POLITICAL LAW REVIEW JD CLASS 2016-2017
ADMINISTRATIVE LAW review
Nature and Concept of Administrative law
 Branch of Modern law – administrative
agencies came into being only in the later part
of legal systems evolution, when running the
affairs of the government became complicated
as a result of growing complexities in the
society. As the areas of governmental concern
expanded and grew complicated (with new
inventions and systems), so are the TIME and
EXPERTISE needed to address them.
Legislature and Judiciary no longer have the
time and expertise to deal with these concerns.
 NEED: Expediency
 THE SOLUTION: Delegation of Powers
Note: Modern because it is after the fundamental fields
– executive, legislative and executive. Functions that
are NOT traditional executive, legislative and judicial
BUT QUASI-legislative, judicial functions primarily.
 By the executive department – only because
delegation
 Executive is given quasi-legislative and/or
quasi-judicial powers. Cannot be
“legislative” nor “judicial” because
Administrative body is neither legislative nor
judicial body.
 Interferes with conduct of
individuals/persons- administrative agency
“regulates” conduct, and regulation is one
essence of governance. Because regulation
affects private rights, admin law also provides
for “remedies” for the violation of rights.
Note: QL issuances are in the form of police power
which basically interferes with the rights of persons
natural/juridical. Hence, important for admin law to
provide a system that affected persons may utilize as a
consequence of the regulation.
 For the promotion of public convenience or
general welfare – also calls for subordination of
private interest in favor of public. It can
therefore be observed in the study of
administrative law that the delegation of power
by the Legislature is usually delegation of
police power.
USUAL BAR EXAM QUESTIONS IN
ADMINISTRATIVE LAW:
 Explain the doctrine of Exhaustion of
Administrative Remedies. Give at least 3
exception to its application (2000) See
Nachura page 513; pg 518
 Should the motion to dismiss on the ground of
failure to exhaust administrative remedies be
granted? (2004)
 Distinguish the doctrine of primary jurisdiction
from the doctrine of exhaustion of
administrative remedies (1996) See Nachura
page 513, 515
 Does the failure to exhaust administrative
remedies before filing a case in court oust said
court of jurisdiction to hear the case? (1996)
No. The jurisdiction of the court is not affected;
but the complainant is deprived of a cause of
action which is a ground for a motion to
dismiss. HOWEVER, if no motion to dismiss is
filed on this ground, there is deemed to be a
waiver (Soto vs. Jareno, 144 SCRA 116)
 As lawyer of Jose what steps, if any, would you
take to protect his rights? (1991)
 Give 2 requisites for the judicial review of
administrative decisions/actions, that is, when
is an administrative action ripe for judicial
review? (2001, 1998) 1) Exhaustion of admin
remedies; 2) doctrine of primary jurisdiction
 Are GOCC within the scope and meaning of the
Government of the Philippines? (1997)
 When the President abolished certain offices in
the government, it was questioned for being an
encroachment of legislative powers and
therefore void. Is the contention valid? (2003)
 The harbor pilots then filed a suit to have the
new MARINA rules and regulations declared
unconstitutional for having been issued without
due process. Decide the case. (2000)
 The Secretary of DOT reversed a decision of
the LTFRB. The office of the President set aside
the decision of the Secretary. A case was filed
in CA on certiorari questioning the decision of
OP on the ground that it has no jurisdiction
over the case in the absence of any law
providing for an appeal from the DOTC to the
OP. will the case prosper? (2011)
 When is an administrative rule that fixes rate
valid? (2010, 2011)
 The Secretary of Agriculture issued a
regulation imposing the penalty of
imprisonment for 10 days, is the regulation
valid? (2011)
 Which one of the following theories does not
support the valid delegation of authority by
Congress to an administrative agency? (2010)
 What does “substantial evidence” in
administrative proceeding mean? (2010)
 Under the Admin Code, which of the following
does not come under the definition of a “rule”?
(2010)
 It contends that since its agency is attached to
the DOF, whose head, the secretary, is an
alter-ego of the President, the BOD’s acts were
also the acts of the President. Is the invocation
of the doctrine by the BOD proper? (2015)
 The Secretary of the DENR issued
Memorandum Circular No. 123-15… ABC
corporation filed a case seeking for the
nullification of the circular claiming it is
unreasonable…the DENR moves to dismiss the
case on the ground that ABC corporation has
failed to exhaust administrative remedies…IF
you were the judge, will you grant the motion?
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 POLITICAL LAW REVIEW JD CLASS 2016-2017

MAJOR AREAS IN ADMINISTRATIVE LAW

Old admin code, not specifically repealed by the
 ORGANIZATION 1987 Admin Code
 POWER OF THE AGENCIES  Comparing the 2 codes, it is apparent that the
 REMEDIES OF AFFECTED INDIVIDUALS new Code does not cover nor attempt to cover
the entire subject matter of the old Code.
Delegation of powers to administrative agencies
There are several matters treated in the old
is an exception to the doctrine of Separation of
Code which are not found in the new Code…the
Powers
new statute may merely be cumulative or a
continuation of the old one. Besides, repeals of
 The maxim of delegatus non potest delegari or
statutes by implications are not favored.
delegata potestas non potest delegari has been
(Mecano vs. COA [1192]; see also DOJ Opinion
made to adapt itself to the complexities of
No. 73 Series of 1991)
modern governments, giving rise to the
adoption, within certain limits, of the principle
of subordinate legislation, and the Court has
extended its seal of approval to the “delegation
Problem:
of greater powers by legislature” (Pantranco
vs. PSC [1940])
Under the Article 567 of the Revides Admin Code, a
 CAVEAT: an exercise of subordinate delegation
contract of lease that the Civil Aeronautics
cannot be further delegated.
Administration (CAA) will enter into must be executed:
o There has to be no total transfer of
1) the President of the Philippines, or 2) by an officer
legislative powers to executive
duly designated by him OR 3) by an officer expressly
department disturbing the principle of
vested by law. Under RA 776, however, it is the
separation of powers; Hence the 2
administrator of the CAA that is given the power to
tests. Total delegation can be
administer CAA’s property. Who should execute the
understood as a total abdication of
contract of lease involving CAA’s property?
duty reposed upon the delegate.
Answer: Admin Code is GENERAL LAW
What can Congress delegate?
Therefore, Special Laws shall prevail over provisions of
 Legislative discretion as to the substantive
the Administrative Code
contents of the law cannot be delegated.
What can be delegated is the discretion to Thus, the administrator of the CAA shall have then
determine HOW the law should be power to lease a government property of CAA despite
enforced, not what the law shall be. The a provision in the Administrative Code that it should be
ascertainment of the latter subject is a entered into by the President of the Republic, because
prerogative of the legislature. This prerogative a special law (RA 776) creating CAA gives to the
cannot be abdicated or surrendered by the Administrator that power. (Leveriza vs. IAC [1998])
legislature to the delegate. (Eastern Shipping
Lines, Inc. vs. POEA [1998]) Meaning of “Administration”
 Case of People vs. Maceren
 Internal Administration – considers the
Tests to make sure substantive content of the legal aspects of public administration as a
law is not delegated: going concern.
 Completeness test – the law must be o Personnel matters – law of public
complete in all its term and conditions when it officers
leaves the legislature such that when it  External Administration – refers to the legal
reaches the delegate the only thing he will relations between the administrative
have to do is enforce it. authorities and private interests or the public.
 Sufficient Standard Test: There must be o Administrative law proper
adequate guidelines or limitations in the law
IMPORTANT TERMS:
to map out the boundaries of the delegates
authority and prevent the delegation from
1. Department – executive department created
running riot.
by law (example: Department of Finance);
 Both tests are intended to prevent a total
2. BUREAU – principal subdivision of a
transference of legislative authority to the
department [Sec 2(8)] (Dept of Finance has
delegate. (Easter Shipping Lines vs. POEA,
Bureau of Customs, BIR);
supra)
3. Office – 1) functional office of a bureau
including regional office (Example: Bureau of
SOURCES OF ADMINISTRATIVE LAW:
Customs Office of Region VII); 2)position held
 Constitution
with functions defined by law (office of the
 Statutes creating the admin body
President, Mayor) [Sec 2(9)];
 Adm Code of 1977
4. Instrumentality – agency of the National
 Adm Code of 1917 (see Mecano Cse)
Government not integrated with the
 Case Law
Departmental Framework vested with special
 Rules and Regulations of Adm Agency; and
functions, with corporate powers, special
 Decision or orders of adm agency exercising QJ
funds, enjoying operational autonomy,
power

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 POLITICAL LAW REVIEW JD CLASS 2016-2017

including regulatory agencies, chartered 2. It will be subject to the Government

institutions and GOCCs. (Sec 2)
5. Chartered Institutions – under a special
charter, with specific constitutional objective.
6. GOCC – agency organized as a stock or non-
stock corporation vested with functions
relating to public needs whether governmental
or proprietary in nature, and owned by the
government directly or indirectly through its
instrumentality either wholly or to the extent
of at least 51% of the capital stock in the case
of stock corporation.
Note: Have to know which offices had been created by
Admin Code and which have NOT been created by
Admin Code but was made thereafter.
Scope of “AGENCY OF GOVERNMENT"
Various units of Government, including:
1. Department
a. Bureau
i. Office
Note: President’s power of control can only be
exercised in the department, bureaus and
offices only.
2. Instrumentality (not integrated in the Dept)
a. Regulatory Agencies
b. Chartered institutions
c. GOCCs performing governmental
function
d. Public corporation
Note: when law is silent whether who controls
these instrumentalities, control rests on
Congress. Hence, it is congress who can
reorganize, abolish and create offices.
3. LGUs when performing governmental function
Procurement Reform Act or RA no 9184;
and
3. It’s officers and employees will be considered
government personnel who are (a) subject to
civil service laws; (b) covered by the GSIS;
(c) Subject to Standardization Law; (d)
required to file SALN; € under the jurisdiction
of the ombudsman; and (f) subject tot eh
control of the president.
See: Memorandum Order No. 2013-42 of the
Governance Commission for Government Owned or
Controlled Corporations (created by RA 10149 which
empowers it to classify GOCCs). BSP and GSP were
declared “sui generis” GOCCS.
Bar (2003)
The President abolished the office of the presidential
spokesman in Malacanang Palace and a long standing
bureau under the DILG. The employees of both offices
assailed the action of the President for being an
encroachment of legislative powers and thereby void.
Was the contention of both offices correct? Explain.
Problem:
The president issued EO no. 01 creating the Philippine
Truth Commission (PTC). It is a special body under the
Office of President proper (OPP) tasked to investigate
reported cases of graft and corruption allegedly
committed during the previous administration (Arroyo)
and to recommend to the proper body the prosecution
of cases. The PTC shall accomplish its mission on or
before December 31, 2012. Was PTC a valid agency?

Problem: See: Biraogo Case. And previous cases like Larin and
The Boy Scout of the Philippines (BSP) was created by Kapisanan ng mga Kawani ng ERB.
CA no. 111 to “promote the ability of the boys to do
useful things for themselves and others…and to BIRAOGO CASE:
inculcate in them patriotism, civic consciousness and
Problem:
responsibility, courage, self-reliance, discipline and
A.O. No. 36 of the president directed all departments
kindred values, and moral values, using the method
of the national government to establish their
which are in common use by boys scouts.” The
respective regional offices in the Cordillera
National Executive Board of BSP no longer consists of
Administrative Region or CAR. DOTC Secretary X
several Cabinet Secretaries, except the Secretary of
issued MO no. 96-735 which directed the LTFRB
Education, under RA 7278., COA asserts jurisdiction
chairman to effect the transfer of regional functions to
over BSP contending that it is still a government
that office to the DOTC-CAR regional office pending the
agency. Is BSP still an “instrumentality” of the
creation of a regular regional LTFRB. Was the
government and therefore under COA’s jurisdiction?
memorandum validly issued? (Secretary of DOTC vs.
BSP vs. COA (2011) Mabalot)

The BSP still remains an instrumentality of the

national government. It is a public corporation (this
is declared in CA no. 111 itself) created by law for a
public purpose, attached to the DECS pursuant to its
charter and the Admin Code.

Note: Read the dissent of Carpio in this case

Effects if entity is considered government

“instrumentality” (J. Carpio’s Opinion in BSP vs.
COA)

