asserted from the injuries
remedies a jurisdictional defect? threatened
3. Where an administrative officer Assumes
A: No. Non-compliance with the doctrine of primary to act in violation of the Constitution and
jurisdiction or doctrine of exhaustion of other laws
administrative remedies is not jurisdictional for the 4. Where such order is not Reviewable in
defect may be waived by a failure to assert the any other way and the complainant will
same at the earliest opportune time. suffer great and obvious damage if the
order is carried out
Q: Distinguish the doctrine of primary jurisdiction 5. To an Interlocutory order affecting the
from the doctrine of exhaustion of administrative merits of a controversy
remedies. 6. To an order made in excess of power,
contrary to specific prohibition in the
A: statute governing the agency and thus
DOCTRINE OF operating as a Deprivation of a right
DOCTRINE OF
EXHAUSTION OF assured by the statute
PRIMARY
ADMINISTRATIVE 7. When review is Allowed by statutory
JURISDICTION
REMEDIES provisions.
Both deal with the proper relationships between
the courts and administrative agencies. Note: Appeal to the CA is allowed because a
Applies where a case is quasi-judicial agency is equivalent in rank with
within the concurrent the RTC.(Rule 43, RoC)
jurisdiction of the court
Applies where a claim
and an administrative
is cognizable in the XI. ELECTION LAW
agency but the
first instance by an
determination of the
administrative agency a. SUFFRAGE
case requires the
alone
technical expertise of
Q: What is the right of suffrage?
the administrative
agency
A: It is the right to vote in the election of officers
Although the matter is
Judicial interference chosen by the people and in the determination of
within the jurisdiction
is withheld until the questions submitted to the people. It includes:
of the court, it must
administrative 1. Election
yield to the jurisdiction
process has been 2. Plebiscite
of the administrative
completed 3. Initiative and
case
4. Referendum
3. Doctrine of Finality of Administrative Action
Q: Is the right of suffrage absolute?
Q: What is the doctrine of finality of
A: No. Needless to say, the exercise of the right of
administrative action?
suffrage, as in the enjoyment of all other rights, is
subject to existing substantive and procedural
A: This doctrine provides that no resort to courts
requirements embodied in our Constitution, statute
will be allowed unless administrative action has
books and other repositories of law. (AKBAYAN-
been completed and there is nothing left to be
YOUTH v. COMELEC, G.R. No. 147066, March 26,
done in the administrative structure.
2001)
Q: What are the instances where the doctrine
Q: Does the conduct of exit polls transgress the
finds no application?
sanctity and secrecy of the ballot?
A: DEAR – PIA
A: No. In exit polls, the contents of the official ballot
are not actually exposed. Furthermore, the
1. To grant relief to Preserve the status quo
revelation of whom an elector has voted for is not
pending further action by the
compulsory, but voluntary.
administrative agency
Voters may also choose not to reveal their
identities. Indeed, narrowly tailored
173
countermeasures may be prescribed by the It is when there is failure of election on

COMELEC, so as to minimize or suppress incidental the scheduled date of regular election in a
problems in the conduct of exit polls, without particular place or which is conducted to
transgressing the fundamental rights of our people. fill up certain vacancies, as provided by
(ABS-CBN Broadcasting Corporation v. COMELEC, law (Agpalo, 2005)
G.R. No. 133486, Jan. 28, 2000)
a. Plebiscite—electoral process by which
Q: What is an election? an initiative on the Constitution is
approved or rejected by the people.
A: It is the selection of candidates to public office by b. Initiative—power of the people to
popular vote of the people. propose amendments to the Constitution
or to propose and enact legislations
Q: What are the components of an election? through election called for the purpose
i. Initiative on the Constitution
A: ii. Initiative on Statutes
1. Choice or selection of candidates to public iii. Initiative on Local Legislation
office by popular vote c. Referendum—power of the electorate
2. Conduct of the polls to approve or reject a piece of legislation
3. Listing of votes through an election called for the
4. Holding of electoral campaign purpose.
5. Act of casting and receiving the ballots i. Referendum on Statutes
from the voters ii. Referendum on Local Laws
6. Counting the ballots d. Recall—mode of removal of an elective
7. Making the election returns public officer by the people before the
8. Proclaiming the winning candidates end of his term of office.
Q: What are the types of elections? Q: What are the rules on construction of election
laws?
A:
1. Regular election – refers to an election A:
participated in by those who possess the CONSTRUCTION OF ELECTION LAW
right of suffrage, are not otherwise 3. Before the election –
disqualified by law, and who are Laws for conduct of Mandatory
registered voters. elections 4. After the election –
a. National Election— Directory
i. for President and VP Mandatory and strictly
ii. for Senators Laws for candidates
construed
iii. for Party – List Liberally construed in
Representatives Procedural rules favor of ascertaining
b. Local Elections— the will of the elections
i. For Members of HOR
Q: When will the election period commence?
iii. Provincial Officials
iv. City Officials A: The election period shall commence 90 days
v. Municipal Officials before the day of the election and shall end 30 days
c. Barangay Elections thereafter. (Sec. 3, B.P. 881 Omnibus Election Code)
d. ARRM Elections—
i. For Regional Governor Q: What is the purpose of an election?
ii. Regional Vice Governor
iii. Regional Assemblymen A: The purpose of an election is to enable the
e. Sangguniang Kabataan (SK) Elections electorate to choose the men and women who
would run their government, whether national,
2. Special election – one held to fill a provincial, city, municipal or barangays. (Teves v.
vacancy in office before the expiration of Comelec, G.R. No. L-5150, Nov. 8, 1951)
the term for which the incumbent was
elected. b. QUALIFICATION AND DISQUALIFICATION OF
VOTERS
174
POLITICAL LAW TEAM
Q: What are the qualifications for the exercise of

suffrage? A: No. It is but a condition precedent to the
exercise of the right to vote. Registration is a
A: regulation, not a qualification. (Yra v. Abano, G.R.
1. Filipino citizenship No. L-30187, November 15, 1928)
2. At least 18 years of age
3. Resident of the Philippines for at least Q: What is the effect of transfer of residence?
one year
4. Resident of the place where he proposes A: Any person, who transfers residence solely by
to vote for at least 6 months; and reason of his occupation, profession or
5. Not otherwise disqualified by law (Sec. 9, employment in private or public service, education,
R.A. No. 8189) etc., shall not be deemed to have lost his original
residence. (Asistio v. Aguirre, G.R. No. 191124, April
Note: These qualifications are continuing 27, 2010)
requirements. Congress may not add
qualifications but can provide for procedural Q: What is domicile?
requirements and disqualifications. However,
the disqualifications must not amount to A: A place to which, whenever absent for business
qualifications. or for pleasure, one intends to return, and depends
on facts and circumstances in the sense that they
Q: What are the procedural qualifications? disclose intent. (Romualdez-Marcos vs. COMELEC,
G.R. No. 119976, Sept. 18, 1995)
A: As to the procedural limitation, the right of a
citizen to vote is necessarily conditioned upon Q: What is residence for election purposes?
certain procedural requirements he must undergo:
among others, the process of registration. A: It implies the factual relationship of an individual
Specifically, a citizen in order to be qualified to to a certain place. It is the physical presence of a
exercise his right to vote, in addition to the person in a given area, community or country. For
minimum requirements set by the fundamental election purposes the concepts of residence and
charter, is obliged by law to register, at present, domicile are dictated by the peculiar criteria of
under the provisions of Republic Act No. 8189, political laws. As these concepts have evolved in
otherwise known as the “Voter’s Registration Act of our election law, what has clearly and unequivocally
1996.” (Akbayan-Youth v. COMELEC, G.R. No. emerged is the fact that residence for election
147066, Mar. 26, 2001) purposes is used synonymously with domicile.
(Ibid.)
Q: Who are disqualified to vote?
A: Q: Who is a double-registrant?
1. Persons sentenced by final judgment to
suffer imprisonment for not less than one A: Any person who, being a registered voter,
year, unless pardoned or granted registers anew without filing an application for
amnesty; but right is reacquired upon cancellation of his previous registration. (Sec. 26
expiration of 5 years after service of (y)(6), Omnibus Election Code)
sentence
2. Conviction by final judgment of any of the Q: Maruhom registered as a voter in Marawi on 26
following crimes: July 2003. Only three days after, Maruhom again
a. Crime involving disloyalty to the registered as a voter in Marantao, without first
government canceling her registration in Marawi; and on 28
b. Any crime against national security March 2007, Maruhom filed her COC declaring
c. Firearms laws that she was a registered voter in Marantao and
But right is reacquired upon expiration of eligible to run as a candidate for the position of
5 years after service of sentence. mayor of said municipality. Is she still qualified to
3. Insanity or incompetence declared by run for such position in Marantao?
competent authority (Sec. 118, B.P. 881
Omnibus Election Code) A: No. Her prior registration makes her subsequent
registration null and void. She cannot be considered
c. REGISTRATION OF VOTERS a registered voter in Marantao and thus she made a
false representation in her COC when she claimed
Q: Does registration confer the right to vote? to be one. If a candidate states a material
175
representation in the COC that is false, the that he did not comply with the minimum
COMELEC is empowered to deny due course to or requirements of RA 8189. This leads to only one
cancel the COC. The person whose COC is denied conclusion: that X, not having demonstrated that he
due course or cancelled under Section 78 of the duly accomplished an application for registration, is
OEC is not treated as a candidate at all, as if such not a registered voter. Hence, he must be
person never filed a COC. However, although disqualified to run for Mayor. (Gunsi Sr. v.
Maruhom’s registration in Marantao is void, her COMELEC, G.R. No. 168792, Feb. 23, 2009)
registration in Marawi still subsists. She may be
barred from voting or running for mayor in the Q: "A", while of legal age and of sound mind, is
former, but she may still exercise her right to vote, illiterate. He has asked your advice on how he can
or even run for an elective post, in the latter. vote in the coming election for his brother is
(Maruhom v. COMELEC, G.R. No. 179430, July 27, running for mayor. This will be the first time "A"
2009) will vote and he has never registered as a voter
before. What advice will you give him on the
Q: Are double registrants still qualified to vote? procedure he needs to follow in order to be able
to vote?
A: Yes, double registrants are still qualified to vote
provided that COMELEC has to make a A: The Constitution provides that until Congress
determination on which registration is valid, and shall have provided otherwise, illiterate and
which is void. COMELEC could not consider both disabled voters shall be allowed to vote under
registrations valid because it would then give rise to existing laws and regulations (Art, V, Sec. 2). It is
the anomalous situation where a voter could vote necessary for any qualified voter to register in order
in two precincts at the same time. COMELEC laid to vote. (Omnibus Election Code, Sec. 115) In the
down the rule in Minute Resolution No. 00-1513 case of illiterate and disabled voters, their voter's
that while the first registration of any voter affidavit may be prepared by any relative within the
subsists, any subsequent registration thereto is void fourth civil degree of consanguinity or affinity or by
ab initio. (Maruhom v. COMELEC, G.R. No. 179430, any member of the board of election inspectors
July 27, 2009) who shall prepare the affidavit in accordance with
the data supplied by the applicant. (Sec. 14, R.A.
Q: Y filed a petition for the cancellation of the No. 8189)
certificate of candidacy (COC) of X. Essentially, Y
sought the disqualification of X for Mayor of South Q: What is the system of continuing registration?
Upi, Maguindanao, alleging, that X was not a
registered voter in the Municipality of South Upi, A: GR: It is a system where the application of
Maguindanao since he failed to sign his application registration of voters shall be conducted daily in the
for registration, and that the unsigned application office hours of the election officer during regular
for registration has no legal effect. In refutation, X office hours.
asseverated that his failure to sign his application
for registration did not affect the validity of his XPN: No registration shall be conducted during the
registration since he possesses the qualifications period starting 120 days before a regular election
of a voter set forth in the Omnibus Election Code and 90 days before a special election (Sec. 8, R.A.
as amended by Section 9 of Republic Act 8189. Y 8189)
insists that the signature in the application for
registration is indispensable for its validity as it is Note: The SC upheld COMELEC’s denial of the request
an authentication and affirmation of the data for two additional registration days in order to
appearing therein. Should X be disqualified? enfranchise more than 4 million youth who failed to
register on or before December 27, 2000. It is an
A: Yes. R.A. 8189, The Voter’s Registration Act of accepted doctrine in administrative law that the
1996, specifically provides that an application for determination of administrative agencies as to the
registration shall contain specimen signatures of operation, implementation and application of a law is
accorded greatest weight, considering that these
the applicant as well as his/her thumbprints, among
specialized government bodies are, by their nature and
others. The evidence shows that X failed to sign
functions, in the best position to know what they can
very important parts of the application, which refer possibly do or not do under prevailing circumstances
to the oath which X should have taken to validate (Akbayan Youth v. COMELEC, G.R. No. 147066, Mar.
and swear to the veracity of the contents appearing 26, 2001)
in the application for registration. Plainly, from the
foregoing, the irregularities surrounding X’s Q: On Nov. 12, 2008 respondent COMELEC issued
application for registration eloquently proclaims Resolution 8514 set Dec. 2, 2008 to Dec.15, 2009
176
POLITICAL LAW TEAM
as the period of continuing voter registration using pursuant to the constitutional mandate that
the biometrics process in all areas except ARMM. Congress shall provide a system for absentee voting
Subsequently COMELEC issued Resolution 8585 on by qualified Filipinos abroad (Sec. 2, Art. V, 1987
Feb. 12, 2009 adjusting the deadline of voter Constitution). Absentee voting is an exception to
registration for the May 10, 2010 national and the six month/one year residency requirement.
local elections to Oct. 31, 2009 instead of Dec. 15, (Macalintal v. Romulo, G.R. No. 157013, July 10,
2009 as previously fixed by Resolution 8514. 2003)
Petitioners challenge the validity of COMELEC
Resolution 8585 and seek the declaration of its Note: The constitutionality of Sec. 18.5 of R.A. 9189
nullity. Petitioners further contend that the (Absentee Voting) is upheld with respect only to the
COMELEC Resolution 8585 is an unconstitutional authority given to the COMELEC to proclaim the
encroachment on the legislative power of winning candidates for the Senators and party-list
Congress as it amends the system of continuing representatives but not as to the power to canvass
voter registration under Section 8 of RA 8189. Is votes and proclaim the winning candidates for
COMELEC Resolution 8585 valid? Differentiate President and Vice-president. (Ibid.)
from the case of Akbayan-Youth v. COMELEC?
Q: Who are qualified to vote under the absentee
A: In the present case, the Court finds no ground to voting law?
hold that the mandate of continuing voter
registration cannot be reasonably held within the A: All citizens of the Philippines abroad, who are
period provided by RA 8189 (Absentee Voting), not otherwise disqualified by law, at least eighteen
Sec.8 – daily during the office hours, except during (18) years of age on the day of the elections, may
the period starting 120 days before the May vote for president, vice-president, senators and
10,2010 regular elections. There is thus no occasion party-list representatives. (Sec. 4, R.A. 9189)
for the COMELEC to exercise its power to fix other
dates or deadlines thereof. Q: May “duals” or dual citizens be allowed to vote
under the Overseas Absentee Voting Act of 2003?
The present case differs significantly from the
Akbayan-Youth vs. COMELEC. In the said case, the A: Yes. There is no provision in the dual citizenship
Court held that the COMELEC did not abuse its law - R.A. 9225 - requiring "duals" to actually
discretion in denying the request of the therein establish residence and physically stay in the
petitioners for an extension of the Dec. 27, 2000 Philippines first before they can exercise their right
deadline of voter registration for the May 14, 2001 to vote. On the contrary, R.A. 9225, in implicit
elections. For the therein petitioners filed their acknowledgment that “duals” are most likely non-
petition with the court within the 120-day period residents, grants under its Section 5(1) the same
for the conduct of voter registration under Sec. 8, right of suffrage as that granted an absentee voter
RA 8189, and sought the conduct of a two-day under R.A. 9189. It cannot be overemphasized that
registration of Feb. 17, and 18, 2001, clearly within R.A. 9189 aims, in essence, to enfranchise as much
the 120-day prohibited period. as possible all overseas Filipinos who, save for the
residency requirements exacted of an ordinary
The clear import of the Court’s pronouncement in voter under ordinary conditions, are qualified to
Akbayan-Youth is that had therein petitioners filed vote. (Lewis v. COMELEC, G.R. No. 162759, Aug.4,
their petition – and sought an extension date that 2006)
was – before the 120-day prohibitive period, their
prayer would have been granted pursuant to the Q: Who are disqualified from voting under the
mandate of RA 8189 (Absentee Voting). In the absentee voting law?
present case, as reflected earlier, both the dates of
filing of the petition (October 30, 2009) and the A:
extension sought (until January 9, 2010) are prior to 1. Those who have lost their Filipino
the 120 day prohibitive period. The Court therefore, citizenship in accordance with Philippine
finds no legal impediment to the extension prayed laws;
for. (Kabataan Partylist v. COMELEC, G.R. No. 2. Those who have expressly renounced
189868, Dec. 15, 2009) their Philippine citizenship and who have
pledged allegiance to a foreign country;
Q: What is absentee voting? 3. Those who have committed and are
convicted in a final judgment by a court or
A: It is a process by which qualified citizens of the tribunal of an offense punishable by
Philippines abroad exercise their right to vote imprisonment of not less than one (1)
year, including those who have
177
committed and been found guilty of (Ugdoracion v. COMELEC,G.R. No. 179851, April 18,
Disloyalty as defined under Art. 137 of the 2008)
Revised Penal Code, such disability not
having been removed by plenary pardon Q: How is registration done for absentee voters?
or amnesty;
A: Registration as an overseas absentee voter shall
Note: However, any person disqualified to be done in person (Sec. 6, R.A. 9189, Absentee
vote under this subsection shall Voting Law)
automatically acquire the right to vote upon
expiration of five (5) years after service of Q: How shall voting be done?
sentence; Provided further, that the
Commission may take cognizance of final A:
judgments issued by foreign courts or 1. The overseas absentee voter shall
tribunals only on the basis of reciprocity and
personally accomplish his/her ballot at
subject to the formalities and processes
the embassy, consulate or other foreign
prescribed by the Rules of Court on
execution of judgments.
service establishment that has jurisdiction
over the country where he/she
4. An immigrant or a permanent resident temporarily resides or at any polling place
who is recognized as such in the host designated and accredited by the
country Commission. (Sec. 16, R.A. 9189 Absentee
Voting Law)
Note: An immigrant or permanent resident 2. The overseas absentee voter may also
may vote if he/she executes, upon vote by mail. (R.A. 9189 Absentee Voting
registration, an affidavit prepared for the Law)
purpose by the Commission declaring that
he/she shall resume actual physical Q: When may voting by mail be allowed?
permanent residence in the Philippines not
later than three (3) years from approval of A: Voting by mail may be allowed in countries that
his/her registration under this Act. Such satisfy the following conditions:
affidavit shall also state that he/she has not
applied for citizenship in another country. 1. Where the mailing system is fairly well-
Failure to return shall be the cause for the developed and secure to prevent the
removal of the name of the immigrant or occasion of fraud
permanent resident from the National 2. Where there exists a technically
Registry of Absentee Voters and his/her established identification system that
permanent disqualification to vote in
would preclude multiply or proxy voting;
absentia.
and
3. Where the system of reception and
5. Any citizen of the Philippines abroad
custody of mailed ballots in the
previously declared insane or
embassies, consulates and other foreign
incompetent by competent authority in
service establishments concerned are
the Philippines or abroad, as verified by
adequate and well-secured.
the Philippine embassies, consulates or
foreign service establishments concerned
Thereafter, voting by mail in any country shall be
allowed only upon review and approval of the Joint
Note: Unless such competent authority
subsequently certifies that such person is no
Congressional Oversight Committee. (Sec. 17.1, R.A.
longer insane or incompetent. (Sec. 5, No. 9189 Absentee Voting Law)
Absentee Voting Law)
Q: How will the counting and canvassing of the
Q: May an immigrant or permanent resident votes be done?
(green card holder) abroad be qualified to run for
an elective position in the Philippines? A:
1. It shall be conducted in the country where the
A: No. Acquisition of a lawful permanent resident votes were actually cast. The opening of the
status abroad amounts to an abandonment and specially-marked envelopes containing the
renunciation of one’s status as a resident of the ballots and the counting and canvassing of
Philippines; it constituted a change from one’s votes shall be conducted within the premises
domicile of origin to a new domicile of choice. of the embassies, consulates and other foreign
178
POLITICAL LAW TEAM
service establishments or in such other places e. New Voters

as may be designated by the COMELEC f. Transfer of residence
pursuant to the Implementing Rules and
Regulations. The COMELEC shall ensure that Q: What is Deactivation?
the start of counting in all polling places
abroad shall be synchronized with the start of A: Deactivation is removal from the registration
counting in the Philippines. records from the precinct books of voters and
2. The COMELEC shall constitute as many Special places the same, properly marked and dated in
Boards of Election Inspectors as may be indelible ink, in the inactive file after entering the
necessary to conduct and supervise the cause of deactivation.
counting of votes.
3. Immediately upon completion of the counting, Q: What are the Grounds for Deactivation?
the Special Boards of Election Inspectors shall
transmit via facsimile and/or electronic mail A:
the results to the Commission in Manila and a. Those which would disqualify you as a
the accredited major political parties. (Sec. 18, voter
R.A. 9189 Absentee Voting Law) 1. Convicted by final judgment to suffer
imprisonment not less than 1 year
Q: Can the canvass of the overseas absentee votes 2. Disloyalty
delay the proclamation of winners? 3. Insanity
b. Others:
A: No, if the outcome of the election will not be 1. Loss of citizenship
affected by the results thereof. Notwithstanding 2. Failed to vote for 2 successive
the foregoing, the COMELEC is empowered to order preceding regular elections
the proclamation of winning candidates despite the 3. Registration was ordered excluded
fact that the scheduled election has not yet taken by the court.
place in a particular country or countries, if the
holding of elections therein has been rendered Q: What are the Grounds for the Annulment of
impossible by events, factors, and circumstances Book of Voters?
peculiar to such country or countries, and which
events, factors and circumstances are beyond the A:
control or influence of the COMELEC. (Sec. 18, RA 1. Fraud
9189 Absentee Voting Law) 2. Forgery
3. Force
Q: What kind of registration system do the 4. Intimidation
Philippines have? 5. Impersonation
6. Bribery
A: 7. Similar Irregularity
1. Continuing 8. Contains data that are statistically
2. Computerized; and improbable
3. Permanent
d. INCLUSION AND EXCLUSION PROCEEDINGS
Q: What is the Book of Voters?
Q: Which court has jurisdiction over inclusion and
A: Classified as permanent whereby each precinct exclusion proceedings?
shall have a permanent list of all registered voters
residing within the territorial jurisdiction of the A:
precinct.  MTC - original and exclusive
 RTC - appellate jurisdiction
Q: What are the grounds for the alteration of Book  SC - appellate jurisdiction over RTC on
of Voters? question of law
A: Q: Who may file a petition in an inclusion or

a. Deactivation/Reactivation exclusion proceedings?
b. Exclusion/ Inclusion
c. Cancellation of Registration in case of A:
death  Inclusion
d. Annulment of Book of Voters
179
 Any private person whose voter’s political status, nor bar subsequent
application was disapproved by the proceedings on his right to be registered as a voter
Election Registration Board or whose in any other election.(Domino vs. COMELEC, G.R.
name was stricken out from the list No. 134015, July 19, 1999)
of voters
 COMELEC Q: Can a voter be excluded for stating a fake
address?
 Exclusion
 Any registered voter in the city or A: No. The right to vote is a most precious political
municipality right, as well as a bounden duty of every citizen,
 Representative of political party enabling and requiring him to participate in the
 Election officer process of government to ensure that it can truly be
 COMELEC (BP 881 Omnibus Election Code) said to derive its power solely from the consent of
its constituents.
Q: What is the period for filing a petition in an
inclusion or exclusion proceeding? A citizen cannot be disenfranchised for the flimsiest
of reasons. Only on the most serious grounds, and
A: upon clear and convincing proof, may a citizen be
 Inclusion - any day except 105 days deemed to have forfeited this precious heritage of
before regular election or 75 days before freedom. (Asistio v. Aguirre, G.R. No. 191124, April
a special election. (COMELEC Reso. No. 27, 2010)
8820)
e. POLITICAL PARTIES
 Exclusion - anytime except 100 days 1. Jurisdiction of the COMELEC over political
before a regular election or 65 days parties
before a special election. (COMELEC Reso. 2. Registration
No. 9021)
Q: What is a political party?
Q: What are the Grounds for Inclusion and
Exclusion Proceedings? A: A political party is any organized group of citizens
advocating an ideology or platform, principles and
A: For Inclusion: policies for the general conduct of government and
1. Application for registration has been which, as the most immediate means of securing
disapproved by the board their adoption, regularly nominates and supports
2. Name has been stricken out certain of its leaders and members as candidate in
public office.
For Exclusion:
1. Not Qualified for possessing To acquire juridical personality and to entitle it to
disqualification rights and privileges granted to political parties, it
2. Flying voters must be registered with COMELEC. (Sec. 3 (c), R.A.
3. Ghost voters 7941)
Q: Do decisions in an inclusion or exclusion Q: What is a sectoral party?

proceedings acquire the nature of res judicata?
A: A sectoral party refers to an organized group of
A: No. The proceedings for the exclusion or citizens belonging to any of the sectors enumerated
inclusion of voters in the list of voters are summary in Section 5, RA 7941 whose principal advocacy
in character. Except for the right to remain in the pertains to the special interest and concerns of
list of voters or for being excluded therefrom for their sector. (Sec. 3 (d), R.A. 7941)
the particular election in relation to which the
proceedings had been held, a decision in an Q: What is a sectoral organization?
exclusion or inclusion proceeding, even if final and
unappealable, does not acquire the nature of res A: A sectoral organization refers to a group of
judicata. In this sense, it does not operate as a bar citizens or a coalition of groups of citizens who
to any further action that a party may take share similar physical attributes or characteristics,
concerning the subject passed upon in the employment, interests or concerns. (Sec. 3 (e), R.A.
proceeding. Thus, a decision in an exclusion 7941)
proceeding would neither be conclusive on the
180
POLITICAL LAW TEAM
Q: What is the jurisdiction of COMELEC over 4. At least 40 years of age at the day of
political parties? election
5. And a resident of the Philippines for at
A: Sec. 2(5), Art. IX-C of the Constitution grants the least ten years immediately preceding
Commission the power to register political parties. such election. (Sec. 63, B.P. No. 881
It also has the power to require candidates to Omnibus Election Code)
specify in their certificates of candidacy their
political affiliation, allow political parties to appoint Q: What are the qualifications of elective local
watchers, limit their expenditures, and determine officials?
whether their registrations should be cancelled in
appropriate proceedings. These powers necessarily A:
include the jurisdiction to resolve issues of political 1. Must be a citizen of the Philippines
leadership in a political party, and to ascertain the 2. A registered voter in the barangay,
identity of political party and its legitimate officers. municipality, city, or province or, in the
(Palmares v. COMELEC, G.R. No. 86177, Aug. 11, case of a member of the sangguniang
1989) panlalawigan, sangguniang panlungsod,
or sanggunian bayan, the district where
Q: What are the grounds for the refusal and/or he intends to be elected
cancellation of registration of a political party? 3. A resident therein for at least one (1) year
immediately preceding the day of the
A: election
1. It is a religious sect or denomination, 4. And able to read and write Filipino or any
organization or association, organized for other local language or dialect. (Sec. 39,
religious purposes R.A. No. 7160 Local Government Code of
2. It advocates violence or unlawful means the Philippines)
to seek its goal
3. It is a foreign party or organization Note: Congress may not add to qualifications for
4. It is receiving support from any foreign elective officials provided in the constitution. However
government, foreign political party, they may do so for elective officials not provided in the
foundation, organization, whether Constitution.
directly or through any of its officers or
members or indirectly through third Q: What are the grounds for disqualification of a
parties for partisan election purposes candidate?
5. It violates or fails to comply with laws,
rules or regulations relating to elections A:
6. It declares untruthful statements in its 1. Declared as incompetent or
petition insane by competent authority
7. It has ceased to exist for at least one (1) 2. Convicted by final judgment for
year; or subversion, insurrection,
8. It fails to participate in the last two (2) rebellion, or any offense for
preceding elections or fails to obtain at which he has been sentenced to
least two per centum (2%) of the votes a penalty of 18 months
cast under the party-list system in the two imprisonment
(2) preceding elections for the 3. Convicted by final judgment for
constituency in which it has registered. a crime involving moral
(Sec. 6, R.A. 7941) turpitude
4. Election offenses under Sec. 68
f. CANDIDATES of the Omnibus Election Code
5. Committing acts of terrorism to
1. Qualifications of Candidates enhance candidacy
6. Spending in his election
Q: What are the qualifications for President and campaign an amount in excess
Vice President of the Philippines? of that allowed
7. Soliciting, receiving, making
A: prohibited contributions
1. Natural-born citizen of the Philippines 8. Not possessing qualifications
2. Registered voter and possessing disqualifications
3. Able to read and write under the Local Government
Code
181
9. Sentenced by final judgment for

an offense involving moral Q: What is the purpose of the law in requiring the
turpitude or for an offense filing of certificate of candidacy and in fixing the
punishable by one year or more time limit therefor?
of imprisonment within two
years after serving sentence A:
10. Removed from office as a result 1. To enable the voters to know, at least 60
of an administrative case days before the regular election, the
11. Convicted by final judgment for candidates among whom they have to
violating the oath of allegiance choose, and
to the Republic 2. To avoid confusion and inconvenience in
12. Dual citizenship (more the tabulation of the votes cast. (Miranda
specifically, dual allegiance) v. Abaya, G.R. No. 136351, July 28, 1999)
13. Fugitives from justice in criminal
or non-political cases here or Q: Ka Roger went to Laguna to file his COC. The
abroad election officer refused to receive Ka Roger’s CoC
14. Permanent residents in a because he seeks to achieve his goals through
foreign country or those who violence. Is the refusal valid?
have acquired the right to
reside abroad and continue to A: No. It is the ministerial duty on the part of the
avail of the same right election officer to receive and acknowledge receipt
15. Insane or feeble- minded of the CoC. The question of whether or not a person
16. Nuisance candidate is disqualified belongs to another tribunal in an
17. Violation of Sec. 73 OEC with appropriate disqualification case.
regard to COC
18. Violation of Sec. 78: material Q: What is the effect of filing a certificate of
misrepresentation in the COC candidacy on the tenure of incumbent government
officials?
Note: When a candidate has not yet been disqualified
by final judgment during the election day and was A:
voted for, the votes cast in his favor cannot be 1. Appointive official – Sec. 66 of the OEC
declared stray. (Codilla v. De Venecia, G.R. No. 150605, provides that any person holding an
Dec. 10, 2002) appointive office or position, including
active members of the Armed Forces of
2. Filing of Certificates of Candidacy the Philippines, and officers and
a. Effect of filing employees in GOCCs, shall be considered
b. Substitution of candidates ipso facto RESIGNED from his office upon
c. Ministerial duty of COMELEC to receive the filing of his certificate of candidacy.
certificate Such resignation is irrevocable.
d. Nuisance Candidates
e. Petition to deny or cancel certificates of 2. Elective official – No effect. The candidate
candidacy shall continue to hold office, whether he
f. Effect of disqualification is running for the same or a different
g. Withdrawal of candidates position. (Sec. 14, Fair Elections Act
expressly repealed Sec. 67 of BP 881)
Q: What is a certificate of candidacy (CoC)?
Q: When can a person be considered a candidate?
A: It is the formal manifestation to the whole world
of the candidate’s political creed or lack of political A: A candidate refers to any person aspiring for or
creed. seeking an elective public office, who has filed a
certificate of candidacy by himself or through an
Note: A COC may be amended before the elections, accredited political party, aggroupment or coalition
even after the date of its filing. of parties.
Provisions of the election law on certificates of
“Any person who files his certificate of candidacy
candidacy are mandatory in terms. However, after the
within the filing period shall only be considered a
elections, they are regarded as directory so as to give
candidate at the start of the campaign period for
effect to the will of the electorate. (Saya-Ang Sr. v.
COMELEC, G.R. No. 155087, November 28, 2003) which he filed his certificate of candidacy."
182
POLITICAL LAW TEAM
Q: Can you withdraw the CoC?

Any person may thus file a certificate of candidacy
on any day within the prescribed period for filing a A: Yes. A person who has filed a CoC may, prior to
certificate of candidacy yet that person shall be the election, withdraw the same by submitting to
considered a candidate, for purposes of the office concerned (COMELEC) a written
determining one’s possible violations of election declaration under oath. (Sec. 73, Omnibus Election
laws, only during the campaign period. (Penera v. Code)
COMELEC, G.R. No. 181613, Nov. 25, 2009)
Q: On the last day of filing a CoC, March 31, Jose
Q: Do the deemed-resigned provisions which are Monsale withdrew his CoC. April 1, campaign
applicable to appointive officials and not with period started. On April 2, he wanted to run again
elective officials violate the equal protection so he filed a written declaration withdrawing his
clause of the constitution? withdrawal. Is his act of withdrawing the
withdrawal valid?
A: No. The legal dichotomy created by the
Legislature is a reasonable classification, as there A: No. The withdrawal of the withdrawal of the CoC
are material and significant distinctions between made after the last day of filing is considered as
the two classes of officials. This is because elected filing of a new CoC. Hence, it was not allowed since
public officials, by the very nature of their office, it was filed out of time. (Monsale v. Nico, G.R. No. L-
engage in partisan political activities almost all year 2539, May 28, 1949)
round, even outside of the campaign period.
Political partisanship is the inevitable essence of a Q: Explain the concept of “substitution of
political office, elective positions included. The candidacy”.
equal protection of the law clause in the
Constitution is not absolute, but is subject to A: If after the last day for the filing of certificates of
reasonable classification. Substantial distinctions candidacy, an official candidate of a political party:
clearly exist between elective officials and (1) dies, (2) withdraws or is (3) disqualified for any
appointive officials. The former occupy their office cause—a person belonging to, and certified by, the
by virtue of the mandate of the electorate. They are same political party may file a certificate of
elected to an office for a definite term and may be candidacy not later than mid-day of election day to
removed therefrom only upon stringent conditions. replace the candidate who died, withdrew or was
On the other hand, appointive officials hold their disqualified. (COMELEC Reso. No. 9140)
office by virtue of their designation thereto by an
appointing authority. Some appointive officials hold Q: What are the requisites for valid substitution?
their office in a permanent capacity and are entitled
to security of tenure while others serve at the A:
pleasure of the appointing authority. (Quinto v. GR:
COMELEC, Feb. 22, 2010, G.R. 189698) 1. The substitute must belong to the same
party
Q: What is the duty of the COMELEC in receiving 2. The deceased, disqualified or withdrawn
CoCs? candidate must have duly file a valid
certificate of candidacy. (Ibid.)
A: GR: When a candidate files his COC, the
COMELEC has a ministerial duty to receive and XPN: This does not include those cases where the
acknowledge its receipt pursuant to Section 76, of certificate of candidacy of the person to be
the Election Code. The COMELEC may not, by itself, substituted had been denied due course and
without the proper proceedings, deny due course canceled under Section 78 of the Omnibus Election
to or cancel a COC filed in due form. (Luna vs. Code. While the law enumerated the occasion
COMELEC, G.R. No. 165983, April 24, 2007) where a candidate may be validly substituted, there
is no mention of the case where a candidate is
XPN: excluded not only by disqualification but also by
1. Nuisance candidates—Sec. 69 of the OEC denial and cancellation of his certificate of
2. Petition to deny due course or to cancel a candidacy. (Ong v. Alegre, G.R. No. 163295, January
COC—Sec. 78 of the OEC 23, 2006)
3. Filing of a disqualification case on any of
the grounds enumerated in Section 68, Q: When may substitution take place?
OEC.
183
A: Substitution can only take place on the first day domicile of choice. The length of his residence
of campaign period until not later than mid-day of therein shall be determined from the time he made
election day. (COMELEC Reso. No. 9140) it his domicile of choice and it shall not retroact to
the time of his birth. (Japson v. COMELEC, G.R .No.
Q: Martin de Guzman died while campaigning. His 180088, Jan. 19,2009)
son substituted him. Voters on the day of the
election wrote Martin de Guzman instead of Q: May a second placer be declared elected?
casting the same in the name of his son, Joel de
Guzman. Should the votes be counted in favor of A:
Joel? GR: No.
A: Yes. As a general rule, the same will be XPN:

considered as stray votes but will not invalidate the 1. If the one who obtained the highest
whole ballot. Exception is when the substitute number of votes is disqualified and
carries the same family name. (Sec. 12, R.A 9006) 2. The electorate is fully aware in fact and in
law of the candidate’s disqualification so
Q: In the 1998 election, Mayor Miranda already as to bring such awareness within the
served 8 consecutive terms, yet he still filed a CoC. realm of notoriety but would nonetheless
As a result, Abaya filed a disqualification case. cast their votes in favor of the ineligible
COMELEC then disqualified Miranda and cancelled candidate. (Grego v. COMELEC, G. R. No.
his CoC. The son of Miranda, Joel, upon 125955, June 19, 1997)
nomination of their political party, filed a
certificate of substitute. Joel Miranda won. Was Q: What is the effect of filing two certificates of
the substitution valid? candidacy?
A: There was no valid substitution. COMELEC did A: Filing of two (2) certificates of candidacy
not only disqualify Miranda but also cancelled his disqualifies the person to run for both elective
CoC. Therefore, he cannot be validly substituted. A positions. (Sec. 73, B.P. 881 Omnibus Election Code)
disqualified candidate may only be substituted if he
had a valid CoC because if the disqualified Q: Who may be considered a nuisance candidate?
candidate did not have a valid and seasonably filed
CoC, he is and was not a candidate at all. (Miranda A: They are candidates who have no bona fide
v. Abaya, G.R. No. 136351, July 28, 1999) intention to run for the office for which the COC has
been filed and would thus prevent a faithful
Q: Since there was no valid substitution, should election. And upon showing that:
the candidate who obtained the second highest
vote be proclaimed? Who will then assume the 1. Said certificate has been filed to put the
position of mayorship? election process in mockery or disrepute
2. To cause confusion among the voters by
A: No. Under the doctrine on the rejection of the similarity of the names of the
second placer, the second placer is just like that— registered candidates; or
second placer. He was not the choice of the 3. By other circumstances or acts which
electorate. The wreath of victory cannot be demonstrate that a candidate has no
transferred to the repudiated loser. Following the bona fide intention to run for the office
rule on succession, it is the Vice-Mayor who will for which his certificate of candidacy has
assume the position of mayorship. (Cayat v. been filed and thus prevent a faithful
COMELEC, G.R. No. 163776, Apr. 24, 2010) determination of the true will of the
electorate. (Tajanan v. COMELEC, G.R. No.
Q: What is the effect of reacquisition of Philippine 104443, Apr. 13, 1992)
citizenship as to the domicile/residence
requirement for running as a mayoralty The COMELEC may, motu proprio or upon verified
candidate? petition of an interested party, refuse to give due
course to or cancel a certificate of candidacy upon
A: Reacquisition of Philippine citizenship under R.A. showing of the above-stated circumstances. (Sec.
9225 has no automatic impact or effect on a 69, B.P. 881 Omnibus Election Code)
candidate’s residence/domicile. He merely has an
option to again establish his domicile in the Q: A and B were the only candidates for mayor of
municipality, which place shall become his new Bigaa, Bulacan in the May 1995 local elections. A
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POLITICAL LAW TEAM
obtained 10,000 votes as against 3,000 votes for B.

In the same elections, X got the highest number of Q: What are the requisites for the grant of a
votes among the candidates for the Sangguniang petition to deny due course to or cancel a
Bayan of the same town. A died the day before his certificate of candidacy?
proclamation.
A: 1.Material misrepresentation in the
a. Who should the Board of qualifications for elective office, which includes age,
Canvassers proclaim as elected residency, citizenship, and any other legal
mayor, A, B or X? Explain. qualifications necessary to run for an elective office;
b. Who is entitled to discharge
the functions of the office of 2. Deliberate attempt to mislead, misinform or hide
the mayor, B or X? Explain. a fact which would otherwise render a candidate
ineligible.
A: It is A who should be proclaimed as winner,
because he was the one who obtained the highest Note: These two requirements must concur to warrant
number of votes for the position of mayor, but a the cancellation of the certificate of candidacy.
notation should be made that he died for the
purpose of applying the rule on succession to office. Q: What is material misrepresentation?
a. B cannot be proclaimed, because the A: Material misrepresentation in a COC refers to the

death of the candidate who obtained the qualification for elective office, which includes false
highest number of votes does not entitle statement as to age, residency, citizenship, being a
the candidate who obtained the next registered voter and any other legal qualifications
highest number of votes to be proclaimed necessary to run for an elective office.
the winner, since he was not the choice of
the electorate. X is not entitled to be Note: A misrepresentation which does not affect one’s
proclaimed elected as mayor, because he qualification to run or hold public office will not suffice
ran for the Sangguniang Bayan. for the cancellation of a COC.
b. Neither B nor X is entitled to discharge Q: What is a petition for disqualification?

the functions of the office of mayor. B is
not entitled to discharge the office of A: It is the remedy against any candidate who does
mayor, since he was defeated in the not possess all the qualifications required by the
election. X is not entitled to discharge the Constitution or law, or who commits any act
office of mayor. Under Section 44 of the declared by law to be grounds for disqualification.
Local Government Code, it is the vice
mayor who should succeed in case of Note: A petition for disqualification must be filed any
permanent vacancy in the office of the day after the last day for filing of certificates of
candidacy BUT not later than the date of proclamation.
mayor. It is only when the position of the
vice mayor is also vacant that the
The petition is heard summarily. However, the
member of the Sangguniang Bayan who COMELEC cannot disqualify a candidate without
obtained the highest number of votes will hearing and affording him opportunity to adduce
succeed to the office of mayor. (Benito v. evidence to support his side and taking into account
COMELEC, G.R. No. 106053 Aug. 17, 1994) such evidence.
Q: When can a person file a petition to deny due Q: What are the effects of disqualification?
course to or cancel a certificate of candidacy?
A: Any candidate who has been declared by final
A: A verified petition seeking to deny due course or judgment to be disqualified shall not be voted for.
to cancel a certificate of candidacy may be filed by The votes cast in his favor shall not be counted.
the person exclusively on the ground that any
material representation contained therein as If the candidate is not disqualified by final judgment
required under Section 74 of the Omnibus Election before the election and receives the highest
Code is false. The petition may be filed at any time number of votes in the election, the court or
not later than twenty-five (25) days from the time COMELEC will continue with the trial and hearing of
of the filing of the certificate of candidacy and shall the action, inquiry or protest. Upon motion of the
be decided, after due notice and hearing, not later complainant or intervenor, the court or COMELEC
than fifteen days before the election. may order the suspension of the proclamation of
185
the candidate whenever the evidence of guilt is receives the winning number of votes.(Agpalo, Law
strong. on Election, 2005ed.)
Q. What are the grounds for Disqualification? g. CAMPAIGN
A. 1. Premature Campaigning
1. Lacking qualification
2. Filing of COC for more than 1 office Q: What is an election campaign?
3. False and Material representation in the COC
4. Disqualification under the LGC A: It refers to an act designed to promote the
5. Nuisance Candidate election or defeat of a particular candidate or
6. Election offenses enumerated under Sec. 68 of candidates to a public office which shall include:
the Omnibus Election Code
7. declared insane or incompetent by competent 1. Forming organizations, associations,
authority clubs, committees or other groups of
8. Sentenced by final judgment for subversion, persons for the purpose of soliciting votes
insurrection, rebellion or an offense which he has and/or undertaking any campaign for or
been sentenced to a penalty of more than 18 against a candidate
months or a crime involving moral turpitude, unless 2. Holding political caucuses, conferences,
given plenary pardon/ amnesty. meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting
Q: May the COMELEC motu proprio deny or cancel votes and/or undertaking any campaign
a certificate candidacy? or propaganda for or against a candidate
3. Making speeches, announcements or
A: No. The Commission may not, by itself, without commentaries, or holding interviews for
the proper proceedings, deny due course to or or against the election of any candidate
cancel a certificate of candidacy filed in due form. for public office
When a candidate files his certificate of candidacy, 4. Publishing or distributing campaign
the COMELEC has a ministerial duty to receive and literature or materials designed to
acknowledge its receipt (Sec. 76 of the OEC). support or oppose the election of any
candidate; or
While the Commission may look into patent defects 5. Directly or indirectly soliciting votes,
in the certificates, it may not go into matters not pledges or support for or against a
appearing on their face. The question of eligibility candidate (Sec. 79, B.P. 881 Omnibus
or ineligibility of a candidate is thus beyond its Election Code).
usual motu proprio powers.
Note: The foregoing enumerated acts if performed for
Nonetheless, Section 78 of the Omnibus Election the purpose of enhancing the chances of aspirants for
Code allows any person to file before the COMELEC nomination for candidacy to a public office by a
a petition to deny due course to or cancel a political party, aggroupment, or coalition of parties
certificate of candidacy on the ground that any shall not be considered as election campaign or
material representation therein is false. (Cipriano v. partisan election activity.
COMELEC, G.R. No. 158830, Aug. 10, 2004)
Public expressions or opinions or discussions of
Q: What is the rule in Withdrawal of Candidates? probable issues in a forthcoming election or on
A: To be effective, the withdrawal should be under attributes of or criticisms against probable candidates
proposed to be nominated in a forthcoming political
oath or in the form of a sworn declaration that he is
party convention shall not be construed as part of any
withdrawing his certificate of candidacy, such being
election campaign or partisan political activity
the requirement of the law. A withdrawal of
contemplated under the OEC. (Sec. 79, B.P. 881
candidacy which is not a valid withdrawal generally Omnibus Election Code)
produces no legal effect, and for all legal intents
and purposes there is no withdrawal and he Q: Discuss the period of campaign
remains a candidate. The exception to this rule is
when the withdrawal which is not under oath, is A:
actually made and accepted by the election 1. Presidential and Vice presidential election
registrar, as a result of which a substitute candidate – 90 days;
files his certificate of candidacy in his place and 2. Election of members of the Congress and
local election – 45 days;
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POLITICAL LAW TEAM
3. Barangay Election – 15 days are not punishable under Section 80 of the