1. Pursuant to Section 2 (11), Article IX –D of the

Constitution it will be subject to COA’s pre-
audit and not post-audit

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 POLITICAL LAW REVIEW JD CLASS 2016-2017
I. CREATION, REORGANIZATION AND ABOLITION
BASIC FACTORS TO CONSIDER:
1. Who has the authority to create, reorganize
and/or abolish administrative agencies?
2. What constitutes reorganization
abolition?
3. Assuming authority is properly vested, how
should reorganization or abolition be done?
4. What would be the effect/s of reorganization
or abolition to the officers that will be affected.
Modes of Creating Public Offices
1. Constitution
2. Laws/Statutes
3. By authority of law (as to when Congress
can delegate power In office)
a. Sec of DOTC vs. Mabalot – Ergo,
Congress can delegate the power to
the President, who can in turn “order”
his Secretary (alter-ego) to reorganize
agencies under “qualified political
agency” doctrine and “control” power.
(Supra.)
Examples of “By Authority of Law”:
 Sec of DOTC vs. Mabalot –
o GAA 1996 and 1997
o Sec 20 Book III of Admin Code gives
president residual powers
 Viola vs. Alunan III
o Sec 493 of LGC 1991 allows the BOD of
the Liga to “create such other positions
as may be deemed necessary for the
management of the chapter(s)”
Note: Main issue on reorganization is the abolition.
Before Biraogo case – that authority of President to
reorganize (which includes to create or abolish offices)
is continuing.
PROBLEM: Issue in Eugenio vs. CSC
The Career Executive Service Board (CESB) created by
PD NO. 1 on September 1, 1974 as an attached agency
to the Civil Service Commission (CSC). The CSC
abolished the CESB invoking Sec 17, Title 1, Subtitle A,
Book V of the Admin Code of 1987 which confers on
the Commission the power and authority to effect
changes in its organization as the need arises. Was the
abolition of the CSC of CESB valid?
Answer: Note that the power to create the office
comes with it the power to abolish the same. If created
by Constitution, the constitution has to be changed. If
by law, only congress can abolish it. Presidential
Decrees are statutory enactments in times of
emergency. PDs are similar to statutes hence, a law
still. Hence, CESB can be abolished by LAW only. CSC
abolished CESB not by a law but by the CSC. The
abolition was not valid.
Creation, Reorganization and Abolition of Office
is PRIMARILY A LEGISLATIVE FUNCTION
(Eugenio vs. CSC)
 Thus: where agency is created by LAW: only
Congress can abolish it. If created by
constitution, only a constituent act can abolish
it (amendment).
or
 Conversely, where another one is “authorized”
by law to create, then it can also abolish,
UNLESS intention of Congress is otherwise.
QUESTION: (Biraogo case)
Can the president create an office? Why or why not?
ANSWER:
 Sec 31, Chapter 10 Title III of the Admin Code
 IT DEPENDS on which type of office the
President it can create; and even the length of
time (ad hoc or permanent)
 The Executive is given much leeway in
ensuring that our laws are faithfully executed.
The powers of the President are not limited to
those specific powers under the Constitution.
One of the recognized powers of the President
granted pursuant to this constitutionally-
mandated duty is the power to create ad hoc
committees. This flows from the obvious need
to ascertain facts and determine if laws have
been faithfully executed. The purpose of
allowing ad hoc investigating bodies to exist is
to allow an inquiry into matters which the
President is entitled to know so that he can be
properly advised and guided in the
performance of his duties relative to the
execution and enforcement of the laws of the
land.
PRESIDENT’S POWER TO CREATE OFFICES
(BIRAOGO VS. PTC, DEC 2010)
 Subsumed in President’s Power to Reorganize
“already existing” offices within the Office of
the President Proper (OPP);
 Limited to:
o Internal reorganization within OPP
o Transferring function of unit of OPP to
a dept/agency or vice versa;
o Transferring agency of OPP to
Dept/Agency or vice-versa per Sec 31,
title III of the Admin Code
o If you read Sec 31 – you cannot
conclude that President is empowered
to create a NEW office.
 Creation of NEW office NOT included
 Creation of AD HOC OFFICE/COMMITTEE
can only be justified under Faithful Execution
Clause (Sec 12, Article 7 Constitution) and
Power to Investigate, and NOT under power of
control.
 Cabinet secretaries not a part of OPP; they are
offices in the executive department
SEC 31, chapter 10, TITLE III, ADMIN CODE
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 POLITICAL LAW REVIEW JD CLASS 2016-2017
“Sec 31. Continuing Authority of the President to
Reorganize his Office – The President, subject to the
policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative
structure of the Office of the President. For this
purpose, he may take any of the following actions: (1)
Restructure the internal organization of the Office of
the President Proper, including the immediate offices,
the Presidential Special Assistances/Advisers System
and the Common Staff Support System, by abolishing,
consolidating or merging units thereof or transferring
functions from one unit to another; (2) Transfer any
function under the Office of the President to any other
Department or Agency as well as transfer functions to
the Office of the President from other Departments and
Agencies; and (3) Transfer any agency under the office
of the President to any other department or agency as
well as transfer agencies to the Office of the Presidents
from other departments and agencies.“
WHAT DOES “REORGANIZATION” INCLUDE?
 Group, consolidate, bureaus and agencies to
abolish offices, to transfer functions, to create
and classify functions, services and activities
and to standardized salaries and materials
 The president is authorized to effect
organizational changes including the creation
of offices in the department or agency
concerned. (Larin vs. Exec Sec [1997]; Banda
vs. Ermita [2010]; note: that the President can
create offices in the department is not
anymore true per Biraogo vs. PTC case [2010]
President’s power to Reorganize
 Sec 31, Book III of the 1987 Admin Code
(Continuing Authority of the President)
[limited to OPP only and limited to transfer of
functions from OPP to Dept/Agency and vice
versa as per Biraogo case]
 Continuing Authority of the president to
reorganize also implied in GAA
 Sec 20 Book III of the 1987 Admin Code
(Residual Powers)
 President’s Control Power over DEPARTMENT,
BUREAUS AND OFFICES under the 1987
Constitution (See Bagaoisan vs. National
Tobacco Authority[2013])
PROBLEM (NLTDRA vs. CSC)
X, an LLB Graduate, was appointed Deputy RD VIII. EO
649 restructured the LRC to National Land Titles and
Deeds Registration Administration and regionalized the
offices of the registers therein. All position in the LRC
were abolished and new positions were created in the
NLDTRA. The position of Deputy not requires that the
holder MUST be a lawyer. May X validly claim that he
should remain as Deputy of Register of Deeds VII?
ANSWER: There is no such thing as vested right in
holding a public office.
May an Office be abolished?
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“Nothing is better settled in our law than that the
abolition of an office within the competence of a
legitimate body if done in good faith suffers from
no infirmity…valid abolition of offices is neither removal
nor separation of the incumbents.” (De La Llana vs.
Alba, 112 SCRA 294)
How to validly effect REORGANIZATION (AND
ABOLITION)
1. By legitimate body or officer and
2. Done in good faith; In determining “good
faith”:
a. Economy
b. Efficiency
When IS THERE ABOLITION?
PD 1341 did not abolish but only changed, the former
Philippine College of Commerce into was is not the
Polytechnic University of the Philippines. What took
place was a change in academic status of the
educational institution, not its corporate life.
When the purpose is to abolish a department or an
office or an organization and to replace it with another
one, the lawmaking authority says so. (Crisostomo
vs. CA, 1996)
However, Crisostomo was not reinstated because his
term was for 6 years together with the President and
the office of the latter was already changed with a new
president
What does “abolition” include?
It includes the creation of an office different from
the one abolished, even though it embreaces all
or the some of the duties of the old office, AND it
will be considered as a abolition of one office and
the creation of a new or different one. The same is
true if one office is abolished and its duties, for
reasons of economy are given to an existing officer or
office. (National Land Titles and Deeds Registration
Adm vs. Civil Service Commission, 1993)
1. Outright abolition
2. Abolished old office and new one was created
NOTE:
Larin and Kapisanan case – an office was abolished
and a new one was created. Common Denominator of
both cases, the new offices created absorbed the
functions of the abolished office. In Larin, the abolition
was invalid. In Kapisanan, there was valid abolition.
Examples of Abolition in BAD FAITH
In Larin vs. Executive Secretary:
1. For political reasons and purposely to defeat
the security of tenure
2. Involves a mere change of nomenclature of
positions or where the agency has created
additional office performing the same functions
as the one already abolished.
3. Claim of economy is belied by the existence of
ample funds
4. NOT Observing Secs 2 & 3 or Civil Service Law
(RA 6656)
Sec 2 of the Civil Service Law (badges of bad
faith)
 POLITICAL LAW REVIEW JD CLASS 2016-2017
1. When there is a significant increase in the
number of positions in the new staffing apttern
of the department or agency
2. Where an office is abolished and other same
performing offices are created
3. Where incumbents are replaced by those less
qualified in therms of status of appointment,
performance and metir
4. Where there is a reclassification of offices in
the department or agency concerned and the
reclassified officers perform substantially the
same function as the original offices
5. Where the removal violates the order of
separation provided in Sec 3 thereof.
(See: Kapisanan ng mga Kawani ng ERB vs. Barin
[1997])
Sec 3, CSL – In the separation of personnel
pursuant to reorganization, the following order
of removal shall be followed:
1. Casual employees with less than 5 years of
govt service
2. Casual employees with 5 years or more govt
service
3. EEs holding temporary appointments AND
4. EEs holding permanent appointments provided
that those in the same categories, those are
least qualified in terms of performance and
merit shall be laid first, length of service
notwithstanding.
Question:
Is the creation of a new office after the abolition of an
office valid where the newly created office assumes of
absorbs the same functions of the abolished office?
Answer: It depends. Creation of new office may either
absorb of the functions of the abolished office. If new
functions are added to the newly created office (to
make it more efficient and effective and more
responsive) then it’s not necessarily an invalid abolition
of an office.
Larin vs. Executive Secretary distinguished from
Kapisanan ng mga Kawani ng ERB vs Barin
 In Larin, the subject EO provided that: “The
intelligence and investigation office and the
inspection service are abolished. An
intelligence and investigation service is hereby
created to absorb the same functions of the
abolished office and service”
 SC held that the abolition was invalid.
 In Kapisanan – “the overlap in the functions
of the ERB and of the ERC does not mean that
there is no valid abolition of the ERB. The ERC
has new and expanded functions which are
intended to meet the specific needs of a
deregulated power industry.”
 In National Land Titles and Deeds
Registration Administration vs. CSC, the
SC said: “If the newly created office has
substantially new, different or additional
functions, duties or powers, so that it may be
said in fact to create an office different from
the one abolished, even though it embraces all
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or some of the duties of the old office it will be
considered as an abolition of one office and the
creation of a new or different one. The same is
true if one office is abolished and its duties, for
reasons of economy are given to an existing
officer or office.”
Basic Issue in reorganization and abolition of
offices:
May a public officer validly claim violation of security of
tenure if an office is abolished as a result of abolition?
Depends on the validity of abolition.
 IF VALID – (that is, with authority and done
in good faith) no violation of security of tenure
because there’s no tenure to speak of in the
first place. Tenure presupposes an existence of
an officer.
 IF INVALID – (that is, without authroity or
with authority but done in bad faith) there is
violation.
Abolition of an office and its related positions is
different from removal of an incumbent from his office.
Abolition and removal are mutually exclusive concepts.
From a legal standpoint, there is no occupant in an
abolished office. Where there is no occupant, there is
no tenure to speal of. Thus, impairment of the
constitutional guarantee of security of tenure
does not arise in the abolition of an office. On the
other hand, removal implies that the office and its
related positions subsist and that the occupants are
merely separated from their positions. (Kapisanan ng
mga Kawani ng ERB vs. Barin [2007])
May an official of an abolished office claim
VESTED RIGHT?
 There is no such thing as vested interest
or an estate in an office, or even an
absolute right to hold it. Except
constitutional offices which provide for special
immunity as regards salary and tenure, no
one can be said to have any vested right
in an office or its salary. (National Land
Titles and Deeds Registration Administration
vs. Civil Service Commission)
What will happen to acts of agencies that are
abolished?
 Although RA 650, creating the Import Control
Commission, expired on July 31, 1953, it is to
be conceded that its duly executed acts can
have valid effects even beyond the life span of
said government agency. (Cebu United
Enterprises vs. Gallofin)
II. PRESIDENT’S POWER OVER ADMINISTRATIVE
AGENCIES
Note of the following concepts:
 Executive power Alter-ego doctrine
 Qualified political agency doctrine
 Single executive
Alter-ego, qualified political agency doctrine
and single executive have the same import.
 Control
 Supervision
 POLITICAL LAW REVIEW JD CLASS 2016-2017
 Control and supervision
 Administrative relationships of
supervision and control
 Administrative supervision
 attachment
Executive Power
 defined in the case of Marcos vs. Maglapus.
Executive power is the sum total powers
enumerated in the constitution and those are
not part of the legislative and judicial power.
Alter-ego Doctrine, Qualified Political Agency,
Single Executive
 Executive power shall be vested in the
President of the Philippines (sec 1, Art VII)
 All offices in the executive department must be
considered mere adjuncts to the President
 In general, the act of the secretary is
presumptively the act of the President,
UNELSS revoked or reprobated;
 One need not bring the case to the Office of
the President under Qualified Political Agency
Doctrine.
 NOTE: Where the particular Agency’s rules
provide for a mode of appeal to the OP, then
the last resort is the OP, and the alter-ego
doctrine as exception to the doctrine of prior
exhaustion of administrative remedies shall not
apply.
o Example: 1) Director of lands decisions
approved by the Secretary of DENR are
appealed to OP; 2) HLURB’s decisions
are to be appealed to the OP
Questions:
1) May the executive secretary, acting by
authority of the President, reverse a decision of
the Director of Lands that had been affirmed
by the Secretary of Agricultural and Natural
resources? Without the president doing
anything, whether disapproving or approving,
the rule is that the act of the executive
secretary performs an act by authority of the
president, the act of the executive secretary
IS the act of the president. BUT if we talk
about of the act of the exec secretary as alter-
ego, it is presumptively the act of the
president. Eitherway, it can both be undone by
the President.
a. In Lacson vs. Magallanes case, it
cannot be argued that the President
cannot undo the act of his Department
Secretary. The Alter-ego Doctrine
simple means that thea ct of the
Department Secretary is
presumptively that of the
President, hence, the President
himself may say otherwise.
2) Congress passed the Fisheries Code and
specifically empowered the Secretary of
Agriculture to issue rules and regulations
affecting prohibited forms of fishing, including
trawl fishing. May the President issue an EO
banning trawl fishing?
a. In Araneta vs. Gatmaitan (1957) case,
the president can ban trawl fishing.
The authority granted to the secretary
7
is statutory BUT the president’s power
to control is constitutional. Hence, he
can take over from him such authority
and issue the EO to exercise it.
CONTROL: Department, Bureaus and offices
 The president has control over
Departments, Bureaus or Offices (under Admin
Code). President’s control power is absolute
and may not be limited, much less withdrawn,
by the legislature. (De Leon vs. Carpio)
 As for all others that may be created by
law, Congress has control, unless the
constitution or law provides otherwise.
Thus, in Carpio vs. Executive Secretary, it was
intended by Constitution that the National
Police Commission, although created by law,
was to be under the President’s control and
that NPC was not intended to be independent.
PROBLEM
The Safeguard Measure act (RA 8800) states: “The
Secretary (DTI) shall apply a general safeguard
measure upon a positive final determination of the
Tariff Commission that a product is being imported into
the country in increased quantities, whether absolute
or relative to the domestic production, as to be a
substantial cause of serious injury or threat thereof to
the domestic industry; however, in the case of non-
agricultural products, the Secretary shall first
established that the application of such safeguard
measures will be in the public interest.” May the
Secretary, nonetheless, impose import quotas despite
a negative finding by the Tariff commission?
Southern Cross vs. Cement Manufacturers (2005)
 Note however that the President’s control
power over departments may still be limited by
Congress in matters which the President
exercises “delegated authority” only, such as
the fixing of tariff’s rate (because in this case
tariff rate fixing is essentially legislative
because it involves taxation power.)
 Hence, it cannot be argued that an executive
department (DTI) cannot be bound by the
decision of a commission (Tariff Commission)
which is created by law. In any case, Congress’
will shall prevail.
 Here in the Southern Cross case, the
Safeguard Measures Act (RA 8000) expressly
provides that it is ONLY upon a positive finding
of threat or danger to domestic industry (by
the Tariff Commission) that safeguard
measures (import quotas, etc) may be adopted
by the DTI Secretary.
Beja vs. Court of Appeals
ISSUE: Philippine Ports Authority (PPA) was attached
to the Department of Transportation and
Communication (DOTC). Over personnel matters, does
DOTC Secretary have jurisdiction over PPA?
RULING: As to management of personnel, an
attached agency is generally free from
departmental control and interference.
(Necessarily so because interfering with personnel
 POLITICAL LAW REVIEW JD CLASS 2016-2017
matter is not necessary in achieving “policy and
program coordination” which is the essence of the
relationship of “attachment”). (See: Sec 38. Chapter 7,
Book IV)
ATTACHMENT: Sec 38, Chapter 7, Book IV
(3) Attachment – (a) This refers to the lateral
relationship between the department or its equivalent
and the attached agency or corporation for purposes
of poly and program coordination. The coordination
may be accomplished by having the department
represented in the governing beard of the attached
agency or corporation, either as chairman or as a
member, with or without voting rights, if this is
permitted by the charter; having the attached
corporation or agency comply with a system or
periodic reporting which shall reflect the progress of
programs and projects; and having the department or
its equivalent provide general policies through its
representative in the board, which shall serve as the
framework for the internal policies of the attached
corporation or agency;
PROBLEM
1) A decision of a Department Secretary was
elevated to the Office of the President. The
President nullified and reversed the decision of
the Secretary. Thereafter, X, the aggrieved
party, went to ta regular court and sought to
nullify and set aside the decision of the
President. The Solicitor General argued that
the Court cannot reverse the decision of the
President because he was exercising the power
of control over his subordinates.
2) XYZ Transit applied for an increase in bus fares
for the route of Moon Municipality to Sun City
invoking increase in fuel expenses and updated
fare rates in the route that is served only by
XYZ transit. The LTFRB denied its application,
XYZ elevated the decision to the DOTC
Secretary who reversed the decision of the
LTFRB and granted XYZ/s application. The
Secretary’s decision became final and
executory. The President, however, reversed
and set aside the decision of the Secretary
invoking his Power of Control over his
subordinated.
CAVEAT: President’s Control Power CANNOT
reverse a final decision of QJ body:
The president’s power of control does not apply to
reviewing, modifying or setting aside a decision of a
subordinate official or body exercising quasi-judicial
power after the decision has become final pursuant to
law or the rules issued to implement it. (Antique
Sawmills, Inc vs. Zayco, 17 SCRA 316; Macailing vs.
Andrada, 31 SCRA 126)
Where an agency is given quasi0judicial functions,
there will be rules promulgated by that admin agency.
The rules which will have force and effect of law will
provide the period that makes it final and executory.
President’s Power of Control extends only to the
“act”, not to the person, of the subordinate
8
 He may not, by his control power, suspend or
remove the official concerned without due
process, except those officials who serve at his
pleasure (e.g. cabinet secretaries and other
presidential appointees who belong to the non-
competitive or unclassified service of the
government. (Ang-Angco vs. Castillo, GR no.
L-17169, November 30, 1963)
Note: While the president has power of control over
secretaries and officers within the executive
department, in so far as removal or discipline of a
public official is concerned, the president has authority,
to remove these officials UNLESS the law provides
otherwise. Under CS Law, those belonging to the civil
service can only be removed with just cause.
Presidential appointees, serving at the pleasure of the
president, may be removed without just cause.
Exception – although appointed by the President, they
are still classified under the civil service.
 The power of control of the President may
extend to the power to investigate,
suspend or remove officers and
employees who belonged to the executive
department if they are presidential
appointees or do not belong to the
classified service, for such can be justified
under the principle that the power to remove is
inherent in the power to appoint. With regard
to those officers whose appointments are
vested on heads of depts., Congress has
provided by law for a procedure for their
removal precisely in view of this constitutional
authority. One such law is the Civil Service Act
of 1959. (Note: Angco vs. Castillo case
involved a Collector of Customs, appointed not
by the President but by the Secretary of
Finance per provision of law.)
Administrative Relationships
 Supervision and control
 Administrative supervision
 Attachment
See: Sec 38, Chapter 7 Book IV of the 1987 Admin
Code
FUNDAMENTAL POWERS OF THE
ADMINISTRATIVE AGENCIES
1. Quasi-Legislative
2. Quasi-Judicial
3. Implied Powers
Definitions, Distinction of terms
 Legislation – plenary (full or unqualified
subject only to constitutional and inherent
limitations), discretion as to WHAT the law
shall be. This discretion cannot be delegated.
 Quasi-Legislative (QL) – qualified, subject to
statutory and constitutional limitations,
discection as to HOW the law shall be
enforced. This discretion can be delegated.
 Other terms for QL: subordinate legislation;
rule-making power
 POLITICAL LAW REVIEW JD CLASS 2016-2017

 Judicial power – adjudication of controversy administrative agency is exercising quasi-judicial

by determining rights or duties by the functions. If it is quasi-legislative act, then prior
application of law; interpretation of law is exhaustion of admin remedies it not proper.
conclusive
 Quasi-Judicial (QJ) – involves determination 1) How do you distinguish between quasi-
of facts in a judicial manner (power involves legislative (QL) functions and quasi-judicial
reception of evidence, evaluation of evidence, functions?
determination of facts based on evidence, and
2) Why is it important to distinguish between QL
application of law to the facts of the case to
and QJ functions?
determine rights and duties/obligations of
specific parties); interpretation of law is
QUASI-LEGISLATIVE QUASI-JUDICIAL
initial; Prospective Retrospective
General Application Specific Parties Involved
BUT WHY GRANT AGNECY QJ FUNCTIONS?
(individual) Notice and Notice and Hearing (in
Hearing (in court) NOT court) required
 Since the implementation of law requires required; ONLY REQUIRES
understanding of the law, administrative PUBLICATION, as a
agencies should also be authorized to interpret general rule (Tanada vs.
the law and apply it to the given condition or Tuvera)
set of facts
 There is need for the active intervention of In rate fixing: Required
that ALL persons are
administrative agencies in matters calling
given the chance to air
for technical knowledge and speed in out their side after proper
countless controversies notice – like public
 In this era of clogged dockets, the need for hearing.
specialized knowledge, expertise and capability No need for prior Sets different
to hear promptly disputes on technical matters exhaustion of requirements for resort to
has become indispensible. administrative remedies court: Doctrine fo prior
exhaustion of
administrative remedies
PROBLEM
applies (See: Smart v.
XYZ company, a public utility company, applied for NTC)
upward adjustment of its rates before the LTFRB. In QL, RTC generally. QJ decisional are,
Pending the petition, LTFRB, without previous hearing generally brought to the
granted a general nationwide provisional increase of CA/SC because QJ
rates in an order dated June 20, 2015 (1st order). agencies are deemed
LTFRB then required XYZ and opposites to present equal in rank with RTC
evidence within a period of 15 days after which the
application shall be submitted for resolution. The
IMPLIED POWERS
LTFRB denied XYZ’s application in an order dated
August 3, 2105 (2nd order). What functions of an  Determinative Powers – Enabling powers,
administrative agency are involved in this case? directing powers, dispensing powers,
examining powers, summary powers
 1st order – quasi-legislative
 Implied Powers – implied from express
 2nd order – quasi-judicial
powers, such as the power to promulgate rules
of procedure by a QJ body. (Doctrine of
BAR (2000)
Necessary Implication)
The maritime industry authority (MARINA) issued new o Laws develop and are flexible.
rules and regulations governing pilotage services and Congress cannot anticipate each and
fees and the conduct of pilots in PH ports. This it did every condition to which a particular
without notice, hearing nor consultation with harbor law may be applied. It’s impossible to
pilots or their associations whose rights and activities foresee and anticipate each and every
are to be substantially affected. The harbor pilots then condition. So implied powers are
filed suit to have the new MARINA rules and important to adapt to such conditions.
regulations declared unconstitutional for having been
CONSTRUCTION – how should the exercise of
issued without due process. Decide the case.
powers of admin agencies construed, liberally or
BAR 2015 strictly?