4. Special election under Art. VIII, Sec. 5(2) of Omnibus Election Code. Such acts are within the
the Constitution – 45 days realm of a citizen’s protected freedom of
expression. Acts committed by Penera within the
Note: The campaign periods shall not include the day campaign period are not covered by Section 80 as
before and the day of the election (Sec. 3, B.P. 881 Section 80 punishes only acts outside the campaign
Omnibus Election Code). period.
Q: What is the rule against premature In layman’s language, this means that a candidate is
campaigning? liable for an election offense only for acts done
during the campaign period, not before. The law is
A: It shall be unlawful for any person, whether or clear as daylight — any election offense that may
not a voter or candidate, or for any party, or be committed by a candidate under any election
association of persons, to engage in an election law cannot be committed before the start of the
campaign or partisan political activity except during campaign period. (Penera v. COMELEC, G.R. No.
the campaign period. 181613, Nov. 25, 2009)
Provided, that political parties may hold political Q: When can a person be considered a candidate?
conventions or meetings to nominate their official
candidates within thirty days before the A: A candidate refers to any person aspiring for or
commencement of the campaign period and forty- seeking an elective public office, who has filed a
five days for Presidential and Vice-Presidential certificate of candidacy by himself or through an
election. (Sec. 80, B.P. 881 Omnibus Election Code). accredited political party, aggroupment or coalition
of parties. However, it is no longer enough to
The use of lawful election propaganda under the merely file a certificate of candidacy for a person to
Fair Elections Act is subject to the supervision and be considered a candidate because "any person
regulation by the COMELEC in order to prevent who files his certificate of candidacy within the
premature campaigning and to equalize, as much as filing period shall only be considered a candidate at
practicable, the situation of all candidates by the start of the campaign period for which he filed
preventing popular and rich candidates from his certificate of candidacy." Any person may thus
gaining undue advantage in exposure and publicity file a certificate of candidacy on any day within the
on account of their resources and popularity. prescribed period for filing a certificate of candidacy
(Chavez v. COMELEC, G.R. No. 162777, August 31, yet that person shall be considered a candidate, for
2004) purposes of determining one’s possible violations of
election laws, only during the campaign period.
Q. Petitioner Penera and respondent Andanar ran (Penera v. COMELEC, G.R. No. 181613, Nov. 25,
for mayor of Sta. Monica, Surigao Del Norte during 2009)
the May 14, 2007 elections. Penera’s political
party held a motorcade preceding the filing of her 2. Prohibited Contributions
certificate of candidacy announcing her candidacy
for mayor. Because of this, Andanar filed a Q: What are included as electoral contributions
petition to disqualify Penera for engaging in and expenditures?
premature campaigning in violation of Sec.80 and
68 of the Omnibus Election Code. Does the act of A:
campaigning for votes immediately preceding the 1. Gift
filing of certificate of candidacy violate the 2. Donation
prohibition against premature campaigning? 3. Subscription
4. Loan
A. The campaign period for local officials began on 5. Advance or deposit of money or anything
30 March 2007 and ended on 12 May 2007. Penera of value
filed her certificate of candidacy on 29 March 2007. 6. A contract, promise or agreement of
Penera was thus a candidate on 29 March 2009 contribution, whether or not legally
only for purposes of printing the ballots under enforceable
Sec.11 of R.A. 8436.On 29 March 2007, the law still 7. Use of facilities voluntarily donated by
did not consider Penera a candidate for purposes other persons, the money value of which
other than the printing of ballots. Acts committed can be assessed based on the rates
by Penera prior to 30 March 2007, the date when prevailing in the area
she became a "candidate," even if constituting
election campaigning or partisan political activities,
187
8. Those made for the purpose of the commencement of the

influencing the results of the elections election period up to and
including election day.
Note: Does not include services rendered without
compensation by individuals volunteering a portion or 2. It shall also be unlawful for any person or
all of their time in behalf of a candidate or political organization, whether civic or religious,
party. (Sec. 94, B.P. 881 Omnibus Election Code) directly or indirectly, to solicit and/or
accept from any candidate for public
Q: What are prohibited contributions? office or his representative any gift, food,
transportation, contribution or donation
A:Those made for purposes of partisan political in cash or in kind from the
activity, directly or indirectly by any of the commencement of the election period up
following: to and including election day, except
1. Public or private financial institutions normal and customary religious stipends,
(except loans made by such institutions in tithes, or collections. (Sec. 97, B.P. 881
the business of lending money to a Omnibus Election Code)
candidate or political party, made in
accordance with laws and in the ordinary
course of business)
2. Persons operating public utilities or those 3. LAWFUL AND PROHIBITED PROPAGANDA
exploiting natural resources of the nation
3. Persons with contracts to supply the Q: What are considered as lawful election
government with goods or services or to propaganda?
perform construction or other works
4. Grantees of franchises, incentives, A:
exemptions, allocations, or similar 1. Written printed materials (does not
privileges or concessions by the exceed 8 ½ in. width by 14 in. length)
government 2. Handwritten/printed letters
5. Persons who, within one year prior to the 3. Posters (not exceeding 2 x 3 ft. or 3 x 8 ft.
date of the election, have been granted on the occasion of a public meeting or
by the government loans or other rally, or in announcing the holding of
accommodations in excess of P100,000 such). Provided, that said streamers may
6. Educational institutions which have be displayed five (5) days before the date
received grants of public funds not less of rally but shall be removed within 24
than P100,000 hours after said rally
7. Officials or employees in the Civil Service 4. Print ads – ¼ page in broadsheets and ½
or members of the Armed Forces of the page in tabloids thrice a week per
Philippines; and newspaper, magazine or other publication
8. Foreigners and foreign corporations. (Sec. during the campaign period;
95, B.P. 881 Omnibus Election Code) 5. Broadcast media (i.e. TV and radio)
6. All other forms of election propaganda
Q: What are prohibited means of raising funds? not prohibited by the Omnibus Election
Code or this Act. (Sec. 3, R.A. No. 9006,
A: The Fair Elections Act)
1. Holding any of the following activities:
a. Dances ALLOWABLE COMELEC AIR TIME FOR CANDIDATES
b. Lotteries (Fair Elections Act)
c. Cockfights NATIONAL POSITIONS LOCAL POSITIONS
d. Games 120 minutes for TV 60 minutes for TV
e. Boxing bouts 180 minutes for radio 90 minutes for radio
f. Bingo
g. Beauty contests
Note:The COMELEC cannot compel newspapers of
h. Entertainments general circulation to donate free print space as
i. Cinematographic, theatrical, or COMELEC space without payment of just
other performances for the compensation. Such compulsion amounts to taking;
purpose of raising funds for an hence, it is an exercise of eminent domain and not of
election campaign or for the police power (Philippine Press Institute v. COMELEC,
support of any candidate from G.R. No. 119694, May 22, 1995). The payment of just
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POLITICAL LAW TEAM
compensation is now expressly provided under sec. 7 Q: What are the Rules on Election Propaganda?
of the Fair Elections Act.
A:
However, all broadcasting stations, whether by radio 1. All registered parties and bona fide
or television stations, which are licensed by the candidates shall have a right to reply to
government, do not own the airways and frequencies; charges published against them.
they are merely given the temporary privilege of using 2. No movie, cinematographic, documentary
them. A franchise is a privilege subject to amendment,
portraying the life or biography of a
and the provision of BP 881 granting free airtime to
candidate shall be publicly exhibited in
the COMELEC is an amendment of the franchise of
radio and television stations (Telecommunications and
theatre, TV station, or any public forum
Broadcast Attorneys of the Philippines v. COMELEC, during the campaign period.
G.R. No. 132922, Apr. 21, 1998). Payment of just 3. No movie ,cinematograph, documentary
compensation is not necessary since it is a valid portrayed by an actor or media personality
exercise of police power. who is himself a candidate shall be publicly
exhibited in a theatre, TV station or any
Q: A COMELEC resolution provides that political public form during the campaign period.
parties supporting a common set of candidates 4. All mass media entities shall furnish the
shall be allowed to purchase jointly air time and COMELEC with the copies of all contracts for
the aggregate amount of advertising space advertising, promoting, or opposing any
purchased for campaign purposes shall not exceed political party or the candidacy of any
that allotted to other political parties or groups person for public office within 5 days after
that nominated only one set of candidates. The its signing.
resolution is challenged as a violation of the 5. Any media personality who is a candidate or
freedom of speech and of the press. Is the is campaign volunteer for or employed or
resolution constitutionally defensible? Explain. retained in a capacity by any candidate or
political party shall be deemed resigned, if
A: Yes, the resolution is constitutionally defensible. so requires by their employer, shall take a
Under Sec. 4, Art. IX-C of the 1987 Constitution, LOA from his work as such during campaign
during the election period the COMELEC may period.
supervise or regulate the media of communication
or information to ensure equal opportunity, time, Q: Is the conduct of election survey prohibited?
and space among candidates with the objective of
holding free, orderly, honest, peaceful, and credible A: No. The SC held that Sec. 5.4 of the Fair
elections. To allow candidates who are supported Elections Act prohibiting publication of survey
by more than one political party to purchase more results 15 days immediately preceding a national
air time and advertising space than candidates election and 7 days before a local election violates
supported by one political party only will deprive the constitutional rights of speech, expression and
the latter of equal time and space in the media. the press because:
Alternative Answer: No. Although the expenditure 1. It imposes a prior restraint on the
limitation applies only to the purchase of air time, freedom of expression
thus leaving political parties free to spend for other 2. It is a direct and total suppression of a
forms of campaign, the limitation nonetheless category of expression and even though
results in a direct and substantial reduction of the such suppression is only for a limited
quantity of political speech by restricting the period; and
number of issues that can be discussed, the depth 3. The governmental interest sought to be
of their discussion and the size of the audience that promoted can be achieved by means
can be reached, through the broadcast media. other than the suppression of freedom of
expression (SWS v. COMELEC, G.R. No.
Since the purpose of the Free Speech Clause is to 147571, May 5, 2001)
promote the widest possible dissemination of
information, and the reality is that to do this 4. LIMITATION AND EXPENSES
requires the expenditure of money, a limitation on
expenditure for this purpose cannot be justified, Q: What are the limitations on expenses for the
not even for the purpose of equalizing the candidates and political parties?
opportunity of political candidates. (Gonzalez v.
COMELEC, G.R. No. L-28783, Apr. 18, 1969) A:
1. For candidates
189
a. President and Vice-President – political party shall, within 30 days after the day of
P10/voter the election, file in duplicate with the offices of the
b. Other candidates, if with party – COMELEC, the full, true and itemized statement of
P3/voter all contributions and expenditures in connection
c. Other candidates, if without with the election. (Sec. 14, R.A. 7166)
party – P5/voter
2. For political parties – P5/voter (Sec. 5, Q: What is the effect of failure to file the said
COMELEC Resolution No. 8758 statement?
Q: What are lawful expenditures? A:

1. No person elected to any public office shall enter
A: upon the duties of his office until he has filed the
1. Traveling expenses statement of contributions and expenditures herein
2. Compensation of campaigners, clerks, required. The same prohibition shall apply if the
stenographers, messengers and other political party which nominated the winning
persons actually employed in the candidates, or winning party-list group, fails to file
campaign the statement required herein
3. Telegraph and telephone tolls, postage, 2. Such failure will constitute an administrative
freight and express delivery charges offense for which the offenders shall be liable to
4. Stationery, printing and distribution of pay an administrative fine. Provided, that this does
printed matters relative to candidacy not apply to candidates for elective barangay office.
5. Employment of watchers at the polls (Sec. 14, R.A. No. 7166)
6. Rent, maintenance and furnishing of
campaign headquarters, office or place of H. BOARD OF Election Inspectors and
meetings Board of Canvassers
7. Political meetings or rallies
8. Advertisements
9. Employment of counsel, the cost of which Q: What is the composition of the Board of
shall not be taken into account in Canvassers (BoC)?
determining the amount of expenses
which a candidate or political party may A:
have incurred 1. Provincial board of canvassers - The
10. Copying and classifying list of voters, provincial board of canvassers shall be
investigating and challenging the right to composed of the provincial election
vote of persons registered in the lists, the supervisor or a senior lawyer in the
cost of which shall not be taken into regional office of the Commission, as
account in determining the amount of chairman, the provincial fiscal, as vice-
expenses which a candidate or political chairman, and the provincial
party may have incurred superintendent of schools, and one
11. Printing sample ballots, the cost of which representative from each of the ruling
shall not be taken into account in party and the dominant opposition
determining the amount of expenses political party in the constituency
which a candidate or political party may concerned entitled to be represented, as
have incurred. (Sec. 102, B.P. 881 members.
Omnibus Election Code)
2. City board of canvassers - The city board
Note: The cost of numbers 9,10,11 shall not be taken of canvassers shall be composed of the
into account in determining the amount of expenses city election registrar or a lawyer of the
which a candidate or political party may have incurred. Commission, as chairman, the city fiscal
and the city superintendent of schools,
5. STATEMENT OF CONTRIBUTIONS AND and one representative from each of the
EXPENSES ruling party and the dominant opposition
political party entitled to be represented,
Q: What is a statement of contribution and as members.
expenses?
3. District board of canvassers of
A:It is a statement of election contributions and Metropolitan Manila - The district board
expenditures. Every candidate and treasurer of the of canvassers shall be composed of a
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POLITICAL LAW TEAM
lawyer of the Commission, as chairman, A: The COMELEC en banc.

and a ranking fiscal in the district and the
most senior district school supervisor in Q: What is the manner of delivery and transmittal
the district to be appointed upon of election returns?
consultation with the Ministry of Justice
and the Ministry of Education, Culture A:
and Sports, respectively, and one
representative from each of the ruling City and Municipal Provincial and District
party and the dominant opposition Board of Canvassers Boards of Canvassers
political party in the constituency in Metropolitan
concerned, as members. Manila
The copy of the election
4. Municipal board of canvassers - The returns, duly placed
municipal board of canvassers shall be inside a sealed envelope The copy of the
composed of the election registrar or a signed and affixed with election returns shall
representative of the Commission, as the imprint of the thumb be personally delivered
chairman, the municipal treasurer, and of the right hand of all by the members of the
the district supervisor or in his absence the members of the board of election
any public school principal in the board of election inspectors to the
municipality and one representative from inspectors, shall be election registrar for
each of the ruling party and the dominant personally delivered by transmittal to the
opposition political party entitled to be the members of the proper board of
represented, as members. board of election canvassers under
inspectors to the city or proper receipt to be
5. Board of canvassers for newly created municipal board of signed by all the
political subdivisions- The Commission canvassers under proper members thereof.
shall constitute a board of canvassers and receipt to be signed by
appoint the members thereof for the first all the members thereof.
election in a newly created province, city
or municipality in case the officials who The election registrar concerned shall place all the
shall act as members thereof have not yet returns intended for the board of canvassers inside
assumed their duties and functions (Sec. a ballot box provided with three padlocks whose
221, B.P. 881 Omnibus Election Code) keys shall be kept as follows: one by the election
registrar, another by the representative of the
Q: Who has supervision and control over the ruling party and the third by the representative of
board of canvassers? the dominant political opposition party. (Sec. 229,
B.P. 881 Omnibus Election Code)
A: The Commission shall have direct control and
supervision over the board of canvassers. Any Q: How will the safekeeping of transmitted
member of the board of canvassers may, at any election returns be done?
time, be relieved for cause and substituted motu
proprio by the Commission. (Sec. 227., B.P. 881 A: The board of canvassers shall keep the ballot
Omnibus Election Code) boxes containing the election returns in a safe and
secure room before and after the canvass. The door
Q: What are the duties of Congress as Board of to the room must be padlocked by three locks with
Canvassers for President and Vice President? the keys thereof kept as follows:
1. One with the chairman,
A: Congress shall determine the authenticity and 2. The other with the representative of the
due execution of certificate of canvass. ruling party,
1. Each certificate of canvass was executed, 3. And the other with the representative of
signed, thumb marked by the Chair and the dominant opposition political party.
transmitted to Congress
2. Each certificate contains the names of all The watchers of candidates, political parties,
candidates and votes and words and figures. coalition of political parties and organization
3. No discrepancy in authentic copies collectively authorized by the Commission to
appoint watchers shall have the right to guard the
Q: Who is the Board of Canvassers for Senators? room. Violation of this right shall constitute an
191
election offense. (Sec. 230, B.P. 881 Omnibus Philippine Constabulary, or the Integrated
Election Code) National Police
2. Any peace officer or any armed or
Q: How will the canvassing by the board be unarmed persons belonging to an extra-
conducted? police agency, special forces, reaction
forces, strike forces, home defense
A: forces, barangay self-defense units,
1. The board of canvassers shall meet not barangay tanods
later than six o'clock in the afternoon of 3. Any member of the security or police
election day at the place designated by organizations of government ministries,
the Commission to receive the election commissions, councils, bureaus, offices,
returns and to immediately canvass those instrumentalities, or government-owned
that may have already been received. or controlled corporations or their
subsidiaries
2. It shall meet continuously from day to day 4. Any member of a privately owned or
until the canvass is completed, and may operated security, investigative,
adjourn but only for the purpose of protective or intelligence agency
awaiting the other election returns from performing identical or similar functions
other polling places within its jurisdiction. to enter the room where the canvassing
of the election returns are held by the
3. Each time the board adjourns, it shall board of canvassers and within a radius of
make a total of all the votes canvassed so fifty meters from such room. (Sec. 232,
far for each candidate for each office, B.P. 881 Omnibus Election Code)
furnishing the Commission in Manila by
the fastest means of communication a Note: The board of canvassers by a majority vote, if it
certified copy thereof, and making deems necessary, may make a call in writing for the
available the data contained therein to detail of policemen or any peace officers for their
the mass media and other interested protection or for the protection of the election
parties. documents and paraphernalia in the possession of the
board, or for the maintenance of peace and order, in
4. As soon as the other election returns are which case said policemen or peace officers, who shall
be in proper uniform, shall stay outside the room
delivered, the board shall immediately
within a radius of thirty meters near enough to be
resume canvassing until all the returns
easily called by the board of canvassers at any time.
have been canvassed. (Ibid.)
5. The respective board of canvassers shall Q: In case the election returns are delayed, lost or
prepare a certificate of canvass duly destroyed, what should the BOC do?
signed and affixed with the imprint of the
thumb of the right hand of each member, A: In case its copy of the election returns is missing,
supported by a statement of the votes the board of canvassers shall:
received by each candidate in each polling
place and, on the basis thereof, shall 1. Obtain such missing election returns from
proclaim as elected the candidates who the board of election inspectors
obtained the highest number of votes concerned
cast in the province, city, municipality or 2. If said returns have been lost or
barangay (Sec. 231, B.P. 881 Omnibus destroyed, the board of canvassers, upon
Election Code). prior authority of the Commission, may
use any of the authentic copies of said
Note: Failure to comply with this requirement shall
election returns or a certified copy of said
constitute an election offense.
election returns issued by the
Commission, and forthwith
Q: Who are not allowed inside the canvassing
3. Direct its representative to investigate the
room?
case and immediately report the matter
to the Commission
A:
1. Any officer or member of the Armed
Note: The board of canvassers, notwithstanding the
Forces of the Philippines, including the fact that not all the election returns have been
received by it, may terminate the canvass and proclaim
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POLITICAL LAW TEAM
the candidates elected on the basis of the available candidate in words and figures in the
election returns if the missing election returns will not same return, and in either case the
affect the results of the election (Sec. 233, B.P. 881 difference affects the results of the
Omnibus Election Code) election, the Commission, upon motion of
the board of canvassers or any candidate
Q: When the integrity of ballots is violated, what affected and after due notice to all
should the BoC do? candidates concerned, shall proceed
summarily to determine whether the
A: integrity of the ballot box had been
1. In case of material defects in the election preserved, and once satisfied thereof
returns - If it should clearly appear that shall order the opening of the ballot box
some requisites in form or data had been to recount the votes cast in the polling
omitted in the election returns, the board place solely for the purpose of
of canvassers shall call for all the determining the true result of the count
members of the board of election of votes of the candidates concerned (Sec.
inspectors concerned by the most 236, B.P. 881 Omnibus Election Code).
expeditious means, for the same board to
effect the correction. In case of the Note: When integrity of ballots is violated. - The
omission in the election returns of the Commission shall not recount the ballots but shall
name of any candidate and/or his forthwith seal the ballot box and order its safekeeping
corresponding votes, the board of (Sec. 237, B.P. 881 Omnibus Election Code).
canvassers shall require the board of
election inspectors concerned to Canvass of remaining or unquestioned returns to
complete the necessary data in the continue. If, after the canvass of all the said returns, it
election returns and affix therein their should be determined that the returns which have
initials (Sec. 234, B.P. 881 Omnibus been set aside will affect the result of the election, no
Election Code). proclamation shall be made except upon orders of the
Commission after due notice and hearing. Any
Note: The right of a candidate to avail of this proclamation made in violation hereof shall be null and
void (Sec. 238, B.P. 881 Omnibus Election Code).
provision shall not be lost or affected by the
fact that an election protest is subsequently
filed by any of the candidates. Q: If the election resulted in a tie, what should the
BOC do?
2. In case the election returns appear to be
tampered with or falsified - If the election A: Whenever it shall appear from the canvass that
returns submitted to the board of two or more candidates have received an equal and
canvassers appear to be tampered with, highest number of votes, or in cases where two or
altered or falsified after they have left the more candidates are to be elected for the same
hands of the board of election inspectors, position and two or more candidates received the
or otherwise not authentic, or were same number of votes for the last place in the
prepared by the board of election number to be elected, the board of canvassers,
inspectors under duress, force, after recording this fact in its minutes, shall by
intimidation, or prepared by persons resolution upon five days notice to all the tied
other than the member of the board of candidates, hold a special public meeting at which
election inspectors, the board of the board of canvassers shall proceed to the
canvassers shall use the other copies of drawing of lots of the candidates who have tied and
said election returns and, if necessary, the shall proclaim as elected the candidates who may
copy inside the ballot box which upon be favored by luck, and the candidates so
previous authority given by the proclaimed shall have the right to assume office in
Commission may be retrieved in the same manner as if he had been elected by
accordance with Section 220 hereof (Sec. plurality of vote. The board of canvassers shall
235, B.P. 881 Omnibus Election Code). forthwith make a certificate stating the name of the
candidate who had been favored by luck and his
3. In case of discrepancies in the election proclamation on the basis thereof. (Sec. 240, B.P.
return - if it appears to the board of 881 Omnibus Election Code)
canvassers that there exists discrepancies
in the other authentic copies of the Q: When will the proceedings of the BoC be
election returns from a polling place or considered as an illegal proceeding?
discrepancies in the votes of any
193
A: There is an illegal proceeding of the BOC when

the canvassing is a sham or mere ceremony, the Jurisdiction over a petition to cancel a
results of which are pre-determined and certificate of candidacy lies with the
manipulated as when any of the following COMELEC in division, not with the COMELEC
circumstances are present: en banc. (Garvida v. Sales, G.R. o. 122872,
September 10, 1997)
1. Precipitate canvassing
2. Terrorism Q: X and Y both ran as mayoralty candidates in the
3. Lack of sufficient notice to the members Municipality of Marantao, Lanao del Sur. Y filed a
of the BOC's Petition for Disqualification and to Deny Due
4. Improper venue. (Sec. 2, Rule 4, COMELEC Course under Sec. 78 of the OEC against X. Y
Resolution No. 8804, March 22, 2010) alleged that X was a double registrant, being a
registered voter in Brgy. Panggao Saduc, Marawi
Q. What are the Characteristics of Canvassing? City and Brgy. Kialdan Proper, Marantao. There
being double registration, X’s subsequent
A: registration in Marantao was null and void.
a. The BOC is a collegial body. Therefore, X was disqualified to run for the
b. The BOC exercises ministerial duty. position of municipal mayor of said municipality. Is
c. The BOC exercises quasi – judicial functions X’s voter registration a material fact, the falsity of
d. Proceedings before BOC are summary which would be a ground for a petition to deny
e. Canvassing shall be in public due course to her COC?
f. Proceedings are continuous from day to day,
without interruption except to adjourn. A: In Maruhom vs. COMELEC, G.R. No. 179430, July
g. After Proclamation, BOC becomes functus 27, 2009, the Court declared that a material facts
officio refers to a candidate’s eligibility for qualification for
elective office like citizenship, residence or status as
a registered voter. Maruhom’s voter registration
i. REMEDIES AND JURISDICTION IN ELECTION LAW constitutes a material fact because it affects her
eligibility to be elected as municipal mayor of
1. Petition not to give due course to Certificate of Marantao. Section 39(a) of the Local Government
Candidacy Code requires that an elective official must be,
among other things, a registered voter in the
Q: What are the requisites for the grant of a barangay, municipality, city or province where she
petition to deny due course to or cancel a intends to be elected.
certificate of candidacy?
Q:What are the differences between a Petition for
A: Disqualification and a Petition to Deny Due
1. Material misrepresentation in the Course?
qualifications for elective office, which
includes age, residency, citizenship, and A:
any other legal qualifications necessary to
run for an elective office; and Petition for Petition to Deny Due
2. Deliberate attempt to mislead, misinform Disqualification Course/ Cancel COC
or hide a fact which would otherwise Premised on Section 12 Based on a statement
render a candidate ineligible. or 68of the Omnibus of a material
Election Code, or Section representation in the
Note: These two requirements must concur to
40 of the Local said certificate that is
warrant the cancellation of the certificate of
Government Code false.
candidacy.
The person whose
A verified petition may be filed exclusively certificate is cancelled
A person who is
on the ground that any material or denied due course
disqualified under
representation contained in the certificate under Section 78 is not
Section 68 is merely
as required under Section 74 is false. The treated as a candidate
prohibited to continue
petition may be filed not later than 25 days at all, as if he never
as a candidate
from the time of filing of the certificate of filed a Certificate of
candidacy, and shall be decided, after due Candidacy.
notice and hearing, not later than 15 days Thus, a candidate who is A person whose
before the election (Section 78, B.P. 881 disqualified under Certificate of Candidacy
Omnibus Election Code).
194
POLITICAL LAW TEAM
Section 68 can be validly has been denied due Q: Due to violence and terrorism attending the
substituted under course or cancelled casting of votes in a municipality in Lanao del Sur,
Section 77 of the under Section 78 it became impossible to hold therein free, orderly
Omnibus Election Code cannot be substituted and honest elections. Several candidates for
because he remains a because he is never municipal positions withdrew from the race. One
candidate until considered as candidate for Mayor petitioned the COMELEC for
disqualified candidate. the postponement of the elections and the holding
of special elections after the causes of such
2. Petition to declare failure of elections postponement or failure of elections shall have
ceased.
Q: What are the three instances where a failure of
election may be declared? 1. How many votes of the COMELEC
Commissioners may be cast to grant the
A: petition? Explain.
1. The election in any polling place has not
been held on the date fixed on account of 2. A person who was not a candidate at the time
force majeure, violence, terrorism, fraud, of the postponement of the elections decided
or other analogous causes; to run for an elective position and filed a
2. The election in any polling place had been certificate of candidacy prior to the special
suspended before the hour fixed by law elections. May his certificate of candidacy be
for the closing of the voting on account of accepted? Explain.
force majeure, violence, terrorism, fraud,
or other analogous causes; and 3. Suppose he ran as a substitute for a candidate
3. After the voting and during the who previously withdrew his candidacy, will
preparation and transmission of the your answer be the same? Explain.
election returns or canvass thereof such
election results in failure to elect on A:
account of force majeure, violence, fraud 1. The COMELEC shall decide by a majority
or analogous causes. (Banaga Jr. vs vote of all its members on any case or
Comelec, G.R. No. 134696, July 31, 2000) matter brought before it. (Section 7,
Article IX-A of the 1987 Constitution). In
Note: There is a failure to elect when nobody can be Cua v. COMELEC, G.R. No. 80519-2, Dec.
declared as winner because the will of the majority has 17, 1987, the Supreme Court stated that a
been defiled and cannot be ascertained. two-to-one decision rendered by a
Division of the COMELEC and a three-to-
Q: Who has the power to declare a failure of two decision rendered by the COMELEC
election? en banc was valid where only five
members took part in deciding the case.
A: The COMELEC has the power to declare a failure
of election and this can be exercised motu proprio 2. No, his certificate of candidacy cannot be
or upon verified petition. (Loong v. COMELEC, G.R. accepted. As a rule, in cases of
Nos. 107814-15, May 16, 1996) postponement or failure of election no
additional certificate of candidacy shall be
Note: The hearing is summary in nature and the accepted (Sec.75 of the Omnibus Election
COMELEC may delegate to its lawyers the power to Code)
hear the case and to receive evidence. (Ibid.)
Note: This rule does not apply in cases of
Q: Is low turn-out of voters enough basis to grant a substitution of candidates in case of death,
petition to declare a failure of election? disqualification or withdrawal of another
under Sec. 77.
A: No. All the law requires is that a winning
candidate must be elected by a plurality of valid 3. No, the answer will be different. An
votes, regardless of the actual number of ballots additional certificate of candidacy may be
cast. Thus, even if less than 25% of the electorate in accepted in cases of postponement or
the questioned precincts cast their votes, the same failure of election if there was a
must still be respected. (Mitmug v. COMELEC, G.R. substitution of candidates; but the
No. 106270-73, February 10, 1994 ) substitute must belong to and must be
endorsed by the same party. (Sec.75 of
the Omnibus Election Code)
195
5. Conduct elections
Q: Is a petition to declare failure of election elections 2. Holding of
different from a petition to annul the election reasonably continuation
results? close to of elections
elections not reasonably
A: Yes. A prayer to declare failure of elections and a held, but not close to
prayer to annul the election results are actually of later than 30 election not
the same nature. Whether an action is for days from held, but not
declaration of failure of elections or for annulment cessation of later than 30
of election results, based on allegations of fraud, cause days from
terrorism, violence or analogous, the Omnibus cessation of
Election Code denominates them similarly. cause.
(Banaga, Jr. v. COMELEC, G.R. No. 134696, July 31,
2000) Note: The COMELEC en banc by majority vote may
grant the postponement of elections and failure of
Note: There is failure of elections only when the will of elections.
the electorate has been muted and cannot be
ascertained. (Benito vs. COMELEC, G.R. No. 134913, 3. Pre-proclamation Controversies
January 19, 2001)
Q: What are pre-proclamation controversies?
Q: Distinguish Postponement of Elections and
Failure of Elections A: They refer to any question pertaining to or
affecting the proceedings of the board of
A: canvassers, and the preparation, transmission,
Postponement of Failure of Elections receipt, custody and appreciation of election
Elections returns which may be raised by any candidate or by
Any serious cause of: any registered political party or coalition of political
a. Force a. Force parties before the board or directly with the
Majeure Majeure COMELEC in relation to the preparation,
b. Violence b. transmission, receipt, custody and appreciation of
c. Terrorism Violence election returns. (Sec. 241, B.P. 881 Omnibus
d. Loss or c. Election Code)
destruction Terrorism
of election d. Loss or Note: The purpose of this kind of controversy is to
paraphernali destructio ascertain winners in the elections on basis of election
a n of returns duly authenticated by board of inspectors and
e. Other election admitted by the board of canvassers. (Abella v.
analogous paraphern Larrazabal, G.R. No. 87721-30, Dec. 21, 1989)
cases alia
e. Other Q: What is the nature of Pre Proclamation
analogous cases Controversy?
Serious impossibility to Failure to elect and
have free and orderly affect results of A: It shall be heard summarily by the COMELEC. Its
elections elections decision shall be executory after 5 days from
Grounds must exist Grounds may occur receipt by the losing party, unless contrary orders
before voting any time before from Supreme Court.
proclamation
1. Verified 1. Verified Q: Are there pre-proclamation cases in elections
petition by any petition by for President, Vice-president and Members of the
interested any House of Representatives on matters relating to
person or motu interested the preparation, transmission, receipt, custody,
proprio by person and appreciation of the election returns or the
COMELEC en 2. Due Notice certificates of canvass?
banc 3. Hearing
2. Due notice A:
3. Hearing GR: No (Sec. 15, Synchronized Election Law).
4. Election is 1. Declaration
postponed of Failure of XPNS:
1. Correction of manifest errors
196
POLITICAL LAW TEAM
2. Questions affecting the composition or

proceedings of the board of canvassers 3. Election returns were prepared under
and duress threat, coercion, or intimidation,
3. Determination of the authenticity and or they are obviously manufactured or
due execution of certificates of canvass as not authentic
provided in Sec. 30 of R.A.7166, as
amended by R.A. 9369. 4. When substitute or fraudulent returns in
controverted polling places were
Note: canvassed, the results of which materially
GR: The COMELEC is restricted to a mere affected the standing of the aggrieved
examination of returns on their face and not to go candidate/s. (Sec. 243, B.P. 881 Omnibus
beyond and investigate irregularities. (Belac v. Election Code).
COMELEC, G.R. No. 145802, April 4, 2001)
5. Irregularities in relation to preparation,
XPN: If there is a prima facie showing that return is transmission, receipt, custody, and
not genuine. (Ibid.)
appreciation of election returns and
certificate of canvass.
No pre-proclamation cases are allowed in case of
barangay election. (Sec. 9, R.A. No. 6679)
Q: What is a petition to annul or suspend the
Q: When are pre-proclamation cases terminated? proclamation?
A: A: It is a remedy where there is a manifest error on

GR: At the beginning of term of the officers. the face of the transmitted returns or variance of
(Sec. 16, R.A. No. 7166) results from the election returns and COC, and a
winning candidate is about to be, or has already
XPNS: been proclaimed on the basis thereof.
1. When based on evidence,
COMELEC determines that petition is The COMELEC is required to hear the petition
meritorious immediately and the ballots may be ordered
2. The SC in a petition for certiorari issues a manually recounted to verify the manifest errors or
contrary order; or alleged variance.
3. The case is not a pre-proclamation case.
Note: The filing of a petition to annul or suspend the
(Peñaflorida v. COMELEC, G.R. No.
proclamation shall suspend the running of the period
125950, November 18, 1997)
within which to file an election protest or quo
warranto proceedings.
Q: What issues may be raised in a pre-
proclamation controversy? Q: Are pre-proclamation controversies allowed
under the new Automated Elections Law?
A:
1. Illegal composition or proceedings of the A:
Board of Canvassers GR: For purpose of the elections for president,
vice – president, senator, and member of the
2. Canvassed election returns are House of Representatives, no pre-proclamation
incomplete, contain material defects, cases shall be allowed on matters relating to the
appear to be tampered with or falsified; preparation, transmission, receipt, custody and
or contain discrepancies in the same appreciation of election returns or the
returns or in other authentic copies certificates of canvass, as the case may be. (Sec.
thereof as mentioned in Sec. 233, 234, 38, R.A. No. 9369)
235, and 236 of B.P. 881
XPNS:
Note: An incomplete canvass is illegal and
1. Illegal composition of the Board of
cannot be the basis of a valid proclamation.
Canvassers (BOC);
A proclamation made where the contested
returns set aside will affect the result of the
2. Illegal proceedings of the BOC. (Sec. 1,
election and the board of canvassers Rule 3, COMELEC Resolution No. 8804,
proceeded to proclaim without the March 22, 2010)
authority from the COMELEC is null and
void. (Sema vs. COMELEC, G.R. No. 141249- Note: However, this does not preclude the authority of
50, Dec. 13, 2000) the appropriate canvassing body motu propio or upon
197
written complaint of an interested person to correct

manifest errors in the certificate of canvass or election Q: Where are election protests filed?
before it. (Sec. 38, R.A. No. 9369)
A:
Q: Is the COMELEC precluded from exercising 1. COMELEC – sole judge of all contests
powers over pre proclamation controversies, relating to elections, returns, and
when the Electoral Tribunal acquires jurisdiction? qualifications of all elective regional,
provincial and city officials. (reviewable by
A: SC under Rule 64 using Rule 65.)
GR:Yes 2. c Presidential Electoral Tribunal –
President and Vice President
XPNS: 3. SET – Senator
A. Board of Canvassers was improperly a. HRET – representative
constituted 4. RTC – over contests for municipal officials
B. Proclamation was null and void which may be appealed to COMELEC
C. Quo warranto is not the proper remedy 5. MeTC or MTC – for barangay officials
D. What was filed was a petition to annul a which may be appealed to COMELEC
proclamation, and not a Quo Warranto or
Election Protest Q: What are the grounds for the filing of election
E. Election Contest expressly made without protests?
prejudice to Pre Proclamation
Controversy or it was made ad cautelam A:
1. Fraud
4. Election Protests 2. Vote-buying
3. Terrorism
Q: What are post-election disputes? 4. Presence of flying voters
5. Misreading or misappreciation of ballots
A: They are disputes which arise or are instituted 6. Disenfranchisement of voters
after proclamation of winning candidates and which 7. Unqualified members of board of election
issues pertain to the casting and counting of votes inspector
(Election Protests), or to the eligibility or disloyalty 8. Other election irregularities.
of the winning candidates (Quo Warranto).
Note: Pendency of election protest is not sufficient
Q: What is the nature of an election contest? basis to enjoin the protestee from assuming office.
A: It is a special summary proceeding the object of A protestant has the right to withdraw his protest or
which is to expedite the settlement of controversies drop polling places from his protest. The protestee, in
between candidates as to who received the such cases, has no cause to complain because the
majority of legal votes. withdrawal is the exclusive prerogative of the
protestant.
Note: Statutes providing for election contests are to be
liberally construed to the end that the will of the Q: What must an election protest contain?
people in the choice of public officers may not be
defeated by mere technical objections. An election A: It must be initiated by filing a protest that must
contest, unlike an ordinary action, is imbued with contain the following allegations:
public interest since it involves not only the a) The protestant is a candidate who duly
adjudication of the private interests of rival candidates filed a certificate of candidacy and was
but also the paramount need of dispelling the voted for in the election.
uncertainty which beclouds the real choice of the b) The protestee has been proclaimed
electorate with respect to who shall discharge the c) The date of the proclamation. (Miro vs.
prerogatives of the office within their gift. Moreover, it COMELEC, G.R.No. L-57574, April 20,
is neither fair nor just to keep in office for an uncertain 1983)
period one who’s right to it is under suspicion. It is
imperative that his claim be immediately cleared not
Q: On June 23, 2004, the National Board of
only for the benefit of the winner but for the sake of
Canvassers (NBC) proclaimed X as the duly elected
public interest, which can only be achieved by brushing
Vice-President of the Philippines. Y was the person
aside technicalities of procedure which protract and
delay the trial of an ordinary action. (Vialogo vs. who obtained the second highest number of votes.
COMELEC, G.R. No. 194143, Oct. 4, 2011) Y filed a protest with the PET praying for the
annulment of the protestee's proclamation on the
198
POLITICAL LAW TEAM
ground of fraud and manipulation of the results. candidate is involved. (Delos Reyes, G.R. No.
While the protest was pending, X was elected and 170070, Feb. 28, 2007)
assumed the office of senator. Will the protest 2. Election returns are the best evidence when
prosper? the ballots are lost, destroyed, tampered or
fake.
A: No. In assuming the office of Senator, X has
effectively abandoned or withdrawn this protest. 5. Quo Warranto
Such abandonment or withdrawal operates to
render moot the instant protest. Moreover, the Q: What is aquo warranto proceeding for an
dismissal of this protest would serve public interest elective office?
as it would dissipate the aura of uncertainty as to
the results of the election. (Legarda v. De Castro, A: It is a proceeding to determine the right to the
PET case no. 003, Jan. 18, 2008) use or exercise of an office and to oust the holder
from its enjoyment, if his claim is not well-founded
Q: What are the requisites for an execution or if he has forfeited his right to enjoy the privilege.
pending appeal in election protest cases?
A: Unlike an election protest, which can only be filed
1.) It must be upon motion by the prevailing by a candidate, any voter can file a petition for quo
party with notice to the adverse party warranto.
2.) There must be good reasons for the said
execution Note: Election Protests and Quo warranto proceedings
3.) The order granting the said execution against a Congressman-elect, Senator-elect, President-
must state the good reasons (Navarosa elect and VP-elect are brought before the appropriate
vs. COMELEC, G.R. No. 157957, Sept. 18, electoral tribunals created by the Constitution.
2003)
Q: Under the Omnibus Election Code, what
Q: What constitutes “good reasons?” differentiates an election protest from a quo
warranto case, as to who can file the case and the
A: A combination of two or more of the following: respective issues therefor?
1.) That public interest is involved or the will
of the electorate A:
2.) The shortness of the remaining portion of Election Protest Quo
the term of the contested office Warranto
3.) The length of time that the election By any voter
contest has been pending (Ramas vs. who is a
COMELEC, G.R. No. 130831. Feb. 10, registered
1998) By a losing candidate voter in the
for the same office for constituency
Who
Note:If instead of issuing a preliminary injunction in which the winner filed where the
may file
place of a TRO, a court opts to decide the case on its his certificate of winning
merits with the result that it also enjoins the same acts candidacy candidate
covered by its TRO, it stands to reason that the sought to be
decision amounts to a grant of preliminary injunction. disqualified
Such injunction should be deemed in force pending ran for office
any appeal from the decision. The view that execution a) Who
pending appeal should still continue notwithstanding a
received the Whether the
decision of the higher court enjoining such execution—
majority or candidate
does not make sense. It will render quite inutile the
proceedings before such court. (Panlilio vs. COMELEC,
plurality of who was
G.R. No. 184286, Feb. 26, 2010) the votes proclaimed
which were and elected
Q: What are the best pieces of evidence in an legally cast should be
Issue/s
election contest? b) Whether disqualified
there were because of
A: irregularities ineligibility or
1. Ballots are the best and most conclusive in the disloyalty to
evidence in an election contest where the conduct of the
correctness of the number of votes of each the election Philippines
which
199
affected its
results Q: Who has the authority to prosecute election
offenses?
Q: Discuss the function of Senate and House of
Representative Tribunals. A: The COMELEC is vested with the power of a
public prosecutor with the exclusive authority to
A: The Senate and the House of Representatives conduct the preliminary investigation and
each have an Electoral Tribunal which shall be the prosecution of election offenses punishable under
sole judge of all contests relating to elections, the Omnibus Election Code. (Sec. 265, B.P. 881
returns, and qualifications of their respective Omnibus Election Code)
members. Such jurisdiction begins only after a
candidate has become a member of the legislative Q: May the COMELEC delegate such authority?
body. The judicial review of the decisions of these
electoral tribunals is possible only in the exercise of A: Yes. The COMELEC en banc may delegate such
the SC’s extraordinary jurisdiction. authority to any public prosecutor but always
subject to the control and supervision of the
GR: Electoral Tribunal is the sole judge of all COMELEC. (People v. Delgado, G.R. No. Nos. 93419-
contests relating to the election, returns and 32, September 18, 1990)
qualifications of Congressional members ONLY
after the candidate has become a member of Q: In cases where the prosecutor exercises
Congress and not prior thereto. delegated authority to conduct preliminary
investigation of election offenses and such officer,
XPN: COMELEC has jurisdiction if candidate not after investigation, already resolves the issue of
yet proclaimed and involving manifest errors in probable cause, where should one appeal the
the certificates of canvass and in composition of resolution?
board or its proceedings.
A: From such resolution, appeal to the COMELEC
Q: Who shall act as the sole judge of all contests lies, and the latter’s ruling on the appeal would be
relating to the election, returns, and qualifications immediately final and executory. However, if the
of the President and the VP? preliminary investigation is conducted by the
COMELEC itself, appeal to the COMELEC is
A: The Presidential Electoral Tribunal unavailing, but the respondent may file a motion
for reconsideration of the resolution of the
Note: Before election, SC has no jurisdiction to COMELEC en banc finding probable cause. (Faelnar
entertain any petition relating to the qualifications or v.People, G.R. Nos. 140850-51. May 4, 2000)
disqualifications of candidates for President and VP,
the jurisdiction being with the COMELEC. Q: What are the election offenses?
Q: What is the effect if the protestant accepts a A:

permanent appointment? Why? 1. Vote buying and vote selling
2. Conspiracy to bribe voters
A: Acceptance of a permanent appointment to a 3. Wagering upon result of election
regular office during the pendency of his protest is 4. Coercion of subordinates
an abandonment of the electoral protest. The same 5. Threats, intimidation, terrorism, use of
is true if a protestant voluntarily sought election to fraudulent device or other forms of
an office whose term would extend beyond the coercion
expiry date of the term of the contested office, and 6. Coercion of election officials and
after winning the said election, took her oath and employees
assumed office and there after continuously serves 7. Appointment of new employees, creation
it. The reason for this is that the dismissal of the of new position, promotion, giving of
protest would serve public interest as it would salary increases
dissipate the aura of uncertainty as to the results of 8. Intervention of public officers and
the presidential election, thereby enhancing the all- employees
to crucial political stability of the nation during this 9. Undue influence
period of national recovery. (Santiago v. Ramos, 10. Unlawful electioneering
P.E.T. Case No. 001, Feb. 13, 1996) 11. Others. (Sec. 261, B.P. 881 Omnibus
Election Code)
j. PROSECUTION OF ELECTION OFFENSES
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POLITICAL LAW TEAM
Q: What is the prescriptive period of election Note: Every LGU created or recognized under this code
offenses? is a body politic and corporate endowed with powers
to be exercised by it in conformity with law. As such, it
A: 5 years from the date of their commission. (Sec. shall exercise powers as a political subdivision of the
267, B.P. 881 Omnibus Election Code) national government and has a corporate entity
representing the inhabitants of its territory. (Sec.15,
Q: Which court has jurisdiction to hear and decide LGC)
election offenses?
a) Distinguished from GOCC
A:
GR: The RTC has the exclusive and original Q: What is a Government Owned and Controlled
jurisdiction to hear and decide any criminal Corporation (GOCC)?
action or proceedings for violation of the
OEC. A: Any agency organized as a stock or non-stock
XPN: The MTC has jurisdiction over offenses corporation vested with functions relating to public
relating to failure to register or failure to vote needs whether governmental or proprietary in
nature, and owned by the government directly or
indirectly through its instrumentalities either
XII. LOCAL GOVERNMENTS
wholly, or where applicable as in the case of stock
corporations to the extent of at least 51% of its
A. PUBLIC CORPORATIONS capital stock.(Section 2 (13) of Executive Order No.
292 Administrative Code of 1987)
1. Concept
Q: What are the requisites of a GOCC?
Q: What is a public corporation?
A:
A: It is one created by the State either by general or 1. Any agency organized as a stock or non-
special act for purposes of administration of local stock corporation
government or rendering service in the public 2. Vested with functions relating to public
th needs whether governmental or
interest. (Rodriguez, p. 2, LGC 5 Edition)
proprietary in nature
Q: What is the criterion to determine whether a 3. Owned by the Government directly or
corporation is a public corporation? through its instrumentalities either
wholly, or, where applicable as in the case
A: It is the relationship of the corporation to the of stock corporations, to the extent of at
state. If it was created by the State as its own least fifty-one (51) of its capital stock.
agency to help it in carrying out its governmental (Leyson, Jr. v. Office of the Ombudsman,
functions, it is public. Otherwise, it is private. G.R. No. 134990, April 27, 2000)
Q: What are the dual characteristics of a public Q: What laws may govern GOCCs and how do you
corporation? determine which will govern?
A: A: Government corporations may be created by

1. Public or governmental – it acts as an special charters or by incorporation under the
agent of the State for the government of general corporation law. Those created by special
the territory and its inhabitants within the charters are governed by the Civil Service Law while
municipal limits. The municipal those incorporated under the general corporation
corporation exercises by delegation a part law are governed by the Labor Code. (Blaquera vs.
of the sovereignty of the state Alcala, G.R. No. G.R. No. 109406. Sept. 11, 1998)
2. Private or proprietary – it acts as an agent
of the community in the administration of Q: Distinguish public corporation from a GOCC.
local affairs which is wholly beyond the
sphere of public purposes for which its A:
governmental powers are conferred. It
acts as separate entity for its own PUBLIC
GOCCs
purposes, and not a subdivision of the CORPORATION
State (McQuillin, Municipal Corporations, Purpose
3d ed., pp. 456-464).
201
Performance of 1. Legal creation

functions relating to 2. Corporate name
Administration of
public needs whether 3. Inhabitants constituting the population
local government
Governmental or who are vested with political and
Proprietary in nature corporate powers
th
Who creates 4. Territory (Rodriguez, p.4, LGC 5 Edition)
By the state either
By Congress or by 2. Nature and Functions
by general or special
incorporators
act
Q: What is the nature and status of municipal
How created corporation?
(1) Original charters or
special laws or (2) A:
By legislation general corporation law 1. Subordinate branch of the government
as a stock or non-stock of the state
corporation 2. Instrumentality of the state
administration
2.Classifications 3. Exercises delegated powers of the
government
Q: What are the classes of corporations?
A: Q: What are the different types of municipal
1. Quasi-public corporations - Private corporations?
corporations that render public service,
supply public wants, or pursue other A:
eleemosynary objectives. While 1. De jure municipal corporations – created
purposely organized for the gain or or recognized by operation of law.
benefit of its members, they are required 2. Municipal corporations by prescription –
by law to discharge functions for the exercised their powers from time
public benefit. It must be stressed that a immemorial with a charter, which is
quasi-public corporation is a species of presumed to have been lost or destroyed.
private corporations, but the qualifying 3. De facto municipal corporations – where
factor is the type of service the former the people have organized themselves,
renders to the public: if it performs a under color of law, into ordinary
public service, then it becomes a quasi- municipal bodies, and have gone on, year
public corporation. (Philippine Society for after year, raising taxes, making
the Prevention of Cruelty to Animals vs. improvements, and exercising their usual
Commission on Audit, G.R.169752, Sept. franchises, with their rights dependent
25, 2007) quite as much on acquiescence as on the
2. Municipal corporations – body politic and regularity of their origin. (Rodriguez, LGC
corporate constituted by the th
5 Edition, pp.17-18)
incorporation of inhabitants for purposes
of local government. It is established by Note: An inquiry into the legal existence of a de facto
law partly as an agency of the State to corporation is reserved to the State in a proceeding for
assist in the civil government of the quo warranto or other direct proceeding. (Mun. of
country, but chiefly to regulate and Malabang, Lanao del Sur v. Benito, G.R. No. L-28113,
administer the local or internal affairs of March 28, 1969)
the city, town or district which is
incorporated. (Dillon, Municipal Q: What are the essential requisites of a de facto
Corporations, Vol.1, pp. 58-59.) corporation?
B. MUNICIPAL CORPORATIONS A: VACA

1. Valid law authorizing incorporation
1. Elements 2. Attempt in good faith to organize under it
3. Colorable compliance with law
Q: What are the essential elements of a municipal 4. Assumption of corporate powers
th
corporation? (Rodriguez, LGC 5 Edition, p. 18)
A: 3. Requisites for creation, conversion,

division, merger or dissolution
202
POLITICAL LAW TEAM
ii. Highly urbanized cities

Q: Who has the authority to create municipal b. Municipality – 25K
corporations? How is a public corporation c. City – 150K
created? d. Highly Urbanized Cities – 200K
e. Province – 250K
A: A Local Government Unit may be created,
divided, merged, abolished or its boundaries 4. Land requirement – must be contiguous,
substantially altered either: unless it comprises two or more islands or
1. By law enacted by Congress in case of is separated by a local government unit
province, city, municipality or any other independent of the others; properly
political subdivision; identified by metes and bounds with
2. By an ordinance passed by the technical descriptions; and sufficient to
Sangguniang Panlalawigan or provide for such basic services and
Sangguniang Panlungsod concerned in the facilities. Area requirements are:
case of a barangay located within its
territorial jurisdiction, subject to such a. Barangay – 2 or more contiguous
limitations and requirements prescribed territory (Sec. 386 R.A. 7160)
in the LGC. (Sec. 6, R.A. 7160) b. Municipality – 50 sq. km (Sec.442
R.A. 7160)
Q: What are the requisites or limitations imposed c. City – 100 sq. km (Sec.450 R.A. 7160)
on the creation or conversion of municipal d. Province – 2,000 sq.km (Sec.461 R.A.
corporations? 7160)
A: Q: When does corporate existence begin?