The secretary of the DENR issued MO 123-15..ABC
Corp filed a case in court seeking for its nullification
claiming it as unreasonable. The DENR moves to
dismiss the case on the ground that ABC Corporation
has failed to exhaust administrative remedies…If you
were the judge, will you grant the motion?
Note: Rule is that there are 2 important principles
when it comes to judicial review: 1) exhaustion of
admin remedies and 2) primary jurisdiction. Note,
however, no. 1 is only applicable only when the
 Matienzo vs. Abellana case – “the authority
should be liberally construed in the light of the
purposes for which it was created, and that
which is incidentally necessary to a full
implementation of the legislative intent should
be upheld as being germane to the law.”
o If the liberal interpretation carries out
the very purpose of law – then it
should be adopted especially when the
strict interpretation will defeat its
purpose.

9
 POLITICAL LAW REVIEW JD CLASS 2016-2017

 But, Azarcon case says: “…while the BIRR and
authority to require Petitioner Azarcon to sign
a receipt for the distrained truck, the NIRC did
not grant it power to appoint Azarcon as public
officer” Admin bodies have only the powers
expressly granted or necessarily implied in the
exercise thereof. (strictly?)
 NOTE:
o In Maitienzo, the existence of the
power was not disputed. The issue was
whether or not the power can still be
exercised agter a period mentioned by
the law
o In Azarcon, the main issue is whether,
in the 1st place, the power exists.
Unlike constitutional bodies,
administrative agencies must
locate in the statue relied upon a
grant of power (express or
implied) before it can exercise it.
PROBLEM
The pollution adjudication board (PAB) of the DENR
was created in order to “regulate and adjudicate
pollution cases”
adjudge cases, should normally and logically be
deemed to include the grant of authority to
enforce or execute the judgments it thus
renders, UNLESS the law otherwise provides.
LIMITATION to the DOCTRINE OF NECESSARY
IMPLICATION
Caveat: The DOCTRINE of necessary implication does
not authorize the exercise of powers greater
than the express powers.
While we can infer or imply form express powers, the
implied powers SHOULD not be greater than the
powers expressly granted.
o Power to investigate was granted, adjudication
of the information gathered from investigation
is GREATER than the power expressly granted.
See: Carino vs. CHR
o Power to regulate does not include the power
to prohibit

1. May the PAB issue rules of procedure? YES. QUASI-LEGISLATIVE POWER

Implied from the power to adjudicate
2. May the PAB divide itself into several divisions  The doctrine of “Subordinate Legislation”.
even if the law does not provide for such While the making of laws is a non-delegable
power? See: Realty Exchange Venture Corp activity that correspondents solely to
vs. Sendino Congress, nevertheless the latter may
constitutionally delegate authority to
Realty Exchange Venture Corp vs. Sendino promulgate rules and regulations to
implement a given legislation and
Rules of procedure of admin bodies should be liberally effectuate its policies, because the
construed in order to enable it to effectively exerise its legislature often finds it impracticable (if not
function. Even if the law does not expressly provide for impossible) to anticipate and provide for the
it, a QJ body may divide itself into several divisions multifarious and complex situations that may e
and assign to it the power conferred upon the body. met in carrying the law into effect. (People vs.
Applying the doctrine of necessary implication. Exconde)

3. May the PAB issue a Cease and Desist Order
even if the law is silent on whether the PAB
has this power? YES. Necessary implication
from the power to regulate. See: Laguna Lake
Development Authority vs Court of Appeals
Laguna Lake Development Authority vs. CA
The SC said that while the law does not expressly
grant the PAB the power to issue a cease and desist
order, the power is however IMPLIED in the express
power to REGULATE, without which the power becomes
toothless.. (applying DOCTRINE OF NECESSARY
IMPLICATION)
NATURE OF SUBORDINATE LEGISLATION
o It is elementary that rules and regulations
issued by administrative bodies tointerpret the
law which they are entrusted enforce, have
the force of law and are entitled to great
respect. Administrative issuances partake of
the nature of a statute and have in their
favor a presumption of legality…Unless an
administrative order is declared invalid,
courts have no option but to apply the
same. (LBP vs. Celada, 2006)
Fundamental limitation:

4. May the PAB issue a writ execution if the law  Administrative Rules and Regulations are
does not even mention about this power? YES. intended to carry out, not to supplant nor
Implied from the power to adjudicate, to modify, the law. An administrative
otherwise, the power to adjudicate may be agency cannot amend an act of Congress.
rendered toothless where it may be decided In case of discrepancy between a provision of
and be final yet cannot be executed. statute and a rule or regulation issued to
implement said statute, the statutory provision
GSIS vs. Civil Service Commission
prevails. (Echegaray vs. Sec. of Justice [1998])
It would appear absurd to deny CSC the power to
o Completeness test
enforce or order execution ot is decisions, resolutions,
o Sufficient standard test
or orders…The grant to a tribunal or agency of
adjudicatory power, or the authority to hear and
PROBLEM
10
 POLITICAL LAW REVIEW JD CLASS 2016-2017
Congress has decided to ban and penalize the use of
vehicles 10 years or older in any public highway. The
details of the law will be spelled out in the
implementing rules and regulations that will be issued
later.
1. What important provisions should be found in
the law to make it work?
a. Penalties
b. Who is the administrative agency
c. Reason of the law
d. Definition of “vehicles”, “public high-
way”
e. Determination of age of vehicle
2. How do you make sure that the IRR will be
valid?
See: Edu vs. Ericta case
TESTS OF DELEGATION
 Completeness test – the law must be
complete in all its term and conditions when it
leaves the legislature such that when it
reaches the delegate the only thing he will
have to do is enforce it.
 Sufficient Standard Test: There must be
adequate guidelines or limitations in the law
to map out the boundaries of the delegates
authority and prevent the delegation from
running riot.
 Both tests are intended to prevent a total
transference of legislative authority to the
delegate. (Easter Shipping Lines vs. POEA,
supra)
Note: Should both be complied with? Most of the SC
cases, suggest that both must be complied with.
COMPLETENESS TEST
When is a law complete for purposes of delegation? It
must identify:
1. The SUBJECT MATTER to be delegated
a. In case of Eastern Shipping – POEA
was authorized to provide uniform pro-
forma employment contract.
2. WHO will do it
3. HOW the delegate will do it (scope of
authority)
SUFFICIENT STANDARD TEST
What is meant by sufficient standard?
o One which defines legislative policy, marks its
limits, maps out its boundaries and specifies
the public agency to apply it; indicates the
circumstances under which the legislative
command is to be effected
Must standard be determinate?
o It must only be sufficiently determinate or
determinable (Edu vs. Ericta)
Examples of SUFFICIENT STANDARD?
o Fair and equitable employment practices
o Public interest
11
o Justice and equity
o Public convenience and welfare; public safety
o Simplicity, economy and efficiency
NOTE: However, the standard should not allow
UNBRIDLED DISCRETION (ex: “may see fit” in Ynot vs.
IAC;” Manual that does not provide system of review”
by the Secretary in Echegaray vs. Sec. of Justice)
Doctrine of “potestas delegata non delegari
potest”
o KMU vs. Garcia – Public Service Commission
allowed bus operators to fix fare rates;
o American Tobacco vs. Director of Patents
– What has been delegated was only the
discretion to ascertain facts but did not include
the discretion to decide on application for
patents. AS LONG as the person mandated or
delegated by law has the final say.
Exception to the principle of non-delegation of
delegated power:
1. Sec 20, par 2, Article VI (Constitution)
2. Sec 23, par 2, Article VI – emergency powers
3. Delegation to the people at large – Sec 32,
Article VI – initiative and referendum
4. Delegation to LGU
5. Delegation to administrative agencies
Kinds of Admin Regulations
o Legislative (rule-making)
o Interpretative
o Internal
How to distinguish one from the other:
o If it did not add any duty or detail that was not
already in the law, it mere interpretation.
But why distinguish one from the other?
o Because of PUBLICATION. See: Tanada vs.
Tuvera case
Significance of distinction:
o Interpretation of rules does not, as a
general rule, require publication, in order
to comply with administrative due process.
Also, rules are generally binding on courts,
unlike “interpretations” pf rules which are
at best “advisory” subject always to
judicial interpretation.
o But in Eslao vs. COA (1994) the Supreme
Court ruled that: “administrative regulations
and policies enacted by administrative bodies
to interpret the law have the force of law
and are entitled to great respect.”
Tanada vs. Tuvera (1986)
Must be published (affecting the public):
o Statutes
o PD
o EOs that are legislative In character
o Administrative rules
Need not be published:
 POLITICAL LAW REVIEW JD CLASS 2016-2017
o Interpretative rules
o Internal rules (inter office communications,
memoranda)
o LOI to subordinates
Requisites for Validity of Administrative
Regulations:
1. Authorized by Congress
2. Within the Scope of Authority (not ultra vires)
3. In accordance with prescribed procedure
4. Fair and reasonable
(Dagan vs. Philippine racing Commission citing Exec.
Sec. vs. Southwing Heavy Industries)
1.) Authorized by Congress
Executive Secretary vs. Southwest Heavy
Industries (2006):
 It was argued that Section 3.1. of EO 156
(which banned the importation of used vehicle)
lacked any statutory basis for the President to
issue the same because it is an exercise of
police power vested on the legislature.
 The SC ruled that the TCC (Sec 401 [Flexible
Clause]) authorized the President, in the
interest of national economy, general welfare
and/or national security, to, inter alia, prohibit
the importation of any commodity.
2.) Within the Scope of Authority (Not Ultra
Vires)
People vs. Maceren (1977):
 In implementing the provisions of the Fishing
Law, the Secretary of Agriculture and Natural
Resources cannot prohibit “electra fishing”
because the statute only prohibited fishing with
the use of “obnoxious or poisonous substance”.
The administrative rule cannot be
extended to amending or expanding the
statute it seeks to implement.
Executive Secretary vs. Southwing Heavy
Industries (2006):
 “In the instant case, the subject matter of the
laws authorizing the President to regulate or
forbid importation of sued motor vehicles, is
the domestic industry. EO 156, however,
exceeding the scope of its application by
extending the prohibition on the importation of
used cars to the Freeport. The domestic
industry which the EO seeks to protect is
actually the customs territory…”
PROBLEM:
RA 7166 provides that “during the election period, no
person shall bear, carry or transport firearms or other
deadly weapons in public places, including any
building, street, park, private vehicle or public
conveyance.” The Comelec was empowered to issue
rules to implement RA 7166. In its resolution, the
Comelec defined “firearm” to include “air gun, airsoft
guns and their replica/imitation in whatever form”. Is
the Comelec Resolution valid?
12
Holy Spirits Homeowners’ Association vs.
Defensor (2006)
 Where a rule or regulation has a provision not
expressly stated or contained in the statue
being implemented, that provision does not
necessarily contradict the statute. A
legislative rule is in the nature of subordinate
legislation, designed to implement a primary
legislation by providing the details thereof.
 All that is required is that the regulation
should be germane to the objects and
purposes of the law; that the regulation be not
in contradiction to but in conformity with the
standards prescribed by the law.
Atty. Orceo vs. Comelec (2010)
 The COMELEC had the authority to promulgate
Resolution No. 8714 pursuant to Sec 35 or RA
no. 7166. It was granted the power to issue
the implementing rules of Secs. 32 and 33 of
RA no. 7166. The COMELEC was mandated to
provide the details of who may bear, carry or
transport firearms or other deadly weapons, as
well as the definition of “firearms,” among
others.
 These details are left to the discretion of the
COMELEC, which is a constitutional body that
possesses special knowledge and expertise on
election matters, with the objective of ensuring
the holding of free, orderly, honest, peaceful
and credible elections…
 Where a rule has a provision not
expressly stated or contained in the
statue being implemented, that provision
does not necessarily contradict the
statute…All that is required is that the
regulation should be germane to the
objects and purposes of the law; that the
regulation be not in contradiction to, but in
conformity with, the standards prescribed by
the law.
PROBLEM
The Civil Aeronautics Board (CAB) issued two rules:
(1) a rule prohibiting the overbooking by domestic
airlines to more than 10% and (2) a rule requiring all
domestic airlines to shoulder all hotel accommodation,
meal and transportation expenses of bumped off
passengers due to overbooking.
(A) Is CAB required to notify and hear all domestic
airlines before issuing the rules?
(B) Is CAB required to publish the rules?
3.) In accordance with Prescribed Procedure
 Is Prior Notice and Hearing required?
 If YES, in what rule is prior notice and hearing
required?
 Does “Rate-Fixing Power” require “Prior notice
and hearing”? What other requirements should
be complied with in regard to “rates”?
 POLITICAL LAW REVIEW JD CLASS 2016-2017
GENERAL RULE: A statue may provide that an
administrative regulation of general application (as
opposed to administrative adjudication) would not
require “previous notice and hearing”. Otherwise,
Section 9 of Chapter 2, Book VII of Admin Code (Public
Participation Requirement) should be observed
(circulate notices and afford interested parties to
submit views prior to adoption of rule)
In case of RATE-FIXING RULE: (of general application),
PUBLICATION IN NEWSPAPER IS REQUIRED AT LEAST
2 WEEKS BEFORE THE INITIAL HEARING )Public
Hearing)
Note: Book VII of the Admin Code does not apply to
Congress, the judiciary, constitutional commissions,
military establishments in personnel matters, board of
pardons and parole, and state universities and colleges
(see also GMA vs. COMELEC[2014])
 Exceptions: (NOTICE AND HEARING,
REQUIRED)
o When the statute itself requires it
o When the administrative rule
substantially adds to or increases the
burden of those directly affected.
 Examples of Exceptions:
o EO 72 creating the Energy Regulatory
Board which provided for the rule that
the ERB may fix the prices of
petroleum products only “upon notice
and hearing”, although “provisional
rates” may be issued ex parte.
o CIR vs. CA (261 SCRA 236); See also
GMA Network vs. Comelec (2014)
CIR vs. CA (261 SCRA 236)
 When an administrative rule is merely
interpretative in nature, its applicability needs
nothing further than its bare issuance for it
gives no real consequence more than what the
law itself has already prescribed. When the
administrative rule goes beyond and
substantially add to or increases the
burden of those governed, it behooves the
agency to accord those directly affected a
chance to be heard and thereafter to be
duly informed, before that new issuance is
given the force and effect of law.
BUT, FILING COPIES WITH UP LAW CENTER –
MANDATORY!!
 The Adm Code of 1987, Section 3 thereof,
expressly requires each agency to rule with
the Office of the National Administrative
Register (ONAR) of the University of the
Philippines Law Center three certified
copies of every rule adopted by it.
Administrative issuances which are not
published or filed wih the ONAR ae ineffective
and may not be enforced. GMA vs. MTRCB
[2007]) [2009 Bar]
RULES WITH PENALTIES
 Requirements for VALIDITY:
o The Statute ahs declared the violation
punishable
13
o The statue must have imposed and
specified the penalty for the violation
o The rule must be PUBLISHED.
NOTE: Under the Admin Code, publication may omit
the inexpedient portions of the rule. But, where the
rule carries a penal clause, it must be published in full.
The word “laws” in article 2 (article 1 of the old Civil
Code) includes circulars and regulations which
prescribe penalties. Publication is necessary to apprise
the public of the contents of the regulations and make
the said penalties binding on the persons affected
thereby. (citations omitted.) (Pesigan vs. Angeles, GR
no. 64279, April 30, 1984)
4.) FAIR AND REASONABLE
o See Lupangco vs. CA 91998): PRC’s
rsolution which provides that “no examinee
shall attend any review class, briefing,
conference or the like conduct by, or shall
receive any handout, review material, or any
tip from any school college of university, or
any review center…during the three days
immediately preceding every examination
day.”
o See also GMA vs. COMELEC (2014): The
unreasonable result of the subject COMELEC
resolution (redefining airtime limits for
campaign in broadcast and radio) would be
that a candidate will only have about 81
seconds per day in one station or about 27
seconds in three stations.
QUASI-JUDICIAL POWER
How to determine if QJ is involved:
 The function of granting, denying,
suspending or revoking license, permit,
franchise or certificate of public
convenience and/or necessity is not just
purely administrative, but quasi-judicial or
adjudicative function because it is dependent
upon the ascertainment of facts by the
agency upon which a decision is to be
made and rights and liabilities
determined. (Sanado vs. Court of Appeals)
 In determining whether an agency exercises
QJ, the nature of the pwoers or functions
given to it by the constitution ro law must
be examined. So that, in case of CHR, for
example, just because it possesses the power
to “investigate” does not necessarily give it the
power to “adjudicate”, for these 2
powers/functions do not have the same
meaning and scope. In the former, there is no
application of law or settlement of dispute,
while in the latter there is. (Carino vs. CHR,
204 SCRA 483)
Quasi-judicial proceeding involves:
 Taking and evaluating evidence
 Determining facts based pon the evidence
presented
 Rendering an order or decision supported by
the facts proved
 Determining what the law is
 POLITICAL LAW REVIEW JD CLASS 2016-2017
 Adjudicating respective rights and obligations
of the parties
See Encinas vs. Agustin [2013]: The doctrine of res
judicata applies only to judicial and quasi-judicial
proceedings and not to the exercise of administrative
powers (those powers that are purely administrative
(e.g. fact-finding or investigation in nature as opposed
to administrative proceeding sthat take on a quasi-
judicial character)
The public prosecutor exercises investigative
powers in the conduct of preliminary
investigation to determine whether, based on the
evidence presented to him, he should take further
action by filing a criminal complain in court. In doing
so, he does not adjudicate upon the rights,
obligations or liabilities of the parties before him…
Hence, the constitutional and administrative code
requirement that decisions should “state the facts and
the law upon which it is based” is not applicable to DOJ
resolutions. (Meralco vs. Atilano, GR no 166758, June
27, 2012)
Why distinguish QL from QJ?
 QJ requires notice and hearing, QL only
requires publication as a general rule.
 QJ sets different requirements for resort to
court: e.g. doctrine of prior exhaustion of
administrative remedy applies.
 QJ decisions are, generally, brought to the
CA/SC because QJ agencies are deemed equal
in rank with RTC. If QL only, RTC generally.
Policy of Courts in QJ Power
 In this regard, the policy of courts is not to
interfere with the “factual findings” of
administrative agency under the principle of
separation of powers and co-equality of
branches of government, unless there is
clear of showing of capricious and
whimsical exercise of judgment or grave
abuse of discretion. (Sanado, supra)
Status of QJ Body vis-à-vis Court
 “Quasi-Judicial Bodies’ are deemed co-equal
with the RTC. Hence, their decision should be
elevated to the Court of Appeals (or the
Supreme Court if warranted depending on the
relief, and not to the RTC, except in DAR initial
determination of just compensation.
 See Rule 43 of the Rules of Court (Petition for
Review from decisions of QJ bodies).
 See PCGG vs. Pena [1988]
Heirs of Vidad vs LBP (2010)
Q: Considering that in the determination of just
compensation, the DARAB may be deemed to be
exercising a quasi-judicial function, where will the
aggrieved party question its decision, the RTC or the
CA?
 The procedure for the determination of just
compensation under RA 6657 commences with
LBP determining the value of the lands under
the land reform program. Using LBP’s
valutaion, the DAR makes an offer to the
14
landowner through a notice sent to the
landowner, pursuant to Section 16 (a) of RA
6657.
 Contrary to petitioner’s argument, the
PARAD/RARAD/DARAB do not exercise
concurrent jurisdiction with the SAC in just
compensation cases. The determination of just
compensation is judicial in nature.
QJ’s Body decision is always subject to Judicial
Review:
 QJ’s function includes investigation or
ascertainment of the existence of facts, hold
hearings, draw conclusions…However, this
does not make the QJ bodies courts or parts of
the judicial system, so that they (or the
executive debt) cannot impose judgment upon
the judiciary. Hence, even if the law
provides that a QJ body’s decision is final,
executory and “binding upon agencies
having jurisdiction over the case”, it
cannot bar the judiciary to review the
decision. (United Residents of Dominican hills)
Requirement for Valid Exercise of Quasi-Judicial
Power
JURISDICTION:
 Globe Wireless Ltd vs. Public Service
Commission 147 SCRA 269: Adjudicative
power is limited by law. Allowed are only those
“expressly granted” or necessarily from
those granted in law creating the agency.
PSC’s jurisdiction is limited by law to its power
over Globe in matters of “rates” which it may
charge the “public”, excluded is the
determination of Globe’s liability in failing to
deliver telegraphic message by the
complainant/addressee or for poor services.
 The Court has consistently held that where no
employer-employee exists between the parties
and no issue is involved which may be resolved
by reference to the Labor Code, other labor
statutes, or any collective bargaining
agreement, it is the regional trail court that
has jurisdiction… In their complaint in the civil
case, petitioners do not seek any relief under
the Labor Code but the payment of a sum of
money as damages on account of respondents’
alleged tortious conduct. The action is within
the realm of civil law and, hence, jurisdiction
over the case belongs to the regular courts.
(Marino Jr. vs. Gamilla, GR no. 132400
[January 31, 2005], 490 Phil 607-623)
PROBLEM:
X was the collector of the City Treasurer’s Office of
Mandaue City. For leaving his post during office hours
without consent of the City treasurer, the latter
preventively suspended X for neglect of duty. As X was
absent in the following day, the notice of preventive
suspension and the subpoena to appear in an
investigation was sent to his last known address. The
notices, however, did not reach X on time. X only
received the results of the investigation an the order of
the City Treasurer to initiate administrative action with
the DOF.
 POLITICAL LAW REVIEW JD CLASS 2016-2017

4. Substantial evidence (adequate to

support a conclusion) – adminsitrative

QUESTION:
DUE PROCESS:
May an administrative agency rely on affidavits
Utto vs. Comelec, 375 SCRA 523 submitted to it in rendering a decision when the
affiants had not been called to testify and to identify
 The essence of administrative due process is
their affidavits?
simply “opportunity to be heard” or
“opportunity to explain one’s side” or What about Affidavits?
“opportunity to seek a reconsideration” of
the action or ruling complained of. PLDT vs. Tiamson (2005):

Garcia vs. Pajaro, 384 SCRA 112:  Although admissible in evidence, affidavits
being self-serving must be received with
 Technical rules of procedure and evidence are caution. This is because the adverse party is
not strictly applied in administrative not afforded any opportunity to test their
proceedings. One may be heard not solely veracity. By themselves, generalized and pro
by verbal presentation in an oral forma affidavits cannot constitute relevant
argument, but also through pleadings. evidence which a reasonable mind may accept
Administrative due process is deemed as adequate. There must be some other
satisfied for as long as a person is given relevant evidence to corroborate such
opportunity to “seek reconsideration” of affidavits.
an action or a ruling.
Minimum standards of “substantial evidence”
Ang Tibay v. CIR, 69 Phil 635:
The standard of substantial evidence is satisfied when
 Requisites of “administrative due there is reasonable ground to believe that
process”, enumerated respondent is responsible for the misconduct
complained of, even if such evidence might not be
Rivera vs. CSC, 240 SCRA 43
overwhelming or even if such evidence might not be
overwhelming or even preponderant…it should be
 Requirement of “impartiality” of the
enough for a reasonable mind to support a
tribunal applies to “administrative due
conclusion. (Ombudsman vs. Bungubung[2008])
process.
While rules of evidence are not strictly applied, the
Atienza, Jr. vs. Comelec (2010)
following principles must still be observed:
 The requirements of administrative due
 “He who alleges must prove his allegation”
process do not apply to the internal affairs of
 “Mere allegation is not evidence”
political parties. The due process standards set
 “Self-serving evidence is a weak evidence”
in Ang Tibay cover only administrative bodies
 “In the case of contradictory declaration and
created by the state and through which certain
statement, greater weight is generally given to
governmental acts or functions are performed.
positive testimonies than to mere denials.”
Exceptions to Notice and Hearing as Requirement (supra)
for Due Process:  Affidavit of Desistance may be considered.

1. Summary abatement of nuisance per se (police Related Powers:

power)
 Power to promulgate own Rules of
2. Preventive suspension (it is not a penalty)
procedure – can be implied in the QJ function
3. Padlocking of filthy restaurant, theaters, etc
granted by law to the agency under the
(they are actually nuisance per se)
doctrine of “necessary implication”
4. Cancellation of passport of accused
 Subpoena power
(pragmatism, accused may escape)
 Contempt power
5. Summary distraint and levy (lifeblood theory of
taxation, need for taxes)
Rules of Procedure
6. Grant of Provisional Authority (temporary only)
Provident Tree Farm vs Batario, Jr. 231 SCRA 463:
Energy Regulatory Board vs. Court of Appeals:
 Doctrine of Necessary Implication gives a
 To understand the nature of “substantial
QJ body the power to adopt method of
evidence”, this “hierarchy of evidentiary
procedure to carry out its functions,
values”:
PROVIDED, the procedure will not violate
1. Proof beyond reasonable doubt (moral
fundamental rights or encroach rule making
certainty) – criminal
power of the SC
2. Clear and convincing evidence (firm
belief or conviction) – extradition Power to promulgate rules of procedure
3. Preponderance of evidence (greater
weight) – civil  Implied in every QJ body
 Constitution empowers QJ bodies such power
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 POLITICAL LAW REVIEW JD CLASS 2016-2017

 Should the rules be approved by the SC? certain requisites (3) are present: Supreme Court
 Must not, however, diminish, increase, or Decision, main issue, and SolGen’s participation.
modify substantive rights?
 Rules of Court apply suppletorily MODES OF JUDICIAL REVIEW
 Subject to SC’s modification
Quasi-Legislative Acts/Rules:
 Technical rules, not generally applicable
 Prohibition on forum-shopping applies
 RTC (incapable of Pecuniary Estimation;
validity)
Subpoena and Contempt Powers
Quasi-Judicial Decisions:
Carmelo vs. Ramos, 6 SCRA 836:
 RULE 43 (to the CA) [excluding Labor Code
 Subpoena and contempt powers are not
decisions]; Petition for Review
inherent in administrative bodies because
o Facts, Law or Mixed Questions of Facts
these powers are essentially judicial in nature.
and law
Hence, it can only be exercised if (1) duly
 RULE 45 (to the SC) ; Petition for Review on
allowed by law and (2) in connection with
Certiorari/Appeal by Certiorari)
the matter they are authorized to
o Pure Questions of Law
investigate.
 RULE 65 (to the CA – following hierarchy of
Authorized by Law Courts doctrine); Petition for Certiorari
o Grave Abuse of Discretion amounting
 To (1) directly exercise the power OR (2) seek to..
the aid of the Regional Trial Court under the
ROC Subjects of Judicial Review:
 The authority may be found in the:
Ombudsman vs. Bungubung (2008)
1. Law/charter itself OR
2. Section 13, Chapter 3, Book VII of the
 Petition for review on certiorari filed with
Admin Code (in cases of “agencies”
the SC under Rule 45 of the Revised Rules
created by the Admin Code, e.g.
of Court shall raise only questions of law.
bureaus and “in contested case” only)
A question of law has been defined as one that
 Lastimosa vs. Vasquez, 243 SCRA 497:
does not call for any examination of the
contempt power is “expressly” granted to the
probative value of the evidence presented by
Ombudsman by law (Ombudsman act)
the parties.
 If agency is created not by Admin Code but by
 The SC does not sit as an arbiter of facts
special charter (law), the authority given must
for it is not the function of the SC to
at least be the authority to “take testimony or
analyze or to weigh all over again the
evidence” before Section 13 (issue Subpoena
evidence already considered in the
and in case of disobedience seek the aid of
proceedings below. Such factual findings can
RTC) may be invoked.
be questioned only if, among other exceptions,
 Hence, authority to merely “investigate” does
the findings of fact are conflicting and the
not confer the QJ body the power to cite a
findings of the Court of Appeals are contrary to
person n contempt under the Admin Code.
those of the lower court and/or administrative
agency.
Forms of Decision
BASIC RULES ON REVIEW
GENERAL RULE: The requirement in the Constitution
that the decision of the “court” should clearly and
1. Decisions must be based on SUBSTANTIAL
distinctly state the facts and the law on which it is
EVIDENCE ONLY;
based does not apply to “quasi-judicial bodies”
2. Findings of facts made therein are to be
because they are not courts;
respected so long as they are supported by
substantial evidence; Hence, it is not for the
However, Sec 14, Book VII of the Admin Code
reviewing court to weight the conflicting
mandates the same requirements.
evidence, determine the credibility of
Note: Book VII does not apply to Constitutional witnesses, or otherwise substitute its judgment
Commissions, among others. with that of the QJ body;
3. Administrative decisions in matters within the
Res Judicata in Administrative Decisions executive jurisdiction can only be set aside
on proof of:
San Luis vs. Court of Appeals, 174 SCRA 258 a. Gross abuse of discretion
b. Fraud OR
 Although a judicial concept in origin, “res
c. Error of law
judicata” now applies to QJ decisions. The
elements are: (a) sameness of causes of See: Ombudsman vs. Bungubung (2008) citing
actions, (b) sameness of issues, (c) identity of Montemayor vs. Bundalian (2003)
parties/privies
DOCTRINE OF PRIMARY JURISDICTION
NOTE: In Board of Commissioners vs. Dela Rosa 197
SCTA853, there is no res judicata in  Applicability: When regular courts have also
administrative adjudication of citizenship unless concurrent jurisdiction over the subject matter
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 POLITICAL LAW REVIEW JD CLASS 2016-2017

 Rule: The regular court refers the matter to
the administrative agency which has the
competence to resolve the controversy
(ordinarily requiring expertise or skill)
 Effect: The judicial proceeding is suspended
pending referral to the QJ body
DOCTRINE OF PRIOR EXHAUSTION
ADMINSITRATIVE REMEDIES
 Office – refers within the framework of
governmental organization, to any major
FUNCTIONAL UNIT of a department or bureau
including regional offices. It may also refer to
any position held or occupied by individual
persons, whose functions are defined by law or
regulation.
OF
Sec 2(14), Introductory Provisions, Admin Code:

 Applicability: When referral to administrative  Officer – as distinguished from “clerk” or

agencies and resort to administrative remedies
are made condition precedent before the
controversy can be brought to court
 Rule: The regular court will dismiss the case if
there is non-compliance (unless waived by
failure to invoke it)
 Effect: Dismissal without prejudice
 Note: There are several exceptions
EXCEPTIONS:
“employee”, refers to a person whose duties
not being f a clerical or manual nature,
involves the exercise of discretion in the
performance od the functions of the
government. When used with reference to a
person having authority to do a particular act
or perform a particular act in the exercise of
governmental power, “officer includes any
governmental employee, agent or body having
authority to do act or exercise that function.

 Pure Questions of Law Sec. 3 (b) of RA 6713 – Code of Conduct and Ethical
 Agency is estopped Standards of Government employees
 Act is patently illegal
 Urgent need for judicial intervention  Public Official – include elective and
 Small claims appointive officials and employees, permanent
 Irreparable Damage will be suffered or temporary, whether in the career or non-
 No other plain, speedy and adequate remedy career service including military and police
 Strong public interest personnel, whether or not they receive
 Private land compensation, regardless of amount.
 Quo Warranto
Art. 203 of the Revised Penal Code

 “Who are public officers” – For purposes of

applying the provision of this and the
preceding titles of this book, any person who,
by direct provision of the llaw, popular election
or appointment by competent authority, shall
take part in the performance of public
functions in the Government or in any of its
branches public duties as an employee, agent
or subordinate official, of any rank or class,
shall be deemed to be a public officer.

RA 7080 (Plunder Law):

 Section 1 (a) – “any person holding any public

office in the Government of the Republic of the
Philippines by virtue of an appointment,
election or contract.”