1. Plebiscite requirement – must be
approved by majority of the votes cast in A: Upon the election and qualification of its chief
a plebiscite called for such purpose in the executive and a majority of the members of its
political unit or units directly affected. sanggunian, unless some other time is fixed
therefor by law or ordinance creating it. (Sec. 14,
Note: The residents of the mother province R.A. 7160)
must participate in the plebiscite to conform
to the constitutional requirement. Q: What is the rule relative to the merger and
division of local government units?
2. Income requirement – must be sufficient
and based on acceptable standards to A:
provide for all essential government 1. It should not reduce the income,
facilities and services and special population or land area of the LGC
functions commensurate with the size of concerned to less than the minimum
its population as expected of the local requirement
government unit concerned. 2. The income classification of the original
LGU/s shall not fall below its current
Average annual income for the last income classification prior to the division
consecutive year should be at least: 3. A plebiscite must be held in LGUs affected
a. Province – P 20M 4. Assets and liabilities of creation shall be
b. Highly Urbanized City – P 50M equitably distributed between the LGUs
c. City – P 20M (100M RA. 9009 affected and new LGU
amending Sec 450 of LGC)
d. Municipality – P 2.5M Note: When a municipal district of other territorial
divisions is converted or fused into a municipality all
3. Population requirement – to be property rights vested in original territorial
determined as the total number of organization shall become vested in the government of
inhabitants within the territorial the municipality. (R.A. 688)
jurisdiction of the local government unit
th
concerned. The required minimum Q: At the end of the 11 Congress’s existence,
population shall be: several bills aiming to convert certain
municipalities into cities were pending. The same
a. Barangay – 2K were not entered into law.
But 5K in:
i. Metro Manila
203
th
The 12 Congress enacted R.A. No. 9009, Q: May Congress validly delegate to the ARMM
amending the Local Government Code (LGC) by Regional Assembly the power to create provinces,
increasing the income requirement for conversion cities, and municipalities within the ARMM
of municipalities into cities. Congress deliberated pursuant to Congress’s plenary legislative powers?
on exempting the municipalities mentioned earlier
from the new income requirement; however, no A: No. There is no provision in the Constitution that
concrete action came out of such deliberations. conflicts with the delegation to regional legislative
bodies of the power to create municipalities and
The municipalities filed, through their respective barangays. However, the creation of provinces and
sponsors, individual cityhood bills containing a cities is another matter. Only Congress can create
common proviso exempting them from the new provinces and cities because the creation of the
income requirement. The Congress approved the same necessarily includes the creation of legislative
same. Concerned parties protested such laws districts, a power only Congress can exercise under
allowing a “wholesale conversion” of Section 5 Art. VI of the Constitution and Section 3 of
municipalities as being unconstitutional. Decide. the Ordinance appended to it.
1. Are the cityhood laws valid? The ARMM Regional Assembly cannot enact a law
2. The challenged “cities” claim that it was creating a national office like the office of a district
the intent of Congress anyway to grant representative of Congress because the legislative
them exemption from the income powers of the ARMM Regional Assembly operate
requirement, as per the deliberations of only within its territorial jurisdiction as provided in
th
the 11 Congress. What became of the Section 20 Art. X of the Constitution. (Sema v.
cityhood bills and their deliberations that COMELEC, G.R. No. 178628, July 16, 2008)
were pending at the adjournment of the
th
11 Congress? Q: Congress enacted a law creating the legislative
district of Malolos based on a certification of the
A: demographic projection from NSO stating that by
1. Yes, The 16 cities covered by the Cityhood Laws 2010, Malolos is expected to reach the population
not only had conversion bills pending during the of 250,000, hence entitling it to one legislative
11th Congress, but have also complied with the district. Is the law valid?
requirements of the LGC prescribed prior to its
amendment by R.A. No. 9009. Congress undeniably A: No. Congress cannot establish a new legislative
gave these cities all the considerations that justice district based on a projected population of the
and fair play demanded. Hence, this Court should National Statistics Office (NSO) to meet the
do no less by stamping its imprimatur to the clear population requirement of the Constitution in the
and unmistakable legislative intent and by duly reapportionment of legislative districts.
recognizing the certain collective wisdom of
Congress. (League of Cities of the Philippines (LCP) A city that has attained a population of 250,000 is
v. COMELEC, G.R. No. 176951, April 12, 2011) entitled to a legislative district only in the
2. Notwithstanding that both the 11th and 12th “immediately following election.” In short, a city
Congress failed to act upon the pending cityhood must first attain the 250,000 population, and
bills, both the letter and intent of Section 450 of the thereafter, in the immediately following election,
LGC, as amended by R.A. No. 9009, were carried on such city shall have a district representative. There
until the 13th Congress, when the Cityhood Laws is no showing in the present case that the City of
were enacted. The exemption clauses found in the Malolos has attained or will attain a population of
individual Cityhood Laws are the express 250,000, whether actual or projected, before May
articulation of that intent to exempt respondent 10, 2010 elections. Thus, the City of Malolos is not
municipalities from the coverage of R.A. No. 9009. qualified to have a legislative district of its own
(League of Cities of the Philippines (LCP) v. under Section 5(3), Article VI of the 1987
COMELEC, G.R. No. 176951, Feb. 15, 2011) Constitution and Section 3 of the Ordinance
appended to the1987 Constitution. (Aladaba v.
Note: On November 18, 2008, the SC ruled the Comelec, G.R. No. 188078, Jan. 25, 2010)
cityhood laws unconstitutional. On December 21,
2009, it reversed the ruling. Then again, on August 24, Q: Congress enacted a law reapportioning the
2010, it decided to uphold the original ruling. And composition of the Province of Camarines Sur and
finally, last April 12, 2011 it upheld the created legislative districts thereon. Aquino
constitutionality of the creation of the 16 new cities. challenged the law because it runs afoul to the
constitutional requirement that there must be at
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POLITICAL LAW TEAM
least a population of 250,000 to create a legislative 4. Assets and liabilities of creation shall be
district. Comelec argued that the mentioned equitably distributed between the LGUs
requirement does not apply to provinces. Is the affected and new LGU. (R.A. 688)
250,000 population standard an indispensible
requirement for the creation of a legislative Q: When may an LGU be abolished?
district in provinces?
A: When its income, population or land area has
A: No. Section 5(3), Article VI of the 1987 been irreversibly reduced to less than the minimum
Constitution which requires 250,000 minimum standards prescribed for its creation, as certified by
population requirement apply only for a city to be the national agencies mentioned. (Sec. 9, R.A. 7160)
entitled to a representative but not for a province.
Note: A barangay may officially exist on record and the
The provision draws a plain and clear distinction fact that nobody resides in the place does not result in
between the entitlementof a city to a district on its automatic cessation as a unit of local government.
one hand, and the entitlement of a province to a Under the Local Government Code (LGC) of 1991, the
district on the other. For while a province is entitled abolition of an LGU may be done by Congress in the
to at least a representative, with nothing case of a province, city, municipality, or any other
mentioned about population, a city must first meet political subdivision. In the case of a barangay, except
in Metropolitan Manila area and in cultural
a population minimum of 250,000 in order to be
communities, it may be done by the Sangguniang
similarly entitled. (Aquino and Robredo v. Comelec,
Panlalawigan or Sangguniang Panglungsod concerned
G.R. No. 189793, April 7, 2010) subject to the mandatory requirement of a plebiscite
conducted for the purpose in the political units
Q: Congress passed a law providing for the affected. (Sarangani vs. COMELEC, G.R. No. 135927,
apportionment of a new legislative district in CDO June 26, 2000)
City. The COMELEC subsequently issued a
resolution implementing said law. B now assails Q: Who may abolish an LGU?
the resolution, contending that rules for the
conduct of a plebiscite must first be laid down, as A:
part of the requirements under the Constitution. 1. Congress – in case of provinces, city,
According to B, the apportionment is a conversion municipality, or any other political subdivision.
and division of CDO City, falling under Section 10 2. Sangguniang Panlalawigan or Sangguniang
Art X of the Constitution, which provides for the Panglungsod – in case of a barangay, except in
rule on creation, division, merger, and abolition of Metropolitan Manila area and in cultural
LGUs. Decide. communities.
A: There is no need for a plebiscite. CDO City Q: What are the requirements prescribed by law in
politically remains a single unit and its abolishing LGUs?
administration is not divided along territorial lines. A:
Its territory remains whole and intact. Thus, Section 1. The law or ordinance abolishing a local
10 Art. X of the Constitution does not come into government unit shall specify the province,
play. (Bagabuyo v. COMELEC, G.R. No. 176970, Dec. city, municipality, or barangay with which the
8, 2008) local government unit sought to be abolished
will be incorporated or merged. (Sec.9 R.A.
Q: What are the requirements for division and 7160)
merger of local government units? 2. Approved by a majority of the votes cast in a
plebiscite called for the purpose in the political
A: It has the requirements as creation of LGU unit or units directly affected. (Sec.10 R.A.
provided that: 7160)
1. It shall not reduce the income, population or
land area of the LGU/S concerned to less than C. PRINCIPLES OF LOCAL AUTONOMY
minimum requirements prescribed;
2. Income classification of the original LGU/S Q: What is the principle of local autonomy?
shall not fall below its current income
classification prior to division. (Sec.8 R.A. A: Under the 1987 Constitution, it simply means
7160) decentralization; it does not make the local
3. Plebiscite be held in LGUs affected (Sec.10 governments sovereign within the state or an
R.A. 7160) “imperium in imperio”. (Basco v. PAGCOR, G.R.
91649, May 14, 1991)
205
A:
Q: Distinguish decentralization of administration 1. Where statute prescribes the manner of
(DA) from decentralization of power (DP). exercise, procedure must be followed.
2. Where the law is silent, LGU have the
A: discretion to select reasonable means and
DA DP methods to exercise (Rodriguez, pp. 9-10,
th
Involves abdication by LGC 5 Edition)
Consists merely in the
the national
delegation of Q: What are the different governmental powers of
government of
administrative powers the LGU?
political power in
to broaden the base of
favor of LGUs declared
governmental power. A:
autonomous.
(Limbona v. Mangelin, G.R.80391, February 28, 1. Police power
1989) 2. Basic services and facilities
3. Power to generate and apply resources
Note: Under the Philippine concept of local autonomy, 4. Power of eminent domain
only administrative powers over local affairs are 5. Taxing Power
delegated to political subdivisions. In turn, economic, 6. Reclassification of Land
political and social developments at the smaller 7. Local legislative power
political units are expected to propel social and 8. Closure and opening of roads
economic growth and development. But to enable the 9. Corporate Powers
country to develop as a whole, the programs and 10. Liability of LGUs
policies effected locally must be integrated and 11. Settlement of Boundary Disputes
coordinated towards a common national goal. 12. Succession of Local Officials
(Pimentel Jr. v. Aguirre, G.R. 132988, July 19, 2000) 13. Discipline of Local Officials
14. Authority over police units
Q: Define devolution with respect to local
government units.
D.1. Police Power
A: The act by which the national government
Q: What is the nature of the police power of the
confers power and authority upon the various local
LGU?
government units to perform specific functions and
responsibilities (Sec. 17(e) R.A. 7160)
A: The police power of the LGU is not inherent.
LGUs exercise the police power under the general
D. Powers of Local Governments
welfare clause. (Sec 16, R.A. 7160)
Q: What are the sources of powers of a municipal
Q: What are the requisites/limitations for the
corporation?
exercise of the police power for it to be considered
as properly exercised?
A:
1. Constitution
A:
2. Statutes (e.g. LGC)
1. The interests of the public generally, as
3. Charter
distinguished from those of a particular
4. Doctrine of right to Self-Government
class, require the interference of the
(applicable to states which adhere to it)
state. (Equal protection clause)
2. The means employed are reasonably
Q: What are the classifications of municipal
necessary for the attainment of the object
powers?
sought to be accomplished and not duly
oppressive. (Due process clause)
A:
3. Exercisable only within the territorial
1. Express, Implied, Inherent
limits of the LGU, except for protection of
2. Government or public, Corporate or
water supply (Sec 16, R.A. 7160)
private
4. Must not be contrary to the Constitution
3. Intramural, extramural
and the laws.
4. Mandatory, directory; ministerial,
discretionary
Note: The power to regulate as an exercise of
police power does not include the power to
Q: How are powers to be executed? impose fees for revenue purposes (American Mail
206
POLITICAL LAW TEAM
Line v. City of Basilan, G.R. L-12647, May 31, legitimate demands of public interest or public
1961) welfare. However, well-intentioned the Ordinance
may be, it is in effect an arbitrary and whimsical
intrusion into the rights of the establishments as
Q: May a nuisance be abated without a judicial well as their patrons. The Ordinance needlessly
proceeding? restrains the operation of the businesses of the
petitioners as well as restricting the rights of their
A: Yes, provided it is nuisance per se. The patrons without sufficient justification. The
abatement of nuisances without judicial Ordinance rashly equates wash rates and renting
proceedings applies to nuisance per se or those out a room more than twice a day with immorality
which affect the immediate safety of persons and without accommodating innocuous intentions.
property and may be summarily abated under the (White Light Corp., v.City of Manila, 576 SCRA 416,
undefined law of necessity. (Tayaban v. People, G.R. 2009)
No. 150194, Mar. 6, 2007)
D.2. Eminent Domain
However, the local sanggunian does not have the
power to find, as a fact, that a particular thing is a Q: What is eminent domain?
nuisance per se, a thing which must be determined
and resolved in the ordinary courts of law (AC A: In general, eminent domain is defined as the
Enterprise, Inc. v. Frabelle Properties power of the nation or a sovereign state to take, or
Corporation,G.R. No. 166744, Nov. 2, 2006) to authorize the taking of, private property for a
public use without the owner’s consent,
Q: What does the power to issue licenses and conditioned upon payment of just compensation. It
permits include? is acknowledged as an inherent political right,
founded on a common necessity and interest of
A: It includes the power to revoke, withdraw or appropriating the property of individual members
restrict through the imposition of certain of the community to the great necessities of the
conditions. However, the conditions must be whole community. (Barangay Sindalan v. Court of
reasonable and cannot amount to an arbitrary Appeals, G.R. 150640, March 22, 2007)
interference with the business. (Acebedo Optical
Company, Inc. vs. CA, G.R. No. 100152, March 31, Q: What are the requisites for a valid exercise of
2000) power of eminent domain by LGU?
Q: Distinguish between the grant of a license or A: OPOC

permit to do business and the issuance of a license 1. An Ordinance is enacted by the local
to engage in the practice of a particular profession. legislative council authorizing the local
chief executive, in behalf of the local
A: government unit, to exercise the power of
LICENSE/PERMIT TO DO LICENSE TO ENGAGE IN eminent domain or pursue expropriation
BUSINESS A PROFESSION proceeding over a particular property.
Board or Commission
Granted by the local
tasked to regulate the Note: A resolution will not suffice for a LGU
authorities
particular profession to be able to expropriate private property; a
Authorizes the person to Authorizes a natural municipal ordinance is different from a
engage in the business person to engage in the resolution in that an ordinance is a law while
or some form of practice or exercise of a resolution is merely a declaration of the
commercial activity his or her profession sentiment or opinion of a lawmaking
authority on a specific matter.
Note: A business permit is issued primarily to regulate 2. It must be for Public use, purpose or
the conduct of business. It cannot, by the imposition of welfare of for the benefit of the poor or
condition, be used to regulate the practice of a landless
profession. (Acebedo Optical v. CA, G.R. No. 100152, 3. There must be payment of just
Mar. 31, 2000) Compensation
4. A valid and definite Offer has been
Q: May an LGU regulate the short time periods and previously made to the owner of the
wash rates of motels to protect public morals? property sought to be expropriated, but
said offer was not accepted. (Municipality
A: No. Individual rights may be adversely affected of Paranaque vs. V.M. Realty Corporation
only to the extent that may fairly be required by the G.R. No. 127820. July 20, 1998)
207
the propriety thereof) shall be filed or

Q. What are the due process requirements in heard.
eminent domain?
A: Offer must be in writing specifying: 2. The determination by the Regional Trial
1. Property sought to be acquired Court of the just compensation for the
2. The reason for the acquisition property sought to be taken. This is done
3. The price offered by the Court with the assistance of not
more than three (3) commissioners. The
Note: order fixing the just compensation on the
a. If owner accepts offer: a contract of basis of the evidence before, and findings
sale will be executed of, the commissioners would be final. It
b. If owner accepts but at a higher price: would finally dispose of the second stage
Local chief executive shall call a of the suit, and leave nothing more to be
conference for the purpose of reaching done by the Court regarding the issue.
an agreement on the selling price; If (Brgy. Son Roque, Talisay, Cebu v. Hrs. of
agreed, contract of sale will be drawn.
Francisco Pastor, G.R. No. 138896, June
(Article 35 of LGC IRR)
20, 2000)
Q: What are the requisites for an authorized
Q: When is “public use” requirement satisfied?
immediate entry?
A:
A:
GR: That only a few could actually benefit from
1. Filling of a complaint for expropriation
the expropriation of the property does not
sufficient in form and substance
diminish its public use character. It is simply not
2. Deposit of the amount equivalent to
possible to provide all at once land and shelter
fifteen percent (15%) of the fair market
for all who need them. Corollary to the
value of the property to be expropriated
expanded notion of public use, expropriation is
based on its current tax declaration.
not anymore confined to vast tracts of land and
landed estates. It is therefore of no moment
Note:Upon compliance, the issuance of writ of
possession becomes ministerial.(City of Iloilo vs
that the land sought to be expropriated in this
Legaspi, G.R. No. 154614, November 25, 2004) case is less than half a hectare only. Through
the years, the public use requirement in
Q: What are the two phases of expropriation eminent domain has evolved into a flexible
proceedings? concept, influenced by changing conditions.
Public use now includes the broader notion of
A: indirect public benefit or advantage, including
1. The determination of the authority of the in particular, urban land reform and housing.
plaintiff to exercise the power of eminent (Philippine Columbian Association v. Panis, G.R.
domain and the propriety of its exercise L-106528, Dec. 21, 1993)
in the context of the facts involved in the
suit. It ends with an order, if not of XPN: The passage of R.A. No. 7279, the “Urban
dismissal of the action, of condemnation Development and Housing Act of 1992”
declaring that the plaintiff has a lawful introduced a limitation on the size of the land
right to take the property sought to be sought to be expropriated for socialized
condemned, for the public use or purpose housing. The law expressly exempted “small
described in the complaint, upon the property owners” from expropriation of their
payment of just compensation to be land for urban land reform. (City of
determined as of the date of the filing of Mandaluyong v. Aguilar, G.R. 137152, Jan. 29,
the complaint. An order of dismissal, if 2001)
this be ordained, would be a final one,
since it finally disposes of the action and Q: When is genuine necessity satisfied?
leaves nothing more to be done by the
Court on the merits. The order of A: The right to take private property for public
condemnation shall be a final one, as the purposes necessarily originates from “the
Rules expressly state, in the proceedings necessity” and the taking must be limited to such
before the Trial Court, no objection to the necessity. In City of Manila v. Chinese Community of
exercise of the right of condemnation (or Manila, we held that the very foundation of the
right to exercise eminent domain is a genuine
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POLITICAL LAW TEAM
necessity and that necessity must be of a public 2. Internal Revenue Allotment (IRA) – Just
character. Moreover, the ascertainment of the share in the national taxes which shall be
necessity must precede or accompany and not automatically released to them (Sec. 6,
follow the taking of the land. In City of Manila v. Art. X, 1987 Constitution)
Arellano Law College, the necessity within the rule
that the particular property to be expropriated Note: The current sharing is 40% local and
must be necessary, does not mean an absolute but 60% national. The share cannot be reduced
only a reasonable or practical necessity, such as except if there is unmanageable public
would combine the greatest benefit to the public sector deficit.
with the least inconvenience and expense to the
condemning party and the property owner 3. Equitable share in the proceeds of the
consistent with such benefit. (Masikip v. City of utilization and development of the
Pasig, G.R. 136349, Jan. 23, 2006) national wealth within their areas. (Sec. 7,
Art. X, 1987 Constitution)
Q: May an LGU expropriate a property to provide a
right-of-way to residents of a subdivision? Q: What are the fundamental principles that shall
govern the exercise of the taxing and revenue-
A: No. Considering that the residents who need a raising powers of local government units?
feeder road are all subdivision lot owners, it is the
obligation of the Subdivision owner to acquire a A:
right-of-way for them. However, the failure of the 1. Taxation shall be uniform in each local
subdivision owner to provide an access road does government unit
not shift the burden to petitioner. To deprive 2. Taxes, fees, charges and other
respondents of their property instead of compelling impositions shall be equitable and based
the subdivision owner to comply with his obligation as far as practicable on the taxpayer’s
under the law is an abuse of the power of eminent ability to pay; it shall be levied and
domain and is patently illegal. Worse, the collected only for public purpose; it must
expropriation will actually benefit the subdivision’s not be unjust, excessive, oppressive, or
owner who will be able to circumvent his confiscatory; it must not be contrary to
commitment to provide road access to the law, public policy, national economic
subdivision in conjunction with his development policy, or restraint of trade;
permit and license to sell from the Housing and 3. The collection of local taxes, fees, charges
Land Use Regulatory Board, and also be relieved of and other impositions shall in no case be
spending his own funds for a right-of-way. let to any private person
(Barangay Sindalan v. CA G.R. No. 150640,March 4. The revenue collected shall inure solely to
22, 2007) the benefit of and be subject to
disposition by, the local government unit,
D.3. Taxation unless specifically provided therein;
5. Each local government, as far as
Q: What is the nature of the power of taxation in practicable, evolves a progressive system
LGUs? of taxation. (Sec. 130, R.A. 7160)
A: A municipal corporation, unlike a sovereign Q: Under the Constitution, what is the basis of
state, is clothed with no inherent power of taxation. ARMM’s taxing power?
The charter or statute must plainly show an intent
to confer that power or the municipality cannot A: The ARMM has the legislative power to create
assume it. And the power when granted is to be sources of revenues within its territorial jurisdiction
construed in strictissimi juris. (Medina vs. City of and subject to the provisions of the 1987
Baguio, G.R. No. L-4060, Aug. 29, 1952) Constitution and national laws. (Sec. 20[b], Art. X)
Q: Under the Constitution, what are the three Q: Distinction between the power to tax by
main sources of revenues of local government ordinary LGUs and that of the Autonomous
units? Regions.
A:
1. Taxes, fees, and charges. (Sec. 5, Art. X, A:
1987 Constitution)
LGU’s inside
LGU’s outside
autonomous regions
autonomous regions
(i.e. ARMM)
209
Basis of Taxing Power the purpose for which the trust was
created or the funds received
6. Every officer of the local government unit
Sec. 5, Article X, Sec. 20(b), Article X,
whose duties permit or require the
1987 Constitution 1987 Constitution
possession or custody of local funds shall
be properly bonded, and such officer shall
Governing Guidelines and limitatitons be accountable and responsible for said
Local Government funds and for the safekeeping thereof in
Respective Organic Act conformity with the provisions of law;
Code of 1991
7. Local governments shall formulate sound
financial plans and local budgets shall be
Note: Unlike Sec. 5, Article X, Sec. 20, Article X of the based on functions, activities, and
1987 Constitution is not self-executing. It merely
projects in terms of expected results
authorizes Congress to pass the Organic Act of the
8. Local budget plans and goals shall, as far
autonomous regions which shall provide for legislative
as practicable, be harmonized with
powers to levy taxes upon their inhabitants.
national development plans, goals and
Q: The president, through AO 372, orders the strategies in order to optimize the
withholding of 10 percent of the LGUs' IRA utilization of resources and to avoid
"pending the assessment and evaluation by the duplication in the use of fiscal and
Development Budget Coordinating Committee of physical resources
the emerging fiscal situation" in the country. Is the 9. Local budgets shall operationalize
AO valid? approved local development plans
10. Local government units shall ensure that
A: No, A basic feature of local fiscal autonomy is the their respective budgets incorporate the
automatic release of the shares of LGUs in the requirements of their component units
national internal revenue. This is mandated by no and provide for equitable allocation of
less than the Constitution. The Local Government resources among these component units
Code specifies further that the release shall be 11. National planning shall be based on local
made directly to the LGU concerned within five (5) planning to ensure that the needs and
days after every quarter of the year and "shall not aspirations of the people as articulated by
be subject to any lien or holdback that may be the local government units in their
imposed by the national government for whatever respective local development plans, are
purpose." As a rule, the term "shall" is a word of considered in the formulation of budgets
command that must be given a compulsory of national line agencies or offices
meaning. The provision is, therefore, imperative. 12. Fiscal responsibility shall be shared by all
(Pimentel, Jr. v. Aguirre, G.R. No. 132988, July 19, those exercising authority over the
2000) financial affairs, transactions and
operations of the local government units;
Q: What are the fundamental principles governing and
financial affairs, transactions and operations of 13. The local government unit shall endeavor
LGUs? to have a balanced budget in each fiscal
year of operation(Sec. 305, R.A. 7160)
A:
1. No money shall be paid out of the local Q: What are the taxes that may be imposed by the
treasury except in pursuance of an LGUs?
appropriation ordinance or law;
2. Local government funds and monies shall A:
be spent solely for public purposes; 1. For provinces
3. Local revenue is generated only from a. Tax on transfer of real property
sources expressly authorized by law or ownership (sale, donation, barter, or
ordinance, and collection thereof shall at any other mode of transferring
all times be acknowledged properly ownership): not more than 50% of
4. All monies officially received by a local 1% of the total consideration
government officer in any capacity or on involved in the acquisition of the
any occasion shall be accounted for as property (Sec. 135 R.A. 7160)
local funds, unless otherwise provided b. Tax on business of printing and
5. Trust funds in the local treasury shall not publication: not exceeding 50% of
be paid out except in the fulfillment of
210
POLITICAL LAW TEAM
1% of the gross annual receipt (Sec. Q: What are the taxes, fees and charges that may
136 R.A. 7160) be imposed by the barangay?
c. Franchise tax: not exceeding 50% of
1% of the gross annual receipt (Sec. A:
137 R.A. 7160) 1. Taxes on stores and retails with fixed
d. Tax on sand, gravel and other quarry business establishment with gross sales of
resources: not more than 10% of the the preceding calendar year of P50,000 or
fair market value per cubic meter. less, in the case of cities and P30,000 or
Proceeds will be distributed as less, in the case of municipalities, at a rate
follows: not exceeding 1% on such gross sales or
i. Province- 30% receipts.
ii. Component city or municipality 2. Service Fees or Charges
where it was extracted- 30% 3. Barangay Clearances
iii. Barangay where it was 4. Commercial breeding of fighting cocks,
extracted- 40% (Sec. 138 R.A. cockfights and cockpits
7160) 5. Places of recreation which charge
e. Professional tax: not exceeding admission fees
P300.00. (Sec. 139 R.A. 7160) 6. Billboards, signboards, neon signs and
f. Amusement tax: not more than 30% outdoor advertisements. (Sec. 152 R.A.
of the gross receipts. (Sec. 140 R.A. 7160)
7160)
g. Annual fixed tax for every delivery Note: Where the Secretary of Justice reviews,
truck or van of manufacturers or pursuant to law, a tax measure enacted by a local
producers, wholesalers of, dealers, government unit to determine if the officials
or retailers in certain products: not performed their functions in accordance with law, i.e,
exceeding P500.00 (Sec. 141 R.A. with the prescribed procedure for the enactment of
7160) tax ordinances and the grant of powers under the
Local Government Code, the same is an act of mere
supervision and not control (Drilon vs. Lim, G.R. No.
2. For municipalities- May levy taxes, fees,
112497, Aug.4, 1994).
and charges not otherwise levied by
provinces, except as provided for in the
Q: What procedures must a LGU comply with for a
LGC.
revenue ordinance to be valid?
a. Tax on business. (Sec. 143 R.A. 7160)
A:
b. Fees and charges on business and
1. A prior public hearing on the measure
occupation except those reserved for
conducted according to prescribed rules.
the province. (Sec. 147 R.A. 7160)
2. Publication of the tax ordinance, within
c. Fees for sealing and licensing of
10 days after their approval, for 3
weights and measures. (Sec. 148 R.A.
consecutive days in a newspaper of local
7160)
circulation provided that in provinces,
d. Fishery rentals, fees and charges.
cities, and municipalities where there are
(Sec. 149 R.A. 7160)
no newspapers of local circulation, the
same may be posted in at least two (2)
3. For cities – May levy taxes, fees and
conspicuous and publicly accessible
charges which the province and
places.
municipality may impose provided:
a. That the taxes, fees and charges Note: If the tax ordinance or revenue measure
levied and collected of highly contains penal provisions as authorized in Article
urbanized and independent 280 of this Rule, the gist of such tax ordinance or
component cities shall accrue to revenue measure shall be published in a
them, and newspaper of general circulation within the
b. That the rate that the city may levy province where the sanggunian concerned
may exceed the maximum rates belongs. (Art. 276, IRR of LGC)
allowed for the province or
municipality by not more than 50% Q: When shall a tax ordinance take effect?
except the rates of professional and
amusement taxes. (Sec. 151 R.A. A: In case the effectivity of any tax ordinance or
7160) revenue measure falls on any date other than the
beginning of the quarter, the same shall be
211
considered as falling at the beginning of the next 2. Transient visitors when their stay in the
ensuing quarter and the taxes, fees, or charges due Philippines does not exceed 3 months.
shall begin to accrue therefrom. (Art. 276, IRR of (Sec. 159 R.A. 7160)
LGC)
Q: What are the remedies available to the local
Q: The Province of Palawan passes an ordinance government units to enforce the payment of
requiring all owners/operators of fishing vessels taxes?
that fish in waters surrounding the province to
invest ten percent (10%) of their net profits from A:
operations therein in any enterprise located in 1. Imposing penalties (surcharges and
Palawan. NARCO Fishing Corp., a Filipino penalty interest) in case of delinquency
corporation with head office in Navotas, Metro (Sec. 168 R.A. 7160)
Manila, challenges the ordinance as 2. Availing local government’s liens (Sec. 173
unconstitutional. Decide the case. R.A. 7160)
3. Administrative action through distraint of
A: The ordinance is invalid. The ordinance was goods, chattels, and other personal
apparently enacted pursuant to Art. X, Sec. 7 of the property (Sec. 174(a) R.A. 7160)
Constitution, which entitles local governments to 4. Judicial action (Sec. 174(b) R.A. 7160)
an equitable share in the proceeds of the utilization
and development of the national wealth within Q: What are the other sources of revenue?
their respective areas. However, this should be
made pursuant to law. A law is needed to A: The local government units are entitled to
implement this provision and a local government definite shares in:
cannot constitute itself unto a law. In the absence
of a law, the ordinance in question is invalid. 1. The proceeds from development and
utilization of mines, forests, and marine
Q: Who determines the legality or propriety of a resources up to 40% of the gross
local tax ordinance or revenue measure? collections there from by the national
government. (Sec. 290 R.A. 7160)
A: It is the Secretary of Justice who shall determine 2. The proceeds of government owned or
questions on the legality and constitutionality of controlled corporations engaged in the
ordinances or revenue measures. Such questions utilization and development of the
shall be raised on appeal within thirty (30) days national wealth up to 1% of the gross
from the effectivity thereof to the Secretary of sales or 40% of the gross collections made
Justice who shall render a decision within sixty (60) by the national government there from,
days from the date of receipt of the appeal: whichever is higher. (Sec. 291 R.A. 7160)
Provided, however, That such appeal shall not have
the effect of suspending the effectivity of the Q: What are real property taxes?
ordinance and the accrual and payment of the tax,
fee, or charge levied therein: Provided, finally, That A: These are directly imposed on privilege to use
within thirty (30) days after receipt of the decision real property such as land, building, machinery, and
or the lapse of the sixty-day period without the other improvements, unless specifically exempted.
Secretary of Justice acting upon the appeal, the
aggrieved party may file appropriate proceedings Note: Real property taxes are local taxes and not
with a court of competent jurisdiction (RTC). (Sec. national taxes.(Pimentel, 2007 Edition, p. 415)
187 R.A. 7160)
Q: How much real property tax can be imposed by
Q: What is the nature of a community tax? the local government units?
A: Community tax is a poll or capitation tax which is A: A real estate levy may be imposed by the
imposed upon person who resides within a province or city or a municipality w/in Metro
specified territory. Manila as follows:
1. By the province, not exceeding 1% of the
Q: Who are exempted from the payment of the assessed value of the property; and
community tax? 2. By the city or a municipality w/in metro
manila, not exceeding 2% of the assessed
A: value of the property. (Sec. 233 R.A. 7160)
1. Diplomatic and consular representatives;
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POLITICAL LAW TEAM
Q: Bayantel was granted by Congress after the of not exceeding 60% of the actual cost of
effectivity of the Local Government Code (LGC), a the project. (Sec. 240 R.A. 7160)
legislative franchise with tax exemption privileges
which partly reads “the grantee, its successors or Q: What are the requisites so that the President
assigns shall be liable to pay the same taxes on may interfere in local fiscal matters?
their real estate, buildings and personal property,
exclusive of this franchise, as other persons or A:
corporations are now or hereafter may be 1. An unmanaged public sector deficit of the
required by law to pay.” This provision existed in national government;
the company’s franchise prior to the effectivity of 2. Consultations with the presiding officers
the LGC. Quezon City then enacted an ordinance of the Senate and the House of
imposing a real property tax on all real properties Representatives and the presidents of the
located within the city limits and withdrawing all various local leagues;
exemptions previously granted. Among properties 3. And the corresponding recommendation
covered are those owned by the company. of the secretaries of the Department of
Bayantel is imposing that its properties are Finance, Interior and Local Government,
exempt from tax under its franchise. Is Bayantel and Budget and Management. (Pimentel,
correct? Jr. vs. Aguirre, G.R. No. 132988, July 19,
2000)
A: Yes. The properties are exempt from taxation.
The grant of taxing powers to local governments Q: May a local government unit (LGU) regulate the
under the Constitution and the LGC does not affect subscriber rates charged by cable tv operators
the power of Congress to grant tax exemptions. within its territorial jurisdiction?
The term "exclusive of the franchise" is interpreted A: No. Under E.O. No. 205, the National
to mean properties actually, directly and exclusively Telecommunications Commission has exclusive
used in the radio and telecommunications business. jurisdiction over matters affecting CATV operation,
The subsequent piece of legislation which including specifically the fixing of subscriber rates.
reiterated the phrase “exclusive of this franchise” CATV system is not a mere local concern. The
found in the previous tax exemption grant to the complexities that characterize this new technology
company is an express and real intention on the demand that it be regulated by a specialized
part of the Congress to once against remove from agency. This is particularly true in the area of rate-
the LGC’s delegated taxing power, all of the fixing. However, there is nothing under E.O. 205
company’s properties that are actually, directly and precludes LGUs from exercising its general power,
exclusively used in the pursuit of its franchise. (The under R.A. No. 7160, to prescribe regulations to
City Government of Quezon City, et al., v. Bayan promote health, morals, peace, education, good
Telecommunications, Inc., G.R. No. 162015, Mar. 6, order or safety and general welfare of their
2006) constituents. (Batangas CATV, Inc. v. CA, G.R. No.
138810, Sept. 29, 2004)
Note: An ordinance levying taxes, fees or charges shall
not be enacted without any prior public hearing D.4. Closure and Opening of roads
conducted for the purpose. (Figuerres v. CA, G.R. No.
119172, Mar.25, 1999) Q: What may be subject of an LGU’s power to
open or close a road?
Q: What are the special levies on real property?
A: Any local road, alley, park, or square falling
A: within its jurisdiction may be closed, either
1. A special education fund may also be permanently or temporary. (Sec 21(a) R.A. 7160)
assessed in provinces, cities, or
Metropolitan Manila municipalities up to Note: No permanent closure of any local road, street,
a maximum of 1% of the assessed value of alley, park, or square shall be effected unless there
a real property. (Sec. 235 R.A. 7160) exists a compelling reason or sufficient justification
2. Idle lands in provinces, cities or therefor such as, but not limited to, change in land
municipalities in Metro Manila may be use, establishment of infrastructure facilities, projects,
additionally taxed at not exceeding 5% of or such other justifiable reasons as public welfare may
their assessed value. (Sec. 236 R.A. 7160) require. (Art. 44(a), IRR, RA 7160)
3. Lands benefited by public works projects
or improvements in provinces, cities and Q: What are the limitations in cases of permanent
municipalities may be levied a special tax and temporary closure?
213
A: Q: Who exercises local legislative power and their

1. In case of permanent closure: presiding officer (PO)?
a. It must be approved by at least 2/3
of all the members of the A:
Sanggunian and when necessary Sangguniang
Province Vice-governor
provide for an adequate substitute panlalawigan
for the public facility Sangguniang City vice-
b. Adequate provision for the public City
panlungsod mayor
safety must be made Sangguniang Municipality
c. The property may be used or Municipality
bayan vice-mayor
conveyed for any purpose for which Sangguniang Punong
other real property may be lawfully Barangay
barangay barangay
used or conveyed. However, no
freedom park shall be closed Note: The PO shall vote only to break a tie. (Sec. 49(a)
permanently without provision for R.A. 7160)
its transfer or relocation to a new
site. (Sec 21(a)(b) RA 7160) Q: In the absence of the regular presiding officer,
who presides in the sanggunian concerned?
2. In case of temporary closure:
a. It must be for actual emergency, A: The members present and constituting a quorum
fiesta celebration, public rallies, shall elect from among themselves a temporary
agricultural or industrial works and presiding officer.
highway telecommunications and
water work projects Note: He shall certify within 10 days from the passage
b. Duration of which shall be specified of ordinances enacted and resolutions adopted by the
c. Except for those activities not sanggunian in the session over which he temporarily
officially sponsored or approved by presided. (Sec. 49 (b) R.A. 7160)
the LGU concerned (Sec 21(c) RA
7160) Q: May an incumbent Vice-Governor, while
concurrently the acting governor, continue to
Note: Any city, municipality or barangay may, by preside over the sessions of the Sangguniang
ordinance, temporarily close and regulate the use of a Panlalawigan? If not, who may preside in the
local street, road, thoroughfare or any other public meantime?
place where shopping malls, Sunday, flea or night
markets, or shopping areas may be established and A: A vice-governor who is concurrently an acting
where articles of commerce may be sold or dispensed governor is actually a quasi-governor. For purposes
with to the general public. (Sec 21(d) RA 7160) of exercising his legislative prerogatives and
powers, he is deemed a non-member of the SP for
Q: What is the material factor to consider in the time being.
vacating a street?
In the event of inability of the regular presiding
A: The material factors which a municipality must officer to preside at the sanggunian session, the
consider in deliberating upon the advisability of members present and constituting a quorum shall
closing a street are: "the topography of the elect from among themselves a temporary
property surrounding the street in the light of presiding officer.(Gamboa v. Aguirre, G.R. No.
ingress and egress to other streets; the relationship 134213, July 20, 1999)
of the street in the road system throughout the
subdivision; the problem posed by the 'dead end' of Q: What is the quorum in the sanggunian?
the street; the width of the street; the cost of
rebuilding and maintaining the street as contrasted A: A majority of all the members of the sanggunian
to its ultimate value to all of the property in the who have been elected and qualified. (Sec. 53 (a)
vicinity; the inconvenience of those visiting the R.A. 7160)
subdivision; and whether the closing of the street
would cut off any property owners from access to a Q: What are the procedural steps or actions to be
street." (Favis v. City of Baguio, G.R. L-29910, April taken by the presiding officer if there is a question
25, 1969) of quorum and if there is no quorum?
D.5. Local Legislative Power
214
POLITICAL LAW TEAM
A: Should there be a question of quorum raised A: Yes.There is nothing in the language of the LGC
during a session, the PO shall immediately proceed that restricts the matters to be taken up during the
to call the roll of the members and thereafter first regular session merely to the adoption or
announce the results. (Sec. 53 (a) R.A. 7160) updating of the house rules. (Malonzo v. Zamora,
G.R. No. 137718, July 27, 1999).
If there is no quorum, the PO may:
1. Declare a recess until such time that
quorum is constituted
2. Compel attendance of the members who
are absent without justifiable cause 5.a. Requisites for valid ordinance
3. Declare the session adjourned for lack of
quorum and no business shall be Q: What are the products of legislative action and
transacted (Sec. 53(b)(c) R.A. 7160) their requisites for validity?
Q: How are sessions fixed? A:

ORDINANCE RESOLUTION
A: Merely a declaration of the
IF REGULAR SESSIONS IF SPECIAL SESSIONS sentiment or opinion of a
Law
lawmaking body on a specific
When public interests
matter
st so demand, special
By resolution on the 1 General and
session may be called
day of the session permanent Temporary in nature
for by the local chief
immediately following character
executive or by a
the election of its GR: It is not necessary in
majority of the
members resolution
members of the
sanggunian Third reading is
XPN: Unless decided otherwise
necessary for an
Q: What are the requirements of a sanggunian by a majority of all the
ordinance
session? Sanggunian members (Arrastre,
Inc. v. Villaflor, G.R. 128509,
A: Aug. 22, 2006)
1. It shall be open to public unless it is a
closed-door session Q. What are the requisites for validity? (must not
2. No two sessions, regular or special, may be CUPPU, must be GC)
be held in a single day
3. Minutes of the session be recorded and A:
each sanggunian shall keep a journal and 1. Must not Contravene the constitution and
record of its proceedings which may be any statute
published upon resolution of the 2. Must not be Unfair or oppressive
sanggunian concerned. 3. Must not be Partial or discriminatory
4. In case of special sessions: 4. Must not Prohibit, but may regulate trade
a. Written notice to the members must 5. Must not be Unreasonable
be served personally at least 24 6. Must be General in application and
hours before the special session Consistent with public policy. (Magtajas
b. Unless otherwise concurred in by vs. Pryce Properties Corporation, Inc, G.R.
2/3 votes of the sanggunian No. 111097, July 20, 1994)
members present, there being no
quorum, no other matters may be Q: How is a review of the ordinances or
considered at a special session resolutions done?
except those stated in the notice.
(Sec. 52 R.A. 7160) A:
REVIEW OF
Q: On its first regular session, may the sanggunian COMPONENT CITY AND
Review of Barangay
transact business other than the matter of MUNICIPAL
Ordinances
adopting or updating its existing rules or ORDINANCES OR
procedure? RESOLUTIONS
Who reviews
Sanggunian Panlalawigan Sangguniang
215
Panglungsod or 2. Ordinances and resolutions passed by

Sangguniang Bayan highly urbanized and independent
When copies of ordinance or resolutions be component cities. (Sec. 59(d) R.A. 7160)
forwarded
Within 3 days after Within 10 days after Q: How is an ordinance approved?
approval its enactment
Period to examine A:
Within 30 days after the 1. By affixing the signature of the chief
receipt; may examine or executive on each and every page thereof
may transmit to the if he approves the same
provincial attorney or 2. By overriding the veto by 2/3 vote of all
provincial prosecutor. Within 30 days after members of the sanggunian if the local
If the latter, must submit the receipt chief executive vetoed the same
his comments or
recommendations within Note: Local Chief Executive may veto the
10 days from receipt of ordinance only once on the ground that the
the document ordinance is ultra vires and prejudicial to
public welfare. The veto must be
When declared valid
communicated to the sanggunian within:
If no action has been a. 15 days = province
taken within 30 days after Same b. 10 days = city or municipality(Sec. 54,
submission R.A. 7160)
When invalid (grounds)
If inconsistent with Q: What are the items that the local chief
the law or city or executive may veto:
municipal ordinance
If beyond the power A:
Effect:Barangay 1. Item/s of an appropriation ordinance.
conferred on the
ordinance is 2. Ordinance/resolution adopting local
sangguniang panlungsod
suspended until such development plan and public investment
time as the revision program
called is effected(Sec. 3. Ordinance directing the payment of
56 and 57, R.A. 7160) money or creating liability
(Sec.55, R.A. 7160)
Q: What is the effect of the enforcement of a
disapproved ordinance or resolution? Note: Ordinances enacted by the sangguniang
barangay shall, upon approval by a majority of all its
A: It shall be sufficient ground for the suspension or members be signed by the punong barangay. The
dismissal of the official or employee (Sec. 58, R.A. latter has no veto power.
7160)
5.b.Local Initiative and Referendum
Q: When will an ordinances or resolution takes
effect? Q: Distinguish local initiative from referendum.
A: A:
GR: After 10 days from the date a copy is
posted in a bulletin board and in at least 2 INITIATIVE REFERENDUM
conspicuous spaces. (Sec. 59(a) R.A. 7160) The legal process The legal process
whereby the registered whereby the registered
XPN: Unless otherwise stated in the ordinance voters of a LGU may voters of the LGU may
or resolution. (Sec. 59(a) R.A. 7160) directly propose, enact approve, amend or reject
or amend any any ordinance enacted
Q: What ordinances require publication for its ordinance. (Sec. 120 by the sanggunian. (Sec.
effectivity? R.A. 7160) 126 R.A. 7160)
A: Note: Local initiative includes not only ordinances but

1. Ordinances that carry with them penal also resolutions as its appropriate subjects. (Garcia v.
sanctions. (Sec. 59(c) R.A. 7160) COMELEC, G.R. 111230, Sept. 30, 1994)
216
POLITICAL LAW TEAM
Q: What are the limitations on local initiative?