Mechem’s definition

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

and conferred by law, by which, for a given period,
either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some
portion of the sovereign functions of the government,
to be exercised by him for the benefit of the public.
The individual so invested is a public officer. (Laurel
LAW ON PUBLIC OFFICERS vs. Desierto, GR no. 145368 April 12, 2002)

1. What is a public office? Note: Laurel’s position is NCC chairman. SC was

2. Who is a public officer? confronted won he is a private person or a public
3. Who is a public official? official? The important element here: invested with
4. What is the importance of knowing the some portions of the sovereign function. His function
meaning of a public officer? was an executive function. Therefore, NCC exercised
sovereign power of the government which made Laurel
Sec 2 (9) Introductory Provisions of Admin Code: a public officer. Hence, under the coverage of the
Ombudsman.
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 POLITICAL LAW REVIEW JD CLASS 2016-2017

Characteristics of PUBLIC Office (Laurel vs. purportedly as X’s substitute. On June 30, 2014, A was
Desierto, April 12, 2002) ordered removed from office. She then voluntarily
stepped down. Is A entitled to salary for the period
 Delegation of sovereign functions June 20, 2013 – June 30, 2014?
 Creation by law and not of contract
 An oath De Facto Officer’s Entitlement to Salary
 Salary/compensation (but including honorary)
 Continuance of the position GR: Entitled to salary for the services rendered
 Scope of duties
Does not apply where:
 Designation of the position as an office
 There is a de jure officer
Note: Characteristics need not be present for it to be
 USURPER
called a public office.
De Facto Officer vs. Usurper
Importance of the term “public officer”
 A de facto officer has color of right or title to
The Office of the OMB exercises jurisdiction over public
the officer or has apparent authority to hold
officials/employees of GOCCs with original charters.
the office and has done so in good faith WHILE
It can only investigate and prosecute acts of the a usurper has neither lawful title nor color of
official/employees of government corporations. the right or tittle of the office; the act of a de
Although the government later on acquired the factor iffier is valid as if it was done by a de
controlling interest in PAL, the fact remains that the jure officer but that a usurper is absolutely null
latter did not have an “original charter”. (Khan vs. and void the former may be removed through
ombudsman, 2006; see also Carandang vs. a direct proceeding only.
Ombudsman, 2011)  Even if there’s bad faith, you can comply if you
have one or two of the qualifications.
Public office, not a Property!
Salary of De Facto Officer
 Public Office is personal to the incumbent is
not a property which passes to the heirs. (De  A de facto officer cannot be made to reimburse
la Victoria vs. Comelec, 199 SCRA 561 funds disbursed during his term of office
[1991]). because his acts are as valid as those of a de
 The heirs may no longer prosecute the jure officer.
deceased protestee’s counter-claim for  Moreover, as a de facto officer, he is entitled to
damages against the protestant for that was emoluments for actual services rendered.
extinguished when death terminated his right
PROBLEM
to occupy the contested office. (Abeja vs.
Judge Tanada [1994])
X and Y were candidates for Mayor in the Municipality
of Z. X won and was duly proclaimed. An election
Public Office, not a Property; Exception
protest was immediately filed by Y. On June 30, 2013,
 A public office is not property within the sense X assumed office. On June 30, 2014, the election
of the constitutional guaranties of due process contest filed by Y was resolved in Y’s favor. The
of law, but is a public trust or agency (Libanan decision already became final and executory. X
vs. Sandiganbayan [1994]) voluntarily stepped down as ordered. Is X entitled to
 HOWEVER, an incumbent’s right to office may the salary he received? Should X reimburse Y of the
be consdiered “property within the protection salary he received?
of due process in controversies relating to the
But the incumbent can recover!
question as to who of two (2) persons is
entitled thereto. (The General Manager, PPA
 An incumbent of a public office may
vs. Monserate [2002])
recover from a de facto officer the salary
received by the latter during the time of
De Jure officer
his wrongful tenure, even though he (the de
 A De Jure Officer is one who is inall respects facto officer) occupied the office in good faith
legally appointed or elected and qualified to and under color of title. And not from the
exercise the office. The election or government.
appointment complied with all the  A de facto officer, not hacking a good title,
requirements of law. takes the salaries at his risk and must,
therefore, account tot eh de jure officer for
De Facto officer whatever salary he received during the period
of his wrongful tenure.
 There can be de facto officer even without a de  The Supreme Court has allowed a de facto
facto officer – for purposes of officer to receive emoluments for actual
compensation/salary. services rendered but only when there is no
de jure officer.
Problem: X and Y were candidates for Mayor in the
Municipality of Z. X wona nd was du.ly proclaimed. Examples of de facto offices without de jure:
However, the Comelec disqualified X later. On June 20,
2013, A, X’s wife assumed the office fo the Mayor

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 POLITICAL LAW REVIEW JD CLASS 2016-2017
 An office created by law where the law was
thereafter declared unconstitutional. Operative
fact applies; BUT of course, emoluments are
due because of the service actually rendered
by the de facto officer.
Who can recover and from whom?
 As a rule, the de jure officer cannot recover
from the government, but only from the de
facto officer, the salary it had paid to the
latter. But, he can recover the salary from the
government or the de facto officer, fi the
government continues to pay the de facto
officer even after notice of adjudication of the
title to the de jure officer, the amount so paid
after the adjudication and notice. (Mechem)
 BAD FAITH on government whereby it still pays
the de facto officer even with knowledge of the
former that the latter is de facto – de jure may
ask salary directly from government.
 Will the appointed employee whose
employment was disapproved by the Civil
Service Commission 6 months thereafter still
recover salary? Entitled to Salary. Who should
be liable?
Salary of officer whose appointment is alter
disapproved by the CSC:
 If the basis for disapproval is NOT violation of
civil service law, say lacking in qualification,
the appointee is entitled to salary.
 HOWEVER, if the disapproval by the CSC is on
the ground that the appointment was made in
violation of civil service law, the appointing
authority shall be personally held liable for the
salary of the appointee. (Nazareno vs. City of
Dumaguete, June 2009)
Note: Under Civil Service, Midnight appointment is
permitted BUT not in bulk. In Nazareno, there were
60-80 employees appointed within the 2 months
before the election day until the end of term.
Who may prescribe qualifications:
1. Constitution
2. Congress
a. LIMITATIONS
i. Congress cannot impose
conditions of eligibility
inconsistent with the
constitutional provisions;
ii. Qualifications must be germane
to the position (reasonable
relation rule) – reasonableness
of the law is always a
requirement for a valid law
iii. Cannot prescribe qualifications
so detailed as to amount to
making an appointment in
usurpation of executive power;
iv. Cannot prescribe qualifications
in addition to those prescribed
exclusively by the constitution
3. Delegate of Congress
SJS vs. PDEA (2008)
19
The Congress cannot validly amend or otherwise
modify the qualification standards for Senators, as it
cannot disregard, evade or weaken the force of a
constitutional mandate, or alter ego or enlarge the
Constitution.
Accordingly Sec 36 (g) of RA 9165 (MANDATORY DRUG
TEST) should be, as it is hereby declared as,
unconstitutional.
Should this be intended to House of Rep considering
that the qualifications of congressmen are also
prescribed by the constitution?
Frivaldo Doctrine (When should the qualification be
met? Depends on the law creating the position)
Unlike Residence and age qualifications, the
qualification of “citizenship” for local elective officials
under the LGC of 1991 must only be possessed at the
time candidate becomes “elective official” by his valid
proclamation and at the start of his term. (Frivaldo vs
Comelec [1996])
IOW, no fixed rule as to when the individual should
possess the qualifications for the public position.
Is property qualification valid?
Macquera vs. Borra (1965): Property qualification is
inconsistent with the essence and nature of a
republican system ordained in the Constitution and the
principles of social justice underlying the same. This
implies necessarily that the right to vote and to be
voted for shall not be dependent upon wealth of the
individual concerned. Social justice presupposes equal
opportunity for all.
*Maybe it’s the extent that is being considered here.
But maybe if it’s in a form of fee, then it couldn’t have
been a property qualification like in US.
May a person be compelled to accept an office?
GR: NO (Right against involuntary servitude). But an
elected official who refuses without valid motive to be
sworn shall be held criminally liable under Sec. 234 of
the RPC.
Exception:
 Compulsory military and civil service under Sec
4, Art II of the 1987 Constitution and pursuant
to National Defense Act.
PARDON; Effects:
First you look at the terms of the pardon: absolute or
conditional.
Pardon - On the right to hold public office:
RPC: Art 36. Pardon, it’s effect - A pardon shall not
work the restoration of the right to hold office, or the
right of suffrage, unless such rights be expressly
restored by the terms of the pardon.
In Monsanto vs. Factoran
 The pardon granted to petitioner had resulted
in removing her disqualification from holding
 POLITICAL LAW REVIEW JD CLASS 2016-2017
public employment but it cannot go beyond
that
 To regain her former post as assistant city
treasurer, she must reapply and undergo the
usual procedure required for a new
appointment.
 Is she entitled to back pay?
o Answer: Know the nature of pardon.
Pardon looks forward and backward.
Hence, you cannot demand back pay
because it’s like giving pardon a
retrospective effect.
Pardon- On benefits attached to the Office:
 A pardon looks to the future. It is not
retrospective. It affords no relief for what has
been suffered by the offender. It does not
impose upon the government any obligation to
make reparation for what has been suffered.
This would explain why petitioner, though
pardoned, cannot be entitled to receive
backpay for lost earnings and benefits.
(Monsanto vs. Factoran [1989])
APPOINTMENT
 Essentially executive; cf: “residual power” of
the President
 Generally be in writing
 Different from “designation” (although some
appointments would use the term “designate”,
what controls is the nature)
 Requires:
1. Appointing authority is vested with
that power
2. The appointee possesses all the
qualifications (including civil
service eligibility and none of the
disqualifications)
3. Position is vacant
4. Appointment is approved by CSC
5. Appointee accepts the position by
taking the oath and discharges the
functions.
PROBLEM:
Mayor X appointed A as an Administrative Officer II of
Cebu City. The appointment states that it was
“permanent.” B questioned the appointment on the
ground that he is next in rank being the incumbent
Admin Officer I while A came from another department
or office of the City hall. The CSC approved the
appointment of A but with a notation that it was
“Approved as Temporary”. CSC justified its action on
the ground that B was better qualified than A.
A. Was the act of CSC proper?
1. NO. there are 2 important principles:
o Actual and proper of CSC in relation
that the appointing authority has
discretion
o First, prerogative of appointing
authority and 2nd, role of CSC is only to
attest
20
B. How do you distinguish the function of CSC from the
Commission on Appointments? It’s only a preference.
Appointing Authority’s Discretion
 The appointing authority is given ample
discretion in the selection and
appointment of qualified persons to
vacant position, provided that the
exercise thereof is in good faith for the
advancement of the employer’s interest and
NOT for the purpose of defeating or
circumventing the rights of the employees
under special laws or under valid agreements
and provided further that such prerogatives
are not exercised in a malicious, harsh,
oppressive, vindictive or wanton manner, or
out of malice or spite. (Lopez vs. CSC [1991];
Lapinid vs. CSC [1991])
Role of CSC in Appointment “Attestation only”
 Role to attest only as to won the one appointed
has qualified under the law.
 Civil Service Commission has no power of
appoitnment except over its own personnel.
Neither does it have the authority to review
the appointments made by other offices except
only to ascertain if the appointee possesses the
required qualifications. The determination of
who among aspirants with the minimum
statutory qualifications should be preferred
belongs to the appointing authority and not the
Civil Service Commission. It cannot disallow an
appoitnment because it believes another
person is better qualified and much less can it
direct the appointment of its own choice. (See
Luego vs. CSC [1986]; Province of Camarines
vs. CA [1995])
Next-in-Rank Rule
Distinguish the following:
Appointment from designation
GR: Appointment and designation are separate and
distinct (This is important in terms of salary and won it
confers security of tenure)
 Appointment – selection, by the authority
vested with power, of an individual who is to
perform the functions of a given office
 Designation – on the other hand, connotes
merely the imposition of additional duties,
usually by law, upon a person already in the
public service by virtue of an earlier
appointment (or election).
o No security of tenure (holding of
office is merely temporary (See Sevilla
vs. CA & Santos [1992])
o No additional benefits
(compensation)
o Exception: When the appointment is
used in its general sense where
appointment includes designation
 Santiago vs. COA – A retiree
wanted to base his retirement
benefits on a designated
 POLITICAL LAW REVIEW JD CLASS 2016-2017
position because the salary is
higher. SC held that the law
sets the highest basic salary
rate as basis for computation
did not intend to distinguish
between appointment and
designation because it includes
the highest salary rate
compensation for
substitutionary services or in
an acting capacity.
Permanent from temporary
 Permanent - The appointee meets all the
qualifications and requirements including the
appropriate eligibility requirement (civil service
eligibility requirement); it lasts until lawfully
terminated.
o See Pangilinan vs. Maglaya [1993] – If
you lack one of the qualifications then
it is still temporary
 Temporary – The appointee meets all the
requirements for the position except the
appropriate civil service eligibility. It shall not
exceed 12 months and employment ends ipso
fact with or without qualified replacement.
Is Midnight Appointment prohibited in Local
Appointments?
 Items no. 3 (d) and 4 of CSC Resolution No.
010988 dated 4 June 2001, prohibits the
outgoing chief executive from making mass
appointments after elections. The term
“mass appointments” refers to those issued in
bulk or in large number after the elections by
an outgoing local chief executive and there is
no apparent need for their issuance. (Nazareno
vs. City of Dumaguete, June 2009)
Career vs. Non Career Service (see Book V, Title
I, Subtitle A, Ch. 2)
 Career – characteristics:
1. Merit and fitness test (competitive
exam) OR highly technical qualification
2. Security of tenure; AND
3. Opportunity for advancement to higher
career position
 Non-Career- characteristics:
1. Not based on competitive exam nor
highly technical qualification
2. Tenure is limited by law or co-terminus
with appointing authority
Caveat –
 “No officer or employee of the civil service shall
be removed or suspended, except for cause
provided by law” (Sec. 2 (3), Art IX – B,1987
Constitution)
 Jocom vs. Regalado (GR no. 77373, August 22,
1991) – “Regardless of the classification of the
position held by a government employee
covered by civil service rules, be it career or
non-career position, such employee may not
21
be removed without cause…and observance of
due process.”
Competitive Examination
There are 3 levels of a position: CES is a 3 rd level
position; There are no requirements in the 1st level
that is why they don’t enjoy security of tenure.
Career Executive Service (CES)
 Third level positions such as: Undersecretary,
Asst. Secretary, Bureau Director, Asst. Bureau
Director, Chief of Dept. Service and other
officers of equivalent rank as identified by the
Career Executive Service Board (CESB), all of
whom are appointed by the President.
 No security of tenure, may be removed
anytime UNLESS they have been issued CESO
rank by the President.
HOLD-OVER PRINCIPLE
 GR: A public officer whose term of office has
expired or whose services have been
terminated IS ALLOWED to continue holding
office until his successor is appointed or chosen
and has qualified.
 Rationale: public interest; prevent hiatus in
public service
 Rules:
o When law provides for it: incumbent
will hold over even if beyond the term
fixed by law until successor is
chosen/appointed
o When law is silent: unless expressly
or impliedly prohibited, incumbent may
hold over
 Exception:
o Law expressly prohibits hold-over
capacity (like temporary appointments)
o The law implies a prohibition on
holdover
DOCTRINE OF OFFICIAL IMMUNITY
This is different from the President’s immunity since
the latter is absolute.
 It is the duty of the COurt to see to it that
public officers are not hampered in the
performance of their duties or in making
decisions for fear of personal liability for
damages due to honest mistake. Whatever
damage they may have caused as a result of
such an erroneous interpretation, if any at all,
is in the nature of a damnun absque injuria.
Mistakes concededly committed by public
officers are not actionable absent any clear
showing that they were motivated by malice
or gross negligence amounting to bad
faith. After all, ‘even under the law of public
officers, the acts of the petitioners are
protected by the presumption of good faith.”
(Farolan vs. Solmac Marketing Corp, GR no.
83589, March 13 1911)
CIVIL LIABILITY (Damages)
 POLITICAL LAW REVIEW JD CLASS 2016-2017
 When performing official functions – public
officers are liable ONLY in case of malice, bad
faith, gross negligence
 NOT liable for “wrong interpretation of law”;
 Heads are liable for acts of subordinates ONLY
WHEN he has “authorized by written order the
act complained of”
 BUT: Sec. 24 of LGC of 1991 provides:
Liability for Damages – Local government units
and ther officials are NOT exempt from liability
for death or injury to persons or damage to
property.
THREE-FOLD LIABILITY RULE
Basic in the law of public officers is the three-fold
liability rule, which states that the wrongful acts or
omissions of a public officer may give rise to civil,
criminal and administrative liability. An action for each
can proceed independently of the others because they
spring from different causes of action. (Domingo vs.
Rayala, GR no. 155831, 155840, 158700, February 18,
2000)
Rule: The outcome of one case is not determinative of
the other – acquittal of the criminal case does not
mean that he should be exonerated in the admin case
because they require different quantum of evidence
required.
Q: What principle negates the law on superior
responsibility?
Liability for Acts of Subordinates:
GR: A superior should not be immediately be swept
into a conspiracy conviction simply because he did not
examine every detail of the subordinate.
Arias Doctrine (1989):
We would be setting a bad precedent if a head of office
plagued by all too common problems-dishonest or
negligent subordinates, overwork, multiple
assignments or poritions, or plain incompetence is
suddenly swept into a conspiracy conviction simply
because he did not personally examine every single
detail, painstakingly trace every step from inception,
and investigate the motives of every person involved
in a transaction before affixing , his signature as the
final approving authority.
Exception:
 Alfonso Doctrine (2007)
 CESA vs. Ombudsman (2008)
o A public officials’ foreknowledge of
facts and circumstances that suggested
an irregularity constitutes an added
reason to exercise a greater degree of
circumspection before signing and
issuing public documents. By failing to
prevent the irregularity that a superior
had reason to suspect all along or to
take immediate steps to rectify, the
superior will be held liable.
Bacasmas vs. Sandiganbayan (July 10, 2013)
Petitioners cannot hide behind our declaration in Arias
vs. Sandiganbayan that heads of offices cannot be
22
convicted od a conspiracy charge just because they did
not personally examine every single details before they
as the final approving authorities, affixed their
signatures to certain documents. The Court explained
in that case that conspiracy was not adequately
proven, contrary to the cast at bar in which petitioners’
unity of purpose and unity in the execution of an
unlawful objective were sufficiently established.
So, Arias doctrine also has its limitation. The unity in
the execution of an unlawful objective was sufficiently
established here unlike Arias where there were no
reasons for the superior authority to check further
before signing it.
Also, unlike in Aras, where there is no reasons for the
heads of offices to further examine each voucher in
detail, petitioners herein, by virtue of the duty given to
them by law as well as by rules and regulations, had
the responsibility to examine each Boucher to
ascertain whether it was proper to sign it in order to
approve and disburse the cash advance.
LIABILITY FOR ACTS COMMITTED OUTSIDE OF
DUTY
DISCIPLINE: DISHONEST COMMITTED OUTSIDE
OF DUTY
 Dishonesty, in order to warrant dismissal, need
not be committed in the course of the
performance of duty by the person charged
 The private life of an employee cannot be
segregated from his public lide. Dishonestly
inevitably reflects his fitness to continue to
hold office…. (Remolona vs. Civil Service
Commission, GR no. 137473)
Authority to Investigate Acts of Public Officers
There is nothing in the OMB law and consti which
grants exclusive jurisdiction on the OMB on the
investigation of offices.
 The constitution, Sec 15 of the Ombudsman
Act of 1989 and Section 4 of the
Sandiganbayan Law, as amended, do not give
to the Ombudsman exclusive jurisdiction to
investigate offenses committed by public
officers or employees. The authorty of the
Ombudsman to investigate offenses involving
public officers or employees is concurrent with
other government investigating agencies such
as provincial, city and state prosecutors.
HOWEVER, the Ombudsman, in the exercise of
its primary jurisdiction over cases cognizable
by the Sandiganbayan, may take over, at any
stage, from any investigating agency of the
government, the investigation of such cases.
(Alfredo Romulo A. Busuego vs. Office of the
Ombudsman (Mindandao) and Rosa S.
Busuego, GR no. 196842)
ELECTION LAW
PROBLEM
In the barangay elections of 2002, R and P were the
contending candidates for Barangay Chairman. Before
elections were held, however, R dies and R’s wife
 POLITICAL LAW REVIEW JD CLASS 2016-2017
sought to run as candidate in lieu of R. R’s wife won
the election, but the Board of Canvassers proclaimed P
as the winner saying that Sec 77 of the Omnibus
Elections Code, substitution of candidates is not
allowed inasmuch as the barangay election is non-
partisan and there can be no substitution because
there is no political party from which to designate the
substitute.
Answer: Substitution is allowed only in cases where
there is partisan election (via political parties). But in
barangay elections which is not partisan, in theory, it
is not allowed.
Will of the Electorate Rule
 Mandatory provisions requiring certain steps
before elections will be construed as directory
after the elections, to give effect to the will of
the electorate.
 Technicalities and procedural niceties in
election cases should not be made to stand in
the ay of the true will of the electorate. Laws
governing election contests must be liberally
construed to the end that the will of the
people in the choice of public officials may not
be defeated by mere technical objections.
 If COC has already been given due course,
remedies are: petition to cancel COC ->
Petition for disqualification -> Election protest -
> Quo Warranto; however, scenario different if
there is already an elected official.
 Defects in the certificates of candidacy should
have been questioned on or before the election
and not after the will of the people has been
expressed through the ballots. It was further
held in the said case that while provisions
relating to certificates of candidacy are
mandatory in terms, it is an established
rule of interpretation as regards election
law, that mandatory provisions requiring
certain steps before elections will be
construed as directory after the elections,
to give effect to the will of the electorate.
(Saya-Ang, Sr. vs. COMELEC, GR no. 155087
2003)
Powers of the Comelec
1. Executive or enforcement power
o Designation of polling places
o Deputization of law enforcement
agencies for the conduct of free,
honest elections
2. Quasi-legislative power
3. Quasi-judicial power
4. Judicial Power
The administrative powers of the COMELEC include
the power to determine the number and location of
polling places, appoint election officials and inspectors,
conduct registration of voters, deputize law
enforcement agencies and government
instrumentalities to ensure free, orderly, honest,
peaceful, and credible elections, register political
parties, organization or coalitions, accredit citizen’s
arms of the Commission, prosecute election offenses
and recommend to the President the removal of or
imposition of any disciplinary action upon any officer or
23
employee it has deputized for violation or disregard of
its directive, order or decision. In addition, the
Commission also has direct control and supervision
over all personnel involved in the conduct of election.
(Sandoval vs. Comelec [2000])
However, the resolution of the adverse claims of
private respondent and petitioner as regards the
existence of a manifest error in the questioned
certificate of canvass requires the COMELEC to act as
an arbiter. It behooves the Commission to her both
parties to determine the veracity of their allegations
and to decide whether the alleged error is a manifest
error. Hence, the resolution of this issue calls for the
exercise by the COMELEC of its quasi-judicial power.
(Sandoval vs. Comelec, supra)
Rule 64 – certiorari from Comelec to CA (30 days for
constitutional commissions); same nature with Rule 65
on GAD
Distinguishing powers of the comelec is important to
know the remedies. Example: In administrative cases,
it’s alright for Comelec En Banc to issue a resolution
right away. But in quasi-judicial or judicial acts, has to
be decided in division first.
Problem:
A Barangay was abolished and merged in a
Municipality. Comelec then issued Resolution No. 2987
for the holding of the plebiscite required by the LGC of
1991. A petition seeking for the annulment of
Resolution 1987 was filed before the Regional Trial
Court. The RTC, however, dismissed the case on the
ground of lack of jurisdiction. Was the RTC correct?
Note: Such powers of the Comelec are limited in the
sense that those are not expressly given cannot be
exercised.
 Comelec Resolution no. 2987 which provides
for the rules and regulations governing the
conduct of the required plebiscite, was not
issued pursuant to the COMELEC’s quasi-
judicial functions but merely as an incident to
its inherent administrative functions over the
conduct of plebiscites, thus, the said resolution
may not be deemed as a “final order”
reviewable by certiorari by this Court. Any
question pertaining to the validity of said
resolution may be well taken in an ordinary
civil action before the trail courts. (salva vs.
Makalintal GR no. 132603)
 There is no constitutional and statutory basis
for the respondent COMELEC to undertake a
separate and an “unofficial” tabulation of the
results of the election, the COMELEC descends
to the level of a private organization, spending
public funds for the purpose. (Brillantes, Jr vs.
Comelec GR no 163193, June 15 2004)
The Comelec can postpone the holding of a
plebiscite (and election) to another date
 The Comelec has “exclusive charge of the
enforcement and administration of all laws
relative tot eh conduct of elections for the
purpose of ensuring free, orderly and honest
elections.” The text and intent of Section 2 (1)
 POLITICAL LAW REVIEW JD CLASS 2016-2017