D.6. Corporate Powers
A:
1. It shall not be exercised for more than Q: What are the corporate powers of an LGU?
once a year.
2. It shall extend only to subjects or matters A:
which are within the legal powers of the 1. To have continuous succession in its
sanggunian to enact. corporate name
3. If at any time before the initiative is held, 2. To sue and be sued
the sanggunian concerned adopts in toto
the proposition presented and the local Note: Only the Provincial Fiscal or the Municipal
chief executive approves the same, the Attorney can represent a province or municipality
initiative shall be canceled. However, in lawsuits. This is mandatory. Hence, a private
those against such action may, if they so attorney cannot represent a province or
desire, apply for initiative in the manner municipality.
herein provided. (Sec. 124 R.A. 7160)
3. To have and use a corporate seal
Note: Any proposition or ordinance approved through
an initiative and referendum shall not be repealed, Note: Any new corporate seals or changes on
modified or amended by the sanggunian within 6 such shall be registered with DILG.
months from the date of approval thereof, and may be
amended, modified or repealed within 3 years 4. To acquire and convey real or personal
thereafter by a vote of ¾ of all its members. In case of property
barangays, the period shall be 18 months after the 5. To enter into contracts
approval thereof. (Sec. 125 R.A. 7160)
Note: Unless otherwise provided in this Code, no
Q: What is the procedure in conducting Local contract may be entered into by the local chief
Initiative? executive in behalf of the local government unit
without prior authorization by the sanggunian
A: concerned. A legible copy of such contract shall
1. Number of voters who should file be posted at a conspicuous place in the provincial
capitol or the city, municipal or barangay hall.
petition with the Sanggunian concerned:
a. Province and cities – at least
6. To exercise such other powers as granted
1000 registered voters
to corporations (Sec. 22, R.A. 7160)
b. Municipality – at least 100
registered voters
a) To sue and be sued
c. Barangay – at least 50
registered voters
Q: Who is the proper officer to represent the city
2. The Sanggunian concerned has 30 days
in court actions?
to act on the petition. If the
Sanggunian does not take any
A: The city legal officer is supposed to represent the
favorable action, the proponents may
city in all civil actions and special proceedings
invoke the powers of initiative, giving
wherein the city or any of its officials is a party, but
notice to Sanggunian.
where the position is as yet vacant, the City
3. Proponents will have the following
Prosecutor remains the city’s legal adviser and
number of days to collect required number of
officer for civil cases. (Asean Pacific Planners vs. City
signatures
of Urdaneta, G.R. No. 162525, Sept. 23, 2008)
a. Provinces and cities – 90 days
b. Municipalities – 60 days
Q: May LGU funds and properties are seized under
c. Barangay – 30 days
writs of execution or garnishment to satisfy
4. Signing of petition
judgments against them?
5. Date of initiative set by COMELEC if
required number of signatures has been obtained.
A: No. The universal rule that where the State gives
its consent to be sued by private parties either by
Q: When will the proposition be effective?
general or special law, it may limit claimants action
only up to the completion of proceedings anterior
A: If the proposition is approved by a majority of
to the stage of execution and that the power of the
the votes cast, it will take effect 15 days after
Courts ends when the judgment is rendered. Since
certification by the COMELEC.
217
government funds and properties may not be government unit to private persons. (Macasiano vs.
seized under writs of execution or garnishment to Diokno, G.R. No. 97764, Aug. 10, 1992)
satisfy such judgments is based on obvious
considerations of public policy. Disbursements of Q: Give important rules regarding LGU’s power to
public funds must be covered by the corresponding acquire and convey real or personal property.
appropriations as required by law. The functions
and public services rendered by the State cannot be A:
allowed to be paralyzed or disrupted by the 1. In the absence of proof that the property
diversion of public funds from their legitimate and was acquired through corporate or
specific objects. (Traders Royal Bank v. IAC, G.R. No. private funds, the presumption is that it
68514, Dec. 17, 1990) came from the State upon the creation of
the municipality and, thus, is
Q: What is the exception to the above stated rule? governmental or public property. (Salas
vs. Jarencio, G.R. No. L-29788, August 30,
A:The rule on the immunity of public funds from 1972; Rabuco vs. Villegas, G.R. No. L-
seizure or garnishment does not apply where the 24661, Feb. 28, 1974)
funds sought to be levied under execution are 2. Town plazas are properties of public
already allocated by law specifically for the dominion; they may be occupied
satisfaction of the money judgment against the temporarily, but only for the duration of
government. In such a case, the monetary an emergency (Espiritu vs. Municipal
judgment may be legally enforced by judicial Council of Pozorrubio, Pangasinan, G.R.
processes. (City of Caloocan v. Allarde, G.R. No. No. L-11014, Jan. 21, 1958).
107271, Sept. 10, 2003) 3. Public plazas are beyond the commerce of
man, and cannot be the subject of lease
b) To acquire and sell property or other contractual undertaking. And,
even assuming the existence of a valid
Q: What documents must support the contract of lease of the public plaza or part thereof,
sale entered into by the LGU? the municipal resolution effectively
terminated the agreement, for it is settled
A: that the police power cannot be
1. Resolution of the sanggunian authorizing surrendered or bargained away through
the local chief executive to enter into a the medium of a contract. (Villanueva vs.
contract of sale. The resolution shall Castaneda,G.R. No. L-61311, Sept. 21,
specify the terms and conditions to be 1987)
embodied in the contract.
2. Ordinance appropriating the amount c) To enter into contracts
specified in the contract.
3. Certification of the local treasurer as to (i) Requisites
availability of funds together with a
statement that such fund shall not be (ii) Ultra vires contracts
disbursed or spent for any purpose other
than to pay for the purchase of the Q: What are the requisites of a valid municipal
property involved. (Jesus is Lord Christian contract?
School Foundation, Inc. vs. Mun. of Pasig,
G.R. No. 152230, Aug. 9, 2005) A:
1. The local government unit has the
Q: What properties may be alienated by LGUs? express, implied or inherent power to
enter into the particular contract
A: Only properties owned in its private or 2. The contract is entered into by the proper
proprietary capacity (Patrimonial department board, committee, officer or
Property).(Province of Zamboanga del Norte v. City agent.
of Zamboanga, G.R. No. L-24440, March 28, 1968)
Note: No contract may be entered into by the
Article 424 of the Civil Code lays down the basic local chief executive on behalf of the local
principle that properties of public dominion government without prior authorization by the
devoted to public use and made available to the sanggunian concerned, unless otherwise
public in general are outside the commerce of man provided (Sec 22(c) R.A. 7160).
and cannot be disposed of or leased by the local
218
POLITICAL LAW TEAM
3. The contract must comply with certain A: These are contracts entered into without the
substantive requirements: first and third requisites. Such are null and void and
a. Actual appropriation; and cannot be ratified or validated.
b. certificate of availability of funds
D.7. Liability of LGU
4. The contract must comply with the
formal requirements of written Q: What is the scope of municipal liability?
contracts
A: Municipal liabilities arise from various sources in
Note: This includes the power to acquire and the conduct of municipal affairs, both governmental
convey properties by the LGU through written and proprietary.
contracts.
Q: What is the rule with respect to the liabilities of
Q: Who has the authority to negotiate and secure (LGUs) and their officials?
grants?
A: LGUs and their officials are not exempt from
A: The local chief executive may, upon authority of liability arising from death or injury to persons or
the sanggunian, negotiate and secure financial damage to property (Sec. 24, R.A. 7160).
grants or donations in kind, in support of the basic
services and facilities enumerated under Sec. 17, Q: What are the specific provisions making LGUs
R.A. 7160 from local and foreign assistance agencies liable?
without necessity of securing clearance or approval
of any department, agency, or office of the national A:
government or from any higher local government 1. LGU shall be liable for damages for the
unit; Provided that projects financed by such grants death of, or injuries suffered by, any
or assistance with national security implications person by reason of the defective
shall be approved by the national agency concerned condition of roads, streets, bridges, public
(Sec.23, R.A. 7160). buildings, and other public works under
their control or supervision. (Art. 2189,
Q: Is public bidding required when LGUs enter into New Civil Code)
contracts?
Note: LGU is liable even if the road does not
A: Yes. In the award of government contracts, the belong to it as long as it exercises control or
law requires competitive public bidding. It is aimed supervision over the said roads.
to protect the public interest by giving the public
the best possible advantages thru open 2. The State is responsible in like manner
competition. It is a mechanism that enables the when it acts through a special agent; but
government agency to avoid or preclude anomalies not when the damage has been caused by
in the execution of public contracts. (Garcia v. the official to whom the task done
Burgos, G.R. No. 124130, June 29, 1998) properly pertains. In which case, Article
2176 shall be applicable. (Art. 2180, NCC)
Q: When is there a failure of bidding?
3. When a member of a city or municipal
A: When any of the following occurs: police force refuses or fails to render aid
1. There is only one offeror or protection to any person in case of
2. When all the offers are non-complying or danger to life or property, such peace
unacceptable. (Bagatsing vs. Committee officer shall be primarily liable for
on Privatization, G.R. No. 112399, July 14, damages and the city or municipality shall
1995 ) be subsidiarily responsible therefor.(Art.
34, New Civil Code)
Q: Can a municipal contract be ratified?
Q: What are the bases for municipal liabilities?
A: No. When the local chief executive enters into
contracts, he needs prior authorization or authority A:
from the sanggunian and not ratification. (Vergara 1. Liability arising from violation of law
vs. Ombudsman, G.R. No. 174567, March 12, 2009)
Note: Liability arising from violation of law such
Q: What are ultra vires contracts? as closing municipal streets without indemnifying
persons prejudiced thereby, non-payment of
219
wages to its employees or its refusal to abide a conditions, within prescribed limitations, or in a
temporary restraining order may result in prescribed mode or manner, although the corporation
contempt charge and fine. has accepted the benefits thereof and the other party
has fully performed his part of the agreement, or has
2. Liability for contracts expended large sums in preparation for performance.
(Favis vs. Municipality of Sabangan, G.R. L-26522, Feb.
Note: LGU is liable provided that the contract is 27, 1969)
intra vires. If it is ultra vires, they are not liable.
If a suit is filed against a local official which
3. Liability for tort could result in personal liability, the latter may engage
the services of private counsel.
Note: They may be held liable for torts arising
from the performance of their private and Q: State the rules on municipal liability for tort.
proprietary functions under the principle of
respondeat superior. They are also liable for back A:
salaries for employees illegally 1. LGU-engaged (governmental function) – not
dismissed/separated or for its refusal to reinstate liable
employees. 2. LGU-engaged (proprietary function) – liable
th
(Rodriguez, p.105, LGC 5 Edition)
Q: What are the conditions under which a local
executive may enter into a contract in behalf of his D.8.Settlement of Boundary Disputes
government unit?
Q: State how the two local government units
A: WAFAC should settle their boundary dispute.
1. The contract must be Within the power of
the municipality A: Boundary disputes between local governments
2. The contract must be entered into by an units should, as much as possible, be settled
Authorized officer (e.g. mayor with amicably. After efforts to settle fail, the dispute
proper resolution by the Sangguniang may be brought to the appropriate RTC in the said
Bayan, Sec. 142 LGC) province. Since the LGC is silent as to what body has
3. There must be appropriation and exclusive jurisdiction over the settlement of
Certificate of availability of funds boundary disputes between a municipality and an
4. The contract must conform with the independent component city of the same province,
Formal requisites of a written contract as the RTC has general jurisdiction to adjudicate the
prescribed by law; and said controversy.
5. In some cases the contract must be
Approved by the President and/or Q: What body or bodies are vested by law with the
provincial governor (Sec. 2068 and Sec. authority to settle disputes involving:
2196, Revised Adm. Code) 1. Two or more barangays in the same city
or municipality
Q: What is the doctrine of Implied Municipal 2. Two or more municipalities within the
Liability? same province
3. Between municipalities or component
A: A municipality may become obligated upon an cities of different provinces
implied contract to pay the reasonable value of the 4. Between a component city or
benefits accepted or appropriated by it as to which municipality and a highly urbanized city
it has the general power to contract. The doctrine 5. Two or more highly urbanized cities.
of implied municipal liability has been said to apply
to all cases where money or other property of a A:
party is received under such circumstances that the 1. Boundary disputes involving two (2) or
general law, independent of express contract more barangays in the same city or
implies an obligation upon the municipality to do municipality shall be referred for
justice with respect to the same.(Province of Cebu settlement to the sangguniang
v. IAC, G.R. 72841, Jan. 29, 1987) panlungsod or sangguniang bayan
concerned. (Sec. 118(a), R.A. 7160)
Note: Estoppel cannot be applied against a municipal 2. Boundary disputes involving two or more
corporation in order to validate a contract which the municipalities within the same province
municipal corporation has no power to make or which shall be settled by the sangguniang
it is authorized to make only under prescribed
220
POLITICAL LAW TEAM
panlalawigan concerned. (Section 118(b), 7. Permanently 3. Travel abroad or

R.A. 7160) incapacitated to 4. Suspension from
3. Boundary disputes involving discharge the functions office. (Sec. 46,
municipalities or component cities of of his office (Sec. 44, LGC)
different provinces shall be jointly LGC)
referred for settlement to the
sanggunians of the provinces concerned. Q: What are the two ways of filling the vacancy?
(Sec. 118(c), R.A. 7160)
4. Boundary disputes involving a component A:
city or municipality on the one hand and a 1. Automatic succession
highly urbanized city on the other shall be 2. By appointment(Sec. 45, LGC)
jointly referred for settlement to the
respective sanggunians of the parties. Q: State the rules of succession in case of
(Section 118(d), R.A. 7160) permanent vacancies.
5. Boundary disputes involving two or more
highly urbanized cities shall be jointly A:
referred for settlement to the respective 1. In case of permanent vacancy in:
sanggunians of the parties. (Section a. Office of the governor: vice-
118(d), R.A. 7160) governor
b. Office of the mayor: vice-mayor
Q: State the importance of drawing with precise c. Office of the governor, vice
strokes the territorial boundaries of a local governor, mayor or vice-mayor:
government unit. highest ranking Sanggunian member
or in case of his permanent inability,
A: The boundaries must be clear for they define the the second highest ranking
limits of the territorial jurisdiction of a local Sanggunian member – successor
government unit. It can legitimately exercise should have come from the same
powers of government only within the limits of its political party.
territorial jurisdiction. Beyond these limits, its acts d. Office of the punong barangay: the
are ultra vires. Needless to state, any uncertainty in highest ranking sangguniang
the boundaries of local government units will sow barangay member – successor may
costly conflicts in the exercise of governmental or may not have come from the
powers which ultimately will prejudice the people’s same political party.
welfare. This is the evil sought to be avoided by
the Local Government Code in requiring that the Note: For purposes of succession, ranking in
land area of a local government unit must be the Sanggunian shall be determined on the
spelled out in metes and bounds, with technical basis of the proportion of the votes
descriptions. (Mariano, Jr. v. COMELEC, G.R. No., obtained by each winning candidate to the
118577, Mar. 7, 1995) total number of registered voters in each
district in the preceding election.
D. 9. Succession of elective officials
The general rule is that the successor (by
appointment) should come from the same
Q: What are the two classes of vacancies in the
political party as the Sangunian member
elective post?
whose position has become vacant. The
exception would be in the case of vacancy in
A: the Sangguniang barangay.
TEMPORARY
PERMANENT VACANCY
VACANCY 2. In case automatic succession is not
Arises when an elected Arises when an applicable and there is vacancy in the
local official: elected official is membership of the sanggunian it shall be
1. Fills a higher vacant temporarily filled up by appointment in the following
office incapacitated to manner:
2. Refuses to assume perform his duties
office due to legal or a. The President through the Executive
3. Fails to qualify physical reasons such Secretary shall appoint the political
4. Dies as: nominee of the local executive for
5. Removed from office 1. Physical sickness, the sangguniang panlalawigan and
6. Voluntarily resigns 2. Leave of absence,
221
panlungsod of highly urbanized cities 3. If without said authorization, the vice-

and independent component cities governor, vice-mayor or the highest
b. The Governor, shall appoint the ranking sangguniang barangay member
th
political nominees for the shall assume the powers on the 4 day of
sangguniang panlungsod of absence. (Sec. 46, LGC)
component cities and the
sangguniang bayan concerned Q: How is temporary incapacity terminated?
c. The city or municipal mayor shall
appoint the recommendee of the A:
sangguniang barangay concerned. 1. If the temporary incapacity was due to:
a. Leave of absence
Note: The “last vacancy” in the Sanggunian b. Travel abroad
refers to that created by the elevation of the c. Suspension.
member formerly occupying the next higher It shall terminate upon submission to the
in rank which in turn also had become appropriate sanggunian of a written
vacant by any of the causes already declaration by the local chief executive
enumerated. The term “last vacancy” is thus concerned that he has reported back to
used in Section 45(b) to differentiate it from office
the other vacancy previously created. The
2. If the temporary incapacity was due to
term by no means refers to the vacancy in
legal reasons, the local chief executive
the No.8 position which occurred with the
elevation of 8th placer to the seventh
should also submit necessary documents
position in the Sanggunian. Such showing that the legal cause no longer
construction will result in absurdity. exist. (Sec. 46[b], LGC)
(Navarro v. CA, G.R. No. 141307, Mar. 28,
2001) D.10. Discipline of local officials
In case of vacancy in the representation of A) Elective Officials

the youth and the barangay in the (i) Grounds
Sanggunian, it shall be filled automatically
by the official next in rank of the Q: What are the grounds for disciplinary actions?
organization concerned.
A: An elective local official may be disciplined,
Q: State the rules in case of temporary vacancies suspended or removed from office on any of the
in local positions. following grounds:
A: 1. Disloyalty to the Republic of the

1. In case of temporary vacancy of the post Philippines
of the local executive (leave of absence,
travel abroad, suspension): vice- Note: An administrative, not criminal, case
governor, vice mayor, highest ranking for disloyalty to the Republic only requires
sangguniang barangay shall automatically substantial evidence (Aguinaldo v. Santos,
exercise the powers and perform the G.R. No. 94115, Aug. 21, 1992)
functions of the local Chief Executive
concerned. 2. Culpable violation of the Constitution
3. Dishonesty, oppression, misconduct in
GR:He cannot exercise the power to office, gross negligence, dereliction of
appoint, suspend or dismiss employees duty
4. Commission of any offense involving
XPN: If the period of temporary incapacity moral turpitude or an offense punishable
exceeds 30 working days. by at least prision mayor
5. Abuse of authority
2. If travelling within the country, outside his 6. GR: Unauthorized absence for 15
jurisdiction for a period not exceeding 3 consecutive working days,
days: he may designate in writing the XPN: in the case of members of the
officer-in-charge. The OIC cannot exercise Sangguniang:
the power to appoint, suspend or dismiss a. Panlalawigan
employee. b. Panlunsod
c. Bayan
222
POLITICAL LAW TEAM
d. Barangay and known at the time of his first

7. Application for or acquisition of foreign suspension. (Sec. 63[b], LGC)
citizenship or residence or the status of
an immigrant of another country; Q: What is the difference between the preventive
8. Such other grounds as may be provided suspension provided under R.A. 6770 and under
by the Code and other laws. (Sec. 60, LGC) LGC?
Note: An elective local official may be removed from

office on any of the grounds enumerated above only
by an order from the proper court. The Office of the
President is without any power to remove elected
officials. Since such power is exclusively vested in the
proper courts as expressly provided for in the last
paragraph of Section 60, LGC.(Salalima v. Guingona,
G.R. No. 117589-92, May 22, 1996)
(ii) Jurisdiction
(iii) Preventive suspension
Q: When should preventive suspension be

imposed?
A:
1. After the issues are joined;
2. When the evidence of guilt is strong;
3. 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. (Sec. 63[b], LGC)
Q: Who can impose preventive suspension?
A:
Authority to
impose
suspension Respondent Local Official
belongs to
the
Elective official of a province,
President highly urbanized or independent
component city
Elective official of a component
Governor
city or municipality
Elective official of a barangay. (Sec
Mayor
63[a], LGC)
Q: State the rule on preventive suspension.
A:
1. A single preventive suspension shall not
extend beyond 60 days.
2. In the event that there are several
administrative cases filed, the elective
official cannot be preventively suspended
for more than 90 days within a single year
on the same ground or grounds existing
223
A: such a possibility. (Castillo-Co v. Barbers, G.R. No.

PREVENTIVE PREVENTIVE 129952 June 16, 1998)
SUSPENSION UNDER RA SUSPENSION UNDER
6770 LGC Q. What is the effect of an appeal on the
Requirements: preventive suspension ordered by the
1. The evidence of guilt Ombudsman?
is strong; and A. An appeal shall not stop the decision from being
Requirements: executory. In case the penalty is suspension or
2. That any of the 1. There is reasonable removal and the respondent wins such appeal, he
following circumstances ground to believe shall be considered as having been under
are present: that the respondent preventive suspension and shall be paid the salary
a. The charge against has committed the and such other emoluments that he did not receive
the officer of act or acts by reason of the suspension or removal. A decision
employee should complained of; of the Office of the Ombudsman in administrative
involve 2. The evidence of cases shall be executed as a matter of
dishonesty, culpability is strong; course.(Office of the Ombudsman vs.
oppression or 3. The gravity of the Samaniego,G.R. No. 175573, Oct. 5, 2010)
grave misconduct offense so warrants;
or neglect in the 4. The continuance in (iv) Removal
performance of office of the
duty; respondent could Q: What is removal?
b. The charges influence the
should warrant witnesses or pose a A:Removal imports the forcible separation of the
removal from threat to the safety incumbent before the expiration of his term and
office; or and integrity of the can be done only for cause as provided by law.
c. The respondent’s records and other (Dario v. Mison, G.R. No. 81954, Aug. 8, 1989)
continued stay in evidence.
office would Note: The unjust removal or non-compliance with the
prejudice the case prescribed procedure constitutes reversible error and
filed against him. this entitles the officer or employee to reinstatement
Maximum period: 60 with back salaries and without loss of seniority rights.
Maximum period: 6 days. (Hagad v. Gozo-
months Dadole, G.R. No. Q: Does the Sangguniang Panlungsod and
108072 Dec. 12, 1995) Sangguniang Bayan have the power to remove
elective officials?
Q: Does the LGC withdraw the power of the
Ombudsman under R.A. 6770 to conduct A: No. The pertinent legal provisions and cases
administrative investigation? decided by this Court firmly establish that the
Sanggunaing Bayan is not empowered to do so.
A: No. The Ombudsman and the Office of the Section 60 of the Local Government Code conferred
President have concurrent jurisdiction to conduct upon the courts the power to remove elective local
administrative investigations over elective officials. officials from office. (The Sangguniang Barangay of
(Hagad v. Gozo-Dadole, G.R. No. 108072, Dec.12, Don Mariano Marcos vs. Martinez, G.R. No. 170626,
1995) March 3, 2008)
Q: Who may sign an order preventively suspending Q: When is resignation of a public elective official
officials? effective?
A: The Ombudsman, as well as his Deputy, may sign A: Resignation of elective officials shall be deemed
an order preventively suspending officials. Also, the effective only upon acceptance by the following
length of the period of suspension within the limits authorities:
provided by law and the evaluation of the strength 1. The President, in case of governors, vice-
of the evidence both lie in the discretion of the governors, and mayors and vice-mayors
Ombudsman. It is immaterial that no evidence has of highly urbanized cities and
been adduced to prove that the official may independent and component cities
influence possible witnesses or may tamper with 2. The Governor, in the case of municipal
the public records. It is sufficient that there exists mayors and vice-mayors, city mayors and
vice-mayors of component cities
224
POLITICAL LAW TEAM
3. The Sanggunian concerned, in case of cities, independent component cities, and

sangguninan members component cities.
4. The City or Municipal Mayor, in case of 2. Sangguniang Panlalawigan – elective
barangay officials. (Sec. 82, LGC) officials of municipalities; and
Q: May an official removed from office as a result Note: Decision may be appealed to the Office of
of an administrative case, before the effectivity of the President
the LGC be disqualified under Section 40 of said
law? 3. Sangguniang Panglunsod or Bayan –
elective barangay officials. (Sec. 61, LGC)
A: No. Section 40 (b) of the LGC has no retroactive
effect and therefore, disqualifies only those Note: Decision shall be final and executory
administratively removed from office after January
1,1992 when LGC took effect (Greco v. COMELEC, (vi) Doctrine of condonation
G.R. 125955, June 19, 1997). The administrative
case should have reached a final determination. Q: When is subsequent re-election considered a
(Lingating v. COMELEC, G.R.153475, Nov. 13, 2002) condonation?
(v) Administrative appeal A:The rule that public official cannot be removed
for administrative misconduct committed during a
Q: State the rules on administrative appeals. prior term, since his re-election to office operates
as a condonation of the officer’s previous
A: Decisions in administrative cases may, within 30 misconduct to the extent of cutting off the right to
days from receipt thereof, be appealed to the remove him therefore, has no application to
following: pending criminal cases against petitioner for the
1. The Sangguniang panlalawigan, in case of acts he may have committed during a failed coup.
decisions of the sangguniang panlungsod (Aguinaldo v. Santos, G.R. No. 94115, Aug. 21,
of component cities and the sangguniang 1992)
bayan; and
2. The Office of the President, in the case of b) Appointive official
decisions of the sangguniang
panlalawigan and the sangguniang Q : Who may preventively suspend appointive
panlungsod of highly urbanized cities and local officials and employees ?
independent component cities. (Sec. 67,
LGC) A: The local chief executives may preventively
suspend, for a period not exceeding sixty (60) days,
Note: Decisions of the President shall be final and any subordinate official or employee under his
executory. authority pending investigation if the charge against
such official or employee involves dishonesty,
Q: Who may file an administrative action? oppression or grave misconduct or neglect in the
performance of duty, or if there is reason to believe
A: that the respondent is guilty of the charges which
1. Any private individual or any government would warrant his removal from the service. (Sec.
officer or employee by filling a verified 85, LGC)
complaint;
2. Office of the President or any government Q: What are the imposable penalties?
agency duly authorized by law to ensure
that LGUs act within their prescribed A: Except as otherwise provided by law, the local
powers and functions. (ADMINISTRATIVE chief executive may impose the penalty of:
ORDER NO. 23, Rule 3 Sec. 1, Dec. 17, - Removal from service
1992) - Demotion in rank
- Suspension for not more than one (1)
Q: Where should an administrative complaint be year without pay
filed? - Fine in an amount not exceeding six (6)
months' salary
A: A verified complaint shall be filed with the - Reprimand and otherwise discipline
following: subordinate officials and employees
1. Office of the President – against elective under his jurisdiction
official of provinces, highly urbanized
225
Note: If the penalty imposed is suspension without pay population of at least seventy-five thousand
for not more than thirty (30) days, his decision shall be (75,000) but not more than three hundred
final. If the penalty imposed is heavier than suspension thousand (300,000): Provided, however,
of thirty (30) days, the decision shall be appealable to That in no case shall the required number of
the Civil Service Commission, which shall decide the petitioners be less than fifteen thousand
appeal within thirty (30) days from receipt thereof. (15,000); and
(Sec. 87, LGC) d. At least ten percent (10%) in the case of
local government units with a voting
D.11. Recall population of over three hundred thousand
(300,000): Provided, however, That in no
Q: What is recall? case shall the required petitioners be less
than forty-five thousand (45,000). (Sec. 70 of
A: It is a mode of removal of a public officer by the R.A. 7160, as amended by R.A. 9244)
people before the end of his term. The people’s
prerogative to remove a public officer is an incident Note: By virtue of R.A. 9244, Secs. 70 and 71 of the
of their sovereign power, even in the absence of Local Government Code were amended, and the
constitutional restraint; the power is implied in all Preparatory Recall Assembly has been eliminated as a
governmental operations. (Garcia v. COMELEC, G.R. mode of instituting recall of elective local government
No. 111511, Oct. 5, 1993) officials.
Note: All expenses incident to recall elections shall be All pending petitions for recall initiated through the
borne by the COMELEC. For this purpose, there shall Preparatory Recall Assembly shall be considered
be included in the annual General Appropriations Act a dismissed upon the effectivity of RA 9244 (Approved
contingency fund at the disposal of the COMELEC for Feb. 19, 2004).
the conduct of recall elections. (Sec. 75, LGC)
Q: What are the limitations on recall?
Q: What is the ground for recall? Is this subject to
judicial inquiry? A:
1. Any elective local official may be subject
A: The only ground for recall of local government of a recall election only once during his
officials is loss of confidence.It is not subject to term of office for loss of confidence; and
judicial inquiry. The Court ruled that ‘loss of 2. No recall shall take place within one year
confidence’ as a ground for recall is a political from the date of the official’s assumption
question.(Evardone v. COMELEC, G.R. No. 94010, to office or one year immediately
Dec. 2, 1991). preceding a regular election. (Sec. 74,
LGC)
Q: Against whom and how may a recall be
initiated? Q: Section 74 of the Local Government Code
provides that “no recall shall take place within one
A: A recall may be initiated against any elective year immediately preceding a regular local
provincial, city, municipal, or barangay official by a election.” What does the term “regular local
petition of a registered voter in the LGU concerned election,” as used in this section, mean?
and supported by the registered voters in the LGU
concerned during the election in which the local A: It refers to one where the position of the official
official sought to be recalled was elected subject to sought to be recalled is to be actually contested and
the following percentage requirements: filled by the electorate. (Paras v. Comelec, G.R. No.
a. At least twenty-five percent (25%) in the 123169, Nov. 4, 1996)
case of local government units with a voting
population of not more than twenty The one-year time bar will not apply where the
thousand (20,000); local official sought to be recalled is a Mayor and
b. At least twenty percent (20%) in the case of the approaching election is a barangay election.
local government units with a voting (Angobung v. COMELEC, G.R. No. 126576, Mar. 5,
population of at least twenty thousand 1997)
(20,000) but not more than seventy-five
thousand (75,000): Provided, That in no case Q. State the initiation of the recall process.
shall the required petitioners be less than
five thousand (5,000); A:
c. At least fifteen percent (15%) in the case of 1. Petition of a registered voter in the LGU
local government nits with a voting concerned, supported by percentage of
226
POLITICAL LAW TEAM
registered voters during the election in D.12. Term Limits

which the local official sought to be
recalled was elected. (% decreases as Q: What is the term of office of an elected local
population of people in area increases. official?
Also, the supporting voters must all sign
the petition). A: Three (3) years starting from noon of June 30
2. Within 15 days after filing, COMELEC must following the election or such date as may be
certify the sufficiency of the required provided by law, except that of elective barangay
number of signatures. Failure to obtain officials, for maximum of 3 consecutive terms in the
required number automatically nullifies same position (Section 43, LGC).
petition.
3. Within 3 days of certification of The term of office of Barangay and Sangguniang
sufficiency, COMELEC provides official Kabataan elective officials, by virtue of R.A. No.
with copy of petition and causes its 9164, is three (3) years.
publication for three weeks (once a week)
in a national newspaper and a local Note: For a three term rule to apply the local official
newspaper of general circulation. Petition must have fully served the term and been elected
must also be posted for 10 to 20 days at through regular election.
conspicuous places. Protest should be
filed at this point and ruled with finality Q: What is the term limit of Barangay officials?
within 15 days after filing.
4. COMELEC verifies and authenticates the A: The term of office of barangay officials was fixed
signature at three years under R.A. No. 9164 (19 March
5. COMELEC announces acceptance of 2002). Further, Sec.43 (b) provides that "no local
candidates. elective official shall serve for more than three (3)
6. COMELEC sets election within 30 days consecutive terms in the same position. The Court
upon completion of previous section in interpreted this sectionreferring to all localelective
barangay/city/municipality proceedings officials without exclusions or exceptions.
and 45 days in the case of provincial (COMELEC v. Cruz, G.R. No. 186616, Nov. 20, 2009)
officials.Officials sought to be recalled are
automatic candidates. (Sec 70, R.A. 7160) XIII. NATIONAL ECONOMY AND PATRIMONY
Q: May an elective local official sought to be Q: What are the threefold goals of the national
recalled resign? economy?
A: The elective local official sought to be recalled A:

shall not be allowed to resign while the recall 1. More equitable distribution of wealth
process is in progress. (Sec. 73, LGC) 2. Increased wealth for the benefit of the
people
Q. When does recall take effect? 3. Increased productivity(Bernas, The 1987
Philippine Constitution: A Comprehensive
A: Only upon the election and proclamation of a Reviewer, 2011)
successor in the person of the candidate receiving
the highest number of votes cast during the Q: What is meant by patrimony?
election on recall. Should the official sought to be
recalled receive the highest number of votes, A: It refers not only to natural resources but also to
confidence in him is thereby affirmed, and he shall cultural heritage. (Manila Prince Hotel v. GSIS, G.R.
continue in office. (Sec. 72, LGC) No. 122156, Feb. 3, 1997)
Q. Will it be proper for the COMELEC to act on a a. REGALIAN DOCTRINE

petition for recall signed by just one person?
Q: What is the Regalian Doctrine (jura regalia)?
A: A petition for recall signed by just one person is
in violation of the statutory 25% minimum A: It is the doctrine which reserves to the State the
requirement as to the number of signatures full ownership of all natural resources or natural
supporting any petition for recall. (Angobung v. wealth that may be found in the bowels of the
COMELEC, G.R. No. 126576, March 5, 1997) earth. (Albano, Political Law Reviewer)
227
Note: All lands of the public domain, waters, minerals, fishermen and fishworkers (The bias here
coal, petroleum, and other mineral oils, all forces of is for the protection of the little
potential energy, fisheries, forests, or timber, wildlife, people).(Bernas, The 1987 Philippines
flora and fauna, and natural resources belong to the Constitution: A Reviewer - Primer, 2006)
State. With the exception of agricultural lands, all
other natural resources shall not be alienated. (Sec. 2, Q: What is the concept of Native Title?
Art. XII, 1987 Constitution)
A:Native titlerefers to ICCs/IPs preconquest rights
Q: What is the exception to the Regalian Doctrine? to lands and domains held under a claim of private
ownership as far back as memory reaches. These
A: Any land in the possession of an occupant and of lands are deemed never to have been public lands
his predecessors-in-interest since time immemorial. and are indisputably presumed to have been held
(Oh Cho v. Director of Land, G.R. No. 48321, Aug. that way since before the Spanish Conquest. The
31, 1946) rights of ICCs/IPs to their ancestral domains (which
also include ancestral lands) by virtue of native title
Q: What is the consequence of the Regalian shall be recognized and respected (Section 11,
Doctrine? IPRA).
A: Any person claiming ownership of a portion of a Q: Does the concept of native title negate the
land of the public domain must be able to show Regalian doctrine?
title from the State according to any of the
recognized modes of acquisition of title. (Lee Hong A: No. The Regalian theory does not negate native
Kok v. David, G.R. No. L-30389, Dec. 27, 1972) title to lands held in private ownership since time
immemorial. When, as far back as testimony or
Q: What are the limits imposed by Section 2 that memory goes, the land has been held by individuals
embodies the Jura Regalia of the State? under a claim of private ownership, it will be
presumed to have been held in the same way from
A: before the Spanish conquest, and never to have
1. Only agricultural lands of the public been public land. (Carino v. Insular Government, 41
domain may be alienated. Phil. 935)
2. The exploration, development, and
utilization of all natural resources shall be Q: What are ancestral domains?
under the full control and supervision of
the State either by directly undertaking A: Ancestral domainsare all areas belonging to
such exploration, development, and ICCs/IPs held under a claim of ownership, occupied
utilization or through co-production, joint or possessed by ICCs/IPs by themselves or through
venture, or production-sharing their ancestors, communally or individually since
agreements with qualified persons or time immemorial, continuously until the present,
corporations. except when interrupted by war, force majeure or
3. All agreements with the qualified private displacement by force, deceit, stealth or as a
sector may be for only a period not consequence of government projects or any other
exceeding 25 years, renewable for voluntary dealings with government and/or private
another 25 years. (The 25 year limit is not individuals or corporations. (Sec.3(a), R.A. No. 8371)
applicable to “water rights for irrigation,
water supply, fisheries, or industrial uses Q: What are ancestral lands?
other than the development of water
power,” for which “beneficial use may be A: Ancestral landsare lands held by the ICCs/IPs
the measure and the limit of the grant.”) under the same conditions as ancestral domains
4. The use and enjoyment of marine wealth except that these are limited to lands and that
of the archipelagic waters, territorial sea, these lands are not merely occupied and possessed
and exclusive economic zone shall be but are also utilized by the ICCs/IPs under claims of
reserved for Filipino citizens. (It would individual or traditional group ownership. (Sec.3 (b),
seem therefore that corporations are R.A. No. 8371)
excluded or at least must be fully owned
by Filipinos.) Q: Does R.A. 8371, otherwise known as “the
5. Utilization of natural resources in rivers, Indigenous People’s Rights Act,” infringe upon the
lakes, bays, and lagoons may be allowed State’s ownership over the natural resources
on a “small scale” Filipino citizens or within the ancestral domains?
cooperatives- with priority for subsistence
228
POLITICAL LAW TEAM
Q: May property granted to a state university

A: No.Section 3(a) of R.A. 8371 merely defines the (CMU), although within the ancestral domains, be
coverage of ancestral domains, and describes the distributed to indigenous peoples and cultural
extent, limit and composition of ancestral domains communities?
by setting forth the standards and guidelines in
determining whether a particular area is to be A: No. The lands by their character have become
considered as part of and within the ancestral inalienable from the moment President Garcia
domains. In other words, Section 3(a) serves only dedicated them for CMU’s use in scientific and
as a yardstick which points out what properties are technological research in the field of agriculture.
within the ancestral domains. It does not confer or They have ceased to be alienable public lands.
recognize any right of ownership over the natural When Congress enacted the Indigenous Peoples’
resources to the indigenous peoples. Its purpose is Rights Act (IPRA) or Republic Act 8371in 1997, it
definitional and not declarative of a right or title. provided in Section 56 that "property rights within
the ancestral domains already existing and/or
The specification of what areas belong to the vested" upon its effectivity "shall be recognized and
ancestral domains is, to our mind, important to respected." In this case, ownership over the subject
ensure that no unnecessary encroachment lands had been vested in CMU as early as 1958.
on private properties outside the ancestral domains Consequently, transferring the lands in 2003 to the
will result during the delineation process. The mere indigenous peoples around the area is not in accord
fact that Section 3(a) defines ancestral domains to with the IPRA. (CMU v. Exec. Sec., G.R.No.184869,
include the natural resources found therein does Sept. 21, 2010)
not ipso facto convert the character of such natural
resources as private property of the indigenous Q: What is the presumption in case of absence of
peoples. Similarly, Section 5 in relation to Section proof of private ownership?
3(a) cannot be construed as a source of ownership
rights of indigenous people over the natural A: The presumption is that the land belongs to the
resources simply because it recognizes ancestral State. Thus, where there is no showing that the
domains as their “private but community property.” land had been classified as alienable before the title
was issued, any possession thereof, no matter how
Further, Section 7 makes no mention of any right of lengthy, cannot ripen into ownership. (Republic v.
ownership of the indigenous peoples over the Sayo, G.R. No. L-60413, Oct. 31, 1990).
natural resources. In fact, Section 7(a) merely
recognizes the “right to claim ownership over lands, And all lands not otherwise appearing to be clearly
bodies of water traditionally and actually occupied within private ownership are presumed to belong
by indigenous peoples, sacred places, traditional to the State. (Seville v. Nat’l Devt. Co., G.R. no.
hunting and fishing grounds, and all improvements 129401, Feb. 2, 2001)
made by them at any time within the
domains.” Neither does Section 7(b), which Q: What is the Stewardship Doctrine?
enumerates certain rights of the indigenous
peoples over the natural resources found within A: Private property is supposed to be held by the
their ancestral domains, contain any recognition of individual only as a trustee for the people in
ownership vis-à-vis the natural resources. (Separate general, who are its real owners.
Opinion, Kapunan, J., in Cruz v. Secretary of
Environment and Natural Resources, G.R. No. b. NATIONALIST AND CITIZENSHIP REQUIREMENT
135385, Dec. 6, 2000) PROVISIONS
Q: What does the IPRA protect? Q: What are the Filipinized activities as provided in
Article XII of the Constitution?
A: What is evident is that the IPRA protects the
indigenous peoples’ rights and welfare in relation to A:
the natural resources found within their ancestral 1. Co-production, joint venture or
domains, including the preservation of production sharing agreement for
the ecological balance therein and the need to exploration, development and utilization
ensure that the indigenous peoples will not be (EDU) of natural resources:
unduly displaced when the State-approved GR: Filipino citizens or entities with 60%
activities involving the natural resources located capitalization
therein are undertaken. (Ibid.)
229
XPN: For large-scale EDU of minerals, the Retail Trade Liberalization Act, lessens the
petroleum and other mineral oils, the restraint on the foreigners’ right to property or to
President may enter into agreements with engage in an ordinarily lawful business, it cannot be
foreign-owned corporations involving said that the law amounts to a denial of the
technical or financial agreements. Filipinos’ right to property and to due process of
law. Filipinos continue to have the right to engage
Note: These agreements refer to service in the kinds of retail business to which the law in
contracts which involve foreign question has permitted the entry of foreign
management and operation provided that investors. (Espina v. Zamora, G.R. No. 14385, Sept.
the Government shall retain that degree 21, 2010)
of control sufficient to direct and regulate
the affairs of individual enterprises and Q: May an alien acquire property by virtue of a
restrain undesired activities. (La Bugal- purchase made by him and his Filipino wife?
B’laan Tribal Assoc. v. DENR Sec.,G.R. No.
127882, Dec. 1, 2004) A: No. The fundamental law prohibits the sale to
aliens of residential land. Section 14, Article XIV of
2. Use and enjoyment of nation’s marine the 1973 Constitution ordains that, "Save in cases
wealth within the territory: Exclusively for of hereditary succession, no private land shall be
Filipino citizens. transferred or conveyed except to individuals,
corporations, or associations qualified to acquire or
3. Alienable lands of the public domain: hold lands of the public domain." Thus, assuming
a. Only Filipino citizens may acquire not that it was his intention that the lot in question be
more than 12 hectares by purchase, purchased by him and his wife, he acquired no right
homestead or grant, or lease not whatever over the property by virtue of that
more than 500 hectares. purchase; and in attempting to acquire a right or
b. Private corporations may lease not interest in land, vicariously and clandestinely, he
more than 1000 hectares for 25 knowingly violated the Constitution; the sale as to
years renewable for another 25 him was null and void.
years;
Also, in any event, he had and has no capacity or
4. Certain areas of investment: reserved for personality to question the subsequent sale of the
Filipino citizens or entities with 60% same property by his wife on the theory that in so
owned by Filipinos, although Congress doing he is merely exercising the prerogative of a
may provide for higher percentage; husband in respect of conjugal property. To sustain
In the Grant of rights, privileges and such a theory would permit indirect contravention
concessions covering the national of the constitutional prohibition. If the property
economy and patrimony, State shall give were to be declared conjugal, this would accord to
preference to qualified Filipinos; and the alien husband a not insubstantial interest and
right over land, as he would then have a decisive
5. Franchise, certificate or any other form of vote as to its transfer or disposition. This is a right
authorization for the operation of a public that the Constitution does not permit him to have.
utility; only to Filipino citizens or entities (Cheesman v. IAC, G.R. No. 74833, Jan. 21, 1991)
with 60% owned by Filipinos;
c. EXPLORATION, DEVELOPMENT AND
Note: Such franchise, etc., shall neither be UTILIZATION OF NATURAL RESOURCES
exclusive, nor for a period longer than 50
years and subject to amendment, alteration Q: What is the State policy regarding exploration,
or repeal by Congress; All executive and development and utilization of Natural Resources?
managing officers must be Filipino citizens.
A: The exploration, development, and utilization of
Q: Is the Retail Trade Liberalization Act of 2000 natural resources shall be under the full control and
constitutional? supervision of the State. The State may directly
undertake such activities, or it may enter into co-
A: Yes. The control and regulation of trade in the production, joint venture, or production-sharing
interest of the public welfare is of course an agreements with Filipino citizens, or corporations or
exercise of the police power of the State. A person’s associations at least 60 per centum of whose capital
right to property, whether he is a Filipino citizen or is owned by such citizens. (Sec. 2, Art XII, 1987
foreign national, cannot be taken from him without Constitution)
due process of law. To the extent that R.A. 8762,
230
POLITICAL LAW TEAM
d. FRANCHISES, AUTHORITY AND CERTIFICATES

Q: Section 2 speaks of “co-production, joint FOR PUBLIC UTILITIES
venture, or production sharing agreements” as
modes of exploration, development, and Q: What is a public utility?
utilization of inalienable lands; does this
effectively exclude the lease system? A: A public utility is a business or service engaged in
regularly supplying the public with some
A: Yes, with respect to mineral and forest lands. commodity or service of public consequence, such
as electricity, gas, water, transportation, telephone
Note: Agricultural lands may be the subject of lease. or telegraph service. To constitute a public utility,
(Bernas, 2011) the facility must be necessary for the maintenance
of life and occupation of the residents. As the name
Q: Who are qualified to take part in the indicates, “public utility” implies public use and
exploration, development and utilization of service to the public. (J.G. Summit Holdings v. Court
natural resources? of Appeals, G.R. No. 124293, Sept. 24, 2003)
A: Filipino citizens and corporations or associations Q: Who are qualified to acquire a Franchise,
at least sixty percent (60%) of whose capital is certificate or any other form of authorization for
owned by Filipino citizens. the operation of a public utility?
Note: However, as to marine wealth only Filipino A: Filipino citizens or corporations at least 60% of
citizens are qualified. This is also true of natural whose capital is Filipino owned. (Sec. 11, Art. XII,
resources in rivers, bays, lakes and lagoons, but with 1987 Const.)
allowance for cooperatives. (Bernas.2011)
Q: Does a public utility franchise have the
characteristic of exclusivity?
Q: If natural resources, except agricultural land,
cannot be alienated, how may they be explored, A: No. A franchise to operate a public utility is not
developed, or utilized? an exclusive private property of the franchisee. No
franchisee can demand or acquire exclusivity in the
A: operation of a public utility. Thus, a franchisee
1. Direct undertaking of activities by the State or cannot complain of seizure or taking of property
2. Co-production, joint venture, or production because of the issuance of another franchise to a
sharing agreements with the State and all competitor. (Pilipino Telephone Corporation v. NRC,
“under the full control and supervision of the G.R. No. 138295, 2003)
State. (Miners Association of the Philippines v.
Factoran, G.R. No. 98332, Jan. 16, 1995) Q: Is the power to grant licenses for or to
authorize the operation of public utilities solely
Q: If the State enters into a service contract with vested in congress?
BULLET, a foreign owned corporation, is it valid?
A: No, the law has granted certain administrative
A: Yes, but subject to the strict limitations in the agencies such power (See E.O. nos. 172& 202).
last two paragraphs of Section 2. Financial and Supreme Court said that Congress does not have
technical agreements are a form of service contract. the exclusive power to issue such authorization.
Such service contacts may be entered into only with Administrative bodies, e.g. LTFRB, ERB, etc., may be
respect to minerals, petroleum, and other mineral empowered to do so., Franchises issued by
oils. The grant of such service contracts is subject to Congress are not required before each and every
several safeguards, among them: public utility may operate. (Albano v. Reyes, 175
1. That the service contract be crafted in SCRA 264)
accordance with a general law setting
standard of uniform terms, conditions and Q:May Congress validly delegate its authority to
requirements; grant franchises or similar authorizations?
2. The President be the signatory for the
government; and A: Under the 1987 Constitution, Congress has an
3. The President reports the executed explicit authority to grant a public utility franchise.
agreement to Congress within thirty days. (La However, it may validly delegate its legislative
Bugal B’laan v. DENR, G.R. No. 127882, Dec. authority, under the power of subordinate
1, 2004)
231
legislation, to issue franchises of certain public A: 70% of their equity must be owned by Filipino
utilities to some administrative agencies. citizens. (Sec. 11 (2), Art. XVI, 1987 Constitution)
Administrative agencies may be empowered by the Q: What is the ownership requirement imposed by
Legislature by means of a law to grant franchises or the Constitution upon Mass Media?
similar authorizations.
A: It must be wholly owned by Filipino citizens. (Sec.
Q: Is a franchise required before one can own the 11 (1), Art. XVI, 1987 Constitution)
facilities to operate a public utility?
Q: What is the ownership requirement imposed by
A: A franchise is not required before one can own the Constitution upon educational institutions.
the facilities needed to operate a public utility so
long as it does not operate them to serve the A: 60% of their equity must be owned by Filipino
public. (Tatad v. Garcia, G.R. No. 114222, April 6, citizens. (Sec. 4 [2], Art. XIV, 1987 Constitution)
1995)
Q: What are the requisites for the State to
Q: Is a shipyard a public utility? temporarily take over a business affected with
public interest?
A: A shipyard is not a public utility. Its nature
dictates that it serves but a limited clientele whom A:
it may choose to serve at its discretion. It has no 1. There is national emergency;
legal obligation to render the services sought by 2. The public interest so requires;
each and every client. (J.G. Summit Holdings v. CA, 3. During the emergency and under
G.R. No. 124293, Sept. 24, 2003) reasonable terms prescribed by it;
4. The State may take over or direct the
Q: Can the government amend a radio or operation of any privately owned public
television franchise to grant free airtime to utility or business affected with public
COMELEC? interest. (Sec. 17, Article XII, 1987
Constitution)
A: Yes, all broadcasting, whether by radio or
television stations, is licensed by the Government. e. ACQUISITION, OWNERSHIP AND TRANSFER OF
Radio and television companies do not own the PUBLIC AND PRIVATE LANDS
airwaves and frequencies; they are merely given
temporary privilege of using them. A franchise is a Q: What are the differences between Imperium
privilege subject to amendment, and the provision and Dominium?
of BP 881 granting free airtime to the COMELEC is
an amendment of the franchise of radio and A:
television stations. (TELEBAP v. COMELEC, G.R. No. IMPERIUM DOMINIUM
132922, April 21, 1998) Government authority The capacity of the
possessed by the State State to own and
Q: May a foreigner who owns substantial which is appropriately acquire property. It
stockholdings in a corporation engaged in the embraced in sovereignty refers to lands held by
advertising industry sit as a treasurer of said the government in
corporation? proprietary character.
A: No, because a treasurer is an executive or a Q: How are lands of public domain classified?
managing officer.Sec. 11 (2), Art. XVI provides that
the participation of the foreign investors in the A:
governing bodies of entities shall be limited to their 1. Agricultural
proportionate share in the capital thereof, and all 2. Forest or timber
the managing and executive officers of such entities 3. Mineral lands
must be citizens of the Philippines. 4. National parks
Q: What is the ownership requirement imposed by Q: What are private lands?

the Constitution upon business entities engaged in
advertising? A: Private land means any land of private
ownership. This includes both lands owned by
private individuals and lands which are patrimonial
232
POLITICAL LAW TEAM
property of the State or municipal corporations. 1. Foreigners who inherit through intestate
(Bernas, 2011) succession;
2. Former natural-born citizen may be a
Q: When does land of the public domain become transferee of private lands subject to
private land? limitations provided by law;
3. Ownership in condominium units;
A: When it is acquired from the government either 4. Parity right agreement, under the 1935
by purchase or by grant. (Oh Cho v. Director of Constitution.
Lands, G.R. No. 48321, Aug. 31, 1946)
Q: Can a natural born citizen of the Philippines
Q: What is the requirement for the reclassification who has lost his Philippine citizenship be a
or conversion of lands of public domain? transferee of private lands?
A: There must be a positive act of government; A: Yes, subject to the limitations imposed by law.
mere issuance of title is not enough. (Sunbeam Thus, even if private respondents were already
Convenience Food v. CA, G.R. No. 50464, Jan. 29, Canadians when they applied for registration of the
1990) properties in question, there could be no legal
impediment for the registration thereof,
Q: Can public land be transformed into private considering that it is undisputed that they were
land thru prescription? formerly natural-born citizens. (Republic v. CA, G.R.
No. 108998, Aug. 24, 1984)
A: Yes, if it is alienable land. OCENCO for more than
30 years must, however, be conclusively Q: Can private corporations and associations
established. This quantum of proof is necessary to acquire public lands?
avoid erroneous validation of actually fictitious
claims or possession over the property in dispute. A: No. They are only allowed to lease public lands.
(San Miguel Corporation v. CA, GR No. 57667, May (Sec. 3, Art. XII)
28, 1990)
Q: Has the concept of native title to natural
Q: When does public land become private land? resources, like native title to land, been recognized
in the Philippines?
A: Alienable public land held by a possessor,
personally or through his predecessors-in-interest, A: No. While native title to land or private
openly, continuously and exclusively for the ownership by Filipinos of land by virtue of time
prescribed statutory period (30 years under The immemorial possession in the concept of an owner
Public Land Act, as amended) is converted to was acknowledged and recognized as far back
private property by the mere lapse or completion of during the Spanish colonization of the Philippines,
said period, ipso jure. The land ipso jure ceases to there was no similar favorable treatment as regards
be of the public domain and becomes private natural resources. The unique value of natural
property. (Dir. of Lands v. IAC,G.R. No. 73002, Dec. resources has been acknowledged by the State and
29, 1986) is the underlying reason for its consistent assertion
of ownership and control over said natural
Note: What is categorically required by law is open, resources from the Spanish regime up to the
continuous, exclusive, and notorious possession and present. (Noblejas, Philippine Law on Natural
occupation under a bona fide claim of ownership Resources, 1961 Revised Ed., p. 6)
since June 12, 1945 or earlier,(Republic v. Enciso, G.R.
No. 160145, Nov. 11, 2005)for 10 years, if the Q: Is a religious corporation qualified to have lands
possession is in good faith, and for 30 years if it is in in the Philippines on which it may build its church
bad faith. and make other improvements provided these are
actually, directly, exclusively used for religious
Q: What is the rule on private lands? purposes?
A: A: No. The mere fact that a corporation is religious
GR:No private land shall be transferred or does not entitle it to own public land. As held in
conveyed except to individuals, corporations or Register of Deeds v. Ung Siu Si Temple (G.R. No. L-
associations qualified to acquire or hold lands of 6776), land tenure is not indispensable to the free
the public land. exercise and enjoyment of religious profession of
XPNs: worship. The religious corporation can own private
233
land only if it is at least 60% owned by Filipino and skilled workers but also to protect their
citizens. welfare. (Ibid.)
Q: Is a corporation sole qualified to purchase or g. ORGANIZATION AND REGULATION OF

own lands in the Philippines? CORPORATIONS, PRIVATE AND PUBLIC
A: Yes. Sec. 113, BP Blg. 68 states that any Q: May Congress provide for the organization and
corporation sole may purchase and hold real estate regulation of private corporations?
and personal property for its church, charitable,
benevolent or educational purposes, and may A: The Congress shall not, except by general law,
receive bequests or gifts for such purposes. There is provide for the formation, organization, or
no doubt that a corporation sole by the nature of its regulation of private corporations. (Sec. 16, Art. XII,
Incorporation is vested with the right to purchase 1987 Constitution)
and hold real estate and personal property. It need
not therefore be treated as an ordinary private Q: What is the purpose of this provision?
corporation because whether or not it is so treated
as such, the Constitutional provision involved will, A: Its purpose is to insulate Congress against
nevertheless, be not applicable. (Rep. v. IAC., G.R. pressures from special interests. To permit the law
No. 75042, Nov. 29, 1988) making body by special law to provide for the
organization or formation or regulation of private
Q: Is a religious corporation allowed to lease corporations x x x would be in effect to offer to it
private land in the Philippines? the temptation in many cases to favor certain
groups to the prejudice of others or to the
A: Yes. Under Sec. 1 of P.D. 471, corporations and prejudice of the interests of the country. (Bernas,
associations owned by aliens are allowed to lease The 1987 Constitution of the Philippines: A
private lands up to 25 years, renewable for a period Commentary)
of 25 years upon the agreement of the lessor and
the lessee. Hence, even if the religious corporation Q: May Congress enact a law creating
is owned by aliens, it may still lease private lands. Government-Owned and Controlled corporations?
f. PRACTICE OF PROFESSION A: Government-owned and controlled corporations

may be created or established by special charters in
Q: What is the State policy with regard to the interest of the common good and subject to the
professionals and skilled workers? test of economic viability. (Sec. 14, Art. XII, 1987
Constitution)
A: The sustained development of a reservoir of
national talents consisting of Filipino scientists, Note: However, Congress may not create a
entrepreneurs, professionals, managers, high-level corporation whose purpose is to compete with a
technical manpower and skilled workers and private corporation.
craftsmen in all fields shall be promoted by the
State. (Par. 1, Sec. 14, Art. XII, 1987 Constitution) Q: What does the phrase ‘in the interest of the
public good and subject to the test of economic
Q: Who may practice their profession in the viability’ mean?
Philippines?
A: It means that government-owned and controlled
A: corporations must show capacity to function
GR:The practice of all professions in the efficiently in business and that they should not go
Philippines shall be limited to Filipino citizens. into activities which the private sector can do
better. Moreover, economic viability is more than
XPN:In cases provided by law. (Par. 2, Sec. 14, financial viability but also included capability to
Art. XII, 1987 Constitution) make profit and generate benefits not quantifiable
in financial terms. (Bernas, The 1987 Constitution of
Q: What does Section 14, Article XII of the the Philippines: A Commentary)
Constitution seek to achieve?
h. MONOPOLIES, RESTRAINT OF TRADE AND
A: Section 14 reflects the desire not only to develop UNFAIR COMPETITION
a ready reservoir of Filipino professionals, scientists
Q: What is a monopoly?
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POLITICAL LAW TEAM
monopolies are subject to abuses that can inflict

A: A monopoly is a privilege or peculiar advantage severe prejudice to the public, they are subjected to
vested in one or more persons or companies, a higher level of State regulation than an ordinary
consisting in the exclusive right (or power) to carry business undertaking. (Agan, Jr. v. PIATCO, G.R. No.
on a particular business or trade, manufacture a 155001, May 5, 2003)
particular article, or control the sale of a particular
commodity. (Agan, Jr. v. PIATCO, G.R. No. 155001, Q: Are contracts requiring exclusivity void?
May 5, 2003)
A: Contracts requiring exclusivity are not per se
Q: What is the State policy regarding monopolies? void. Each contract must be viewed vis-à-vis all the
circumstances surrounding such agreement in
A: The State shall regulate or prohibit monopolies deciding whether a restrictive practice should be
when the public interest so requires. No prohibited as imposing an unreasonable restraint
combination in restraint of trade or unfair on competition. (Avon v. Luna, G.R. No. 153674,
competition shall be allowed. (Sec. 19, Art. XII, 1987 Dec. 20, 2006)
Constitution)
Q: When is a monopoly considered in restraint of
Note: The phrase “unfair foreign competition and trade and thus prohibited by the Constitution?
trade practices” is not to be understood in a limited
legal and technical sense but in the sense of anything A: From the wordings of the Constitution, truly
that is harmful to Philippine enterprises. At the same then, what is brought about to lay the test on
time, however, the intention is not to protect local whether a given an unlawful machination or
inefficiency. Nor is the intention to protect local combination in restraint of trade is whether under
industries from foreign competition at the expense of the particular circumstances of the case and the
the consuming public. (Bernas, The 1987 Philippines
nature of the particular contract involved, such
Constitution: A Reviewer - Primer, 2006)
contract is, or is not, against public policy. (Avon v.
Luna, G.R. No. 153674, Dec. 20, 2006)
Q: What is the rationale behind the provision?
Q: Does the government have the power to
A: The provision is a statement of public policy on
intervene whenever necessary for the promotion
monopolies and on combinations in restraint of
of the general welfare?
trade. Section 19 is anti-trust in history and spirit. It
espouses competition. Only competition which is
A: Yes, although the Constitution enshrines free
fair can release the creative forces of the market.
enterprise as a policy, it nevertheless reserves to
Competition underlies the provision. The objective
the Government the power to intervene whenever
of anti-trust law is ‘to assure a competitive
necessary for the promotion of the general welfare,
economy based upon the belief that through
as reflected in Sections 6 and 19 of Article XII.
competition producers will strive to satisfy
(Assoc. of Phil. Coconut Desiccators v. Phil. Coconut
consumer wants at the lowest price with the
Authority, G.R. No. 110526, Feb. 10, 1998)
sacrifice of the fewest resources. Competition
among producers allows consumers to bid for
Q: Does the WTO agreement violate Article II
goods and services, and, thus matches their desires
Section 19 of the Constitution?
with society’s opportunity costs. Additionally, there
is reliance upon “the operation of the ‘market’
A: No, the WTO agreement does not violate Article
system (free enterprise) to decide what shall be
II Section 19, nor Sections 19 and 12 of Article XII,
produced, how resources shall be allocated in the
because these sections should be read and
production process, and to whom various products
understood in relation to Sections 1 and 13 of
will be distributed. The market system relies on the
Article XII, which require the pursuit of trade policy
consumer to decide what and how much shall be
that “serves the general welfare and utilizes all
produced, and on competition, among producers
forms and arrangements of exchange on the basis
who will manufacture it. (Energy Regulatory Board
of equality and reciprocity.” (Tañada v. Angara, G.R.
v. CA G.R. No. 113079, April 20, 2001)
No. 118295, May 2, 1997)
Q: Are monopolies prohibited by the Constitution?
XIV. SOCIAL JUSTICE AND HUMAN RIGHTS
A: Monopolies are not per se prohibited by the
Q: What are the goals of social justice under the
Constitution but may be permitted to exist to aid
Constitution?
the government in carrying on an enterprise or to
aid in the interest of the public. However, because
235
A: 2. Labor
1. Equitable diffusion of wealth and political 3. Agrarian and natural resources reform
power for common good; 4. Urban land reform and housing
2. Regulation of acquisition, ownership, use 5. Health
and disposition of property and its 6. Women
increments; and 7. Role and rights of people’s organization
3. Creation of economic opportunities based 8. Human rights
on freedom of initiative and self-reliance.
(Sec. 1 and 2, Art. XIII, 1987 Constitution) Q: What factors must be weighed in regulating the
relations between workers and employers?
a. CONCEPT
A: Among the factors that must be considered are:
Q: What is social justice? 1. The right of labor to its just share in the
fruits of production
A: Social justice is “neither communism, nor 2. The right of enterprises to reasonable
despotism, nor atomism, nor anarchy,” but the returns of investments, and to expansion
humanization of laws and the equalization of social and growth.
and economic force by the State so that justice in
its rational and objectively secular conception may Note: It must be remembered, however, that the
at least be approximated. Social justice means the command to promote social justice itself might
promotion of the welfare of all the people, the make it necessary to tilt the balance in favor of
adoption by the Government of measures underprivileged workers. (Bernas, 2011)
calculated to insure economic stability of all
competent elements of society, through the Q: What are the provisions of the Constitution on
maintenance of a proper economic and social women?
equilibrium in the interrelations of the members of
the community, constitutionally, through the A:
adoption of measures legally justifiable, or extra- 1. The State shall equally protect the life of
constitutionally, through the exercise of powers the mother and the life of the unborn
underlying the existence of all governments on the from conception. (Sec. 12, Art II, 1987
time-honored principle of salus populi est suprema Constitution)
lex. (Calalang v. Williams, 70 Phil 726, [1940]) 2. The State recognizes the role of women
innation-building, and shall ensure the
Social justice simply means the equalization of fundamental equality before the law of
economic, political, and social opportunities with women and men. (Sec. 14, Art. II, 1987
special emphasis on the duty of the state to tilt the Constitution)
balance of social forces by favoring the 3. The State shall protect working women by
disadvantaged in life. (Bernas, The 1987 Philippines providing safe and healthful working
Constitution: A Reviewer - Primer, 2006) conditions, taking into account their
maternal functions, and such faculties and
Q: What are the two principal activities which the opportunities that will enhance their
State is commanded to attend to in order to welfare and enable them to realize their
achieve the goals of social justice? full potential in the service of the nation.
(Sec. 14, Art. XIII, 1987 Constitution)
A:
1. The creation of more economic Q: Is there a need for consultation before urban
opportunities and more wealth; and and rural dwellers can be relocated?
2. Closer regulation of the acquisition,
ownership, use, and disposition of A: Yes. The urban and rural dwellers and the
property in order to achieve a more communities where they are to be relocated must
equitable distribution of wealth and be consulted. Otherwise, there shall be no
power.(Bernas,2011) resettlement. (Sec. 15 [2], Art. XIII)
Q: What aspects of human life are covered by Q: What is meant by people’s organization?
Art.XIII?
A: People’s Organizations are bona fide associations
A: of citizens with demonstrated capacity to promote
1. Social justice
236
POLITICAL LAW TEAM
the public interest and with identifiable leadership,

membership and structure. (Sec. 15 [2], Art. XIII) A: Under the Education Act of 1982, such term
refers to schools. The school system is synonymous
b. COMMISSION ON HUMAN RIGHTS with formal education, which "refers to the
hierarchically structured and chronologically graded
Q: Is the CHR a constitutional commission? learnings organized and provided by the formal
school system and for which certification is
A: No. From the 1987 Constitution and the required in order for the learner to progress
Administrative Code, it is abundantly clear that the through the grades or move to the higher levels."
CHR is not among the class of Constitutional (CIR v. CA, G.R. No. 124043, Oct. 14, 1998)
Commissions. (CHR Employees’ Assoc. v. CHR, G.R.
No. 155336, Nov. 25, 2004) Note: It is settled that the term "educational
institution," when used in laws granting tax
Q: Does the CHR possess fiscal autonomy? exemptions, refers to a ". . . school seminary, college
or educational establishment . . . ." (Ibid.)
A: No. The CHR, although admittedly a
constitutional creation is, nonetheless, not included Q: What are the principal characteristics of
in the genus of offices accorded fiscal autonomy by education which the State must promote and
either constitutional or legislative fiat.(Ibid.) protect?
Q: Does the CHR have the power to investigate? A:

1. Quality education
A: Yes. The CHR has the power to investigate all 2. Affordable education (Sec. 1, Art. XIV)
forms of human rights violations involving civil and 3. Education that is relevant to the needs of
political rights and monitor the compliance by the the people. (Sec. 2 [1], Art. XIV)
government with international treaty obligations on
human rights. (Sec. 18, Art. XIII, 1987 Constitution) Q: What is Parens Patriae with regard to
education?
Q: Does the CHR have the prosecutorial power?
A: The State has the authority and duty to step in
A: No. In essence, the Commission’s power is only where parents fail to or are unable to cope with
investigative. It has no prosecutorial power. For their duties to their children.
prosecution, it must rely on the executive
department.(Bernas, 2011) Q: What is the basis for the requirement that a
school or educational institution must first obtain
Q: Does the CHR have compulsive powers? government authorization before operating?
A: No. It may not issue writs of injunction or A:Such requirement is based on the State policy
restraining orders against supposed violators of that educational programs and/or operations shall
human rights to compel them to cease and desist be of good quality and, therefore, shall at least
from continuing their acts complained of. (Bernas, satisfy minimum standards with respect to
2011) curricula, teaching staff, physical plant and facilities
and administrative and management viability.
Note:Regarding its contempt powers, the CHR is (Philippine Merchant Marine School Inc. v. CA, G.R.
constitutionally authorized to "adopt its operational No. 112844, June 2, 1995)
guidelines and rules of procedure, and cite for
contempt for violations thereof in accordance with the Q: Can the State regulate the right of a citizen to
Rules of Court." That power to cite for contempt, select a profession or course of study?
however, should be understood to apply only to
violations of its adopted operational guidelines and A: Yes.While it is true that the Court has upheld the
rules of procedure essential to carry out its constitutional right of every citizen to select a
investigatorial powers. (Simon, Jr. v. CHR,G.R. profession or course of study subject to fair,
No.100150, Jan. 5, 1994) reasonable and equitable admission and academic
requirements, the exercise of this right may be
XV. EDUCATION, SCIENCE AND TECHNOLOGY, regulated pursuant to the police power of the State
ARTS, CULTURE, AND SPORTS to safeguard health, morals, peace, education,
order, safety and general welfare. Thus, persons
Q: What does the term “educational institution” who desire to engage in the learned professions
mean? requiring scientific or technical knowledge may be
237
required to take an examination as a prerequisite to

engaging in their chosen careers. This regulation 1. From the standpoint of the educational
assumes particular pertinence in the field of institution - To provide that atmosphere
medicine, in order to protect the public from the which is most conducive to speculation,
potentially deadly effects of incompetence and experimentation and creation;
ignorance. (PRC v. De Guzman, GR No. 144681, June 2. From the standpoint of the faculty –
21, 2004) a. Freedom in research and in the
publication of the results,
Q: What are the principal characteristics of subject to the adequate
education which the State must promote and performance of his other
protect? academic duties
b. Freedom in the classroom in
A: discussing his subject less
1. Quality education controversial matters which
2. Affordable education (Sec. 1, Art. XIV) bear no relation to the subject
3. Education that is relevant to the needs of c. Freedom from institutional
the people. (Sec. 2 [1], Art. XIV) censorship or discipline, limited
by his special position in the
Q: What aspects of education are Filipinized? community
3. From the standpoint of the student – right
A: to enjoy in school the guarantee of the
1. Ownership: Bill of Rights. (Non v. Dames, G.R. No.
a. Filipino Citizens or 89317, May 20, 1990)
b. Corporations or associations where
at least 60% of the capital is owned Q: What are the limitations to academic freedom?
by Filipino citizens except those
established by religious groups and A:
mission boards; 1. Dominant police power of the State
2. Control and administration; and 2. Social Interest of the community
3. Student population (Sec. 4 [2], Art. XIV)
Q: What are the freedoms afforded to educational
Note: The Congress may increase Filipino equity institutions relating to its right to determine for
participation in all educational institutions. itself on academic grounds?
Q: What language shall be used as official medium A:

of communication and instruction? 1. Who may teach
2. What may be taught
A: The official languages are Filipino and, until 3. How shall it be taught
otherwise provided by law, English. The regional 4. Who may be admitted to study (Miriam
languages are the auxiliary official languages in the College Foundation v. CA, G.R. No.
regions and shall serve as auxiliary media of 127930, Dec. 15, 2000)
instruction therein. Spanish and Arabic shall be
promoted on a voluntary and optional basis. (Sec. 7, Q: Juan delos Santos,et al., students of De La Salle
Art. XIV, 1987 Constitution) University (DLSU) and College of Saint Benilde are
members of the “Domingo Lux Fraternity”. They
a. ACADEMIC FREEDOM lodged a complaint with the Discipline Board of
DLSU charging Alvin Aguilar,et al. of Tau Gamma
Q: Whose academic freedom is protected by the Phi Fraternity with “direct assault” because of
Constitution? their involvement in an offensive action causing
injuries to the complainants which were result of a
A: fraternity war.
1. Institution itself
2. Faculty The DLSU-CSB Joint Discipline Board found Aguilar
3. Students et al. guilty and were meted the penalty of
automatic expulsion. On a petition for certiorari
Q: What are the aspects of Academic Freedom? filed with the RTC, it ordered DLSU to allow them
to enroll and complete their degree courses until
A: There are3 views: their graduation. The Commission on Higher
238
POLITICAL LAW TEAM
Education (CHED) disapproved DLSU’s request for canons of professional responsibility applicable to
the approval of the penalty of automatic expulsion acts of members of the Bar as the fact of their being
imposed on Aguilar et al. and ruled that they be law professors is inextricably entwined with the fact
reinstated. Lowering the penalty from expulsion to that they are lawyers. (RE: Letter of the UP Law
exclusion. Faculty, A.M. No. 10-10-4-SC, March 8, 2011)
Was DLSU within its rights in expelling the Q: Did the Show Cause Resolution interfere with
students? respondents’ academic freedom?
A: No. The penalty of expulsion imposed by DLSU A: It is not contested that respondents herein are,
on private respondents is disproportionate to their by law and jurisprudence, guaranteed academic
deeds. It is true that schools have the power to freedom and undisputedly, they are free to
instill discipline in their students as subsumed in determine what they will teach their students and
their academic freedom and that “the how they will teach. We must point out that there
establishment of rules governing university-student is nothing in the Show Cause Resolution that
relations particularly those pertaining to student dictates upon respondents the subject matter they
discipline, may be regarded as vital, not merely to can teach and the manner of their instruction.
the smooth and efficient operation of the Moreover, it is not inconsistent with the principle of
institution but to its very survival”. This power does academic freedom for this Court to subject lawyers
not give them the untrammelled discretion to who teach law to disciplinary action for
impose a penalty which is not commensurate with contumacious conduct and speech, coupled with
the gravity of the misdeed. If the concept of undue intervention in favor of a party in a pending
proportionality between the offense committed case, without observing proper procedure, even if
and the sanction imposed is not followed, an purportedly done in their capacity as teachers.
element of arbitrariness intrudes. (DLSU, Inc.v. (Ibid.)
CA,G.R. No. 127980, Dec. 19, 2007)
Q: May lawyers who are also law professors

invoke academic freedom as a defense in an
administrative proceeding for intemperate
statements tending to pressure the Court or
influence the outcome of a case or degrade the
courts?
A: No. Applying by analogy the Court’s past

treatment of the "free speech" defense in other bar
discipline cases, academic freedom cannot be
successfully invoked by respondents in this case.
The implicit ruling in the jurisprudence discussed
above is that the constitutional right to freedom of
expression of members of the Bar may be
circumscribed by their ethical duties as lawyers to
give due respect to the courts and to uphold the
public’s faith in the legal profession and the justice
system. To our mind, the reason that freedom of
expression may be so delimited in the case of
lawyers applies with greater force to the academic
freedom of law professors.
It would do well for the Court to remind

respondents that, in view of the broad definition in
Cayetano v. Monsod, lawyers when they teach law
are considered engaged in the practice of law.
Unlike professors in other disciplines and more than
lawyers who do not teach law, respondents are
bound by their oath to uphold the ethical standards
of the legal profession. Thus, their actions as law
professors must be measured against the same
239
PUBLIC INTERNATIONAL LAW

A:
A. CONCEPTS 1.A norm accepted and recognized by
international community of states as a whole
Q: What is Public International Law (PIL)? 2. No derogation is permitted
3. Which can only be modified by a subsequent
A: It is a body of legal principles, norms and norm having the same character
processes which regulates the relations of States
and other international persons and governs their Note: if a treaty at the time of its conclusion, conflicts
conduct affecting the interest of the international with jus cogens it is void.
community as a whole.
Q: What norms are considered as jus cogens in
Q: What is Private International Law (PRIL)? character?
A: It is that part of the law of each State which A:

determines whether, in dealing with a factual 1. Laws on genocide
situation, an event or transaction between private 2. Principle of self-determination
individuals or entities involving a foreign element, 3. Principle of racial non-discrimination
the law of some other State will be recognized. 4. Crimes against humanity
5. Prohibition against slavery and slave
Q: What is erga omnes? trade, and piracy
A: It is an obligation of every State towards the Q: May a treaty or conventional rule qualifies as a
international community as a whole. All states have norm of jus cogens character?
a legal interest in its compliance, and thus all States
are entitled to invoke responsibility for breach of A: No. Treaty rule binds only States that are parties
such an obligation. (Case Concerning The Barcelona to it and even in the event that all States are parties
Traction, ICJ 1970) to a treaty, they are entitled to terminate or
withdraw from the treaty.
Note: Such obligations derive, for example, in
contemporary international law, from the outlawing of Q: May we force the government to pursue the
acts of aggression, and of genocide, as also from the claims of comfort women under the doctrine of jus
principles and rules concerning the basic rights of the cogens?
human person, including protection from slavery and
racial discrimination. Some of the corresponding rights A: Even if this court sidesteps the question of
of protection have entered into the body of general whether jus cogens norms existed in 1951, Vinuya
international law others are conferred by international et al have not deigned to show that the crimes
instruments of universal or quasi universal character. committed by the Japanese army violated jus
(Romulo v. Vinuya GR. 162230, April 29, 2010) cogens prohibitions at the time the Treaty of Peace
was signed, or that the duty to prosecute
Q: Give examples of obligations erga omnes. perpetrators of international crimes is an erga
omnes obligation or has attained the status of jus
A: cogens. ( Vinuya v. Romulo G.R. No. 190529 April
1. Outlawing of acts of aggression 29,2010)
2. Outlawing of genocide
3. Basic human rights, including protection Q: What is the concept ex aequo et bono?
from slavery and racial discrimination
A: It is a judgment based on considerations of
Q: What is jus cogens norm? fairness, not on considerations of existing law, that
is, to simply decide the case based upon a
A: A jus cogens norm is a norm accepted and balancing of the equities. (Brownlie, 2003)
recognized by the international community of
States as a whole as a norm from which no Q: Does Article 38 of the Statute of the
derogation is permitted and which can be modified International Court of Justice which provides the
only by a subsequent norm of general international sources of International Law prejudice the power
law having the same character. (Art. 53, Vienna of the Court to decide a case ex aequo et bono?
Convention on the Law of Treaties)
Q: What are the elements of Jus Cogens?
240
POLITICAL LAW TEAM
A: No, if the parties agree thereon. The power to Q: Are municipal laws subject to judicial notice
decide ex aequo et bono involves elements of before international tribunals?
compromise and conciliation whereas equity is
applied as a part of normal judicial function. A: No. Municipal laws are only evidence of conduct
(Brownlie, 2003) attributable to the State concerned, which create
international responsibility, like legislative
B. INTERNATIONAL AND NATIONAL LAW measures or court decisions. They are not subject
to judicial notice and are only treated as mere facts
Q: What are the grand divisions of PIL? which are required to be proven.
A: Q: What is the Doctrine of Incorporation?

1. Laws of Peace – govern normal relations
between States in the absence of war. A: Under this doctrine, rules of international law
2. Laws of War – govern relations between form part of the law of the land and no further
hostile or belligerent states during legislative action is needed to make such rules
wartime. applicable in the domestic sphere. The doctrine
3. Laws of Neutrality – govern relations decrees that rules of international law are given
between a non-participant State and a equal standing with, but are not superior to,
participant State during wartime or national legislative enactments.
among non-participating States.
Q: What is the Doctrine of Transformation?
Q: What is the theory of Monism?
A: This doctrine holds that the generally accepted
A: Both international law and municipal law rules of international law are not per se binding
regulate the same subject matter and international upon the state but must first be embodied in
law holds supremacy even in the sphere of legislation enacted by the lawmaking body and so
municipal law. transformed into municipal law.
Q: What is the theory of Dualism? Q. What are types of Transformation Theories?
A: The theory affirms that the international law and A.

municipal law are distinct and separate; each is 1.Hard Transformation Theory – only
supreme in its own sphere and level of operation. legislation can transform International Law
into domestic law. Courts may apply
Q: What are the well-established differences International Law only when authorized by
between international law and municipal law legislation
under the theory of Dualism?
2. Soft Transformation Theory – Either a
A: judicial or legislative act of a state can
INTERNATIONAL LAW MUNICIPAL LAW transform International Law into domestic law.
Adopted by states as a Issued by a political
common rule of action superior for observance Q: What does pacta sunt servanda mean?
Regulates relation of Regulates relations of
state and other individuals among A: Pacta sunt servandameans that international
international persons themselves or with agreements must be performed in good faith. A
their own states treaty engagement is not a mere moral obligation
Derived principally from Consists mainly of but creates a legally binding obligation on the
treaties, international enactments from the parties.
customs and general lawmaking authority of
principles of law each state Q: What is the principle of Auto-Limitation?
Resolved thru state-to- Redressed thru local
state transactions administrative and A: Under the principle of auto-limitation, any State
judicial processes may by its consent, express or implied, submit to a
Collective responsibility Breach of which entails restriction of its sovereign rights. There may thus
because it attaches individual responsibility be a curtailment of what otherwise is a plenary
directly to the state and power. (Reagan v. CIR, G.R. No.L-26379, Dec. 27,
not to its nationals 1969)
241
Q: Correlate Reciprocity and the principle of Auto- the rule to which the formal sources gives the force
Limitation? and nature of law. Thus, custom as a norm creating
process is a formal source of law.
A: When the Philippines enter into treaties,
necessarily, these international agreements may Q: Under international law, what are “hard law”
contain limitations on Philippine sovereignty. The and “soft law”?
consideration in this partial surrender of
sovereignty is the reciprocal commitment of other A: Hard law means binding laws. To constitute law,
contracting States in granting the same privilege a rule, instrument or decision must be authoritative
and immunities to the Philippines. and prescriptive. In International law, hard law
includes treaties or international agreements, as
Note: For example, this kind of reciprocity in relation well as customary laws. These instruments result in
to the principle of auto-limitation characterizes the legally enforceable commitments for countries
Philippine commitments under WTO-GATT. This is (states) and other international subjects.
based on the Constitutional provision that the
Philippines "adopts the generally accepted principles Soft law means commitments made by negotiating
of international law as part of the law of the land and parties that are not legally binding. By implication,
adheres to the policy of cooperation and amity with those set of international customary rules, laws and
all nations." (Tanada v. Angara, G.R.No.118295, May customs which do not carry any binding effect
2, 1997) whatsoever or impose no obligation at all to states
for its compliance.
C. SOURCES OF PUBLIC INTERNATIONAL LAW
Q: What are the types of treaties or international
Q: What are the sources of Public International conventions?
Law?
A:
A: 1. Contract treaties (Traite contract)
Primary Sources: 2. Law making treaty (Traite loi)
1. International conventions, whether
general or particular, establishing rules Q: What are contract treaties?
expressly recognized by the contesting
state A: Bilateral arrangements concerning matters of
2. International custom, as evidence of a particular or special interest to the contracting
general practice accepted as law; and parties. They are sources of particular international
3. The general principles of law recognized law but may become primary sources of public
by civilized nations; (Article 38(1), Statute international law when different contract treaties
of the International Court of Justice) are of the same nature, containing practically
uniform provisions, and are concluded by a
Note: Sources of law refer to norms derived substantial number of States.
from international conventions on treaties,
customs, and general principles of law. The
Q: What are law-making treaties?
distinctive character of these norms is that
they are created or they acquire binding
A: Treaties which are concluded by a large number
effect through the methods pointed above.
of States for purposes of:
1. Declaring, confirming, or defining their
Secondary Sources:
understanding of what the law is on a
1. Decisions of international tribunals; and
particular subject;
2. Teachings of the most highly qualified
2. Stipulating or laying down new general
publicists of various nations.
rules for future international conduct; and
3. Creating new international institutions.
Q: What is the difference between formal sources
from material sources of international law?
Q: Who are bound by treaties and international
conventions?
A: Formal sources consist of the methods and
procedures by which norms are created while
A:
material sources are the substantive evidence of the
GR: Only the parties.
existence of norms.
Note: The material sources supplies the substance of XPN: Treaties may be considered a direct source
242
POLITICAL LAW TEAM
of international law when concluded by a

sizable number of States, and is reflective of the Q: What is a subject of international law?
will of the family of nations.
A: A subject of international law is an entity with
Q: What are the elements of international custom? capacity of possessing international rights and
duties and of bringing international claims.
A:
1. General practice, characterized by Q: What are the subjects of International Law?
uniformity and consistency;
2. Opiniojuris, or recognition of that practice A: The subjects are:
as a legal norm and therefore obligatory; 1. Direct subjects
and a. States
3. Duration b. Colonies and dependencies
c. mandates and trust territories;
Q: Is a particular length of time required for the belligerent communities;
formation of customary norms? d. The Vatican;
e. The United Nations; international
A: No particular length of time is required. What is administrative bodies; and
required is that within the period in question, short f. To a certain extent, individuals.
though it may be, State practice, including that of
States whose interest are specially affected, should 2. Indirect subjects
have extensive and virtually uniform and in such a a. international organizations;
way as to show a general recognition that a rule of b. Individuals; and
law or legal obligation is involved. c. Corporations.
Q: What are the requisites in order to consider a 3. Incomplete subjects

person to be a highly qualified publicist? a. Protectorates
b. Federal states
A: c. Mandated and trust territories.
1. His writings must be fair and impartial
representation of law; Q: What are objects of international law?
2. An acknowledged authority in the field.
A: A person or thing in respect of which rights are
Q: Are dissenting States bound by international held and obligations assumed by the subject.
customs?
Q: Distinguish subject from object of international
A: law
GR: Yes
A:
XPN: If they had consistently objected to it SUBJECT OBJECT
while the project was merely in the process of Person or thing in
formation. Dissent, however protects only the Entity that has rights
respect of which rights
dissenter and does not apply to other States. A and responsibilities
are held and obligations
State joining the international law system for under that law
assumed by the subject
the first time after a practice has become Has international
customary law is bound by such practice. personality that it can Not directly governed
directly assert rights and by the rules of
D. SUBJECTS OF INTERNATIONAL LAW can be held responsible international law
under the law of nations
Q: Define international community. It can be a proper party
Its rights are received
in transactions involving
A: The body of juridical entities which are governed and its responsibilities
the application of the
by the law of nations. Under the modern concept, it imposed indirectly
law of nations among
is composed not only of States but also of such through the
members of
other international persons as the UN, the Vatican instrumentality of an
international
City, colonies and dependencies, mandates and intermediate agency
communities
trust territories, international administrative bodies,
belligerent communities and even individuals.
Q: What is a State?
243
Q: What are the fundamental rights of a State?

A: A State is a community of persons, more or less
numerous, permanently occupying a definite A: It consists of the Right of:
portion of territory, independent of external 1. Existence and self-preservation
control, and possessing an organized government to 2. Sovereignty and independence
which the great body of inhabitants render habitual 3. Equality
obedience. 4. Property and jurisdiction
5. Diplomatic intercourse
Q: What are the elements of a State?
Q: What is an International Organization?
A:
1. People – an aggregate of individuals of A: It is a body created by sovereign states and
both sexes, who live together as a whose functioning is regulated by international law,
community despite racial or cultural not the law of any given country. They have
differences. functional personality which is limited to what is
2. Territory – fixed portion of the earth’s necessary to carry out their functions as found in
surface which the inhabitants occupy. the instruments of the organization.
3. Government – the agency through which
the will of the state is formulated, Note: The auxiliary status of Red Cross Society means
expressed and realized. that it is at one and the same time a private institution
4. Independence/sovereignty – the power of and a public service organization because the very
a state to manage its external affairs nature of its work implies cooperation with the state.
without direction or interference from The PNRC, as a National Society of the International
another state. Red Cross and Red Crescent Movement, can neither be
“classified as an instrumentality of the state, so as not
to lose its character of neutrality” as well as its
Q: What are the other suggested elements of the
independence, nor its strictly as a private corporation
State?
since it is regulated by international humanitarian law
and is treated as an auxiliary of the state. (Liban v.
A: Gordon, G.R. 175352, Jan. 18, 2011)
1. Civilization
2. Recognition Q: What is the status of an individual under public
international law?
Q: If State sovereignty is said to be absolute, how
is it related to the independence of other States A: According to Hans Kelson, while as a general rule
and to their equality on the international plane? international law has as its subject states and
obliges only immediately, it exceptionally applies to
A: From the standpoint of the national legal order, individuals because it is to man to whom norms of
State sovereignty is the supreme legal authority in international law entrusts the responsibilities of law
relation to subjects within its territorial domain. and order.
This is the traditional context in referring to
sovereignty as absolute. However, in international Q: What is the concept of Association?
sphere, sovereignty realizes itself in the existence of
a large number of sovereignties, such that there A: An association is formed when two states of
prevails in fact co-existence of sovereignties under unequal power voluntarily establish durable links. In
conditions of independence and equality. the basic model, one state, the associate, delegates
certain responsibilities to the other, the principal,
Q: How is State sovereignty defined in while maintaining its international status as a state.
international law? Free association represents a middle ground
between integration and independence.
A: The right to exercise in a definite portion of the Example: Republic of the Marshall
globe the functions of a State to the exclusion of Islands and the Federated
another State. Sovereignty in the relations between States of Micronesia formerly
States signifies independence. Independence in part of the U.S. Administered
regard to a portion of the globe is the right to Trust Territory of the Pacific
exercise therein to the exclusion of any other State, Islands.
the functions of a State. (Island of Palmas case: USA
v. the Netherlands) The associated state arrangement has usually been
used as a transitional device of former colonies on
244
POLITICAL LAW TEAM
their way to full independence.