of Article IX (C) is to give COMELEC “all the exercise of its exclusive appellate
necessary and incidental powers for it to jurisdiction. This power is concurrent with the
achieve the objective of holding free, orderly, SC, so, the tribunal that takes jurisdiction first
honest, peaceful and credible elections.” shall exercise exclusive jurisdiction over the
(Cagas vs. COMELEC GR no 209185, October case. But, note now of SC’s mandate to
25 2013) observer ”hierarchy of courts”. (Relampagos
case)
JURISDICTION OF THE COMELEC
Problem
Note: For PET, it’s the supreme court en banc.
X and Y were candidates for Congressman of the first
Election Contests: District of Cebu City during the May 2013 elections. A
petition for disqualification was filed by X against Y
 Original : Regional, Provincial, City Official
alleging that Y violated the Omnibus Election Code for
 Appellate: Mun. (RTC); Brgy (MTC); Note:
using public funds for his campaign materials. The
Decision is final and executory, hence, remedy
eptition was not acted upon by the COMELEC before
is Certiorari (Rule 64; 30 days)
the election and Y was boted for and obtained the
highest number of votes.
Pre-Proc, becoming election contest after
election
After the election and before proclamation of YY, the
second division of the COMELEC ordered the
 In a choice of alternatives, what should guide
suspension of Y’s proclamation and thereafter granted
the Commission on Election in its final
the petition for disqualification. Thereafter, the
disposition of a pre-proclamation controversy
COMELEC ordered the proclamation of X, who garnered
after the lapse of a considerable period is to
the 2nd highest number of votes, and who immediately
accord respect to a proclamation made after a
took his oath. Y had timely filed a motion for
due deliberation but without prejudice to a
reconsideration which was not immediately acted upon
protest or quo warranto action to be filed, if
until July 1, 2013. Was the COMELEC already divested
the losing party chooses to pursue such
of its jurisdiction? NO.
remedy. (Faderanga vs. COMELEC; Aguinaldo
vs. COMELEC [1981)
COMELEC & HRET/SET
Is the proclamation the determining factor
Limkaichong vs. Comelec (2009):
whether the Comelec should continue exercising
it’s jurisdiction?  Once a winning candidate has been
proclaimed, taken his oath, and assumed
Depends. IN the problem at bar, the comelec is not yet
office as a Member of the House of Rep,
divested of its jurisdiction because MR was timely filed
the jurisdiction of the HRET begins over
because it did not reach the finality of such decision.
election contests relating to his election,
returns and qualifications, and mere
Indeed the General rule is that mere allegation of
allegation as to the invalidity of her
invalidity of the proclamation does not divest the
proclamation does not divest the Electoral
electoral tribunal of its jurisdiction. The rule is, once a
Tribunal of its jurisdiction.
winning candidate has been proclaimed, taken his oath
and assumed the office as member of the House of
Limkaichong (2009) vs. Codilla (2002)
Rep
 In Limkaichong, the SC did not find the
BUT in Codilla, there’s a different pronouncement.
proclamation void as the order disqualifying
Once a winning candidate is proclaimed, it presupposes
the winning candidate was not yet final and the
that the proclamation was valid.
proclamation was legally and procedurally
called for. In Codilla, procedural lapses that
 IN DIVISION FIRST, BEFORE EN BANC
resulted to denial of due process rendered the
RULE
proclamation of the winning candidate void.
 Applicable only when COMELEC is asked to
That a “Second Placer” was proclaimed winner
exercise adjudicatory function(QJ). Hence,
also made the proclamation void. Thus the
when exercising purely admin function, need
Comelec retained jurisdiction despite the
not be in division.
proclamation in Codilla.
 E.G. “correction of manifest errors” is
purely admin (includes mere mathematical
Scope of the Doctrine on Rejection of Second
calculation), hence, en banc may decide. But
Placer
not in SANDOVAL CASE (where the issue was
not the correction of manifest error) where the In Labo there was no final judgment of disqualification
Supreme Court said it requires adjudicative before the elections. The doctrine on the rejection of
function, hence, must be decided in division by the second placer was applied in Labo and a host of
the COMELEC. other cases because the judgment declaring the
 Comelec does not exercise “supervision” candidates’ disqualification in Labo and the other cases
over SK elections. It is with DILG. Comelec had not become final before elections. To repeat, Labo
only gives technical assistance to DILG in the and the other cases applying the doctrine on the
conduct of SK elections. (Alunan case) rejection of the second placer have one common
 Comelec can issue writs of Certiorari, essential condition – the disqualification of the
Prohibition and Mandamus but only in the
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 POLITICAL LAW REVIEW JD CLASS 2016-2017
candidate had not become final before the
elections. (Talaga vs. COEMLEC [2012])
Note: misrepresentation becomes material if it involves
eligibility.
Think of a situation where under Sec 12, 68 or 40 of
the LGC – yet, we don’t apply the rejection of the
second placer rule (where the supposed 2nd placer will
be proclaimed and be valid.)? * this is the caveat given
to us by Labo doctrine
*Technically, dili 2nd placer sa Talaga since substitution
presupposes a valid COC. But since the substitution
was not valid, the one who had higher votes was
invalid because s/he was not a candidate in the first
place. No vote for the first placer.
PROBLEM
X, Y and Z ran for Member for the House of
Representatives in the 3rd district of Cebu. X, obtained
the highest number of votes, followed by X and then X.
However, months before election day, a pending
Petition was filed by Y against X alleging that X is not
a natural-born Filipino contrary to his declaration in his
COC and therefore disqualified run for Congress. A
final decision has been reached disqualifying X before
proclamation day.
Questions:
1. May Y validly request the Comelec to declare
him a winner? Why or why not?
2. Assuming that S sought for the substitution of
X before election day, should the votes in favor
on election day be validly counted? Why or
why not?
Answer: like in Talaga Case. This is DQ on the basis of
material misrepresentation because of problems with
eligibility. Since he was proven that he is not a natural
born Filipino, hence, he was declared not having filed
valid COC.
When a candidate is disqualified, died or withdrawn
(68, 12, of the Omnibus Election Code) – appropriate
for substitution
“Section 68” vs. “Section 78” Petitions
 A Petition for Disqualification, on the one
hand, can be premised on Sec. 12 or 68 of
OEC or Sec 40 of the LGC. But, a petition to
deny due course or to cancel a COC can
only be grounded on a statement of a material
representation in the said COC that is false.
The petitions have different effects. While a
person who is disqualified under Sec 68 is
merely prohibited to continue as a candidate,
the person whose certificate is cancelled or
denied due course under Sec 78 is not treated
as a candidate at all, as if he/she never field a
COC. (Fermin vs. Comelec [2008], cited in
Talaga vs. Comelec [2012])
Substitution presupposes the existence of
‘candidate’
 A candidate who is disqualified under Section
68 can be validly substituted pursuant to
Section 77 because he remains a candidate
until disqualified but a person whose COC has
been denied due course to and/or cancelled
under Section 78 cannot be substituted
because he is not considered a candidate.
Stated differently, since there would ne no
candidate to speak of under a denial of due
course to and/or cancellation of a COC case,
then there would be no candidate to be
substituted. (Tagolino vs. HRET, GR no.
202202, March 19, 2013)
PROBLEM
During the May 2013 elections, massive terrorism and
violence marred the elections in a remote municipality
in southern part of Cebu Province. As a result, only
about 2% of the total registered voters in the said
municipality were able to vote. X was proclaimed the
winner having obtained the highest number of votes.
Claiming that X and his goons were the ones
responsible for the terrorism and violence that marred
the elections, Y, the losing candidate, filed before the
COMELEC, a petition to declare failure of elections in
58 precincts in the said municipality. Will the petition
prosper? Why or why not?
FAILURE of elections
Before the COMELEC can act for the declaration of a
failure of election, 2 conditions must concur: (1) that
no voting has taken place on the date fixed by law or
even if there was, thee lection results in a failure to
elect, AND (2) the votes not cast would affect the
result of the election (Soliva vs. COMELEC, GR no
141723 2001)
Note: There was voting but it was not counted
(because of some circumstances); hence, failure to
ascertain the will of the electorate
Party-List system Questions: (see RA 7941)
1. May a group that does not represent a
marginalized sector participate in the Party-List
elections? (Atong Paglaum Inc. vs. Comelec)
Who may be a Party-list Group:
The party-list system is composed of three different
groups:
1. National parties or organizations;
2. Regional parties or organizations
3. Sectoral parties or organizations.
National and regional parties or organizations are
different from sectorial parties to organizations.
National and regional parties or organizations need not
be organized along sectoral lines and need not
represent any particular sector. (Atong Paglaum, Inc
vs. Comelec [April 2013])
2. LGBT, a group of lesbians, gays, bisexuals and
transexuals wanted to join the party-list
system. Is the group legally allowed to join the
a party-list system? (Ang Ladlad Party vs.
Comelec)
The enumeration of marginalized and under-
represented sectors is NOT exclusive. The crucial
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 POLITICAL LAW REVIEW JD CLASS 2016-2017
element is not whether a sector is specifically
enumerated, but whether a particular organization
complies with the requirements of the Constitution and
RRA 7941. (Ang Ladlad LGBT Party vs. COMELEC, GR
no 190582, Apr 08, 2010)
3. Is a party-list group failed to obtain at least
2% votes in the last 2 preceding elections, is it
still qualified to participate in the next party-
list election? ( see Section 6 of RA 7949); while
textually it’s a ground for DQs of party-list
groups, remember what happened in Banat vs.
Comelec case. In Banat, it allowed giving of
seats to party lists who did not qualify the 2%
seat. Because of such ruling in computing the
additional seats – in Phil. Guardians vs.
Comelec, Sec 6 should now be understood in
light of Banat ruling – not failure to get 2%
BUT failure to get a seat. This means those
getting less than 2% may or may not get a
seat.
Section 6 (8) of RA 7941 provides for two separate
grounds for delisting; these grounds cannot be mixed
or combined to support delisting; and (b) the
disqualification for failure to garner 2% party-list votes
in two preceding elections should now be understood,
in light of the Banat ruling, to mean failure to qualify
for a party-list seat in two preceding elections for the
constituency in which it has registered. (Philippine
Guardians Brotherhood, Inc vs. COMELEC, GR no
190529, April 29, 2010)
4. X is a lawyer and has as his client the urban
poor and laborers. “Ang Trabahador” is a
party-list group registered as such with the
Commission on Elections representing the
Labor Sector. Can X be a nominee of “Ang
Trabahador” and become its representative?
Assumption here is that lawyer is not laborer
and not part of the urban poor. Can one who
does not belong to the sector be a valid
nominee of the partylist group that supposedly
represents the sector? YES. Track record.
The party-list organization or party must factually and
truly represent the marginalized and underrepresented
constituencies mentioned in Section 5. Concurrently,
the persons nominated by the party-list candidate-
organization must be “Filipino citizens belonging to
marginalized and underrepresented sectors,
organizations and parties.” (Ang Bagong Bayani-OFW,
GR no. 147589, 147613, June 26, 2001)
The phrase ‘marginalized and underrepresented’
should refer only to the sectors in Section 5 that are,
by their nature, economically ‘marginalized and
underrepresented’. These sectors: labor, peasant,
fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, overseas
workers, and other similar sectors. For these sectors,
a majority of the members of the sectoral party
must belong to the “marginalized and
underrepresented”. The nominees of the sectoral
party either must belong to the sector, or must
have a track record of advocacy for the sector
represented. Belonging to the “marginalized and
26
underrepresented” sector does not mean one must
“wallow in poverty, destitution or infirmity”. (Atong
Paglaum Inc vs. Comelec [2013])
What’s the “gauge for track record of advocacy”?
Power to investigate and prosecute election
offenses
 The Constitution has not made this power
“exclusive” to the Comelec
 HENCE, the COMELEC, by law, exercise
concurrent jurisdiction with other prosecutory
arms of the government in the investigation
and prosecution of election offenses as
provided for in RA 9369 (See: Banat vs.
Comelec, August 2009)
Comelec and DOH in prosecution of election
offenses:
The grant of exclusive power to investigate and
prosecute cases of election offenses o the Comelec was
not by virtue of the Constitution but by the Omnibus
Election Code which was eventually amended by Sec
43 of RA 9369. Thus, the DOJ now conducts
preliminary investigation of election offenses
concurrently with the Comelec and no longer as
mere deputies. (Arroyo vs. DOJ [2012])
Registration of Voters (RA 8189)
Salient Features of RA 8189:
 Every barangay shall have at least one (1)
precinct. Each precinct, shall have no more
than two hundred (200) voters and shall
comprise contiguous and compact territories.
(Under RA 9369, these precincts are now
“clustered”)
 Who may register?
 All citizens of the Philippines not otherwise
disqualified by law who are at least eighteen
(18) years od age and who shall have resided
in the Philippines for at least one (1) year and
in the place wherein they propose to vote for
at least six (6) months immediately preceding
the election.
The following shall be disqualified from registering:
a) Sentenced by final judgment to suffer
imprisonment of not less than one (1) year,
such disability not having been removed by
plenary pardon or amnesty; Provided,
however, That any person disqualified to vote
under this paragraph shall automatically
reacquire the right to vote upon expiration of 5
years after service of sentence.
b) Has been ajudged by final judgment…of having
committed any crime involving disloyalty o the
duty constituted government such as a
rebellion sedition, violation of the firearms laws
or any crime against national security, unless
restored to his full civil and political rights in
accordance with law: Provided, that shall
automatically reacquire the right to vote upon
expiration of 5 years after service of sentence;
and
 POLITICAL LAW REVIEW JD CLASS 2016-2017
c) Insane or incompetent persons declared as
such by competent authority unless
subsequently declared gy proper authority that
such person is no longer insane or
incompetent.
Any illiterate person may register with the assistance
of the Election Officer or any member of an accredited
citizen’s arms. The election officer shall place such
illiterate person under oath, ask him the questions,
and record the answers given in order to accomplish
the application form in the presence of the majority of
the members of the Board… The application for
registration of a physically disabled person may be
prepared by any relative within the fourth civil degree
of consanguinity or affinity or by the election officer or
any member of an accredited citizen’s arm using the
data supplied by the applicant.
Any voter, candidate or representative of a registered
political party may challenge in writing any application
for registration, stating the grounds therefor. The
challenge shall be under oath and be attached to the
application, together with the proof of notice of hearing
to the challenger and the applicant.
Jurisdiction in Inclusion and Exclusion Cases - The
Municipal and Metropolitan Trial courts shall have
original and exclusive jurisdiction over all cases of
inclusion and exclusion of voters in their respective
cities or municipalities. Decisions of the Municipal or
Metropolitan Trial Courts may be appealed by the
aggrieved party to the RTC within 5 days from receipt
of notice thereof. Otherwise, said decision shall
become final executory. The regional trial court shall
decide the appeal within 10 days from the time it is
received and the decision shall immediately become
final and executory. No motion for reconsideration
shall be entertained.
Effect of Resignation and Voting in Residence
 Will registration of a voter in a place or other
than his residence of origin result to
abandonment of residence? No, according to
Perez vs. Comelec 317 SCRA 641)
 Will the act of voting by a voter in a place
other than his residence of origin result to
abandonment of residence? (Not necessarily,
according to Domingo vs. Comelec 310
SCRA 641
What about reacquisition of lost citizenship
under RA 9225?
 RA 9225 only provides for re-acquisition
of “citizenship”, not residence. Thus, the
candidate must still show overt acts
constituting “reacquisition of residency” in the
Philippines (e.g. application of Philippine
Passport, paying of taxes, etc) – Japzon vs.
Comelec, Jan 19, 2009
Effect of Filing of Certificate of Candidacy
 Not deemed resigned; only appointive official
who filed certificate of candidacy will be
deemed to have resigned.
 Sec 13 of RA 9363: “Any person holding a
public appointive office or position, including
27
active members of the armed forces, and
officers, and employees in government-owned
or controlled corporations, shall be considered
ipso facto resigned from his or her office and
must vacate the same at the start of the day of
filing of his/her certification of candidacy.
Quinto vs. Comelec (2009; 2010)
2009: The Supreme Court ruled that the differential
treatment of persons holding appointive offices as
opposed to those holding elective ones is not germane
to the purposes of the law, and this violated the equal
protection clause.
2010: THERE ARE SUBSTANTIAL DISTINCTIONS
BETWEEN ELECTIVE AND APPOINTIVE OFFICIALS.
RA 9369, in relation to Infomercials
 The Commission shall set the deadline for the
filing of certificate of candidacy or petition of
registration or manifestation to participate in
the election. Any person who filed his
certificate of candidacy within this period shall
only be considered as a candidate at the start
of the campaign period for which he filed his
certificate of candidacy; provided that,
unlawful acts or omissions applicable to a
candidate shall effect only upon that start of
the aforesaid campaign period
Penera vs. Comelec (Sept 2009)
 A person, after filing his/her COC but prior to
his/her becoming a candidate (thus, prior to
the start of the campaign period), can already
commit the acts described under Section 79
(b) of the Omnibus Election Code as election
campaign or partisan political activity.
 However, only after said person officially
becomes a candidate, at the beginning of the
campaign period, can said acts be given effect
as premature campaigning under Section 80 of
the Omnibus Election Code. Only after said
person officially becomes a candidate, at the
start of the campaign period, can his/her
disqualification be sought for acts constituting
premature campaigning.
 Congress has laid down the law – a candidate
is liable for election offenses only upon the
start of the campaign period. This Court has no
power to ignore the clear and express mandate
of the law “any person who filed his certificate
of candidacy within [the filing] period shall only
be considered a candidate at the start of the
campaign period for which he filed his
certificate of candidacy.”
 What the law says is “any unlawful act or
omission applicable to a candidate shall
take effect upon the start of the campaign
period”. The plain meaning of this provision is
that the effective date when partisan political
acts become unlawful as to a candidate is
when the campaign period starts. Before the
start of the campaign period, the same
partisan political acts are lawful.
 POLITICAL LAW REVIEW JD CLASS 2016-2017
 Neither can this Court turn a blind eye to the
express and clear language of the law that
“any unlawful act or omission applicable to a
candidate shall take effect only upon the start
of the campaign period.”
 The forum for examining the wisdom of
the law, and enacting remedial measures,
is not this Court but the legislature.
SUBSTITUTE CANDIDATE
 If the official candidate dies, withdraws or is
disqualified for any cause, any person
belonging to the same party and certified by
said party may replace the candidate.
 What if independent candidate?
o Rulloda vs. Comelec 2003 Jan 20 (En
Banc) – Contrary to respondent’s
claim, the absence of a specific
provision governing substitution of
candidates in barangay elections can
not be inferred as a prohibition against
said substitution. Such a restrictive
construction cannot be read into the
law where the same is not written.
Indeed, there is more reason to allow
the substitution of candidates where no
political parties are involved than when
political considerations or party
affiliations reign, a fact that must have
been subsumed by law.” (Note:
Barangay election is not partisan)
Substitution of Candidate must be done within
the time set by law
There are different deadlines set to govern the specific
circumstances that would necessitate the substitution
of a candidate due to death, disqualification or
withdrawal. In case of death or disqualification,
the substitution had until midday of the election
day to file the COC. In case of withdrawal, the
substitute is usually required to file the COC
much earlier. In the 2010 elections, for example, it
was set on December 14, 2009. (Renato M. Federico
vs, Comelec, Jan 22, 2013)
LONE CANDIDATE LAW
Upon the expiration of the deadline for the filing of the
certificates of candidacy in a special election called
to fill a vacancy in an elective position other than
for President and Vice President, when there is
only (1) qualififed candidate for such position, the lone
canddiate shall be proclaimed elected to the position
by proper proclaiming body of the Commission on
Elections without holding the special election
upon certification by the Commission on
Elections that he is the only candidate for the
office and is thereby deemed elected.
Multiple filing of certificates of candidacy
If he filed certificate of candidacy for more than one
office, he shall not be eligible for any of them.
 BUT, before expiration of the period for filing of
certificate of candidacy, the person who has
filed more than one cert of candidacy may
28
declare under oath the office for which he
desires to be eligible.
Material Misrepresentation
The material misrepresentation under Secton 78 of the
OEC refers to qualifications for elective office. Aside
from the requirement of materiality, a false
representation under Section 78 must consist of a
“deliberate attempt to mislead, misinform, or
hide a fact which would otherwise render a candidate
ineligible.” In other words, it must be made with an
intention to deceive the electorate as to one’s
qualifications for public office. (Salcedo vs. Comelec
[1999])
Failure of Elections; 2 conditions
1. No voting has been held (or, held but
suspended and did not resume or resulted
in “failure to elect”) in any precinct or
precincts due to fraud, force majeure,
violence or terrorism; and
2. The votes not case therein are sufficient to
affect the results of the election. The cause
of such failure may arise before or after the
casting of votes or on the day of the election.
(ASKED IN THE BAR MANY TIMES!)
“Failure of Elections”; to be strictly construed
 The power to declare a failure of elections
should be exercised with utmost care and
only under circumstances which
demonstrate beyond doubt that the
disregard of the law has been so
fundamental or so persistent and
continuous that it is impossible to
distinguish what votes are lawful and
what are unlawful, or to arrive at any
certain result whatsoever; or that the
great body of voters have been prevented
by violence, intimidation and threats from
exercising their franchise. There is failure of
elections only when the will of the electorate
has been muted and cannot be ascertained. If
the will of the people is determinable, the
same must as far as possible be
respected.
Effect of the death of the protestant during the
pendency of an election contest:
 Considering that election contest is imbued
with public interest, unlike in an ordinary suit,
the death of the protestant does not extinguish
an election contest. The candidate who is likely
to succeed had the protestant been declared
the winner, like a vice-elect, will be the real
party in interest. (Poe vs. GMA)
“Execution pending appeal” allowed in election
cases
 It is allowed if there are valid and special
reasons to grant the motion for execution
pending appeal, and provided that the
motion for execution is filed within the
period to appeal. Besides, the pendency of
an election contest is not a sufficient basis to
enjoin one who has been proclaimed as duly
 POLITICAL LAW REVIEW JD CLASS 2016-2017
elected from assuming office as required of
him by law, otherwise the efficiency of public
administration would be impaired.
Best evidence in election contest cases
 Where what is involved is the correctness of
the number of votes of each candidate, the
best and most conclusive evidence are the
ballots themselves.
 BUT, where the ballots cannot be produced or
are not available, the election returns would
be the best evidence, as they are used in the
canvass of votes.
LOCAL GOVERNMENT LAW
(Municipal Corporation Law)
Kinds of Corporation, in general:
 Private Corporation – is one that is formed
for some private purpose, benefit, aim or end,
such as a business corporation formed and
organized under a general law on corporation.
It is created for private objects. (Dillon, supra)
 Public Corporation – is one that is organized
for government of a portion of a state, such as
a local government unit. It is created for public
purpose. (Dillon, supra)
BPA vs. COA (2011)
The BSP still remains an instrumentality of he
national government. It is a public corporation (this
is declared in CA no. 111 itself) created by law for a
public purpose, attached to the DECS pursuant to its
Charter and the Administrative Code of 1987. It is not
a private corporation which is required to be
owned or controlled by the government and be
economically liable to justify its existence under a
special law.
(See, however, the dissent of Justice Carpio)
Dissent of J. Carpio
 Indeed, the BSP performs functions which may
be classified as public in character, in the
sense that it promotes “virtues of citizenship
and patriotism and the general improvement of
the moral spirit and fiber of our youth.
However, this fact alone does not automatically
make the BSP a GOCC…
 Authorities are of the view that the purpose of
the corporation cannot be taken as a safe
guide, for the fact is that almost all
corporations are nowadays created to promote
the interest, good, or convenience of the
public.
 The true criterion, therefore, to determine
whether a corporation is public or private is
found in the totality of the relation of the
creation to the State. If the corporation is
created by the State as the latter’s own agency
or instrumentality to help in carrying out its
governmental functions, then that corporation
is considered public; otherwise, it is a private.
 Applying the above test, provinces,
chartered cities, and barangays can best
exemplify public corporations. They are
29
created by the State as its own device and
agency for the accomplishment of parts of
its own public works. (Citing Philippine
Society for the prevention of Cruelty to
Animals vs. Commission on Audit [2007])
Kinds of Public Corporation
1. Quasi-Public Corporation – a private
corporation that renders public service or
suppliers public wants, such as utility
companies. It combines the elements of both
public and private. Hough organized for private
profit, they are compelled by law or contract to
render public service. (Dillon, supra) E.g.
public utility companies
2. Municipal Corporations – body politic and
corporate constituted by the incorporation of
the inhabitants for purposes of local
government thereof. Recently referred to as
“local governments”
Local Government
 A local government is defined as a “political
subdivision of a nation or state which is
constituted by law and has substantial control
of local affairs” E.g. Province (under 1987
Constitution, local governments are not only
called “political subdivisions”, but “territorial
subdivisions” as well)
 What is the underlying reason or justification
for the creation of local governments?
Municipal Corporations
Elements:
1. Legal creation or incorporation
2. Corporate name
3. Inhabitants
4. Territory
Dual Nature and Functions of LGU
 Governmental – (also public or political)
administering the powers of the state and
promoting the public welfare
 Proprietary (also called private or corporate)
exercised for the special benefit and advantage
of the community
Local Government Code of 1991:
Sec 15. Political and Corporate Nature of Local
Government Units
Every local government unit created or recognized
under this Code is a body politic and corporate
endowed with powers to be exercised by it in
conformity with law. As such, it shall exercise
powers as a political subdivision of the National
Government and as a corporate entity
representing the inhabitants of its territory.
 Examples of Governmental functions: exercise
of local police power, taxation, and eminent
domain for public works
 Examples of Proprietary functions –
establishment of slaughter houses and
 POLITICAL LAW REVIEW JD CLASS 2016-2017
markets, maintenance of parks, cemeteries,
fiesta celebration
1994 BAR EXAMINATION:
Question No. 6
Johnny was employed as a driver by the Municipality of
Calumpit, Bulacan. While driving recklessly a municipal
dump truck with it’s a load of sand for the repair of
municipal streets, Johnny hit a jeepney. The
Sangguniang Bayan passed an ordinance appropriating
P 300,000.00 as compensation for the heirs of the
victim.
1. Is the municipality liable for the negligence of
Johnny?
2. Is the municipal ordinance valid?
Kinds of Municipal Corporation:
 De Jure created with all the elements of a
municipal corporation being present
 De Facto where there is colorable compliance
with the requisites of a de jure municipal
corporation
BASIS for the Doctrine of De Facto Corporation
 The basis for this doctrine is a very strong
public policy supporting the security of units
of local government and the conduct of
their business against attack grounded upon
collateral inquiry into the legality of their
organization. (Cf: Operative Fact Doctrine)
 It also underlies the theory that local units may
exist by prescription. (Fordham)
Municipality of Jimenez vs. Bas, Jr (1996):
 The Municipality of Sinacaban was created
through EO 258 in 1949 and since then had
been exercising the powers of an LGU;
 In 1965, Pelaez vs. Auditor General Case
invalidated certain EOs issues by the President
creating municipalities because the power to
created LGU is essentially legislative, excluding
WO 258;
 IN 1990, Sinacaban’s existence was
questioned.
Municipality of San Narciso vs. Mendez, Sr.
(1994)
 Municipality of San Andres was created in 1959
through EO 353
 It became a 5th class municipality in 1965
 In 1965, Pelaez vs. Audtor General case
invalidated some EOs (excluding EO 353) of
the President creating some municipalities;
San Andres’ existence was questioned in 1989
 RULING: San Andres became de jure by
subsequent because it was included in the
Ordinance (Appendix) to the 1987 Constitution
apportioning the seats of the House of
Representative (as one of the 12 municipalities
composing the 3rd district of Quezon).
Sec 442 (d), LGC:
30
“Municipalities existing as of the date of the effectivity
of this Code shall continue to exist and operate as
such. Existing municipal districts organized pursuant to
presidential issuances or executive orders and which
have their respective set of elective municipal officials
holding office at the time of the effectivity of this Code
shall henceforth be considered as regular
municipalities.”
Sultan Osop Camid vs. office of the President
(2005)
 Andong (created in 1964) was among the
municipalities declared invalidly created by an
EO in Pelaez vs. Auditor General (1965);
 Invoking Narciso case, reiterated in Candijay
case, and specifically Section 442 (d) of the
LGC, petitioner wanted the SC to affirm the de
jure (or at least a de facto) status of Andong;
 Petitioner attached “certificates: showing
exercise of corporate powers even after Pelaez
case was decided in 1965
 RULING:
o Section 442 (d) of the LGC does not
sanction the recognition of just any
municipality;
o Only those that can prove continued
exercise of corporate powers can be
covered;
o Incidentally, the SC, being not a trier
of facts, cannot ascertain the
truthfulness of petitioner’s allegation of
continued exercise of corporate
powers. (there should have been a trial
court that ascertained it.)
DOCTRINE OF OPERATIVE FACT, applicable in
invalidly created LGU
2004 Bar exam (VII)
B. Suppose that one year after Masigla was constituted
as a municipality, the law creating it is voided because
of defects. Would that invalidate the acts of the
municipality and/or its municipal officers?
ANSWER: Municipality of Malabang vs. Benito.
Municipality of Malabang vs. Benito (1969)
 EO 386 creating the municipality in question is
a nullity pursuant to the ruling Pelaez vs.
Auditor General and Municipality of San
Joaquin vs. Siva. The EO therefore “created no
office”. This is not to say, however, that the
acts done by the municipality of Balabagan in
the exercise of its corporate powers are a
nullity because the EO is, in legal
contemplation, as inoperative as through it had
never been passed. For the existence of EO
386 is “an operative fact which cannot justify
be ignored”. There is then no basis for the
respondent’s apprehension that the
invalidation of the Executive Order creating
Balabagan would have the effect of unsettling
many an act done in reliance upon the validity
of the creation of that municipality.
Bar Exam (2011)
 POLITICAL LAW REVIEW JD CLASS 2016-2017
Define/explain the following:
A. Doctrine of Operative facts (1%)
B. De facto municipal corporations (1%)
C. Municipal corporation by estoppel (1%)
Questions:
1. What is local autonomy?
2. What kind of decentralization has been granted
to provinces, cities, municipalities, barangays
and autonomous regions?
3. True, False or Qualified True/False:
a. The National Government exercises
general supervision over a Province
b. The National Government exercises
general supervision over the ARMM
LOCAL AUTONOMY
Limbona vs. Mangelin – Now, autonomy is either
decentralization of administration or decentralization of
power.
 “There is decentralization of administration
when the central government delegates
administrative powers to political subdivisions
in order to broaden the base of government
power and in the process to make local
governments “more responsive and
accountable,” and “ensure their fullest
development as self-reliant communities and
make them more effective partners in the
pursuit of national development and social
progress.”
 Decentralization of Power, on the other
hand, involved an abdication of political
power in favor of local governments units
declared to be autonomous. In that case, the
autonomous government is free to chart
its own destiny and shape its future with
minimum intervention from central
authorities. According to a constitutional
author, decentralization of power amounts to
“self-immolation,” since in that event, the
autonomous government becomes accountable
not to the central authorities but to its
constancy.
Administrative Powers or Political Powers?
 What is the kind of decentralization adopted or
practiced in the Philippines?
o Philippines vs. Aquirre, GR no. 132988,
July 19 2000 – Under the Philippine
concept of local autonomy, the national
government has not completely
relinquished all its powers over local
governments, including autonomous
regions. Only administrative
powers over local affairs are
delegated to political subdivisions.
Thus, policy0setting for the entire
country still lies in the President
31
and Congress. (Also cited in Kida vs.
Senate, October 18, 2011)
Problem:
In 2007, the DSWD embarked on a poverty reduction
strategy with the poorest of the poor as target
beneficiaries called “Pantawid Pamilyang Pilipino
Program (4Ps)”. This government intervention scheme,
also conveniently referred to as CCTP, provides cash
grant to extremely poor households to allow the
members of the family to meet certain human
development goals. The DSWD also institutionalized a
coordinated inter-agency network among the
Department of Education (DepEd), Department of
Health (DOH), Department of Interior and Local
Government (DILG) and the National Anti-Poverty
Commission (NAPC). The only role of local government
units was to “identify the beneficiaries” of the program,
but local officials do not implement the distribution of
case incentives to the beneficiaries. The program was
challenged as unconstitutional on the ground that it
allegedly encroached into the local autonomy of the
LGUs. Decide.
Pimentel, Jr. vs. Ochoa (2012)
 Certainly, to yield unreserved power of
governance to the local government unit as to
preclude any and all involvement by the
national government in programs implemented
in the local level would be to shift the tide of
monopolistic power to the other extreme which
would amount to a decentralization of power
explicated in Limbona vs. Mangelin as beyond
our constitutional concept of autonomy…
 Indeed, a complete relinquishment of central
government powers on the matter of providing
basic facilities and services cannot be implied
as the Local Government Code itself weight
against it. The National government is, thus,
not precluded from taking a direct hand in the
formulation and implementation of national
development programs especially where it is
implemented locally in coordination with the
LGUs concerned. (see also Imbong vs. Ochoa
[2014] on RH law)
It was argued that DILG MC no. 2010-138
transgressed constitutionally-protected liberties when
it restricted the meaning of development and
enumerated activities which the local government must
finance from the 20 development fund component of
the IRA. It was argued that LGUs local autonomy was
violated. Did the Subject DILG MC violate local
autonomy?
CREATION, CONVERSION, DIVISION, MERGER,
ABOLITION, SUBSTANTIAL CHANGE OF
BOUNDARY
A. Regular Political Subdivisions
B. Autonomous Regions
C. Special Metropolitan Political Subdivisions
D. Beginning of Corporate Existence
General Requirements:
 Law
 Plebiscite
 POLITICAL LAW REVIEW JD CLASS 2016-2017
 Compliance with Criteria on Income, Land
and/or Population
Problem
Seventy-five (75) laws creating 75 cities out of
municipalities were passed in 2006, in each of these
laws, a provision is provided which states: “This Act
shall be exempt from the provision of RA 9009.” RA
9009 increased the income requirement for the
creation of a city to P 100 M locally generated income.
When a petition was filed seeking for the declaration of
unconstitutionally of these laws the 75 municipalities
argued as follows:
A. The League of Cities already settled the issue
in favor of the newly-created cities;
B. The newly-created cities are legitimate under
the Doctrine of Operative Fact. Decide.
Plebiscite Requirement:
Questions:
 Who shall participate?
 What is meant by “units directly affected”?
 In what sense affected?
 How is it different from the manner of creating
autonomous regions?
 What about in downgrading or upgrading of
city?
Problem
In 1998, by virtue of RA no. 8528, the City of
Santiago, Isabel was converted from an independent
component city to a component city. The
constitutionality of RA no. 8528 was assailed in the
ground of lack of provision in the said law submitting
the same for ratification by the people of Santiago City
in a proper plebiscite. The issue was whether the
downgrading of Santiago City from an independent
component city to a mere component required the
approval of the people of Santiago City. Decide.
Miranda vs. Aguirre (Sep 1999)
The Supreme Court ruled the plebiscite was
required even in case of conversion.
It observed that that common denominator in Section
10, Articles X of the 1987 Constitution is the material
change in the political and economic rights of the local
government units directly affected as well as the
people therein. It is precisely for this reason that the
Constitution required the approval of the people in the
political units “directly affected.”
Umali vs. COMELEC (April 2014)
While conversion to an HUC is not explicitly provided in
Sec 10, Art X of the Constitution, xxx the conversion of
a component city into an HUC is substantial alteration
of boundaries. As the phrase implies, “substantial
alteration of boundaries” involves and necessarily
entails a change in the geographical configuration of a
local government unit or units. The phrase
“boundaries” should not be limited to the mere
physical one, referring to the metes and bounds of the
LGU, but also its political boundaries.
Question:
32
In the LGC of 1991, a municipality may be created
with less than 50 sq km. If it is an island. Under the
LGC of 1991, however, there is no such exception
when it comes to creation of a province which normally
requires t least 2,000 sq km. May the implementing
rules of the LGC of 1991 provide for a similar
exception?
Navarro vs. Ermita (2010)
Paragraph 2 of Article 9 of the rules and Regulations
Implementing the Local government Code of 1991,
which states that “the land area requirement shall not
apply where the proposed province is composed of one
(1) or more islands” violates the Local Government
Code of 1991 and therefore null and void.
2011 Navarro vs. Ermita, reversed in 2011
 SC through J. Nachura, ruled that Congress
intended to apply the exemption on land area
requirements enjoyed by municipalities and
cities which have islands as territories to the
province (Province of Dinagat)
 Note of J. Carpio’s dissent that the majority
opinion will allow the creation of a province
with only one (1) unit (say a municipality)
instead of various component LGUs.
Problem:
In preparation for the 2016 local and national
elections, the Comelec conducted investigations in
order to ascertain the veracity of reports of “ghost
precincts”. Based on the investigations it conducted,
Comelec discovered that there are no inhabitants in
Barangay Diwata in Municipality of Lazi, Siquijor.
Consequently, the COMELEC removed Brgy. Diwata
among the list of precincts in the Municipality of Lazi,
Siquijor for purposes of the 2016 elections. Is the act
of the Comelect valid?
Problem:
Brgy. Pobre is the poorest of all brgys in the
Municipality of Carmen mainly because of its rocky,
hilly, and mountainous topography. It strives mainly
on the IRA that it receives. Without IRA, it could hardly
pay even the honoraria of its barangay tanods.
A. Can it lawfully be abolished?
B. If yes, what is the procedure for the abolition
of Barangay Pobre?
Sec 9, RA 7160 – “The law or ordinance abolishing a
local government unit shall specify the province, city,
municipality or barangay with which the local
government unit sought to be abolished will be
incorporated or merged.”
Sec 10, RA 7160 –Plebiscite Requirement. No
creation, division, merger, abolition, or substantial
alteration of boundaries of local government units shall
take effect unless approved by a majority of the votes
case in a plebiscite called for the purpose in the
political unit or units directly affected. Said plebiscite
shall be conducted by COMELEC within 120 days from
the date of effectivity of the law or ordinance affecting
such action unless such law or ordinance fixes another
date.
2009 Bar
 POLITICAL LAW REVIEW JD CLASS 2016-2017