Example: Antigua, St. Kitts-Nevis-Anguilla, A: Yes, BJE is a state in all but name as it meets the
Dominica, St. Lucia, St. Vincent and Grenada. criteria of a state laid down in the Montevideo
Convention namely, a permanent population, a
Q: Formal peace talks between the Philippine defined territory, a government and a capacity to
Government and MILF resulted to the crafting of enter into relations with other states.
the GRP-MILF Tripoli Agreement on Peace (Tripoli
Agreement 2001) which consists of three (3) Even assuming that the MOA-AD would not
aspects: a.) security aspect; b.) rehabilitation necessarily sever any portion of Philippine Territory,
aspect; and c.) ancestral domain aspect. the spirit animating it – which has betrayed itself by
its use of the concept of association – runs counter
Various negotiations were held which led to the to the national sovereignty and territorial integrity
finalization of the Memorandum of Agreement on of the Republic. (Prov. of North Cotabato v. The
the Ancestral Domain (MOA-AD). In its body, it Govt. of the Rep. of the Philippines, G.R. No.
grants “the authority and jurisdiction over the 183591, Oct. 14, 2008)
Ancestral Domain and Ancestral Lands of the
Bangsamoro” to the Bangsamoro Juridical Entity Q: Does the people’s right of self-determination
(BJE). The latter, in addition, has the freedom to extend to a unilateral right of secession?
enter into any economic cooperation and trade
relation with foreign countries. A: No. A distinction should be made between the
right of internal and external self-determination.
The MOA-AD further provides for the extent of the The recognized sources of international law
territory of the Bangsamoro. With regard to establish that the right to self-determination of a
governance, on the other hand, a shared people is normally fulfilled through internal self-
responsibility and authority between the Central determination – a people’s pursuit of its political,
Government and BJE was provided. The economic, social and cultural development within
relationship was described as “associative”. Does the framework of an existing State. A right to
the MOA-AD violate the Constitution and the external self-determination arises in only the most
laws? extreme cases and, even then, under carefully
defined circumstances.
A: Yes. The provisions of the MOA indicate that the
Parties aimed to vest in the BJE the status of an External self-determination can be defined as the
associated state or, at any rate, a status closely establishment of a sovereign and independent
approximating it. State, the free association or integration with an
independent State or the emergence into any other
The concept of association is not recognized under political status freely determined by a people which
the present Constitution. Indeed, the concept constitute modes of implementing the right of self-
implies powers that go beyond anything ever determination by that people.(Prov. of North
granted by the Constitution to any local or regional Cotabato v. The Govt. of the Rep. of the Philippines,
government. It also implies the recognition of the G.R. No. 183591, Oct. 14, 2008)
associated entity as a state. The Constitution,
however, does not contemplate any state in this Q: Does the right to self-determination extend to
jurisdiction other than the Philippine State, much the indigenous peoples?
less does it provide for a transitory status that aims
to prepare any part of Philippine territory for A: Yes. Indigenous peoples situated within States do
independence. not have a general right to independence or
secession from those states under international law,
Even assuming arguendo that the MOA-AD would but they do have the right amounting to the right to
not necessarily sever any portion of Philippine internal self-determination. Such right is recognized
territory, the spirit animating it – which has by the UN General Assembly by adopting the United
betrayed itself by its use of the concept of Nations Declaration on the rights of Indigenous
association – runs counter to the national Peoples (UNDRIP). (Prov. of North Cotabato v. The
sovereignty and territorial integrity of the Govt. of the Rep. of the Philippines, G.R. No.
Republic.(Prov. of North Cotabato v. The Govt. of the 183591, Oct. 14, 2008)
Rep. of the Philippines, G.R. No. 183591, Oct. 14,
2008) Q: Do the obligations enumerated in the UN DRIP
strictly require the Republic of the Philippines to
Q: Is the BJE a state? grant the Bangsamoro people, through the BJE, the
245
particular rights and powers provided for in the

MOA_AD? A: It states that the disappearance of any of the
elements of statehood would cause the extinction
A: No. The UN DRIP, while upholding the right of of the State, but mere changes as to one or more of
indigenous peoples to autonomy, does not obligate the elements would not necessarily, as a rule, bring
States to grant indigenous peoples the near about such extinction. Despite such changes, the
independent status of an associated state. There is State continues to be an international person.
no requirement that States now guarantee
indigenous peoples their own police and internal Q: Discuss the rules on succession of States.
security force, nor is there an acknowledgement of
the right of indigenous peoples to the aerial domain A:
and atmospheric space. But what it upholds is the 1. As to territory – The capacities, rights and
right of indigenous peoples to the lands, territories duties of the Predecessor State with
and resources, which they have traditionally owned, respect to that territory terminate and
occupied or otherwise used or acquired. (Prov. of are assumed by the successor State.
North Cotabato v. The Govt. of the Rep. of the
Philippines, G.R. No. 183591, Oct. 14, 2008) 2. As to State property – The agreement
between the predecessor and the
Q: In 1947, the United Nations made the border successor State govern; otherwise:
between Israel and Palestine known as the Green a. Where a part of the territory of a
Line. Following the Palestinian Arab violence in State becomes part of the territory
2002, Israel began the construction of the barrier of another State, property of the
that would separate West Bank from Israel. predecessor State located in that
Palestinians insisted that the fence is an territory passes to the successor
“Apartheid fence” designed to de facto annex the State.
West Bank of Israel. The case was submitted to the b. Where a State is absorbed by
ICJ for an advisory opinion by the General another State, property of the
Assembly of the United Nations under resolution absorbed State, wherever located,
ES-10/14. Does Israel undermine the right of self- passes to the absorbing State.
determination of the people of Palestine? c. Where a part of a State becomes a
separate State, property of the
A: Construction of the wall severely impedes the predecessor State located in the
exercise by the Palestinian people of its right to self- territory of the new State passes to
determination. the new State.
The existence of a “Palestinian people” is no longer 3. As to public debts - Agreement between

in issue. Such existence has moreover been predecessor and successor State govern;
recognized by Israel in the exchange of letters. The otherwise:
Court considers that those rights include the right a. Where a part of the territory of a
to self-determination, as the General Assembly has State becomes part of the territory
moreover recognized on a number of occasions. of another State, local public debt
The route chosen for the wall gives expression in and the rights and obligations of the
loco to the illegal measures taken by Israel with predecessor State under contracts
regard to Jerusalem and the settlements. There is relating to that territory are
also of further alterations to the demographic transferred to the successor State.
composition of the Occupied Palestinian Territory b. Where a State is absorbed by
resulting from the construction of the wall as it is another State, public debt and the
contributing to the departure of Palestinian rights and obligations under
population from certain areas. That construction, contracts of the absorbed State pass
along with measures taken previously, thus severely to the absorbing State.
impedes the exercise by the Palestinian people of c. Where a part of a State becomes a
its right to self-determination, and is therefore a separate State, local public debt and
breach of Israel’s obligation to respect that right. the rights and obligations of the
(ICJ Advisory Opinion on the Legal Consequences of predecessor State under contracts
the Construction of a Wall in the Occupied relating to that territory are
Palestinian Territory, July 4, 2004) transferred to the successor State.
Q: What is the principle of state continuity? 4. As to treaties:
246
POLITICAL LAW TEAM
a. When part of the territory of a State

becomes the territory of another Q: What is the effect of Japanese occupation to the
State, the international agreements sovereignty of the U.S. over the Philippines?
of the predecessor State cease to
have effect in respect of the territory A: Sovereignty is not deemed suspended although
and international agreements of the acts of sovereignty cannot be exercised by the
successor State come into force legitimate authority. Thus, sovereignty over the
there. (“Moving Treaty or Moving Philippines remained with the U.S. although the
rd
Boundaries” Rule - 3 State may Americans could not exercise any control over the
seek relief from the treaty on ground occupied territory at the time. What the belligerent
of rebus sic stantibus) occupant took over was merely the exercise of acts
b. When a State is absorbed by another of sovereignty.
State, the international agreements
of the absorbed State are terminated Q: Distinguish between Spanish secession to the
and the international agreements of U.S. and Japanese occupation during WWII
the absorbing State become regarding the political laws of the Philippines.
applicable to the territory of the
absorbed State. (“Moving Treaty or A: There being no change of sovereignty during the
rd
Moving Boundaries” Rule - 3 State belligerent occupation of Japan, the political laws of
may seek relief from the treaty on the occupied territory are merely suspended,
ground of rebus sic stantibus) subject to revival under jus postliminium upon the
c. When a part of a State becomes a end of the occupation. In both cases, however,
new State, the new State does not non-political laws, remains effective.
succeed to the international
agreements to which the Q: Was there a case of suspended allegiance
predecessor State was a party, during the Japanese occupation?
unless, expressly or by implication, it
accepts such agreements and the A: None. Adoption of the theory of suspended
other party or parties thereto agree allegiance would lead to disastrous consequences
or acquiesce. for small and weak nations or states, and would be
d. Pre-existing boundary and other repugnant to the laws of humanity and
territorial agreements continue to be requirements of public conscience, for it would
binding notwithstanding allow invaders to legally recruit or enlist the quisling
(utipossidetis rule) inhabitants of the occupied territory to fight against
their own government without the latter incurring
Q: Give the effects of a change of sovereignty on the risk of being prosecuted for treason. To allow
municipal laws. suspension is to commit political suicide.
A: Q: May an inhabitant of a conquered State be

1. Laws partaking of a political complexion convicted of treason against the legitimate
are abrogated automatically. sovereign committed during the existence of
2. Laws regulating private and domestic belligerency?
rights continue in force until changed or
abrogated. A: Yes. Although the penal code is a non-political
law, it is applicable to treason committed against
Q: What is the effect of change of sovereignty the national security of the legitimate government,
when the Spain ceded the Philippines to the U.S.? because the inhabitants of the occupied territory
were still bound by their allegiance to the latter
A: The effect is that the political laws of the former during the enemy occupation. Since the
sovereign are not merely suspended but abrogated. preservation of the allegiance or the obligation of
As they regulate the relations between the ruler fidelity and obedience of a citizen or subject to his
and the ruled, these laws fall to the ground ipso government or sovereign does not demand from
facto unless they are retained or re-enacted by him a positive action, but only passive attitude or
positive act of the new sovereign. Non-political forbearance from adhering to the enemy by giving
laws, by contrast, continue in operation, for the the latter aid and comfort, the occupant has no
reason also that they regulate private relations only, power, as a corollary of the preceding
unless they are changed by the new sovereign or consideration, to repeal or suspend the operation of
are contrary to its institutions. the law of treason.
247
exercise of these powers may not be compelled.

Q: What is succession of government?
Q: Distinguish recognition of State from
A: In succession of government, the integrity of the recognition of government.
original State is not affected as what takes place is
only a change in one of its elements, the A:
government. 1. Recognition of State carries with it the
recognition of government since the
Q: Give the effects of a change of government. former implies that a State recognized has
all the essential requisites of a State at
A: the time recognition is extended. Once
1. If the change is peaceful the new recognition of state is accorded, it is
government assumes the rights and generally irrevocable.
responsibilities of the old government. 2. Recognition of government may be
withheld from a succeeding government
2. If the change was effected thru violence, brought about by violent or
a distinction must be made: unconstitutional means.
a. Acts of political complexion may be
denounced Q: What are the requirements for recognition of
b. Routinary acts of mere governmental government?
administration continue to be
effective. A:
1. The government is stable and effective,
Q: What is recognition? with no substantial resistance to its
authority
A: It is an act by which a State acknowledges the 2. The government must show willingness
existence of another State, government, or a and ability to discharge its international
belligerent community and indicates its willingness obligations
to deal with the entity as such under international 3. The government must enjoy popular
law. consent or approval of the people
Q: What are the two theories of recognition of Q: What is the Tobar or Wilson doctrine?
State?
A: It precludes recognition to any government
A: The theories of recognition of a State are: coming into existence by revolutionary means so
long as the freely elected representatives of the
1. Constitutive theory – recognition is the people thereof have not constitutionally
last indispensable element that converts reorganized the country.
the state being recognized into an
international person. Q: What is the Estrada Doctrine?
2. Declaratory theory – recognition is merely
an acknowledgment of the pre-existing A: It involves a policy of never issuing any
fact that the state being recognized is an declaration giving recognition to governments and
international person. of accepting whatever government is in effective
control without raising the issue of recognition. An
Q: Who has the authority to recognize? inquiry into legitimacy would be an intervention in
the internal affairs of another State.
A: It is a matter to be determined according to the
municipal law of each State. In the Philippines, it is Q: Distinguish de jure recognition from de facto
the President who determines the question of recognition.
recognition and his decisions on this matter are
considered acts of state which are, therefore, not A:
subject to judicial review. His authority in this
respect is derived from his treaty-making power, his RECOGNITION DE
RECOGNITION DE JURE
power to send and receive diplomatic FACTO
representatives, his military power, and his right in Provisonal (e.g.:
general to act as the foreign policy spokesman of Relatively permanent duration of armed
the nation. Being essentially discretionary, the struggle)
248
POLITICAL LAW TEAM
Does not vest title to 2. The legitimate government is bound to

Vests title to properties
properties of observe the laws and customs of war in
of government abroad
government abroad conducting the hostilities.
Brings about full Limited to certain 3. From the viewpoint of third States, is to
diplomatic relations juridical relations put them under obligation to observe
strict neutrality and abide by the
Q: What are the effects of recognition? consequences arising from that position.
4. Recognition puts the rebels under
A: VIP Ces responsibility to third States and to the
1. The recognized State acquires Capacity to legitimate government for all their acts
enter into diplomatic relations. which do not conform to the laws and
Recognized State acquires capacity to sue customs of war.
in courts of recognizing State.
2. Immunity from jurisdiction of courts of Q: Distinguish insurgency from belligerency.
law of recognizing State.
3. Entitled to receive and demand A:
possession of Properties situated within
the jurisdiction of the recognizing State INSURGENCY BELLIGERENCY
which are owned by recognized State. A mere initial stage of More serious and
4. Validity of the acts and decrees of war. It involves a rebel widespread and
recognized state/ government precluding movement, and is presupposes the
courts of the recognizing state from usually not recognized. existence of war
passing judgment on the legality of the between 2 or more
st
acts or decrees of the recognized state. states (1 sense) or
actual civil war within a
nd
Q: What is belligerency? single state (2 sense).
Sanctions to insurgency Belligerency is governed
A: Belligerency exists when the inhabitants of a are governed by by the rules on
State rise up in arms for the purpose of municipal law – Revised international law as the
overthrowing the legitimate government or when Penal Code, i.e. belligerents may be
there is a state of war between two states. rebellion. given international
personality.
Q: What are the requisites in recognizing
Belligerency? E. DIPLOMATIC AND CONSULAR LAW
A: TWOS Q: Discuss the right of legation.

1. There must be an Organized civil
government directing the rebel forces. A: The exercise of the right of legation is one of the
2. The rebels must occupy a substantial most effective ways of facilitating and promoting
portion of the Territory of the state. intercourse among nations. Through the active right
3. The conflict between the legitimate of sending diplomatic representatives and the
government and the rebels must be passive right of receiving them, States are able to
Serious, making the outcome uncertain. deal more directly and closely with each other in
4. The rebels must be willing and able to the improvement of their mutual intercourse.
observe the laws of War.
Q: Is the State obliged to maintain diplomatic
Q: What are the legal consequences of relations with other States?
belligerency?
A: No, as the right of legation is purely consensual.
A: If it wants to, a State may shut itself from the rest of
th
1. Before recognition, it is the legitimate the world, as Japan did until the close of the 19
government that is responsible for the century. However, a policy of isolation would
acts of the rebels affecting foreign hinder the progress of a State since it would be
nationals and their properties. Once denying itself of the many benefits available from
recognition is given, responsibility is the international community.
shifted to the rebel government.
249
Q: Who are the agents of diplomatic intercourse? representatives have been rejected, resulting in
strained relations between the sending and
A: receiving State.
1. Head of State
2. Foreign secretary or minister Q: What does persona non grata mean?
3. Members of diplomatic service
4. Special diplomatic agents appointed by A: In international law and diplomatic usage, it
head of the State means a person not acceptable (for reasons
5. Envoys ceremonial peculiar to himself) to the court or government to,
which it is proposed to accredit him in the character
Q: What is diplomatic corps? of an ambassador or minister.
A: It is a body consisting of the different diplomatic Q: What is agreation?

representatives who have been accredited to the
same local or receiving State. It is headed by a A:It is a practice of the States before appointing a
doyun de corps, who, by tradition, is the oldest particular individual to be the chief of their
member within the highest rank or, in Catholic diplomatic mission in order to avoid possible
countries, the papal nuncio. embarrassment. It consists of two acts:
Q: What are the functions of a diplomatic mission? 1. The inquiry, usually informal, addressed
by the sending State to the receiving State
A: regarding the acceptability of an
1. Represent sending State in receiving State individual to be its chief of mission; and
2. Protect in receiving State interest of 2. The agreement, also informal, by which
sending State and its nationals the receiving State indicates to the
3. Negotiate with government of receiving sending state that such person, would be
State acceptable.
4. Promote friendly relations between
sending and receiving States and Q: What is a letter of credence?
developing their economic, cultural, and
scientific relations A: This is the document by which the envoy is
5. Ascertain by all lawful means conditions accredited by the sending State to the foreign State
and developments in receiving State and to which he is being sent. It designates his rank and
reporting thereon to government of the general object of his mission, and asks that he
sending State be received favorably and that full credence be
6. In some cases, represent friendly given to what he says on behalf of his State.
governments at their request
Q: What is a letter patent?
Q: What are the classes of heads of a diplomatic
mission? A: The appointment of a consul is usually evidenced
by a commission, known sometimes as letter patent
A: or letred’provision, issued by the appointing
1. Ambassadors or nuncios accredited to authority of the sending State and transmitted to
Heads of State and other heads of the receiving State through diplomatic channels.
missions of equivalent rank
2. Envoys ministers and internuncios Q: What are the privileges and immunities of
accredited to heads of State diplomatic representatives?
3. Charge d’ affaires accredited to ministers A:
of foreign affairs 1. Personal inviolability – members of
diplomatic mission shall not be liable for
Q: Is the receiving State obliged to accept a any form of arrest or imprisonment
representative from another State? 2. Inviolability of premises – premises,
furnishings and means of transport shall
A: No, the appointment of diplomats is not merely a be immune from search, seizure,
matter of municipal law for the receiving State is attachment or execution.
not obliged to accept a representative who is a 3. Archives or documents shall be inviolable
persona non grata to it. Indeed, there have been 4. Diplomatic agents are immune from
cases when duly accredited diplomatic criminal, civil or administrative liability.
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POLITICAL LAW TEAM
5. Receiving State shall protect official official staff of the mission. The official staff is made
communication and official up of the administrative and technical personnel of
correspondence of diplomatic mission. the mission, including those performing clerical
6. Receiving State shall ensure all members work, and the member of their respective families.
of diplomatic mission freedom of The non-official staff is composed of the household
movement and travel. help, such as the domestic servants, butlers, and
7. A diplomatic agent is exempted to give cooks and chauffeurs employed by the mission.
evidence as a witness.
8. Exemption from general duties and taxes Note: As a rule, however, domestic servants enjoy
including custom duties with certain immunities and privileges only to the extent admitted
exceptions. by the receiving State and insofar as they are
9. Use of flag and emblem of sending State connected with the performance of their duties.
on premises of receiving State.
Q: The U.S. Ambassador from the Philippines and
Q: What are the exceptions to the privileges and the American Consul General also in the
immunities of diplomatic representatives? Philippines quarreled in the lobby of Manila Hotel
and shot each other. May Philippine courts take
A: jurisdiction over them for trial and punishment for
1. Any real action relating to private the crime they may have committed?
immovables situated in the territory
receiving State unless the envoy holds the A: The Ambassador is immune from prosecution for
property in behalf of the sending State all crimes committed by him whether officially or in
2. Actions relating to succession where his private capacity. The consul is immune from
diplomatic agent is involved as executor, criminal prosecution only for acts committed by
administrator, heirs or legatee as a him in connection with his official functions.
private person and not on behalf of the
sending State Q: The Ambassador of State X to the Philippines
3. An action relating to any professional or bought, in the name of his government, two
commercial activity exercised by the houses and lots at Forbes Park, Makati. One
diplomatic agent in the receiving State house is used as the chancery and residence of the
outside his official functions ambassador, and the other as quarters for
nationals of State X who are studying in De La Salle
Q: Who may waive diplomatic immunity and University. The Register of Deeds refused to
privileges? register the sale and to issue Transfer Certificates
of Title in the name of State X. Is his refusal
A: The waiver may be made expressly by the justified?
sending State. It may also be done impliedly, as
when the person entitled to the immunity from A: The prohibition in the Constitution against
jurisdiction commences litigation in the local courts alienation of lands in favor of aliens does not apply
and thereby opens himself to any counterclaim to alienation of the same in favor of foreign
directly connected with the principal claim. governments to be used as chancery and residence
of its diplomatic representatives. The receiving
Note: Waiver of immunity from jurisdiction with regard State is under obligation to facilitate the acquisition
to civil and administrative proceedings shall not be on its territory, in accordance with its laws, by the
held to mean implied waiver of the immunity with sending State of premises necessary for its mission,
respect to the execution of judgment, for which a or to assist the latter in obtaining accommodation
separate waiver shall be necessary. in some other way. Therefore, the refusal of the
Register of Deeds to register the sale and the
Q: Is diplomatic immunity a political question? issuance of TCT in the name of State X is unjustified.
However, in so far as the house and lot to be used
A: Diplomatic immunity is essentially a political as quarters of the nationals of State X who are
question and the courts should refuse to look studying in De La Salle University are concerned,
beyond the determination by the executive branch. the Register of Deeds correctly refused registration.
Here, the prohibition in the constitution against the
Q: Who else besides the head of the mission are transfer of properties to parties other than the
entitled to diplomatic immunities and privileges? Filipino citizens or corporation 60% of the capital of
which is owned by such citizens should be followed.
A: They are also enjoyed by the diplomatic suite or
retinue, which consists of the official and non- Q: What is an exequatur.
251
A: Exequatur is an authorization from the receiving A:

State admitting the head of a consular post to the 1. Consulesmissi – Professional or career consuls
exercise of his functions. For example, if the who are nationals of the sending State and are
Philippines appoint a consul general for New York, required to devote their full time to the
he cannot start performing his functions unless the discharge of their duties.
President of the United States issues an exequatur 2. Consuleselecti – May or may not be nationals
to him. of the sending State and perform their
consular functions only in addition to their
Q: What are the grounds for termination of regular callings.
diplomatic relations under municipal law?
Note: Examples of regular callings include acting as
A: RADAR notary, civil registrar and similar administrative
1. Resignation capacities and protecting and assisting the nationals of
2. Accomplishment of the purpose the sending State.
3. Death
4. Abolition of the office Q: What are the duties of consuls?
5. Removal
A:
Q: What are the grounds for termination of 1. Protection of the interests of the sending State
diplomatic relation under international law? and its nationals in the receiving State.
2. Promotion of the commercial, economic,
A: cultural, and scientific relations of the sending
1. War– outbreak between the sending and and receiving States.
the receiving States. 3. Observes the conditions and developments in
2. Extinction of either the sending State or the receiving State and report the same to the
the receiving State. sending State.
3. Recall– demanded by the receiving State 4. Issuance of passports and other travel
when the foreign diplomat becomes documents to nationals of the sending State
persona non grata and visas or appropriate documents to persons
wishing to travel to the sending State.
Q: Will the termination of diplomatic relations also 5. Supervision and inspection of vessels and
terminate consular relations between the sending aircraft of the sending State.
and receiving States?
Q: Where do consuls derive their authority?
A: No. Consuls belong to a class of State agents
distinct from that of diplomatic officers. They do A: Consuls derive their authority from two principal
not represent their State in its relations with foreign sources, to wit:
States and are not intermediaries through whom
matters of State are discussed between 1. Letter patent or letter ‘de provision – which is
governments. the commission issued by the sending State,
and
Consuls look mainly after the commercial interest of 2. Exequatur – which is the permission given
their own State in the territory of a foreign State. them by the receiving State to perform their
They are not clothed with diplomatic character and functions therein.
are not accredited to the government of the
country where they exercised their consular Q: Do consuls enjoy their own immunities and
functions; they deal directly with local authorities. privileges?
Q: What is the difference between diplomats and A: Yes, but not to the same extent as those enjoyed
consuls? by the diplomats. Like diplomats, consuls are
entitled to:
A: Diplomats are concerned with political relations 1. Inviolability of their correspondence,
of States while consuls are not concerned with archives and other documents
political matters. The latter attend rather to 2. Freedom of movement and travel
administrative and economic issues. 3. Immunity from jurisdiction for acts
performed in their official capacity; and
Q: What are the two kinds of consul?
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POLITICAL LAW TEAM
4. Exemption from certain taxes and Consular bag shall not

customs duties be opened
It may be requested that
However, consuls are liable to: the bag be opened in
1. Arrest and punishment for grave offenses; their presence by an
and authorized
2. May be required to give testimony, Personal baggage of a representative of the
subject to certain exceptions. diplomatic agent shall receiving state if they
not be opened have serious reason to
Note: Members of a consular post are under no believe that the bag
obligation to give evidence on the following contains objects of
situations: other articles,
a. Concerning matters connected with the documents,
exercise of their functions correspondence or
b. To produce official correspondence and articles
documents
May be called upon to
c. To give evidence as expert witness with
attend as a witness; if
regard to the law of the sending State Not obliged to give
declined, no coercive
evidence as a witness
measure or penalty may
The consular offices are immune only:
1. With respect to that part where the be applied
consular work is being performed; and
2. May be expropriated by the receiving Q: Discuss the differences, if any, in the privileges
state for purposes of national defense or or immunities of diplomatic envoys and consular
public utility. officers from the civil and criminal jurisdiction of
the receiving State.
With respect to expropriation by the receiving
State, steps shall be taken to avoid impeding the A: A diplomatic agent shall enjoy immunity from
performance of consular functions, and prompt, the criminal jurisdiction of the receiving State. He
adequate and effective compensation shall be paid shall also enjoy immunity from its civil and
by the sending State. administrative jurisdiction except in the case of:
1. A real action relating to private
Q: What are the differences between Diplomatic immovable property situated in the
Immunity and Consular Immunity? territory of the receiving State, unless he
holds it on behalf of the sending State for
A: the purpose of the mission;
2. An action relating to succession in which
the diplomatic agent is involved as
DIPLOMATIC CONSULAR
executor, administrator, heir or legatee as
“Premises of the
“Consular premises” private person and not on behalf of the
mission” includes the
includes the buildings or sending State;
building or parts of
parts of buildings and 3. An action relating to any professional or
building and the land
the land irrespective of commercial activity exercised by the
irrespective of the
ownership used diplomatic agent in the receiving State
ownership used for the
exclusively for the outside of his official functions. (Article
purpose of the mission
purposes of consular 32, Vienna Convention of Diplomatic
including the residence
posts Relations)
of the head of mission
GR: The agents of the
A consular officer does not enjoy immunity from
receiving state may not
the criminal jurisdiction of the receiving State and
enter the consular
are not amenable to the jurisdiction of the judicial
GR: The agents of the premises
or administrative authorities of the receiving State
receiving state may not XPN: consent of the
in respect of acts performed in the exercise of
enter the premises of head of the consular
consular functions.
the mission post
XPN: consent of the Consent is assumed in
However, this does not apply in respect of a civil
head of the mission case of fire or other
action either:
disasters requiring
prompt protective
action
253
1. Arising out of a contract concluded by a 4. Accession– a State can accede to a treaty

consular officer in which he did not enter only if invited or permitted to do so by
expressly or impliedly the contracting parties. Such invitation or
2. By a third party for damages arising from permission is usually given in the
an accident in the receiving State caused accession clause of the treaty itself.
by a vehicle, vessel or aircraft. (Article 41 5. Exchange of instruments of ratification;
and 43, Vienna Convention on the 6. Registration with the United Nations.
Consular Relations)
Q: A petition for mandamus to compel the Office
Q: What are the grounds for termination of of the Executive Secretary and the Department of
consular office? Foreign Affairs to transmit (even without the
signature of the President) the signed copy of the
A: Rome Statute of the International Criminal Court
1. Death (ICC) to the Senate of the Philippines for its
2. Recall concurrence or ratification - in accordance with
3. Dismissal Section 21, Article VII of the 1987 Constitution.
4. Notification by the receiving State to the
sending State that it has ceased to Petitioners contend that that ratification of a
consider as member of the consular staff treaty, under both domestic law and international
5. Withdrawal of his exequatur by the law, is a function of the Senate. That under the
receiving State. treaty law and customary international law,
6. War- outbreak of war between his home Philippines has a ministerial duty to ratify the
State and the receiving State. Rome Statute.
f. TREATIES Respondents on the other hand, argued that

executive department has no duty to transmit the
Q: What is a treaty? Rome Statute to the Senate for concurrence.
Decide.
A: It is an international agreement concluded
between States in written form and governed by A: Petitioners’ interpretation of the Constitution is
international law, whether embodied in a single incorrect. The power to ratify treaties does not
instrument or in two or more related instruments belong to the Senate.
and whatever its particular designation. It should be emphasized that under the
Constitution the power to ratify is vested in the
Q: What are the essential requisites of a valid President subject to the concurrence of the Senate.
treaty? The President has the discretion even after the
signing of the treaty by the Philippine
A: VACLA representative whether or not to ratify a treaty.
1. Be entered into by parties with the treaty- The signature of the representative does not signify
making Capacity final consent, it is ratification that binds the state to
2. Through their Authorized representatives the provisions of the treaty and renders it effective.
3. Without the attendance of duress, fraud,
mistake, or other Vice of consent Senate is limited only to giving or withholding its
4. On any Lawful subject-matter consent, concurrence to the ratification. It is within
5. In accordance with their respective the President to refuse to submit a treaty to the
constitutional process Senate or having secured its consent for its
ratification, refuse to ratify it. Such decision is
Q: What are the usual steps in the treaty-making within the competence of the President alone,
process? which cannot be encroached by this court via writ
of mandamus. (Pimentel v. Executive Secretary, G.R.
A: No. 158088, July 6, 2005)
1. Negotiation– conducted by the parties to
reach an agreement on its terms. Note: The President signed the instrument of
2. Signature – the signing of the text of the ratification on May 6, 2011 and the Senate concurred
instrument agreed upon by the parties. in Aug. 24,2011.
3. Ratification– the act by which the
provisions of a treaty are formally Q: What is the Doctrine of Unequal Treaties?
confirmed and approved by the State.
254
POLITICAL LAW TEAM
A: It posits that treaties which have been imposed

through coercion or duress by a State of unequal A:
character are void. GR: No.
Q: What is a Protocol de Clôture? XPN: If the violation was manifest and

concerned a rule of its internal law of
A: It is a final act and an instrument which records fundamental importance.
the winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of Note: A violation is manifest if it would be objectively
the texts of treaties, conventions, recommendations evident to any State conducting itself in the matter in
and other acts agreed upon and signed by the accordance with normal practice and in good faith.
plenipotentiaries attending the conference.
Q: What is a reservation? When can it not be
Q: What is ratification? made?
A: Ratification is the act by which the provisions of a A: A reservation is a unilateral statement, however
treaty are formally confirmed and approved by a phrased or named, made by a State, when signing,
State. By ratifying a treaty signed in its behalf, a ratifying, accepting, approving, or acceding to a
State expresses its willingness to be bound by the treaty, whereby it purports to exclude or modify the
provisions of such treaty. legal effect of certain provisions of the treaty in
their application to that State.
Q: Enumerate instances when a third State who is
a non-signatory may be bound by a treaty. Reservations cannot be made if the treaty itself
provides that no reservation shall be admissible, or
A: the treaty allows only specified reservations which
1. When a treaty is a mere formal do not include the reservation in question, or the
expression of customary international reservation is incompatible with the object and
law, which, as such is enforceable on all purpose of the treaty.
civilized states because of their
membership in the family of nations. Q: What are the effects of reservation and of
2. Under Article 2 of its charter, the UN objections to reservations?
shall ensure that non-member States
act in accordance with the principles of A:
the Charter so far as may be necessary 1. Modifies for the reserving State in its
for the maintenance of international relations with that other party the
peace and security. Under Article 103, provisions of the treaty to which the
obligations of member-states shall reservation relates to the extent of the
prevail in case of conflict with any other reservation; and
international agreement including those 2. Modifies those provisions to the same
concluded with non-members. extent for that other party in its relations
3. The treaty itself may expressly extend with the reserving State.
its benefits to non-signatory States. 3. The reservation does not modify the
4. Parties to apparently unrelated treaties provisions of the treaty for the other
may also be linked by the most-favored parties to the treaty inter se.
nation clause. 4. When a State objecting to a reservation
has not opposed the entry into force of
Q: When does a treaty enter into force? the treaty between itself and the
reserving State, the provisions to which
A: A treaty enters into force in such manner and the reservation relates do not apply as
upon such date as it may provide or as the between the two States to the extent of
negotiating States may agree. Failing any such the reservation.
provision or agreement, a treaty enters into force as
soon as consent to be bound by the treaty has been Q: Are treaties subject to judicial review?
established for all the negotiating States.
A: Yes. Even after ratification, the Supreme Court
Q: May a State invoke the fact that its consent to has the power of judicial review over the
the treaty was obtained in violation of its internal constitutionality of any treaty, international or
law? executive agreement and must hear such case en
banc.
255
1. Termination of the treaty or withdrawal

Q: In case of conflict between a treaty and a of a party in accordance with the terms of
custom, which would prevail? the treaty.
2. Extinction of one of the parties to the
A: treaty.
1. Treaty prevails if the treaty comes after a 3. Mutual agreement of all the parties to
particular custom, as between the parties terminate the treaty.
to the treaty, 4. Denunciation of the treaty by one of the
2. Customs prevails if the custom develops parties.
after the treaty, it being an expression of a 5. Supervening impossibility of performance.
later will. 6. Conclusion of a subsequent treaty
inconsistent between the same parties.
Q: Distinguish a treaty from an executive 7. Violation of the treaty by one of the
agreement. parties.
8. Doctrine of rebus sic stantibus
A: 9. Outbreak of war between the parties to
1. Treaties - need concurrence of the senate the treaty.
and involve basic political issues, changes 10. Severance of diplomatic or consular
in national policy and are permanent relations
international agreements. 11. The emergence of new peremptory norm
2. Executive agreements - need no of general international law renders void
concurrence from the senate and are just and terminates any existing treaty in
adjustments of details in carrying out well conflict with such norm.
established national policies and are
merely temporary arrangements. Q: What is the doctrine of rebus sic stantibus?
Q: Is VFA a treaty or a mere executive agreement? A: It states that a fundamental change of

circumstances which determined the parties to
A: In the case of Bayan v. Zamora G.R No. 138570, accept a treaty, if it has resulted in a radical
Oct. 10, 2000, VFA was considered a treaty because transformation of the extent of the obligations
the Senate concurred in via 2/3 votes of all its imposed by it, may under certain conditions, afford
members. But in the point of view of the US the party affected a ground to invoke the
Government, it is merely an executive agreement. termination of the treaty. The change must have
increased the burden of the obligations to be
Q: May a treaty be modified without the consent executed to the extent of rendering performance
of all the parties? essentially different from the original intention.
A: Q: What are the requisites of rebus sic stantibus?

GR: No
XPN: If allowed by the treaty itself, two states A: PRUTIS
may modify a provision only insofar as theories 1. The change must not have been caused
are concerned. by the Party invoking the doctrine
2. The doctrine cannot operate
Q: What are the grounds for invalidating a treaty? Retroactively, i.e., it must not adversely
affect provisions which have already been
A: complied with prior to the vital change in
1. Error the situation
2. Fraud 3. The change must have been Unforeseen
3. Corruption of a representative of a State or unforeseeable at the time of the
4. Coercion of a representative of a State perfection of the treaty
5. Coercion of a State by threat or use of 4. The doctrine must be invoked within a
force reasonable Time
6. Violation of jus cogens norm 5. The duration of the treaty must be
Indefinite
Q: What are the grounds for termination of a 6. The change must be so Substantial that
treaty? the foundation of the treaty must have
altogether disappeared
A:
256
POLITICAL LAW TEAM
Q: When can the principle of rebus sic stantibus recognized as treaties under customary
not be invoked as a ground for terminating or international law.
withdrawing from a treaty?
Q: In case of conflict between a treaty and a
A: statute, which would prevail?
1. If the treaty establishes a boundary; or
2. If the fundamental change is the result of a A: In case of conflict, the courts should harmonize
breach by the party invoking it of an obligation both laws first and if there exists an unavoidable
under the treaty or of any other obligation contradiction between them, the principle of lex
owed to any other party to the treaty. posterior derogat priori - a treaty may repeal a
statute and a statute may repeal a treaty - will
Q: What is the “clean slate” rule? apply. The later one prevails. In our jurisdiction,
treaties entered into by the executive are ratified by
A: When one State ceases to exist and is succeeded the Senate and takes the form of a statute.
by another on the same territory, the newly
independent State is not bound to maintain in g. NATIONALITY AND STATELESSNESS
force, or to become a party to, any treaty by reason
only of the fact that at the date of the succession of Q: What is nationality?
States the treaty was in force in respect of the
territory to which the succession of States relates. A: It is membership in a political community with all
its concomitant rights and obligations. It is the tie
Q: What are the exceptions to the “clean slate” that binds the individual to his State, from which he
rule? can claim protection and whose laws he is obliged
to obey.
A:
1. When the new State agrees to be bound Q: What is citizenship?
by the treaties made by its predecessor;
2. Treaties affecting boundary regime A: It has more exclusive meaning in that it applies
(utipossidetis) only to certain members of the State accorded
3. Customary International Law more privileges than the rest of the people who
owe it allegiance. Its significance is municipal, not
Q: What is the most-favored-nation clause? international.
A: It may be defined in general, as a pledge by a Q: What is multiple nationality?

contracting party to a treaty to grant to the other
party treatment not less favorable than that which A:It is the possession by an individual of more than
has been or may be granted to the “most favored” one nationality. It is acquired as the result of the
among other countries. concurrent application to him of the conflicting
municipal laws of two or more States claiming him
Q: Can the House of Representatives take active as their national.
part in the conduct of foreign relations,
particularly in entering into treaties and Q: What is statelessness? What are the kinds of
international agreements? statelessness?
A: No. As held in US v. Curtiss Wright Export A: It is the condition or status of an individual who
Corporation 299 US 304, it is the President alone is either:
who can act as representative of the nation in the
conduct of foreign affairs. Although the Senate has 1. De Jure Stateless persons - stripped of their
the power to concur in treaties, the President alone nationality by their former government and
can negotiate treaties and Congress is powerless to without having an opportunity to acquire
intrude into this. However, if the matter involves a another
treaty or an executive agreement, the HR may pass 2. De Facto Stateless persons - those who possess
a resolution expressing its views on the matter. a nationality whose country does not give
them protection outside their own country and
Q: If a treaty is not in writing, may it still be who are commonly referred to as refugees.
considered as such? (Frivaldo v. COMELEC, G.R. No. 123755, June
28, 1996)
A: Yes. Oral agreements between States are
257
Q: What are the consequences of statelessness? who would otherwise be stateless. The Convention
on the Reduction of Statelessness of 1961 provides
A: that if the law of the contracting States results in
1. No State can intervene or complain in behalf the loss of nationality, as a consequence of
of the Stateless person for an international marriage or termination of marriage, such loss must
delinquency committed by another State in be conditional upon possession or acquisition of
inflicting injury upon him another nationality.
2. He cannot be expelled by the State if he is
lawfully in its territory except on grounds of Q: What is the Doctrine of Genuine Link?
national security or public order
3. He cannot avail himself of the protection A: It states that the bond of nationality must be real
and benefits of citizenship like securing for and effective in order that a State may claim a
himself a passport or visa and personal person as its national for the purpose of affording
documents him diplomatic protection.
Q: What is the doctrine of indelible allegiance? h. TREATMENT OF ALIENS
A: An individual may be compelled to retain his Q: What is the Doctrine of State Responsibility?
original nationality notwithstanding that he has
already renounced it under the law of another State A: A State may be held responsible for an
whose nationality he has acquired. international delinquency directly or indirectly
imputable to it which causes injury to the national
Q: What is the Doctrine of Effective Nationality? of another State. Liability will attach to the State
where its treatment of the alien falls below the
A: A person having more than one nationality shall international standard of justice or where it is
be treated as if he had only one – either the remiss in according him the protection or redress
nationality of the country in which he is habitually that is warranted by the circumstances.
and principally resident or the nationality of the
country with which in the circumstances he appears Q: What are the requisites for the enforcement of
to be in fact most closely connected. the doctrine of State Responsibility?
Q: Is a Stateless person entirely without right, A:

protection or recourse under the Law of Nations? 1. The injured alien must first exhaust all
local remedies; and
A: No. Under the Convention in Relation to the 2. He must be represented in the
Status of Stateless Persons, the contracting States international claim for damages by his
agree to accord the stateless persons within their own State
territories treatment at least as favorable as that
accorded their nationals with respect to: Q: What are the elements of State Responsibility?
1. Freedom of religion
2. Access to the courts A:
3. Rationing of products in short supply 1. Breach of an international obligation
4. Elementary education 2. Attributability
5. Public relief and assistance
6. Labor legislation Q: What are the two kinds of State Responsibility?
7. Social Security
A:
Note: They also agree to accord them treatment not 1. Direct State responsibility – Where the
less favorable than that accorded to aliens generally in international delinquency was committed
the same circumstances. The Convention also provides by superior government officials or
for the issuance of identity papers and travel organs like the chief of State or the
documents to the Stateless persons. national legislature, liability will attach
immediately as their acts may not be
Q: What measures has international law taken to effectively prevented or reversed under
prevent Statelessness? the constitution or laws of the State.
2. Indirect State responsibility – Where the
A: In the Convention on the Conflict of Nationality offense is committed by inferior
Laws of 1930, the Contracting States agree to government officials or by private
accord nationality to persons born in their territory
258
POLITICAL LAW TEAM
individuals. The State will be held liable with a dispute or when the object “is not to
only if, by reason of its indifference in give satisfaction for the wrong received.”
preventing or punishing it, it can be
considered to have connived in effecting 2. Satisfaction – a measure other than
its commission. restitution or compensation which an
offending State is bound to take.
Q: What are the elements of an internationally
wrongful act? Its object is often either:
A: a. An apology and other

1. Act or omission is attributable to the acknowledgment of wrongdoing
State under international law; and b. Punishment of individuals concerned
2. Constitutes a breach of an international c. Taking of measures to prevent a
obligation of the State recurrence
Note: Every internationally wrongful act of a State 3. Restitution – involves wiping out all the
entails the international responsibility of that State. consequences of the breach and re-
establishing the situation which would
Q: What are the acts/situations which are probably have existed had the act not
attributable to the State? been committed.
A: 4. Compensation – payment of money as a

1. Acts of the State organs – acts of State valuation of the wrong done.
organs in their capacity provided by law
or under instructions of superiors Note: The compensation must correspond
2. Acts of other persons – If the group of to the value which restitution in kind would
persons was in fact exercising elements of bear; the award of damages for loss
the governmental authority in the sustained which would not be covered by
absence or default of the official restitution in kind or payment in place of it.
authorities and circumstances such as to
call for the exercise of those elements of Q: What is the difference between pecuniary
authority. satisfaction and compensation?
3. Acts of revolutionaries – conduct of an
insurrectional movement which becomes A:
the new government of a State or part of PECUNIARY COMPENSATION
a State. SATISFACTION
A token of regret and To make up for or repair
Q: What is the theory of Objective or Strict Liability acknowledgment of the damage done.
with respect to state responsibility? wrongdoing (“monetary
sorry”)
A: It provides that fault is unnecessary for State
responsibility to be incurred. Its requisites are: Q: When may a State exercise diplomatic
1. Agency protection?
2. Casual connection between the breach
and the act or omission imputable to the A: When a State admits into its territory foreign
State. investments or foreign nationals, whether natural
or juristic persons, it is bound to extend to them the
Q: What are the reliefs available where a State is protection of the law and assumes obligations
liable for an internationally wrongful act? concerning the treatment to be afforded to them.
These obligations however, are neither absolute nor
A: unqualified. An essential distinction should be
1. Declaratory relief – declaration by a court drawn between the obligations of the State towards
that as to the illegality of an act the international community as a whole, and those
constitutes a measure of satisfaction or vis-à-vis another State in the field of their
reparation in the broad sense. diplomatic protection.
Note: This is available when this is, or the By their very nature the former are the concern of
parties deem this, the proper way to deal all States. All States can be held to have a legal
interest in their protection; they are obligations
259
erga omnes. Obligations the performance of which 3. The person fears persecution in his own
is the subject of diplomatic protection are not of country.
the same category. It cannot be held, when one
such obligation in particular is in question, in a Note: The second element makes, a refugee a Stateless
specific case, that all States have a legal interest in person. Because a refugee approximates a Stateless
its observance. (Case Concerning Barcelona person, he can be compared to a vessel on the open
Traction, Light and Power Company, Limited, Feb. 5, sea not sailing under the flag of any State, or be called
1970) flotsam and res nullius. Only a person who is granted
asylum by another State can apply for refugee status;
Q: How should States treat aliens within their thus the refugee treaties imply the principle of asylum.
territory?
Q: What is the difference between refugees and
A: The standards to be used are the following: internally displaced person?
1. National treatment/ equality of treatment – A: Refugees are people who have fled their
Aliens are treated in the same manner as countries while internally displaced persons are
nationals of the State where they reside those who have not left their country’s territory
2. Minimum international standard – However
harsh the municipal laws might be, against a Q: What is the Principle of Non-Refoulment?
State’s own citizens, aliens should be
protected by certain minimum standards of A: It posits that a State may not deport or expel
humane protection. refugees to the frontiers of territories where their
life or freedom would be put in danger or at risk.
Note: States protect aliens within their jurisdiction in
the expectation that their own nationals will be 1. Extradition
properly treated when residing or sojourning abroad.
Q: What is extradition?
Q: Explain the Right of Asylum in international law.
A: It is the right of a foreign power, created by
A: The right of asylum is the competence of every treaty, to demand the surrender of one accused or
State inferred from its territorial supremacy to allow convicted of a crime within its territorial
a prosecuted alien to enter and to remain on its jurisdiction, and the correlative duty of the other
territory under its protection and thereby grant State to surrender
asylum to him.
Q: What is the basis of extradition?
Q: Who is a refugee?
A: The extradition of a person is required only if
A: Any person who is outside the country of his there is a treaty between the State of refuge and
nationality or the country of his former habitual the State of origin. As a gesture of comity, however,
residence because he has or had well-founded fear a State may extradite anyone. Furthermore, even
of persecution by reason of his race, religion, with a treaty, crimes which are political in character
nationality, membership of a political group or are exempted.
political opinion and is unable or, because of such
fear, is unwilling to avail himself of the protection of Q: What are the fundamental principles governing
the government of the country of his nationality, or, extradition?
if he has no nationality, to return to the country of
his former habitual residence. A:
1. Based on the consent of the State
Q: What are the elements before one may be expressed in a treaty
considered as a refugee? 2. Principle of Specialty – a fugitive who is
extradited may be tried only for the crime
A: specified in the request for extradition
1. The person is outside the country of his and included in the list of offenses in the
nationality, or in the case of Stateless extradition treaty, unless the requested
persons, outside the country of habitual State does not object to the trial of such
residence; person for the unlisted offense
2. The person lacks national protection; 3. Any person may be extradited, whether
he is a national of the requesting State, of
the State of refuge or of another State. He
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POLITICAL LAW TEAM
need not be a citizen of the requesting answer the petition and to appear at
State scheduled summary hearings.
4. Political or religious offenders are
generally not subject to extradition. 6. Hearing (provide counsel de officio if
necessary);
Note: Attentant clause is a provision in an
extradition treaty which states that the 7. Appeal to CA within ten days whose
murder or assassination of the head of a decision shall be final and executory;
state or any member of his family will not be
considered as a political offense and 8. Decision forwarded to DFA through the
therefore extraditable. DOJ;
5. The offense must have been committed 9. Individual placed at the disposal of the
within the territory of the requesting authorities of requesting State – costs and
State or against its interest expenses to be shouldered by requesting
6. Double Criminality Rule – The act for State.
which the extradition is sought must be
punishable in both States Q: Distinguish extradition from deportation.
Q: What is the procedure for extradition when a A:

foreign State requests from the Philippines?
Extradition Deportation
A:
Effected at the request Unilateral act of the
1. File/issue request through diplomatic
of the State of origin local State
representative with:
Based on offenses Based on causes arising
a. Decision of conviction
committed in the State in the local State
b. Criminal charge and warrant of
of origin
arrest
Calls of the return of the Undesirable alien may
c. Recital of facts
fugitive to the State or be deported to a State
d. Text of applicable law designating
origin other than his own or
the offense
the State of origin (1995
e. Pertinent papers
Bar Question)
2. DFA forwards request to DOJ
Q: Should the judge inform the potential
3. DOJ files petition for extradition with RTC
extraditee of the pending petition for extradition
prior to the issuance of warrant of arrest?
4. Upon receipt of a petition for extradition
and its supporting documents, the judge
A: No. Prior to the issuance of the warrant, the
must study them and make, as soon as
judge must not inform or notify the potential
possible, a prima facie finding whether (a)
extraditee of the pendency of the petition, lest the
they are sufficient in form and substance,
latter be given the opportunity to escape and
(b) they show compliance with the
frustrate the proceedings. The foregoing procedure
Extradition Treaty and Law, and (c) the
will “best serve the ends of justice” in extradition
person sought is extraditable. At his
cases.
discretion, the judge may require the
submission of further documentation or
Note: An extraditee does not have the right to notice
may personally examine the affiants and
and hearing during the evaluation stage of an
witnesses of the petitioner. If, in spite of extradition proceeding. The nature of the right being
this study and examination, no prima claimed is nebulous and the degree of prejudice an
facie finding is possible, the petition may extraditee allegedly suffers is weak. (US v. Purganan,
be dismissed at the discretion of the G.R. No. 148571, Sept. 24, 2002)
judge.
Q: Is an extradition proceeding a criminal
5. On the other hand, if the presence of a proceeding?
prima facie case is determined, then the
magistrate must immediately issue a A: No. Extradition is not a criminal proceeding
warrant for the arrest of the extraditee, which will call into operation all the rights of an
who is at the same time summoned to accused provided in the bill of rights.
261
right” of the society in which they live – Louis

Q: Is a petition for bail valid in extradition cases? Henkin (Magallona, Fundamentals of Public
International Law, (2005), p. 243)
A: Yes. The Philippines, along with other members
of the family of nations, committed to uphold the Q: What is the International Law of Human Rights?
fundamental human rights as well as value the
worth and dignity of every person. The A: It is the law which deals with the protection of
commitment is enshrined in Section 11, Article II of individuals and groups against violations
our Constitution which provides: “The State values bygovernments of their internationally guaranteed
the dignity of every human person and guaranteed rights, and with the promotion of these rights –
full respect for human rights.” The Philippines, Thomas Buergenthal(Magallona, 2005)
therefore, has the responsibility of protecting and
promoting the right of every person to liberty and Q: How are the international human rights
due process, ensuring that those detained or divided?
arrested can participate in the proceedings before a
court, to enable it to decide without delay on the A: The said rights are divided into 3 generations,
legality of the detention and order their release if namely:
justified. In other words, the Philippine authorities 1. First generation: civil and political rights
are under obligation to make available to every 2. Second generation: economic, social and
person under detention such remedies which cultural rights
safeguards their fundamental right to liberty. These 3. Third generation: Right to development,
remedies include the right to be admitted to bail. right to peace and right to environment
(Government of Hong Kong Special Administrative
Region v. Olalia, Jr., G.R. No. 153675, April 19, 2007) Q: How are human rights classified?
Q: What are the rights of a person arrested and A:

detained in another State? 1. Individual rights
2. Collective rights (right to self-
A: determination of people; the permanent
1. Right to have his request complied with sovereignty over natural resources)
by the receiving State to so inform the
consular post of his condition Q: What are the three main instruments of human
2. Right to have his communication rights?
addressed to the consular post forwarded
by the receiving State accordingly A:
3. Right to be informed by the competent 1. Universal Declaration of Human Rights
authorities of the receiving state without 2. The International Covenant on Economic,
delay his rights as mentioned above Social and Cultural Rights
3. International Covenant on Civil and
Q: Is the retroactive application of the extradition Political Rights
treaty amounting to an ex post facto law?
Q: What is Universal Declaration of Human Rights?
A: No. In Wright v. Court of Appeals, G.R.
No.113213, August 15,1994, it was held that the A: The UDHR is the basic international statement of
retroactive application of the Treaty of Extradition the inalienable rights of human beings. It is the first
does not violate the prohibition against ex post comprehensive international human rights
facto laws, because the Treaty is neither a piece of instrument. It covers Civil and Political rights and
criminal legislation nor a criminal procedural economic, social and cultural rights.
statute. It merely provided for the extradition of
persons wanted for offenses already committed at Note: Rights covered by UDHR are customary
the time the treaty was ratified. international law, hence, even during the times the
times when the bill of rights under the constitution
i. INTERNATIONAL HUMAN RIGHTS LAW are inoperative, rights under UDHR remained in
effect. (Republic v. Sandiganbayan, G.R. No.
Q: What are human rights? 104768, July 21,2003)
A: Those liberties, immunities and benefits, which

all human beings should be able to claim “as a
262
POLITICAL LAW TEAM
Q: What are the rights guaranteed in the measures to derogate from their obligations to
International Covenant on Civil and Political the extent strictly required by the exigencies of
rights? the situation.
A: XPN: There can be no derogation from the

1. Right to self-determination following:
2. Right to an effective remedy 1. Right to life
3. Equal right of men and women to the 2. Freedom from torture or cruel, inhuman
enjoyment of all the civil and political or degrading punishment
rights 3. Freedom from slavery
4. Right to life 4. Freedom from imprisonment for failure to
5. Not to be subjected to torture or to cruel, fulfill a contractual obligation
inhuman or degrading treatment or 5. Freedom from ex post fact laws
punishment. In particular, freedom from 6. Right to recognition everywhere as a
medical or scientific experimentation person before the law
except with his consent 7. Freedom of thought, conscience and
6. Freedom from slavery and servitude religion
7. Right to liberty and security of person
8. Right to be treated with humanity and Q: What is torture?
with respect for the inherent dignity of
the human person A: It is any act by which severe pain or suffering,
9. No imprisonment on the ground of whether physical or mental, is intentionally inflicted
inability to fulfill a contractual obligation on a person for such purposes as obtaining from
10. Right to liberty of movement and him or a third person, information or a confession,
freedom to choose his residence punishing him for an act he or a third person has
11. Right to a fair and public hearing by a committed or is suspected of having committed, or
competent, independent and impartial intimidating or coercing him or a third person, or for
tribunal established by law any reason based on discrimination of any kind,
12. No one shall be held guilty of an criminal when such pain or suffering is inflicted by or at the
offense on account of any act or omission instigation of or with the consent or acquiescence
which did not constitute a criminal office, of a public official or other person acting in an
under national or international law, at the official capacity. (United Nations Convention against
time when it was committed Torture and Other Cruel, Inhuman or Degrading
13. Right to recognition everywhere as a Treatment or Punishment/UNCTO effective June 26,
person before the law 1987)
14. Right to privacy
15. Right to freedom of thought, conscience Q: What does it not include?
and religion
16. Right to freedom of expressions A: It does not include pain or suffering arising only
17. Right of peaceful assembly from, inherent in or incidental to lawful sanctions.
18. Right of freedom of association
19. Right to marry and to found a family Q: What are the obligations of the State Parties in
20. Right to such measures of protection as the UNCTO?
are required by his status as a minor,
name and nationality A:
21. Right to participation, suffrage and access 1. No exceptional circumstances
to public service whatsoever, whether a state of war or a
22. Right to equal protection of the law threat or war, internal political instability
23. Right of minorities to enjoy their own or any other public emergency or any
culture, to profess and practice their order from a superior officer or a public
religion and to use their own language. authority may be invoked as a
justification of torture.
Q: May parties derogate from their obligations? 2. No State party shall expel, return
(“refouler”) or extradite a person to
A: another State where there are substantial
GR: In times of public emergency which grounds for believing that he would be in
threatens the life of the nation and the existence danger of being subjected to torture.
of which is officially proclaimed, parties may take
263
3. All acts of torture are offenses under a 4. Where the alleged offender is present in
State Party’s criminal law. any territory under its jurisdiction and it
4. State Parties shall afford the greatest does not extradite him.
measure of assistance in connection with
civil proceedings brought in respect of Note: Nos. 1 to 3 are considered as extraditable
any of the offences offences. In the absence of an extradition treaty, the
5. To ensure that education and information UNCTO may be considered as the legal basis for
regarding the prohibition against torture extradition. Such offenses shall be treated, for the
are fully included on persons involved in purpose of extradition, as if they have been committed
the custody, interrogation or treatment of not only in the place in which they occurred but also in
any individual subject to any form of the territories of the State required to establish their
jurisdiction.
arrest, detention, or imprisonment.
6. To keep under systematic review
Q: What are the rights guaranteed under
interrogation rules, instructions, methods
International Covenant on Economic, Social and
and practices as well as arrangements for
Cultural Rights (ICESR)
the custody and treatment of persons
subjected to any form of arrest, detention
A:
or imprisonment in any territory under its
1. Right of Self Determination
jurisdiction, with a view to preventing any
2. Right to work and accompanying rights
case of torture.
thereto
7. To ensure a prompt and impartial
3. Right to Social Security and other social
investigation wherever there is
rights
reasonable ground to believe that an act
4. Adequate standard of living which
of torture has been committed
includes;
8. To ensure that an individual subjected to
5. Right to adequate housing
torture has the right complain and have
6. Right to adequate food
his case promptly and impartially
7. Right to adequate clothing
examined by competent authorities
8. Right to health
9. To ensure that the victim obtains redress
9. Right to education
and has an enforceable right to fair and
10. Cultural Rights
adequate compensation
10. To ensure that any statement established
to have been made as a result of torture j. INTERNATIONAL HUMANITARIAN LAW (IHL) AND
shall not be invoked as evidence in any NEUTRALITY
proceedings, except against a person
accused of torture as evidence that the Q: What is International Humanitarian Law (IHL)?
statement was made.
11. To prevent in any territory under its A: It is the branch of PIL which governs armed
jurisdiction other acts of cruel, inhuman conflicts to the end that the use of violence is
or degrading treatment or punishment limited and that human suffering is mitigated or
which do not amount to torture when reduced by regulating or limiting the means of
such acts are committed by or at the military operations and by protecting persons who
instigation of or with the consent of do not or no longer participate in hostilities. It is
acquiescence of a public official or other also known as the law of armed conflict or the laws
person acting in an official capacity. of war.(Magallona, Fundamentals of Public
International Law, (2005), p. 291)
Q: When may a state party establish its jurisdiction
over offenses regarding torture? Q: What are the two branches of IHL?
A: A:
1. When the offenses are committed in any 1. Law of Geneva – designed to safeguard
territory under its jurisdiction or on board military personnel who are no longer
a ship or aircraft registered in the State; taking part in the fighting and people not
2. When the alleged offender is a national of actively participating in the war.
that State; 2. Law of the Hague – establishes the rights
3. When the victim was a national of that and obligations of belligerents in the
State if that State considers it conduct of military operations, and limits
appropriate; the means of harming the enemy.
264
POLITICAL LAW TEAM
Q: What is war? of transport, stores and supplies, and, generally, all

movable property of the State which may be used for
A: It is contention between two States, through military operations. (Article 53, Laws and Customs of
their armed forces, for the purpose of War on Land (Hague II), July 29, 1899)
overpowering the other and imposing such
conditions of peace as the victor pleases. Q: What are the tests in determining the enemy
character of individuals?
Q: Is the UN Charter committed to the outlawing
of war? A:
1. Nationality test – If they are nationals of
A: Yes. Under the UN Charter, the use of force is the other belligerent, wherever they may
allowed only in two instances, to wit, in the exercise be.
of the inherent right of self-defense and in 2. Domiciliary test – If they are domiciled
pursuance of the so-called enforcement action that aliens in the territory of the other
may be decreed by the Security Council. belligerent, on the assumption that they
contribute to its economic resources.
Q: How is war commenced? 3. Activities test – If, being foreigners, they
nevertheless participate in the hostilities
A: With the: in favor of the other belligerent.
1. Declaration of war 4. Territorial or Commercial Domicile Test –
2. Rejection of an ultimatum in matters referring to economic warfare
3. Commission of an act of force regarded 5. Controlling Interest Test – this test is
by at least one of the parties as an act of applied to corporation in addition to the
war. place of incorporation test. A corporation
is considered as enemy if it:
Q: What is a declaration of war? a) Is incorporated in an enemy territory
b) Is controlled by individuals bearing
A: A communication by one State to another enemy character
informing the latter that the condition of peace
between them has come to an end and a condition Q: What is the Principle of Distinction?
of war has taken place.
A: Parties to an armed conflict must at all times
Q: What is an ultimatum? distinguish between civilian and military targets and
that all military operations should only be directed
A: A written communication by one State to at military targets.
another which formulates, finally and categorically,
the demands to be fulfilled if forcible measures are Q: Who are the participants in war?
to be averted.
A:
Q: What are the effects of the outbreak of war? 1. Combatants - those who engage directly
in the hostilities, and
A: 2. Non-combatants - those who do not, such
1. Laws of peace are superseded by the laws as women and children.
of war.
2. Diplomatic and consular relations Q: Who are regarded as combatants?
between the belligerents are terminated.
3. Treaties of political nature are A:
automatically cancelled, but those which 1. Members of the armed forces except
are precisely intended to operate during those not actively engaged in combat
war such as one regulating the conduct of 2. The irregular forces, such as the guerrillas,
hostilities, are activated. provided that:
4. Enemy public property found in the a. They are commanded by a person
territory of other belligerent at the responsible for his subordinates
outbreak of the hostilities is with certain b. They wear a fixed distinctive sign
exceptions, subject to confiscation. c. They carry arms openly; and
d. They conduct their operations in
Note: An army of occupation can only take possession accordance with the laws and
of the cash, funds, and property liable to requisition customs of war.
belonging strictly to the State, depots of arms, means
265
3. Levee en Masse –the inhabitants of belligerent occupation once control of the

unoccupied territory who, on approach or belligerent occupant is lost over the territory
the enemy, spontaneously take arms to affected.
resist the invading troops without having
had time to organize themselves, Q: When is the Principle of Postliminium applied?
provided only that they carry arms openly
and observe the laws and customs of war. A: Where the territory of one belligerent State is
4. The officers and crew members of occupied by the enemy during war, the legitimate
merchant vessels who forcibly resist government is ousted from authority. When the
attack. belligerent occupation ceases to be effective, the
authority of the legitimate government is
Q: What are armed forces as defined under R.A. automatically restored, together with all its laws, by
9851? virtue of the jus postliminium. (1979 Bar Question)
A: These are all organized armed forces, groups and Q: What is the Principle of Utipossidetis?
units that belong to a party to an armed conflict
which are under a command responsible to that A: Allows retention of property or territory in the
party for the conduct of its subordinates. belligerent’s actual possession at the time of the
cessation of hostilitites.
Q: What are the basic principles that underlie the
rules of warfare? Q: What is status quo ante bellum?
A: A: Each of the belligerents is entitled to the

1. The principle of military necessity – The territory and property which it had possession of at
belligerent may employ any amount of the commencement of the war.
force to compel the complete submission
of the enemy with the least possible loss Q: What are the “new” conflicts covered by the
of lives, time and money. IHL?
Note: Under R.A. 9851, it is the necessity of A:

employing measures which are indispensible 1. Anarchic conflicts – It is a situation where
to achieve a legitimate aim of the conflict armed groups take advantage of the
and not prohibited by IHL weakening or breakdown of the State
structures in an attempt to grab power.
2. The principle of humanity – Prohibits the 2. Those in which group identity becomes a
use of any measure that is not absolutely focal point – These groups exclude the
necessary for the purpose of the war, adversary through “ethnic cleansing”
such as the poisoning of wells. which consists in forcibly displacing or
even exterminating populations. This
3. The principle of chivalry – Prohibits the strengthens group feeling to the
belligerents from the employment of detriment of the existing national
treacherous methods, such as the illegal identity, ruling out any possibility of
use of Red Cross emblems. coexistence with other groups.
Q: How may war be terminated? Q: Differentiate (IHL) from Human Rights Law.
A: By: A:
1. Simple cessation of hostilities, without INTERNATIONAL
the conclusion of a formal treaty HUMAN RIGHTS LAW
HUMANITARIAN LAW
2. Treaty of peace Protects the individual at
3. Unilateral declaration Applies in situations of
all times in war and
4. The complete submission and subjugation armed conflict.
peace alike.
of one of the belligerents
No derogations are Some human rights
permitted under IHL treaties permit
Q: What is Postliminium?
because it was governments to
conceived for derogate from certain
A: The revival or reversion to the old laws and
emergency situations, rights in situations of
sovereignty of territory which has been under
namely armed conflict. public emergency.
266
POLITICAL LAW TEAM
Tailored primarily for human rights courts.

peacetime, and applies
Aims to protect people
to everyone. Their
who do not or are no
principal goal is to Note: IHL and international human rights law
longer taking part in
protect individuals from (hereafter referred to as human rights) are
hostilities. The rules
arbitrary behavior by complementary. Both strive to protect the lives, health
embodied in IHL
their own governments. and dignity of individuals, albeit from a different angle.
impose duties on all
Human rights law does
parties to a conflict.
not deal with the Q: What is R.A. 9851?
conduct of hostilities.
Humanitarian law A: R.A. 9851 is the Philippine Act on Crimes Against
obliges States to take States are bound by International Humanitarian Law, Genocide and
practical and legal human rights law to other Crimes Against Humanity. Its State policies
measures, such as accord national law with include:
enacting penal international
legislation and obligations. 1. The renunciation of war and adherence to
disseminating IHL. a policy of peace, equality, justice,
Implementing freedom, cooperation and amity with all
mechanisms are nations.
complex and, contrary 2. Values the dignity of every human person
to IHL include regional and guarantees full respect of human
systems. Supervisory rights
bodies, e.g. the UN 3. Promotion of Children as zones of peace
Commission on Human 4. Adoption of the generally accepted
Rights (UNCHR), are principles of international law
either based on the UN 5. Punishment of the most serious crimes of
Charter or provided for concern to the international community
in specific treaties. 6. To ensure persons accused of committing
Provide for several grave crimes under international law all
specific mechanisms rights for a fair and strict trial in
The UNCHR have
that help its accordance with national and
developed a mechanism
implementation. international law as well as accessible and
of special rapporteurs
Notably, States are gender-sensitive avenues of redress for
and working groups,
required to ensure victims of armed conflicts
whose task is to monitor
respect also by other
and report on human
States. Provision is also The application of the provisions of this Act shall
rights situations either
made for inquiry not affect the legal status of the parties to a
by country or by topic.
procedure, a Protecting conflict, nor give an implied recognition of the
Its role is to enhance the
Power mechanism, and status of belligerency.
effectiveness of the UN
the International Fact-
human rights machinery
Finding Commission. In Q: What is the effect /relevance of the passage of
and to build up national,
addition, the R.A. 9851?
regional and
International
international capacity to
Committee of the Red A: R.A. 9851 mandates both the State and non-
promote and protect
Cross (ICRC) is given a state armed groups to observe international
human rights and to
key role in ensuring humanitarian law standards and gives the victims of
disseminate human
respect for the war-crimes, genocide and crimes against humanity
rights texts and
humanitarian rules. legal recourse
information. Human
rights treaties also
provide for the Q: What is genocide?
establishment of
committees of A:
independent experts 1. Any of the following acts with intent to
charged with monitoring destroy, in whole or in part, a national,
their implementation. ethnic, racial, religious, social or any other
Certain regional treaties similar stable and permanent group such
(European and as:
American) also establish a. Killing of members of the group
267
b. Causing serious bodily or mental placed hors de combat by sickness,

harm to members of the group wounds, detention or any other cause:
c. Deliberately inflicting on the group a. Violence to life and person, in
conditions of life calculated to bring particular, willful killings, mutilation,
about its physical destruction in cruel treatment and torture
whole or in part b. Committing outrages upon personal
d. Imposing measure intended to dignity, in particular humiliating and
prevent births within the group degrading treatment
e. Forcibly transferring children of the c. Taking of hostages; and
group to another group d. The passing of sentences and the
carrying out of executions without
2. Directly and publicly inciting others to previous judgment pronounced by a
commit genocide (R.A. 9851) regularly constituted court, affording
all judicial guarantees which are
Q: May genocide be committed only during war or generally recognized as
armed conflict? indispensible.
A: No, it may also be committed in time of peace. 3. Other serious violations of the laws and
(Magallona, 2005, p. 273) customs applicable in the armed conflict
within the established framework of
Q: What are war crimes? international law, namely:
A: a. Intentionally directing attacks
1. In case of an international armed conflict, against the civilian population as
grave breaches of the Geneva such or against individual civilians
Conventions of August 12, 1949, namely not taking direct part in hostilities
any of the following acts against persons b. Intentionally directing attacks
or property protected: against civilian objects, that is,
a. Willful killing objects which are not military
b. Torture or inhuman treatment, objectives
including biological experiments c. Intentionally directing attacks
c. Willfully causing great suffering, or against buildings, material, medical
serious injury to body or health units and transport, and personnel
d. Extensive destruction and using the distinctive emblems of
appropriation of property not Additional Protocol II in conformity
justified by military necessity and with international law
carried out unlawfully and wantonly d. Intentionally directing attacks
e. Willfully depriving a prisoner of war against personnel, installations,
or other protected person of the material, units or vehicles involved in
rights of fair and regular trial a humanitarian assistance or
f. Arbitrary deportation or forcible peacekeeping mission in accordance
transfer of population or unlawful with the Charter of the United
confinement Nations as long as they are entitled
g. Taking hostages to the protection given to civilians or
h. Compelling a prisoner of war or civilian objects under the
other protected person to serve in international law of armed conflict
the forces of a hostile power; and e. Launching an attack in the
i. Unjustifiable delay in the knowledge that such attack will
repatriation of prisoners of war or cause incidental loss of life or injury
other protected persons. to civilians or damage to civilian
objects or widespread long-term and
2. In case of non-international armed severe damage to the natural
conflict, serious violation of common environment which would be
Article 3 to the four Geneva Conventions excessive in relation to the concrete
of 12 August 1949, namely any of the and direct military advantage
following acts committed against persons anticipated
taking no active part in the hostilities, f. Launching an attack against works or
including members of the armed forces installations containing dangerous
who have laid down their arms and those forces in the knowledge that such
268
POLITICAL LAW TEAM
attack will cause excessive loss of o. Pillaging a town or place, even when
life, injury to civilians or damage to taken by assault
civilian objects, and causing death or p. Ordering the displacement of the
serious injury to body or health civilian population for reasons
g. Attacking or bombarding, by related to the conflict, unless the
whatever means, towns, villages, security of the civilians involved or
dwellings or buildings which are imperative military reasons so
undefended and which are not demand
military objectives, or making non- q. Transferring, directly or indirectly, by
defended localities or demilitarized occupying power of parts of its own
zones the object of attack civilian population into the territory
h. Killing or wounding a person in the it occupies, or the deportation or
knowledge that he/she is hors de transfer of all or parts of the
combat, including a combatant who, population of the occupied territory
having laid down his/her arms no within or outside this territory
longer having means of defense, has r. Committing outrages upon personal
surrendered at discretion dignity, in particular, humiliating and
i. Making improper use of a flag of degrading treatment
truce, of the flag or the military s. Committing rape, sexual slavery,
insignia and uniform of the enemy or enforced prostitution, forced
of the United Nations, as well as of pregnancy, enforced sterilization, or
the distinctive emblems of the any other form of sexual violence
Geneva Conventions or other t. Utilizing the presence of a civilian or
protective signs under the other protected person to render
International Humanitarian Law, certain points, areas or military
resulting in death, serious personal forces immune from military
injury or capture; operations
j. Intentionally directing attacks u. Intentionally using starvation of
against buildings dedicated to civilians as a method of warfare by
religion, education, art, science, or depriving them of objects
charitable purposes, historic indispensable to their survival,
monuments, hospitals and places including willfully impending relief
where the sick and wounded are supplies
collected, provided that they are not v. In an international armed conflict,
military objectives. compelling the nationals of the
hostile party to take part in the
Note: In case of doubt, they shall be operations of war directed against
presumed not to be so used. their own country, even if they were
in the belligerent’s service before the
k. Subjecting persons who are in the commencement of the war
power of an adverse party to w. In an international armed conflict,
physical mutilation or to medical or declaring abolished, suspended or
scientific experiments of any kind, or inadmissible in a court of law the
to removal of tissue or organs for rights and actions of the nationals of
transplantation, which are neither the hostile party
justified by the medical, dental or x. Committing any of the following
hospital treatment of the person acts:
concerned not carried out in his/her i. Conscripting, enlisting or
interest, and which cause death to or recruiting children under the
seriously endanger the health of age of 15 years into the national
such person or persons armed forces
l. Killing wounding or capturing an ii. Conscripting, enlisting, or
adversary by resort to perfidy recruiting children under the
m. Declaring that no quarter will be age of 18 years into an armed
given force or group other than the
n. Destroying or seizing the enemy’s national armed forces; and
property unless such destruction or
seizure is imperatively demanded by
the necessities of war
269
iii.Using children under the age of 6. Torture – the intentional infliction of

18 years to participate actively severe pain or suffering, whether
in hostilities physical, mental, or psychological, upon a
y. Employing means of warfare which person in the custody or under the
are prohibited under international control of the accused; except that
law, such as: torture shall not include pain or suffering
i. Poison or poisoned weapons arising only from, inherent in or incidental
ii. Asphyxiating, poisonous or to, lawful sanctions.
other gases, and all analogous 7. Rape, sexual slavery, enforced
liquids, materials or devices; prostitution, forced pregnancy, enforced
iii. Bullets which expand or flatten sterilization or any other form of sexual
easily in the human body, such violence of comparable gravity
as bullets with hard envelopes
which do not entirely cover the Note: Forced pregnancy means the unlawful
core or are pierced with confinement of a woman to be forcibly
incisions made pregnant, with the intent of affecting
iv. Weapons, projectiles and the ethnic composition of any population or
material and methods of carrying out other grave violations of
warfare which are of the nature international law.
to cause superfluous injury or
unnecessary suffering or which 8. Persecution against any identifiable group
are inherently indiscriminate in or collectivity on political, racial, national,
violation of the international ethnic, cultural, religious, gender, sexual
law of armed conflict (R.A. orientation other grounds that are
9851) universally recognized as impermissible
under international law
Q: What are included in the term “other crimes
against humanity” aside from war crimes and Note: Persecution means the intentional
and severe deprivation of fundamental
genocide under R.A. 9851?
rights contrary to international law by
reason of identity of the group or
A: “Other crimes against humanity” includes any of collectively
the following acts when committed as part of a
widespread or systematic attack directed against 9. Enforced or involuntary disappearance of
any civilian population, with knowledge of the persons – the arrest detention or
attack: abduction of persons by, or with the
1. Willful killing authorization, support, or acquiescence
2. Extermination – the intentional infliction of, a State or a political organization
of conditions of life, inter alia, the followed by a refusal to acknowledge that
deprivation of access to food and deprivation of freedom or to give
medicine, calculated to bring about the information on the fate or whereabouts
destruction of a part of a population. of those persons, with the intention of
3. Enslavement – the exercise of any or all of removing them from the protection of the
the powers attaching to the right of law for a prolonged period of time
ownership over a person and includes the 10. Apartheid – Inhumane acts committed in
exercise of such power in the course of the context of an institutionalized regime
trafficking in persons, in particular women of systematic oppression and domination
and children. by one racial group/s and committed with
4. Arbitrary deportation or forcible transfer the intention of maintaining that regime.
of population – forced displacement of 11. Other inhumane acts of similar character
the persons concerned by expulsion or intentionally causing great suffering, or
other coercive acts from the area in which serious injury to body or to mental or
they are lawfully present, without physical health. (R.A. 9851)
grounds permitted under domestic or
international law
5. Imprisonment or other severe deprivation
of physical liberty in violation of
fundamental rules of international law
270
POLITICAL LAW TEAM
1. Categories of Armed Conflicts 2. Has clearly expressed an intention to

surrender
Q: What are the kinds/types of conflict as 3. Has been rendered unconscious or
contemplated in R.A. 9851? otherwise incapacitated by wounds or
sickness and therefore is incapable of
A: defending himself (R.A. 9851)
1. International Armed Conflict – between 2
or more States including belligerent Note: In these cases the person abstains from any
occupation hostile act and does not attempt to escape.
2. Non-International Armed Conflict –
between governmental authorities and Q: Who are “Protected persons” in an armed
organized armed groups or between such conflict?
groups within a State.
3. War of National Liberation - an armed A:
struggle waged by a people through its 1. A person wounded, sick or shipwrecked,
liberation movement against the whether civilian or military
established government to reach self- 2. A prisoner of war or any person deprived
determination. (Ronzitti, Cassese, 1975) of liberty for reasons related to an armed
conflict
1.a. International Armed Conflicts 3. A civilian or any person not taking a direct
part or having ceased to take part in the
Q: Differentiate between an armed conflict hostilities in the power of the adverse
contemplated under the IHL and under R.A. 9851? party
4. A person who, before the beginning of
A: hostilities, was considered a stateless
1. “All cases of declared war or any other person or refugee under the relevant
armed conflict which may arise between international instrument accepted by the
two or more of the Highest contracting parties to the conflict concerned or under
parties, even if the State of war is not the national legislation of the state of
recognized by one of them” (Article 2, refuge or state of residence
Geneva convention of 1949). It also 5. A member of the medical personnel
applies to armed conflict between the assigned exclusively to medical purposes
government and a rebel or insurgent or to the administration of medical units
movement (Article 3, Geneva convention or to the operation of an administration
of 1949). of medical transports; or
2. Under R.A. 9851, it is any use of force or 6. A member of the religious personnel who
armed violence between States or a is exclusively engaged in the work of their
protracted armed violence between ministry and attached to the armed forces
governmental authorities and organized of a party to the conflict, its medical units
groups or between such groups within a or medical transports or non-
State provided that it gives rise or may denominational, non-combatant military
give rise to a situation to which the personnel carrying out functions similar
Geneva Conventions of 12 August 1949 to religious personnel.
including their common Article 3, apply
Note: In such situations the Geneva Conventions and
Additional Protocol I apply.
Q: What are the instances that are not covered by
an armed conflict?
Q: What is suspension of arms?
A: It does not include internal disturbances or
tensions such as: A: It is a temporary cessation of hostilities by
1. Riots agreement of the local commanders for such
2. Isolated and sporadic acts of violence purposes as the gathering of the wounded and the
3. Other acts of a similar nature burial of the dead.
Q: When is a person considered a hors de combat? Q: What is armistice?
A: It is any person who: A: Suspension of hostilities within a certain area or

1. Is in the power of an adverse party in the entire region of the war, agreed upon by the
271
belligerents, usually for the purpose of arranging 1. Persons taking no active part in the
the terms of the peace. hostilities, including armed forces who
have laid down their arms and those
Q: Distinguish armistice from suspension of arms. placed hors de combat be treated
humanely, without any adverse
A: distinction founded on race, color,
ARMISTICE SUSPENSION OF ARMS religion or faith, sex, birth or wealth, or
As to the purpose any other similar criteria. To these end,
Political Military the following acts are and shall remain
As to form prohibited at any time and any place
whatsoever with respect to the
Usually in writing May be oral abovementioned persons:
As to who may conclude
Only by the a. Violence to life and person, in
commanders-in-chief of May be concluded by particular murder of all kinds,
the belligerent the local commanders mutilation, cruel treatment and
governments torture
b. Taking of hostages
Q: What is a cease-fire? c. Outrages against personal dignity, in
particular humiliating and degrading
A: It is an unconditional stoppage of all hostilities treatment
usually ordered by an international body like the d. The passing of sentences and the
United Nations Security Council. carrying out of executions without
previous judgment pronounced by a
Q: What is a truce? regularly constituted court, affording
all the judicial guarantees which are
A: It is a conditional ceasefire for political purposes. recognized as indispensable by
civilized peoples.
Q: What is a capitulation?
2. The wounded and sick shall be collected
A: It is the surrender of military forces, places or and cared for.
districts, in accordance with the rules of military
honor. Note: An impartial humanitarian body, such as the
international committee of Red Cross, may offer its
1.b. Internal or non-international Armed Conflict services to the parties to the conflict.
Q: What law applies to internal disturbances and 1.c. War of National Liberation
other situations of internal violence?
Q: What are wars of national liberation?
A: These are governed by the provisions of human
rights law and such measures of domestic A: These are armed conflicts in which people are
legislation as may be invoked. IHL does not apply to fighting against colonial domination and alien
situations of violence not amounting in intensity to occupation and against racist regimes in the
an armed conflict. exercise of their right to self-determination. [Article
1(4), Protocol I] These are sometimes called
Q: When does IHL apply in terms of non- insurgencies, rebellions or wars of independence.
international armed conflicts?
Q: What is its basis?
A: Humanitarian law is intended for the armed
forces, whether regular or not, taking part in the A: Protocol Additional to the Geneva Conventions
conflict, and protects every individual or category of of 12 August 1949 and relating to the Protection of
individuals not or no longer actively involved in the Victims of International Armed Conflicts (Protocol
hostilities. E.g.: wounded or sick fighters; people I), 8 June 1977.
deprived of their freedom as a result of the conflict;
civilian population; medical and religious personnel. Q: What are the categories on the wars for
national liberation?
Each Party to a conflict shall be bound to apply to
the following provisions: A: Its categories are:
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POLITICAL LAW TEAM
1. Colonial domination rights and their political, religious and

2. Alien occupation; and other convictions and must be protected
3. Racist regimes when the ‘people’s against all acts of violence or reprisals;
oppressed by these regimes are fighting entitled to exchange of news with their
for self-determination. families and receive aid and enjoy basic
judicial guarantees.
Note: The wars of national liberation are
restrictive in the sense that they only fall 3. Principles of IHL
under the following situations.
Q: What are the fundamental principles of the IHL?
Q: What is the effect of the said Protocol?
A:
A: Armed conflicts that fall under the categories will 1. Parties to armed conflict are prohibited
now be regarded as international armed conflicts from employing weapons or means of
and thus fall under the International Humanitarian warfare that cause unnecessary damage
Law. or excessive suffering.(Principle of
prohibition of use of weapons of a nature
2. Core International Obligations of States in IHL to cause superfluous injury or unnecessary
suffering)
Q: What are the essential rules of IHL? 2. Parties to armed conflict shall distinguish
between civilian populace from
A: combatants and spare the former from
1. The parties to a conflict must at all times military attacks.(Principle of distinction
distinguish between the civilian between civilians and combatants)
population and combatants 3. Persons hors de combat and those who
2. Neither the civilian population as a whole do not take part in hostilities shall be
nor individual civilians may be attacked protected and treated humanely without
3. Attacks may be made sole against military any adverse distinction.
objectives 4. It is prohibited to kill or injure an enemy
4. People who do not or can no longer take who surrenders or who is a hors de
part in the hostilities are entitled to combat.
respect for their lives and for their 5. The wounded and the sick shall be
physical and mental integrity and must be protected and cared for by the party who
treated with humanity, without any is in custody of them.
unfavorable distinction whatever. 6. Parties who captured civilians and
5. It is forbidden to kill or wound an combatants shall respect their rights to
adversary who surrenders or who can no life, dignity, and other personal rights.
longer take part in the fighting
6. Neither the parties to the conflict nor 3.a. Treatment of Civilians
members of their armed forces have an
unlimited right to choose methods and Q: What is the Martens clause/Principle of
means of warfare humanity?
7. It is forbidden to use weapons or
methods of warfare that are likely to A: In cases not covered by other international
cause unnecessary losses and excessive agreements, civilians and combatants remain under
suffering. the protection and authority of the principles of
8. The wounded and sick must be collected international law derived from established custom,
and cared for by the party to the conflict from the principles of humanity and from the
which has them in its power. dictates of public conscience.
9. Medical personnel and medical
establishments, transports and 3.b. Prisoners of War
equipment must be spared. The red cross
or red crescent is the distinctive sign Q: What are the rights and privileges of prisoners
indicating that such persons and objects of war?
must be respected
10. Captured combatants and civilians who A:
find themselves under the authority of 1. To be treated humanely
the adverse party are entitled to respect 2. Not subject to torture
for their lives, their dignity, their personal
273
3. Allowed to communicate with their self-defense, or enter into such international

families obligations as would indirectly involve a war.
4. Receive food, clothing, religious articles,
and medicine Note: A State seeks neutralization where it is weak and
5. Bare minimum of information does not wish to take active part in international
6. Keep personal belongings politics. The power that guarantees its neutralization
7. Proper Burial may be motivated either by balance of power
8. Group according to Nationality considerations or by desire to make the State a buffer
9. Establishment of an informed bureau between the territories of the great powers.
10. Repatriation for sick and wounded
Q: What are the rights and duties of a neutral
4. Law of Neutrality State?
A:
Q: What is neutrality?
1. Abstain from taking part in the hostilities
and from giving assistance to either
A: It is non-participation, directly or indirectly, in a
belligerent (Duty of abstention)
war between contending belligerents. This exists
2. Prevent its territory and other resources
only during war time and is governed by the law of
from being used in the conduct of
nations. Examples of these states are Switzerland,
hostilities(Right of territorial Integrity);
Sweden, The Vatican City, Costa Rica.
and
3. Acquiesce in certain restrictions and
Q: What is non-alignment (Neutralism)?
limitations the belligerents may find
necessary to impose (Duty of
A: This refers to peacetime foreign policies of
acquiescence)
nations desiring to remain detached from
4. To continue diplomatic relations with
conflicting interests of other nations or power
other neutral states and with the
groups.
belligerents (Right of diplomatic
communications).
Q: What is a neutralist policy?
Q: What are the obligations of belligerents?
A: It is the policy of the state to remain neutral in
future wars. Non-alignment is the implementation
A:
of neutralism.
1. Respect the status of the neutral State;
2. Avoid any act that will directly or
Q: How is non-alignment different from
indirectly involve it in their conflict and to
neutrality?
submit to any lawful measure it may take
to maintain or protect its neutrality.
A:
Q: What are some restraints on neutral States?
NEUTRALITY NON-ALIGNMENT
Presupposes the
A: The following are some restraints:
existence of war or Exists during peace time
1. Blockade
conflict
2. Contraband of war
Rejects imperialism and
Avoids involvement in a 3. Free ships make free goods
colonialism by the world
war
powers
Q: What is a blockade?
Evaluates the world
Pre-determined position political events based A: It is a hostile operation by means of which
on case-to-case merits vessels and aircraft of one belligerent prevent all
other vessels, including those of neutral States,
Q: When is a State considered as a neutralized from entering or leaving the ports or coasts of the
State? other belligerent, the purpose being to shut off the
place from international commerce and
A: Where its independence and integrity are communications with other States.
guaranteed by an international convention on the
condition that such State obligates itself to never
take up arms against any other State, except for
274
POLITICAL LAW TEAM
Q: What is contraband? Q: What is the Right of Angary?
A: It refers to goods which, although neutral A: By the right of angary, a belligerent may, upon
property, may be seized by a belligerent because payment of just compensation, seize, use or
they are useful for war and are bound for a hostile destroy, in case of urgent necessity for purposes of
destination. offenses or defense, neutral property found in
enemy territory, or on the high seas.
They may be absolute, such as guns or ammunition,
which are useful for war under all circumstances; Q: What are the requisites before Right of Angary
conditional, such as food and clothing, which have may be exercised?
both civilian and military utility; or under the free
list, such as medicines, which are exempt from the A:
law on contraband for humanitarian reasons. 1. That the property is in the territory under
the control or jurisdiction of the
Q: What is the doctrine of Continuous Voyage? belligerent;
2. That there is urgent necessity for the
A: The doctrine of Continuous Voyage says that taking; and
goods which are to be delivered to a neutral port 3. That just compensation is paid to the
cannot be deemed as contraband of war. owner.
Q: What is the doctrine of Infection? Q: When is neutrality terminated?
A: Innocent goods shipped with contraband may A: Neutrality is terminated when the neutral State
also be seized. itself joins the war or upon the conclusion of peace.
Q: What is the doctrine of Ultimate Consumption? k. LAW OF THE SEA
A: Goods intended for civilian use which may Q: What is the International Law of the Sea (ILS)?
ultimately find their way to and be consumed by
belligerent forces may be seized on the way. A: A body of treaty rules and customary norms
governing the uses of the sea, the exploitation of its
Q: What is the doctrine of Ultimate Destination? resources, and the exercise of jurisdiction over
maritime regimes.
A: The liability of the contraband from being
captured is determined not by their ostensible but Q: What is the United Nations Convention on the
by their real destination. Law of the Sea (UNCLOS)?
Q: What is the doctrine of “Free ships make free A: It defines the rights and obligations of nations in
goods”? their use of the world’s oceans, establishing rules
for business, the environment and the management
A: A ship’s nationality determines the status of its of marine natural resources.
cargo. Thus, enemy goods on a neutral ship,
excepting contraband, would not be subject to Q: What is the mare liberum principle or the Free
capture on the high seas. Sea or Freedom of the Sea?
Q: What is the concept of Visit and Search? A: It means international waters are free to all
nations and belongs to none of them.
A: Belligerent warships and aircraft have the right
to visit and search neutral merchant vessels on the
high seas to determine whether they are in any way
connected with the hostilities.
Q: What is unneutral service?
A: It consists of acts, of a more hostile character

than carriage of contraband or breach of blockade,
which are undertaken by merchant vessels of a
neutral State in aid of any of the belligerents.
275
1. Baselines manner as to enclose the maximum

area of water that is possible with a
Q: What is a baseline? line of that length. (Article 10 [5],
UNCLOS)
A: It is a line from which the breadth of the
territorial sea, the contiguous zone and the Note: This relates only to bays the coasts of which
exclusive economic zone is measured in order to belong to a single State and does not apply to
determine the maritime boundary of the coastal “historic” bays (Article 10 (1), UNCLOS)
State.
Q: What is a bay?
A: It is a well-marked indentation whose

penetration is in such proportion to the width of its
mouth as to contain land-locked waters and
constitute more than a mere curvature of the coast.
(Article 10 (2), UNCLOS)
Note: The indentation shall not be regarded as a bay

unless its area is as large as, or larger than, that of the
semi-circle whose diameter is a line drawn across the
mouth of that indentation. (Ibid)
2. Archipelagic States
Q: What is an archipelago?
A: It means a group of islands, including parts of

islands, interconnecting waters and other natural
features which are so closely interrelated that such
islands, waters and other natural features form an
intrinsic geographical, economic and political entity,
or which historically have been regarded as such
(Article 46, UNCLOS)
Q: How is the normal baseline determined?
Q: What is an Archipelagic State?
A: It is the low-water line along the coast as marked
on large-scale charts officially recognized by the A: A state constituted wholly by one or more
coastal state. (Article 5, UNCLOS) archipelagos and may include other islands. (Article
46, UNCLOS)
Q: How is a baseline formed in the following?
Q: What is the effect of R.A. 9522 or An Act to
A: Amend Certain Provisions of Republic Act No.
1. Mouths of Rivers – If a river flows directly 3046, As Amended by Republic Act 5446, To Define
into the sea, the baseline shall be a the Archipelagic Baseline of the Philippines and
straight line across the mouth of the river For Other Purposes?
between points on the low-water line of
its banks. (Article 9, UNLOS) A:R.A. 9522 (approved: March 10, 2009) amends
2. Bays – Where the distance between the R.A. 3046, which defines the baselines of the
low-water marks of the natural entrance territorial sea of the Philippines. The Kalayaan
points: Island Group as constituted under P.D. No. 1596
a. Does not exceed 24 nautical miles – and Bajo de Masinloc, also known as Sacrborough
closing line may be drawn between Shoal is determined as “Regime of Islands” under
these two low-water marks, and the the Republic of the Philippines consistent with
waters enclosed thereby shall be Article 121 of the United Convention on the Law of
considered as internal waters. the Sea which states:
(Article 10 [4], UNCLOS)
b. Exceeds 24 nautical miles–straight 1. An island is a naturally formed area of
baseline of 24 nautical miles shall be land, surrounded by water, which is
drawn within the bay in such a above water at high tide.
276
POLITICAL LAW TEAM
2. Except as provided for in paragraph 3, the has traditionally exercised in such waters
territorial sea, the contiguous zone, the and all rights stipulated by agreement
exclusive economic zone and the between those States shall continue and
continental shelf of an island are be respected. (Article 47[6], UNCLOS)
determined in accordance with the
provisions of this Convention applicable Q: How is the breadth of the territorial sea, the
to other land territory. contiguous zone, the exclusive economic zone and
3. Rocks which cannot sustain human the continental shelf measured?
habitation or economic life of their own
shall have no exclusive economic zone or A: They are measured from the archipelagic
continental shelf. baselines drawn. (Article 48, UNCLOS)
2.a. Straight Archipelagic Baselines Q: How does the sovereignty of the archipelagic
state extends?
Q: How may an archipelagic State draw straight
archipelagic Baselines? A: It extends to the waters enclosed by the
archipelagic baselines (archipelagic waters,
A: By joining the outermost points of the outermost regardless of their depth or distance from the coast,
islands and drying reefs of the archipelago provided to the air space over the archipelagic waters, as
that within such baselines are included the main well as to their bed and subsoil and the resources
islands and an area in which the ration of the water contained therein. (Article 49[1], UNCLOS)
to the area of the land, including atolls, is between
1 to 1 and 9 to 1. (Article 47, UNCLOS) Note: The regime of archipelagic sea lanes passage
shall not in other respects affect the status of the
Q: What are the some of the guidelines in drawing archipelagic waters, including the sea lanes, or the
archipelagic baselines? exercise by the archipelagic State of its sovereignty
over such waters and their air space, bed and subsoil
and the resources contained therein. (Article 49[4],
A:
UNCLOS)
1. The length of such baselines shall not
exceed 100 nautical miles, except that up
2.b. Archipelagic Waters
to 3 per cent of the total number of
baselines enclosing any archipelago may
exceed that length, up to a maximum Q: What are archipelagic waters?
length of 125 nautical miles. (Article 47
[2], UNCLOS) A: These are waters enclosed by the archipelagic
2. The drawing of such baselines shall not baselines, regardless of their depth or distance
depart to any appreciable extent from the from the coast. (Article 49[1], UNCLOS)
general configuration of the archipelago.
(Article 47[3], UNCLOS) Q: Does sovereignty of the archipelagic state
3. Such baselines shall not be drawn to and extend to the archipelagic waters?
from low tide elevations (Article 47[4],
UNCLOS) A: Yes, but is subject to the right of innocent
passage which is the same nature as the right of
Note: Unless lighthouses or similar installations which innocent passage in the territorial sea. (Article 49[1]
are permanently above sea level have been built on in relation to Article 52[1], UNCLOS)
them or where a low-tide elevation is situated wholly
or partly at a distances not exceeding the breath of the Q: What are the other rights by which they are
territorial sea from the nearest island. (Ibid) subject to?
4. It shall not be applied in such a manner as A:

to cut off from the high seas or the 1. Rights under existing agreement on the
exclusive economic zone the territorial part of the third states should be
sea of another State. (Article 47[5], respected; (Article 51[1], UNCLOS)
UNCLOS) 2. The traditional fishing rights and other
5. If a part of the archipelagic water of an legitimate activities of the immediately
archipelagic State lies between two parts adjacent neighboring States (Ibid)
of an immediately adjacent neighboring 3. Existing submarine cables laid by other
State, existing rights and all other States and “passing through its waters
legitimate interests which the latter State without making a windfall” as well as the
277
maintenance and replacement of such and their air space, bed and subsoil, and
cables upon being notified of their the resources contained therein.
location and the intention to repair or
replace them. (Article 51[2], UNCLOS) The fact of sovereignty, however, does not preclude
the operation of municipal and international law
Q: Does the right of innocent passage exist in norms subjecting the territorial sea or archipelagic
archipelagic waters? waters to necessary, if not marginal, burdens in the
interest of maintaining unimpeded, expeditious
A: Yes. As a rule, ships of all States enjoy the right of international navigation, consistent with the
innocent passage through archipelagic waters. international law principle of freedom of
(Article 52[1}, UNCLOS) navigation. Thus, domestically, the political
branches of the Philippine government, in the
Q: May the right of innocent passage be competent discharge of their constitutional powers,
suspended in some areas of its archipelagic may pass legislation designating routes within the
waters? archipelagic waters to regulate innocent and sea
lanes passage. (Prof. Magallona, et al. v. Ermita, et
A: Yes. But such suspension must be: al., G. R. No. 187167, Aug. 16, 2011)
1. Without discrimination in form or in fact
among foreign ships; Q: Suppose there is no municipal legislation, what
2. Essential for the protection of its security; will govern innocent passage of rights?
and
3. Shall take effect only after having been A: In the absence of municipal legislation,
duly published. (Article 52[2], UNCLOS) international law norms, now codified in UNCLOS
III, operate to grant innocent passage rights over
Q: Does RA 9522 (Philippine Archipelagic Baseline the territorial sea or archipelagic waters, subject to
Law) converting internal waters into archipelagic the treaty’s limitations and conditions for their
waters, e subjecting these waters to the right of exercise. Significantly, the right of innocent passage
innocent and sea lanes passage including is a customary international law, thus automatically
overflight, in violation of the Constitution? incorporated in the corpus of Philippine law. No
modern State can validly invoke its sovereignty to
A: Whether referred to as Philippine “internal absolutely forbid innocent passage that is exercised
waters” under Article I of the Constitution or as in accordance with customary international law
“archipelagic waters” under UNCLOS III (Article 49 without risking retaliatory measures from the
[1]), the Philippines exercises sovereignty over the international community.
body of water lying landward of the baselines,
including the air space over it and the submarine The fact that for archipelagic States, their
areas underneath. UNCLOS III affirms this: archipelagic waters are subject to both the right of
innocent passage and sea lanes passage does not
Article 49.Legal status of archipelagic waters, of the place them in lesser footing vis-à-vis continental
air space over archipelagic waters and of their bed coastal States which are subject, in their territorial
and subsoil. – sea, to the right of innocent passage and the right
1. The sovereignty of an archipelagic State of transit passage through international straits. The
extends to the waters enclosed by the imposition of these passage rights through
archipelagic baselines drawn in accordance archipelagic waters under UNCLOS III was a
with article 47, described as archipelagic concession by archipelagic States, in exchange for
waters, regardless of their depth or their right to claim all the waters landward of their
distance from the coast. baselines, regardless of their depth or distance
2. This sovereignty extends to the air space from the coast, as archipelagic waters subject to
over the archipelagic waters, as well as to their territorial sovereignty. More importantly, the
their bed and subsoil, and the resources recognition of archipelagic States’ archipelago and
contained therein. the waters enclosed by their baselines as one
xxxx cohesive entity prevents the treatment of their
4. The regime of archipelagic sea lanes passage islands as separate islands under UNCLOS III.
established in this Part shall not in other Separate islands generate their own maritime
respects affect the status of the zones, placing the waters between islands
archipelagic waters, including the sea separated by more than 24 nautical miles beyond
lanes, or the exercise by the archipelagic the States’ territorial sovereignty, subjecting these
State of its sovereignty over such waters
278
POLITICAL LAW TEAM
waters to the rights of other States under UNCLOS innocent passage in the territorial sea. (Magallona,
III. (Ibid.) 2005; Article 20 in relation to Article 53[3], UNCLOS)
2.c. Archipelagic Sea Lanes Passage Q: Is archipelagic lanes passage similar to transit
passage?
Q: What is the right of archipelagic sea lanes
passage? A: Yes. Both define the rights of navigation and
overflight in the normal mode solely for the
A: It is the right of foreign ships and aircraft to have purpose of “continuous, expeditious and
continuous, expeditious and unobstructed passage unobstructed transit.” In both cases, the
in sea lanes and air routes through or over the archipelagic state cannot suspend passage
archipelagic waters and the adjacent territorial sea (Magallona, 2005, p. 459; Articles 44 and 54,
of the archipelagic state, “in transit between one UNCLOS)
part of the high seas or an exclusive economic
zone.” All ships and aircraft are entitled to the right Q: What is the archipelagic doctrine? Is this
of archipelagic sea lanes passage. (Magallona, reflected in the 1987 Constitution?
2005; Article 53[1] in relation with Article 53[3],
UNCLOS) A: The archipelagic doctrine emphasizes the unity
of land and waters by defining an archipelago either
Q: What are included in the sea lanes and air as a group of islands surrounded by waters or a
routes? body of water studded with islands.
A: It shall traverse the archipelagic waters and the Article I, Sec. 1 of the Constitution provides that the
adjacent territorial sea and shall include all normal national territory of the Philippines includes the
passage routes used as routes for international Philippine archipelago, with all the islands and
navigation or overflight through or over waters embraced therein; and the waters around,
archipelagic waters and, within such routes, so far between and connecting the islands of the
as ships are concerned, all navigational channels, archipelago, regardless of their breadth and
provided that duplication of routes of similar dimensions form part of the internal waters of the
convenience between the same entry and exit Philippines.
points shall not be necessary.(Article 53[4],
UNCLOS) 3. Internal Waters
Q: How are sea lanes designated or substituted for Q: What are internal waters?
the purpose of archipelagic sea lanes passages?
A: These are waters of lakes, rivers and bays
A: The archipelagic State shall refer proposals to the landward of the baseline of the territorial sea.
competent international organization (International Waters on the landward side of the baseline of the
Maritime Organization). The IMO may adopt only territorial sea also form part of the internal waters
such sea lanes as may be agreed with the of the coastal state. However, in the case of
archipelagic State, after which the archipelagic archipelagic states, waters landward of the baseline
State may designate, prescribe or substitute them. other than those of rivers, bays, and lakes, are
(Magallona, 2005; Article 53[9], UNCLOS) archipelagic waters. (Magallona, p. 409; Article 8
[1], UNCLOS)
Q: How will the archipelagic sea lanes passage be
designated should the archipelagic State not Q: How is the delimitation of internal waters?
designate sea lanes?
A: Within the archipelagic waters, the Archipelagic
A: The right of archipelagic sea lanes passage may State may draw closing lines for the delimitation of
be exercised through the routes normally used for internal waters (Article 50, in relation with 9, 10, 11,
international navigation. (Article 53[12], UNCLOS) UNCLOS)
Q: Are warships, including submarines, entitled to Q: Does the coastal state have the sovereignty
the right of archipelagic sea lanes passage? over its internal waters?
A: Yes. All ships are entitled to the right. A: Yes, as if internal waters were part of its land
Submarines are not required to surface in the territory. (Magallona, p. 410; Article 50, UNCLOS)
course of his passage unlike the exercise of right of
279
Q: Is there a right of innocent passage through Q: What are the methods used in defining
internal waters? territorial sea?
A: A:
GR: No, it applies only to territorial sea and the 1. Normal baseline method – the territorial
archipelagic waters (Magallona, 2005; sea is simply drawn from the low-water
Article8[2], UNCLOS) mark of the coast, to the breadth claimed,
following its sinuousness and curvatures
XPN: A coastal state may extend its internal but excluding the internal waters in the
waters by applying the straight baseline method bays and gulfs. (Article 5, UNCLOS)
in such a way as to enclose as its internal waters 2. Straight baseline method – where the
areas which are previously part of the territorial coastline is deeply indented and cut into,
sea. It also applies to straits used for or if there is a fringe of islands along the
international navigation converted into internal coast in its immediate vicinity, the
waters by applying the straight baselines method of straight baselines joining
method. Thus, the right of innocent passage appropriate points may be employed in
continues to exist in the “extended” internal drawing the baseline from which the
waters. (Magallona, 2005; Article 8[2], UNCLOS) breadth of the territorial sea is measure.
(Article. 7, UNCLOS)
4. Territorial Sea
Note: The Philippines uses this method in
Q: What is the breadth of the territorial sea? drawing baselines.
A: Every State has the right to establish the breadth Q: Explain the right of innocent passage.
of the territorial sea up to a limit not exceeding 12
nautical miles, measured from baselines. (Article 3, A: It means navigation through the territorial sea of
UNCLOS) a State for the purpose of traversing the sea
without entering internal waters, or of proceeding
Q: What is the outer limit of the territorial sea? to internal waters, or making for the high seas from
internal waters, as long as it is not prejudicial to the
A: It is the line every point of which is at a distance peace, good order or security of the coastal State.
from the nearest point of the baseline equal to the (Articles 18 [1][2], 19[1], UNCLOS) (1991 Bar
breadth of the territorial sea. (Article 4, UNCLOS) Question)
Q: Distinguish briefly but clearly between the Q: When is the right of innocent passage
territorial sea and the internal waters of the considered prejudicial?
Philippines.
A: If the foreign ship engages in the following
A: Territorial water is defined by historic right or activities:
treaty limits while internal water is defined by the 1. Any threat or use of force against the
archipelago doctrine. The territorial waters, as sovereignty, territorial integrity or
defined in the Convention on the Law of the Sea, political independence of the coastal
has a uniform breadth of 12 miles measured from State, or in any other manner in violation
the lower water mark of the coast; while the of the principles of international law
outermost points of our archipelago which are embodied in the Charter of the United
connected with baselines and all waters comprised Nations
therein are regarded as internal waters. (2004 Bar 2. Any exercise or practice with weapons of
Question) any kind
3. Any act aimed at collecting information to
Q: Give the importance of the distinction between the prejudice of the defense or security of
internal waters and territorial sea. the coastal State
4. Any act aimed at collecting information to
A: In the territorial sea, a foreign State can claim for the prejudice of the defense or security of
its ships the right of innocent passage, whereas in the coastal State
the internal waters of a State no such right exists. 5. Any act of propaganda aimed at affecting
(Salonga & Yap, 1992) the defense or security of the coastal
State
280
POLITICAL LAW TEAM
6. The launching, landing or taking on board A:

of any aircraft 1. Submarines and other underwater
7. The launching, landing or taking on board vehicles - They are required to navigate
of any military device on the surface and to show their flag.
8. The loading or unloading of any (Article 20, UNCLOS)
commodity, currency or person contrary 2. Foreign nuclear-powered ships and ships
to the customs, fiscal, immigration or carrying nuclear or other inherently
sanitary laws and regulations of the dangerous or noxious substances – They
coastal State must carry documents and observe
9. Any act of willful and serious pollution special precautionary measures
contrary the Convention established for such ships by international
10. Any fishering activities agreements. They may be required to
11. The carrying out of research or survey confine their passage on sea lanes
activities prescribed by the coastal State. (Article
12. Any act aimed at interfering with any 23, UNCLOS)
systems of communication or any other 3. Warships –
facilities or installations of the coastal a. Coastal State may require that it
State leave the territorial sea
13. Any other activity not having a direct immediately when it does not
bearing on passage. (Article 19 [2], comply with the laws and
UNCLOS) regulations of the coastal State
and disregards compliance
Q: What are the laws and regulations of the (Article 30, UNCLOS)
coastal State relating to innocent passage that it b. Flag State shall bear
may adopt? international responsibility for
any loss or damage to the
A: It may adopt laws and regulations in respect of coastal State resulting from
all or any of the following: non-compliance with the laws
1. Safety of navigation and the regulation of and regulations of the coastal
maritime traffic State concerning passage.
2. Protection of navigational aids and (Article 31, UNCLOS)
facilities and other facilities or
installations Note: Thiswill not affect the
3. Protection of cables and pipelines immunities of warships and other
4. Conservation of the living resources of the government ships operated for non-
sea commercial purpose. (Article 32,
5. Prevention of infringement of the UNCLOS)
fisheries laws and regulations of the
coastal State Q: What is a warship?
6. Preservation of the environment of the
coastal State and the prevention, A: It is a ship belonging to the armed forces of a
reduction and control of pollution thereof State bearing the external marks distinguishing such
7. Marine Scientific research and ships of its nationality, under the command of an
hydrographic surveys officer duly commissioned by the government of
8. Prevention of infringement of the the State and whose name appears in the
customs, fiscal, immigration or sanitary appropriate service list or its equivalent, and
laws and regulations of the coastal State. manned by a crew which is under regular armed
(Article 21[1], UNCLOS) forces discipline. (Article 29, UNCLOS)
Note: it shall not however, apply to the Q: Are warships allowed innocent passage through
design, construction, manning or equipment the territorial sea?
of foreign ships unless they are giving effect
to generally accepted international rules or A: Yes. The right of innocent passage pertains to all
standards. (Article 21[2], UNCLOS) ships, including warships. (Magallona,
Fundamentals of Public International Law, (2005), p.
Q: What are the rules for the following vehicles 409)
when traversing the territorial sea through the Q: What are the duties of the coastal State with
right of innocent passage? regard to innocent passage of foreign ships?
281
A: The Coastal State shall: 1. Consequence of the crime extend to the

1. Not hamper the innocent passage of the coastal State;
foreign ships through its territorial sea; 2. Crime is of a kind to disturb the peace of
2. Not impose requirements on foreign ships the country or the good order of the
which have the practical effect of denying territorial sea
or impairing the right of innocent 3. Assistance of local authorities has been
passage; requested by the master of the ship or by
3. Not discriminate in form or in fact against a diplomatic agent or consular officer of
the ships of any State or against ships the flag State; or
carrying cargoes to, from or on behalf of 4. Measures are necessary for the
any State; and suppression of illicit traffic in narcotic
4. Give appropriate publicity to any danger drugs or psychotropic substances (Article
to navigation, of which it has knowledge, 27[1], UNCLOS)
within its territorial sea. (Article 24,
UNCLOS) Note: Such does not affect the right of the coastal
State to take any steps authorized by its laws for the
Q: What are the rights of protection of the coastal purpose of an arrest or investigation on board a
State? foreign ship passing through the territorial sea after
leaving internal waters. (Article 27[2], UNCLOS)
A: Coastal State may:
1. Take the necessary steps in its territorial Q: May civil jurisdiction be exercised by the
sea to prevent passage which is not Coastal State?
innocent; (Article 24[1], UNCLOS)
2. Take the necessary steps to prevent any A: Yes it may. Subject to the following exceptions:
breach of the conditions to which 1. It should not stop or divert a foreign ship
admission of ships to internal waters or passing through the territorial sea for the
such a call is subject; (Article 24[2], purpose of exercising civil jurisdiction in
UNCLOS) relation to a person on board the ship
3. Without discrimination in form or in fact (Article 28[1], UNCLOS)
among foreign ships, suspend temporarily 2. It may not levy execution against or arrest
in specified areas of its territorial sea the the ship for the purpose of any civil
innocent passage of foreign ships if such proceedings, save only in respect of
suspension is essential for the protection obligations or liabilities assumed or
of its security, including weapon incurred by the ship itself in the course or
exercises. (Article 24[3], UNCLOS) for the purpose of its voyage through the
waters of the coastal State. (Article 28[2],
Q: May charges be levied upon foreign ships? UNCLOS)
A: No charge may be levied upon foreign ships by Note: It is without prejudice to the right of
reason only of their passage through the territorial the Coastal State, in accordance with its
laws, to levy execution against or to arrest,
sea. (Article 26[1], UNCLOS)
for the purpose of any civil proceedings, a
foreign ship lying in the territorial sea, or
Note: Charges may be levied only as payment for
passing through the territorial sea after
specific services rendered to the ship which shall be
leaving internal waters. (Article 28[3],
levied without discrimination. (Article 26[2], UNCLOS)
UNCLOS)
Q: May criminal jurisdiction be exercised by the
Q: What is the contiguous zone?
coastal State?
A: The contiguous zone is the zone adjacent to the
A:
territorial sea, which the coastal State may exercise
GR: Criminal jurisdiction of the coastal State
such control as is necessary to (1) prevent
should not be exercised on board a foreign ship
infringement of its customs, fiscal, immigration, or
passing through the territorial sea to arrest any
sanitary laws within its territory or its territorial sea
person or to conduct any investigation in
or (2) to punish such infringement. The contiguous
connection with any crime committed on board
zone may not extend more than 24 nautical miles
the ship during its passage.
beyond the baseline from which the breadth of the
territorial sea is measured (twelve nautical miles
XPNs:
from the territorial sea [Article 33, UNCLOS).
282
POLITICAL LAW TEAM
Can be suspended Cannot be suspended

Q: Does the coastal state have sovereignty over Designation of sea
the contiguous zone? In designation of sea lanes and traffic
lanes and traffic separation schemes is
A: No, the contiguous zone is a zone of jurisdiction separation schemes, the subject to adoption by
for a particular purpose, not of sovereignty. coastal State shall only competent
(Magallona, 2005, p. 411) take account of the international
recommendations of the organization upon
Q: Is the contiguous zone appurtenant to the competent international proposal and
territory of the coastal state? organization agreement of States
bordering the straits.
A: No. The coastal state must make a claim to its
contiguous zone for pertinent rights to exist. (Ibid, Note: The coastal State may, without discrimination in
citing Article 33, UNCLOS) form or in fact among foreign ships, suspend
temporarily in specified areas of its territorial sea the
Q: What is the extent of the contiguous zone? innocent passage of foreign ships if such suspension is
essential for the protection of its security, including
A: The coastal state may not extend its contiguous weapons exercises. Such suspension shall take effect
zone beyond the 24 nautical miles from the only after having been duly published (Part II
baseline (from which the breadth of the territorial Territorial Sea and Contiguous Zone, Art. 25(3)
sea is measured) (Article 33 [1], UNCLOS) UNCLOS)
Q: What is transit passage? Q: What is the Thalweg doctrine?
A: It is the right to exercise freedom of navigation A: It provides that for boundary rivers, in the
and overflight solely for the purpose of continuous absence of an agreement between the riparian
and expeditious transit through the straits used for States, the boundary line is laid in the middle of the
international navigation, i.e., between two areas of main navigable channel.
the high seas or between two exclusive economic
zones. All ships and aircraft enjoy the right of 5. Exclusive Economic Zone
transit passage. The requirement of continuous and
expeditious transit does not preclude passage Q: What is the exclusive economic zone?
through the strait for the purpose of entering,
leaving or returning from a State bordering the A: It gives the coastal State sovereign rights overall
strait, subject to the conditions of entry to that economic resources of the sea, sea-bed and subsoil
State. (Magalona, 2005; Article 38[2], UNCLOS) in an area extending not more than 200 nautical
miles beyond the baseline from which the territorial
Q: When does Right of transit passage not sea is measured. (Magallona, 2005, p. 416; Articles
applicable? 55 & 57, UNCLOS))
A: If there exists seaward of the island a route Q: What are the rights of the coastal state in the
through the high seas or through an exclusive Exclusive Economic Zone?
economic zone of similar convenience with respect
to navigational and hydrographical characteristics. A:
(Article 38[1], UNCLOS) 1. Sovereign rights:
a. For the purpose of exploring and
Q: Distinguish the right of innocent from transit exploiting, conserving and managing
passage. the living and non-living resources in
the super adjacent waters of the sea-
A: bed and the resources of the sea-bed
Innocent Passage Transit Passage and subsoil;
Pertains only to Includes right of b. With respect to the other activities
navigation of ships overflight for the economic exploitation and
Requires submarine and exploration of the EEZ, such as
other underwater No requirement production of energy from water,
vehicles to navigate on specially applicable to currents and winds;
the surface and to show submarines 2. Jurisdictional right:
their flag a. With respect to establishment and
use of artificial islands;
283
b. As to protection and preservation of A: These are states which do not border the seas
the marine environment; and and do not have EEZ. (Magallona, 2005)
c. Over marine scientific research
3. Other rights and duties provided for in Q: What are geographically disadvantaged states?
the Law of the Sea Convention. (Article
56, Law of the Sea Convention)(2005, A: These are:
2004 Bar Question) 1. Coastal states which can claim no EEZ of
their own; and
Q: Distinguish the contiguous zone from exclusive 2. Coastal states, including states bordering
economic zone. closed or semi-closed states, whose
geographical situations make them
A: The contiguous zone is known as the protective dependent on the exploitation of the
th
jurisdiction and starts from the 12 nautical mile living resources of the EEZ of other coastal
form low water from the baseline, while the states in the region. (Magallona, 2005,
th
exclusive economic zone ends at the 200 nautical Article 70[2], UNCLOS)
mile from the baseline. In the former, the coastal
state may exercise the control necessary to (1) Q: What are the rights of land-locked states and
prevent infringement of its customs, fiscal, geographically disadvantaged states?
immigration, or sanitary laws within its territory or
its territorial sea or (2) punish such infringement; A:
while in the latter, no state really has the exclusive 1. Land-locked States shall have the right to
ownership of it, but the state which has a valid participate, on an equitable basis, the
claim on it according to the UN Convention on the exploitation of an appropriate part of the
Law of the Seas has the right to explore and exploit surplus of the living resources of the
its natural resources. (2004 Bar Question) exclusive economic zones of coastal
States of the same sub region or region,
Q: What are the two primary obligations of coastal taking into account the relevant economic
states over the exclusive economic zone? and geographical circumstances of all
States concerned. (Article 69[1], UNCLOS)
A:
1. Proper conservation and management 2. Developed land-locked States shall be
measures that the living resources of the entitled to participate in the exploitation
EEZ are not subjected to overexploitation; of living resources only in the exclusive
2. Promote the objective of “optimum economic zones of developed coastal
utilization” of the living resources. States of the same sub region or region
(Magallona, p. 417, (Article 61[2], 62[1] having regard to the extent to which the
UNCLOS) coastal State, in giving access to other
States to the living resources of its
Q: May the coastal State inspect and arrest a ship’s exclusive economic zone, has taken into
crew in its EEZ? account the need to minimize detrimental
effects on fishing communities and
A: Yes. The coastal State may board, and inspect a economic dislocation in States whose
ship, arrest a ship and its crew and institute judicial nationals have habitually fished in the
proceedings against them. Arrested vessels and zone. (Article 70[1], UNCLOS)
their crews may be required to post reasonable
bond or any other form of security. However, they Note: This is without prejudice to
must be promptly released upon posting of bond. arrangements agreed upon in sub region or
regions where the coastal State may grant to
In the absence of agreement to the contrary by the land-locked States of the same sub region or
States concerned, the United Nations Convention region equal or preferential rights for the
on the Laws of Sea (UNCLOS) does not allow exploitation of the living resources in the
imprisonment or any other form of corporal EEZ. (Article 70[4], UNCLOS)
punishment. However, in cases of arrest and
This however shall not apply in case of a
detention of foreign vessels, it shall promptly notify
coastal State whose economy is
the flag state of the action taken. overwhelmingly dependent on the
exploitation of the living resources of its EEZ.
Q: What are land-locked States? (Article 71, UNCLOS)
284
POLITICAL LAW TEAM
6. Continental Shelf Q: How are the two shelves unified?
Q: What are the two categories of continental A: The UNCLOS unifies the two shelves into one by
shelf? providing that the continental shelf extends to the
breadth of either shelf, whichever is the farthest.
A: The two categories are: (Magallona, p. 434; Article 76[1][4], UNCLOS)
1. Continental shelf
a. Geological continental shelf Q: What is the continental margin?
b. Juridical/Legal Continental Shelf
2. Extended Continental Shelf A: It is the submerged prolongations of the land
mass of the coastal state, consisting of the
continental shelf proper, the continental slope and
the continental rise. It does not include the deep
ocean floor with its ocean ridges or the subsoil.
(Article 76[3] , UNCLOS)
Q: May the Continental Shelf extend farther that

the continental margin?
A: Yes, wherever the margin does not extend

beyond the 200 nautical miles from the baseline.
(Magallona, p. 429, Article 76[1], UNCLOS)
Q: May the Continental Margin extend beyond the

200 nautical mile?
A: Yes, the coastal State shall establish the outer

edge of the continental margin wherever the
margin extends beyond the 200 nautical miles from
the baselines. In establishing the Continental
Q: What is the geological continental shelf?
Margin it shall either use:
1. A line drawn by reference to points no more
A: It comprises the entire prolongation of the
than 60 nautical miles form the foot of the
coastal state’s land mass and extends up to the
continental slope, or
outer edge of the continental margin. It starts from
2. A line drawn by reference to points at which
the baseline from which the territorial sea is
the thickness of sediments is less than one
measured and has its outer limit at the outer edge
percent of the distance to the base of the
of the continental margin which may extend
continental slope. (Article 76[4], UNCLOS)
beyond the 200 nautical miles from the baseline, or
may fall short of that distance. (Magallona, 2005, p.
Q: What is the permissible breadth of the
432)
continental shelf?
Q: What is the continental shelf (Juridical/Legal
A: Under the said UN Convention, it extends to a
Continental Shelf)?
distance not extending 200 nautical miles from the
baselines. However, if the coastal State succeeds in
A: It comprises the sea-bed and subsoil of the
its application for an extended continental shelf, it
submarine areas that extend beyond its territorial
may extend to not more than 350 nautical miles.
sea throughout the natural prolongation of its land
(Article 76[1][5], UNCLOS)
territory to the outer edge of the continental
margin or to a distance of 200 nautical miles
Note: Under Presidential Proclamation No. 370, the
beyond the baselines from which the breadth of the
continental shelf has no such legal limit. It extends
territorial sea is measured if the edge of the outside the area of the territorial sea “to where the
continental margin does not extend up to that depth of the superjacent waters admits of the
distance. (Article 76[1], UNCLOS) exploitation of such natural resources.” In this case,
exploitation of resources may go beyond the 200
Note: The rights of the Coastal State over the nautical miles.
continental shelf do not depend on occupation,
effective or notional, or on any express proclamation.
(Article 77[3], UNCLOS)
285
6.a. Extended Continental Shelf Note: State may make reasonable measures for
the prevention, reduction and control of pollution
Q: What is the Extended Continental Shelf? from pipelines. The laying of cables is limited by
the right of the coastal state to take measures in
A: It is that portion of the continental shelf that lies exploring its continental shelf, exploiting the
natural resources, and the protection of the
beyond the 200 nautical miles limit in the
marine environment from pollution. (Article 79,
juridical/legal continental Shelf. (Ibid)
UNCLOS)
Q: What is the Benham Plateau?
3. Artificial islands, installations and
structures on the continental shelf;
A: Also known as the Benham Rise, it is an area
(Article 80, UNCLOS)
currently claimed, as part of its continental shelf, by
the Republic of the Philippines. It has lodged its
Note: Exclusive right to construct, to authorize
claim on the area with the United Nations the construction, operation and use of artificial
Commission on the Limits of the Continental Shelf islands and installations. Jurisdiction is also
on April 8, 2009. (A Partial Submission of Data and exclusive. (Article 80, UNCLOS)
Information on the Outer Limits of the Continental
Shelf of the Republic of the Philippines pursuant to 4. Marine scientific research (Article 246[1] ,
Article 76(8) of the UNCLOS) UNCLOS)
Note: The UNCLOS already approved the claim of Note: May be conducted only with consent.
the Philippines that the Benham Plateau is part of Beyond the 200 nautical mile, the coastal State
Philippine Territory in April 2012. cannot withhold consent to allow research on the
ground that the proposed research project has
Q: What are the sovereign rights of a coastal State direct significance to exploration or exploitation
over the continental shelf? of natural resources. (Article 246[2][6], UNCLOS)
A: The sovereign rights include: 5. Right to authorize and regulate drilling on

the continental shelf for all purposes
1. Right to explore and exploit its natural (Article 81, UNCLOS)
resources; (Article 77[1], UNCLOS)
Note: This right is exclusive.
Note: This right is exclusive. Should the Coastal
State not explore or exploit the natural resources, Q: What is the effect of the rights of the coastal
no one may undertake these activities without State over the continental shelf on the superjacent
the express consent of the coastal State. (Article waters and airspace?
77[2], UNCLOS) Natural resources include mineral
and other non-living resources of the seabed and A: It does not affect the legal status of the
subsoil together with living organisms belonging superjacent waters or of the air space above those
to sedentary species. (Article 77[4], UNCLOS) waters and such exercise of right must not infringe
or result in unjustifiable interference with
Exploitation of the non-living resources of the navigation and other rights and freedoms of other
continental shelf beyond 200 nautical miles
States. (Article 78[1][2], UNCLOS)
would entail the Coastal State to make payments
or contributions in kind which shall be made
Q: What is an island?
annually with respect to all production at site
after the first five years of production and 1% of
the value or volume of production at the site at A: It is a naturally formed area of land, surrounded
the sixth year. It shall increase by 1% for each by water, which is above water at high tide.
subsequent year until the 12th year where it shall
remain at 7%. (Article 82[1][2], UNCLOS) Q: Is the continental shelf of an island recognized?
XPN: Developing State which is a net importer A: Yes. However, rocks which cannot sustain human
of a mineral resource produced from its habitation or economic life shall have no
continental shelf. (Article 82[3], UNCLOS) continental shelf or EEZ.
2. To lay submarine cables and pipelines on Q: What are high or open seas?
the continental shelf; (Article 79[1],
UNCLOS)
286
POLITICAL LAW TEAM
A: The waters which do not constitute the internal other than the flag-State of such vessel, in the
waters, archipelagic waters, territorial sea and following instances:
exclusive of the economic zone of a state. They are 1. A foreign merchant ship by the coastal
beyond the jurisdiction and sovereign rights of State in its internal waters, the territorial
states. (Article 86, UNCLOS) sea and the contiguous zones for any
violation of its laws.
It is treated as res communes or res nullius, and 2. A foreign merchant ship for piracy.
thus, are not part of the territory of a particular 3. Any ship engaged in the slave trade.
State. (Article 89, UNCLOS) 4. Any ship engaged in unauthorized
broadcasting.
Q: What are the freedoms of the high seas? 5. A ship without nationality, or flying a false
flag or refusing to show its flag. (Salonga
A: These are the freedom of: & Yap, 1992)
1. Navigation
2. Overflight Q: What is flag of convenience?
3. To lay submarine cables and pipelines
4. To construct artificial islands and other A: It refers to foreign flag under which a merchant
installations permitted under vessel is registered for purposes of reducing
international law operating costs or avoiding government
5. Fishing regulations.(Magallona, Fundamentals of Public
6. Scientific research (Article 87[1] in International Law, (2005), p.465)
relation to Article 90, UNCLOS)
Q: A crime was committed in a private vessel
Note: This is open to all States and shall be exercised registered in Japan by a Filipino against an
with due regard for the interests of other States in Englishman while the vessel is anchored in a port
their exercise of the freedom of the high seas. (Article of State A. Where can he be tried?
87[2], UNCLOS)
A: Under both the English and French rules, the
Q: What is flag State? crime will be tried by the local State A, if serious
enough as to compromise the peace of its port;
A: It refers to the State whose nationality the ship otherwise by the flag State, Japan if it involves only
possesses; for it is nationality which gives the right the members of the crew and is of such a petty
to fly a country’s flag. (Salonga & Yap, 1992) In the nature as not to disturb the peace of the local State.
high seas, a state has exclusive jurisdiction over
ships sailing under its flag. It is required however, Note: In the French rule, it recognizes the jurisdiction
that there exists a genuine link between the State of the flag country over crimes committed on board
and the ship. (Article 91[1], 92[2], UNCLOS) the vessel except if the crime disturbs the peace, order
and security of the host country. In English rule, the
Q: Does a flag state have the duty to render host country has jurisdiction over the crimes
assistance in distress? committed on board the vessel unless they involve the
internal management of the vessel.
A: Yes, in the sense that it shall require the master
of the ship, without serious danger to the ship, Q: When may a State exercise jurisdiction on open
crew or passengers, to render assistance to any seas?
person at sea in danger of being lost, or to rescue
persons in distress. It shall require the master to A:
assist the other ship after a collision or its crew and 1. Slave trade
passengers. (Article 98, UNCLOS) 2. Hot pursuit
3. Right of approach
Q: What laws apply to vessels sailing in the high 4. Piracy
seas?
Q: What is the duty of every State in the
A: transportation of slaves?
GR: Vessels sailing on the high seas are subject
only to international law and to the laws of the A: Every state shall take effective measures to
flag State. prevent and punish the transport of slaves in ships
authorized to fly its flag and to prevent the unlawful
XPN: However, the arrest or boarding of a vessel use of the flag for that purpose. Any slave taking
sailing in the high seas may be made by a State,
287
refuge on board any ship, whatever its flag, shall mutinied and taken control of the ship or aircraft,
ipso facto be free. (Article 99, UNCLOS) it is assimilated to acts committed by a private
ship or aircraft. (Article 102, UNCLOS)
Q: What is the doctrine of hot pursuit?
Q: Does a pirate ship or aircraft lose its
A: It provides that the pursuit of a vessel maybe nationality?
undertaken by the coastal State which has “good
reason to believe that the ship has violated the laws A: No. A ship or aircraft retains its nationality
and regulations of that State”. although it has become a pirate. (Article 104,
UNCLOS)
Q: What are the elements of the doctrine of hot
pursuit? Q: Do warships on the high seas enjoy immunity
from jurisdiction of other states?
A:Its elements are the following:
1. The pursuit must be commenced when A: Yes, they enjoy complete immunity. The
the ship is within the internal waters, jurisdiction of their flag state is exclusive. (Article
territorial sea or the contiguous zone of 95, UNCLOS)
the pursuing State, and may only be
continued outside if the pursuit has not Q: A Filipino owned construction company with
been interrupted principal office in Manila leased an aircraft
2. It is continuous and unabated registered in England to ferry construction workers
3. Pursuit conducted by a warship, military to the Middle East. While on a flight to Saudi
aircraft, or government ships authorized Arabia with Filipino crew provided by the lessee,
to that effect. the aircraft was highjacked by drug traffickers.
The hijackers were captured in Damascus and sent
Q: What is arrival under stress? to the Philippines for trial. Do courts of Manila
have jurisdiction over the case?
A: It refers to involuntary entrance of a foreign
vessel on another state’s territory which may be A: Yes. Hijacking is actually piracy, defined in People
due to lack of provisions, unseaworthiness of the v. Lol-lo (G.R. No. 17958 Feb. 27, 1922) as robbery
vessel, inclement weather, or other case of force or forcible depredation in the high seas without
majeure, such as pursuit of pirates. lawful authority and done animo furandi and in the
spirit and intention of universal hostility. Piracy is a
Q: What is piracy under the UNCLOS? crime against all mankind. Accordingly, it may be
punished in the competent tribunal if any country
A: Piracy consists of any of the following acts: where the offender may be found or into which he
1. Illegal acts of violence or detention, or may be carried. The jurisdiction on piracy unlike all
any act of depredation, committed for other crimes has no territorial limits. As it is against
private ends by the crew or the all, all so may punish it. Nor does it matter that the
passengers of a private ship or a private crime was committed within the jurisdictional 3-
aircraft and directed: mile limit of a foreign State for those limits, though
a. On the high seas, against neutral to war, are not neutral to crimes.
another ship or aircraft, or
against persons or property on 7. International Tribunal of the Law of the Sea
board such ship or aircraft
b. Against a ship, aircraft, persons Q: What is the International Tribunal of the Law of
or property in a place outside the Sea (ITLoS)?
the jurisdiction of any State
2. Act of voluntary participation in the A: It is an independent judicial body established by
operation of a ship or of an aircraft with the Third United Nations Convention on the Law of
knowledge of facts making it a pirate ship the Sea adjudicate disputes arising out of the
or aircraft; interpretation and application of the Convention. It
3. Act of inciting or of intentionally was established after Ambassador Arvido Pardo
facilitating an act described above. (Article Malta addressed the General Assembly of the
101, UNCLOS) United Nations and called for “an effective
international regime over the seabed and ocean
Note: If committed by a warship, government floor beyond a clearly defined national jurisdiction”.
ship or governmental aircraft whose crew Its seat is in Hamburg, Germany.
288
POLITICAL LAW TEAM
Q: What is the jurisdiction of the Tribunal? Q: Do members enjoy any privileges and
immunities?
A: Its jurisdiction comprises all disputes and all
applications submitted to it and all matters A: Yes, they enjoy diplomatic privileges and
specifically provided for in any other agreement immunities. (Article 10, UNCLOS)
which confers jurisdiction to the Tribunal.
Q: What is the jurisdiction of the SDC?
Q: What are the rules with regard to membership
of the Tribunal? A: The categories of its jurisdiction are the
following:
A: 1. Disputes between State Parties
1. No two members of the Tribunal may be concerning the interpretation or
nationals of the same State. (Article 3[1], application.
UNCLOS) 2. Disputes between a State Party and the
Authority concerning:
Note: Otherwise, the person shall be a. Acts or omissions of the
deemed to be a national of the one in which Authority or of a State Party
he ordinarily exercises civil and political alleged to be violations of the
rights. (Ibid) convention;
b. Acts of the Authority alleged to
2. There should be no fewer than three be in excess of jurisdiction of a
members from each geographical group misuse of power
to be established by the GA. (Article 3[2] , 3. Disputes between parties to a contract,
UNCLOS) being States Parties, the Authority or the
3. No member of the Tribunal may exercise Enterprise, state enterprises and natural
any political or administrative function, or or juridical persons concerning:
associate actively with or be financially a. Interpretation or application of
interested in any of the operations of any a relevant contract or a plan of
enterprise concerned with the work;
exploration for or exploitation of the b. Acts or omissions of a party to
resources of the sea or the seabed or the contract relating to
other commercial use of the sea or the activities in the Area and
seabed. (Article 7[1], UNCLOS) directed to the other party or
4. No member of the Tribunal may act as directly affecting its legitimate
agent, counsel or advocate in any case. interest.
(Article 7[2], UNCLOS) 4. Disputes between the Authority and a
5. No member of the Tribunal may prospective contractor who has been
participate in the decision of any case in sponsored by a State
which he has previously taken part as 5. Disputes between the Authority and a
agent, counsel or advocate for one of the State Party, a state enterprise or a natural
parties, or as a member of a national or or juridical person sponsored by a State
international court or tribunal, or in any Party
other capacity. (Article 8[1], UNCLOS) 6. Any other disputes for which the
6. If for some special reason a member of jurisdiction of the Chamber is specifically
the Tribunal should not sit in a particular provided for in the Convention. (Annex VI,
case: Subsection 2, UNCLOS)
a. Member should inform the
President of the Tribunal; Q: What are the other means established by the
(Article 8[2], UNCLOS) or Convention as alternative means for the
b. President should give the settlement of disputes?
member notice accordingly.
(Article 8[3], UNCLOS) A: Aside from the ITLOS, it also established the
International Court of Justice, an arbitral tribunal
Note: Any doubt shall be resolved by constituted in accordance with Annex VII to the
decision of the majority of other members Convention and a special arbitral tribunal
of the Tribunal present. (Article 7, 8, constituted in accordance with Annex VIII of the
UNCLOS)
Convention.
289
l. INTERNATIONAL ENVIRONMENTAL LAW Hungary for its natural environment in the region
affected by the Gabcikovo-Nagyamaros Project
Q: What is International Environmental Law (IEL)? related to an “essential interest” of the State,
within the meaning given to that expression in
A: It is the branch of public international law Article 33 of the Draft of the International Law
comprising "those substantive, procedural and Commission. (Case Concerning the Gabcikovo-
institutional rules which have as their primary Nagyamaros Project, Sept. 25, 1997)
objective the protection of the environment," the
term environment being understood as Q: What is the principle of common but
encompassing "both the features and the products differentiated responsibility?
of the natural world and those of human
civilization. (Philippe Sands, Principles of A: This principle requires the protection of specified
International Environmental Law, 2003) environmental resource or area as common
responsibility but takes into account the differing
1. Principle 21 of the Stockholm Declaration circumstances of certain States in the discharge of
such responsibilities. (Article 3[1], Framework
Q: What is the Stockholm Declaration? Convention on Climate Chage)
A: The Stockholm Declaration, or the Declaration of Q: What is precautionary principle?

the United Nations Conference on the Human
Environment, was adopted on June 16, 1972 in A: Where there are threats of serious or irreversible
Stockholm, Sweden. It contains 26 principles and damage, lack of full scientific certainty shall not be
109 recommendations regarding the preservation used as a reason for postponing cost-effective
and enhancement of the right to a healthy measures to prevent environmental degradation.
environment. (Principle 15, Rio Declaration on Environment and
Development [Rio Declaration])
Q: What does Principle 21 of the Stockholm
Declaration provide? Q: What is Polluter Pays Principle?
A: This declares that States have A: It means that the party responsible for producing
1. The sovereign right to exploit their own the pollutants must bear responsibility for
resources pursuant to their own shouldering the costs of the damage done to the
environmental policies, and environment. It is expressly stated in Principle 16 of
2. The responsibility to ensure that activities the Rio Declaration on Environment and
within their jurisdiction or control do not Development: “National authorities should
cause damage to the environment of endeavor to promote the internalization of
other States or of areas beyond the limits environment costs and the use of economic
of national jurisdiction. instruments, taking into account the approach that
the polluter should, in principle, bear the cost of
Q: Is Principle 21 of the Stockholm Declaration a pollution, with due regard to the public interest and
part of customary law? without distorting international trade and
investment.” (Principle 16, Rio Declaration)
A: Yes. The Court recognizes that the environment
is daily under threat and that the use of nuclear Q: What are the other principles of IEL set forth in
weapons could constitute a catastrophe for the the Rio Declaration?
environment. The court also recognizes that the
environment is not an abstraction but represents A:
the living space, the quality of life and the very 1. States have the sovereign right to exploit
human beings, including generations unborn. The their own resources pursuant to their
existence of the general obligation of States to own environmental policies, and the
ensure that activities within their jurisdiction and responsibility to ensure that activities
control respect the environment of other States or within their jurisdiction or control do not
of areas beyond national control is now part of the cause damage to the environment of
corpus of international law relating to the other states or of areas beyond the limits
environment. (Advisory Opinion on the Legality of of national jurisdiction (Principle 2)
the Threat or Use of Nuclear Weapons, July 8, 2. Right to development must be fulfilled so
1996). The Court has also no difficulty in as to equitably meet development needs
acknowledging that the concerns expressed by
290
POLITICAL LAW TEAM
of present and future generations Note: Environmental Modification Techniques

(Principle 3) refers to any technique for the changing through
3. In order to achieve sustainable the deliberate manipulation of natural processes
development, environmental protection the dynamics, composition or structure of the
shall constitute an integral part of the earth including its biota lithosphere, hydrosphere
development process and cannot be and atmosphere or outer space. (Article II,
considered in isolation from it. (Principle ENMOD)
4)
2. Prohibition of the employment of
Q: What is sustainable development? methods or means of warfare which are
intended, or may be expected, to cause
A: It is a development that meets the needs of the widespread, long-term and severe
present without compromising the ability of future damage to the natural environment.
generations to meet their own needs. (Brundtland (Article 35 (3) of Protocol I Additional to
Report, 1987, “Our Common Future”, World the Geneva Convention of 1949)
Commission on Environment and Development)
Q: What does pollution mean?
Q: What are the principles that embody
Sustainable Development? A: It means any introduction by man, directly or
A.: indirectly, of substance or energy into the
1. Principle of intergenerational equity – the environment resulting in deleterious effects of such
need to preserve natural resources for nature as to endanger human health, harm living
the benefit of future generations. resources, ecosystem, and material property and
2. Principle of sustainable use – the aim of impair amenities or interfere with other legitimate
exploiting natural resources in a manner uses of the environment. (Magallona, citing ILA
which is "sustainable," or "prudent," or Reports, Vol. 60, 1982)
"rational," or "wise," or "appropriate."
3. Principle of equitable use or intra
generational equity – the equitable use of
natural resources, which implies that use
by one state must take into account the
needs of other states.
4. Principle of integration – the need to
ensure that environmental considerations
are integrated into economic and other
developmental plans, programs and
projects, and that development needs are
taken into account in applying
environmental objectives. (Magallona,
citing Philippe Sands, Principle of
International Environmental Law, 2003)
Q: What rules have been developed for the

protection of the environment in armed conflict?
A:
1. Each State Party undertakes not to
engage in military or other hostile use of
environmental modification techniques
having widespread, long-lasting or severe
effects as the means of destruction,
damage or injury to any other Party State
(Article 1 of the Convention on the
Prohibition of Military or other Hostile Use
of Environmental Modification Techniques
or the Environmental Modification
Convention [ENMOD])
291

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THE CONSTITUTION

I. THE CONSTITUTION A: The provisions should be considered self-

C. AMENDMENT AND REVISION

Note: While the substance of the XPN: Proposed amendment/revision provide

Q: What is initiative? Note: The following cannot be subject of an initiative

1. Article II on "Declaration of Principles

XPNs to the XPN: Art II, Section 16-

2. Article XIII on "Social Justice and

Q: What are the symbols of nationality?

Note: Congress may, by law, adopt new symbols in

A: without the State having to do a positive act to

communities to preserve and develop their

science students, researchers, scientists, checking abuse in government. (Valmonte vs.

A: Q: What theory is applied in the Philippines?

Q: May the RTC or any court prohibit a committee

of the government for the purpose of b. Impeachment

E. CHECKS AND BALANCES 5. Determine the

d. Emergency powers must be authority and indicating the

A: or by the voice of the majority, the rightful

Q: What are the functions of the Government?

Note: Distinction of function is no longer relevant

Q: What are the classifications of government on

Q: What are the kinds of a de facto government?

III. LEGISLATIVE DEPARTMENT

Section 16(2), Article VI of the Constitution provides A:

Q. What are the requisites for validity? HOUSE OF

4. Ordinary: The power to pass ordinary 3 years, commencing at

Q: Discuss the disqualifications of members of Congress.

Q: How can members of Congress be removed A:

election prohibits same or nearly the same political

2. Each city with a population of at least

Note: GR: There must be proportional

XPN: In one city-one representative/one

a. Uniform – Every representative of

A: Note: There is absolutely nothing in R.A. 7941 that

national security or like concerns is involved in the

Q: What is the effect of change of affiliation of any

A: Any elected party-list representative who

Q: Is the continued operation of the two percent

A: No. The Minero Ruling is an erroneous Q: Can a senator-lawyer be disbarred or

Q: Is there immunity from searches? Q: What does speech or debate encompass?

Quorum is based on the proportion between those Separate Joint

Q: What does majority vote mean? INSTANCES WHEN NUMBER OF VOTES

A: No. As part of their inherent power, Congress

Q: When is the regular session of Congress? Q: What is adjournment sine die?

Q: What is a Mandatory Recess?

F.ELECTORAL TRIBUNAL AND THE

Q: Is there any remedy from its decision?

A: The members of the Commission shall be elected A:

Q: When does a bill become a law?

exercises legislative scrutiny thru its power of

A: In this particular case, the Rules of the Senate A:

A: To : Q: What is an appropriation bill?

A: Q: What is a bill of local application?

2. PROCEDURAL— Q: What are the constitutional limitations on the

bill.(Tolentino v. Sec. of Finance, G.R. No. 115455, b. Senate President

Q: What are the Constitutional rules on General Q: What is budget?

Note: The proposed budget is not final. It is subject to A: It occurs when:

2. At the request of 1/5 of the members a) Election of officers

Q: What is a rider? Q: State the conditions under which, during a

2.NON-LEGISLATIVE POWERS Q: What is the policy of the Philippines regarding

A: The Philippines renounces war as an instrument

requiring all of the office-holders’ time, as the Commander-in-Chief of the Philippine