The Municipality of Bulalakaw, passed Ordinance No. with national goals. (Pimentel vs. Aguirre,
1234, authorizing the expropriation of two parcels of 2000)
land situated in the publication as the site of a freedom
park, and appropriating the funds needed therefor. Reasons for giving Congress the power to
Upon review, the Sangguniang Panlalawigan of Leyte provide “guidelines and limitations”:
disapproved the ordinance because the municipality
Manila Electric Company vs. Province of Laguna
has an existing freedomg park which, through smaller
(1999):
in size, is till suitable for the purpose, and to pursue
expropriation would be needless expenditure of the
The Legislature must still see to it that:
people’s money. Is the disapproval of the ordinance
correct? Explain your answer. 1. The taxpayer will not be overburdened or
saddled with multiple and unreasonable
impositions;
2. Each local government unit will have its fair
Mother Sanggunian’s REVIEW POWER:
share of available resources;
Grounds: 3. The resources of the national government will
not be unduly disturbed; and
1. If by Sangguniang Panlalawigan: 4. Local taxation will be fair, uniform and just.
a. ULTRA VIRES (Sec 56 ©, LGC) [2009
Bar] Local Police Power
2. If by Sangguniang Panlungsod/Bayan:
The “General Welfare Clause”:
a. Consistent with Law
b. Consistent with City/Municipal
Sec 16. General Welfare. Every local government unit
Ordinances (Sec 57, LGC)
shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
LGUs and National Agencies (with Project
necessary, appropriate, or incidental for its efficient
Implementation functions)
and effective governance, and those which are
 “Prior Consultation before essential to the promotion of the general welfare.
implementation”
Basically a delegated power both in its general and
o No project or program shall be
specific sense, unlike in taxation power where the
implemented by government
“general power to tax” is constitutionally guaranteed.
authorities unless the consultation in
Hence, police power is still under the control of
Section 2 (C) and 26 of the LGC and
Congress in all its respects, although under Section 5
prior approval of the Sanggunian
of the Code, the eneral welfare provision shall be
concerned obtained, provided that
liberally construed to give more powers to the
occupants affected shall be given
LGU.
relocation site (Sec. 27, LGC)
Requisites for Validity of Local Police Power
Lina, Jr. vs. Pano (2001)
Tatel vs. Municipality of Virac:
The projects/programs mentioned in Sec 27 should be
interpreted to mean projects/programs whose effects
1. Must not contravene the Constitution and
are among those enumerated in Sec. 26 and 27, to
statute
with, those that (1) may cause pollution; (2) may
2. Not unfair and oppressive (also a consti
bring about climatic change; (3) may cause the
requirement)
depletion of non-renewable resources; (4) may
3. Not partial or discriminatory (also a
result in loss of crop land, range-Lang, or forest
constitutional requirement)
cover; (5) may eradicate certain animal or plan
4. Not prohibited but only regulate lawful trade
species from the face of the planet; and (6) other
(deeL De la Cruz vs. paras where an ordinance
projects or programs that may call for the
prohibited the operation of night club)
eviction of a particular group of people residing
5. Consistent with public policy (because of the
in the locality where these will be implemented.
requirement of valid delegation of legislative
(See also Province of Laguna case [2005] and Bangus
power) see: (Lim vs. Pacquing) where it was
Fry Fisherfolk vs. Lanzanas [2003])
found out that the “national policy” was for
National government, not for LGUs to grant
“Local Fiscal Autonomy”
“franchises” for operation of jai-alai, LGUs can
 LOCAL FISCAL AUTONOMY: Local governments only regulate but not grant franchise for
have the power to create their own their own operation of jai-alai.
sources of revenue in addition to their 6. Not unreasonable (also a constitutional
equitable share in the national taxes release by reqt.) (See: Balacuit case where an ordinance
the national government, as well as the power penalized movie houses that charged full
to allocate their resources in accordance with payment for admission of children between 7-
their own priorities. 12)
 But, this, does not rule out any manner of
*Don’t forget lawful subject and lawful means
national government intervention by way of
requirement.
supervision, in order to ensure that local
programs, fiscal and otherwise, are consistent
Problem
33
 POLITICAL LAW REVIEW JD CLASS 2016-2017

The City of Marikina passed an ordinance which with and that all reasonable efforts have been
regulates the construction of fence as follows: exhausted
 Valid and definite offer to the “owner” as
“The Standard height of fences or walls allowed under shown in the title of the land.
this ordinance are as follows:  IRR on “valid and definite offer” must be
complied with
1. Fences on the front yard – shall be no more
than one (1) meter in height. Fences in excess City of Cebu vs. Dedamo (2002)
of one (1) meter shall be an open fence type,
or at least 80% see-thru”.  While Sec 4. Of Rule 67 of the Rules of Court
provides that just compensation shall be
The objective of the ordinance is “to discourage, determined at the time of the filing of the
repress, or prevent concealment of prohibited or complaint for expropriation (or, time of taking
unlawful acts.” Is this ordinance valid? whichever came first), such rule cannot prevail
over RA 7160, which is a substantive law.
Two Tests are usually applied:
 Sec. 4, Rule 67 (time of filing of complaint or
taking, whichever came first) vs. LGC: at the
1. Rational Relationship Test
time of “taking”.
2. Strict Scrutiny Test
Republic vs. Lim (2005)
Using the rational basis examination, laws or
ordinances are upheld if they rationally further a
 The landowner is entitled to recover possession
legitimate governmental interest. Governmental
of the property expropriated if the government
interest is extensively examined and the availability of
fails to fully pay just compensation to the
less restrictive measures is considered.
owner within a period of five(5) years from the
finality of the judgment in an expropriation
Applying strict scrutiny the focus is on the presence of
proceeding.
compelling, rather than substantial, governmental
interest and on the absence of less restrictive means
American Vda. De Ouano vs. Republic (Feb 9,
for achieving that interest. (Fernando vs. St.
2011)
Scholastica’s College, GR no, 161107, March 12, 2013)
 If the genuine public necessity of expropriation
Local Eminent Domain
of a private land ceases or disappears, then
there is no more cogent point for the
Specific Requirements: (Sec 19, LGC and Jesus is Lord
government’s retention fo the expropriated
Christian School vs. City of Pasig case)
land. The same legal situation should hold if
1. An ordinance is enacted by the local the government devotes the property to
legislative council authorizing the local chief another public use very much different from
executive, in behalf of the local government the original or deviates from the declared
unit, to exercise the power of eminent domain purpose to benefits another private person.
or pursue expropriation proceedings over a
MCIAA vs. Lozada, Sr. (2010)
particular private proeprty.
2. For public use, purpose, or welfare or for
Reversing “Fery vs. Municipality of Cabanatuan”
the behalf od the poor and the landless.
(1921): “The expropriator should commit to use the
3. There is payment of just compensation, as
property pursuant to the purpose stated in the petition
required under Section 9, Article III of the
for expropriation filed, failing which, it should file
Constitution and other pertinent laws.
another petitioner for the new purpose. If not, it is
4. A valid and definite offer has been
then incumbent upon the expropriator to return the
previously made to the owner of the property
said property to its private owner, if the latter desired
sought to be expropriated, but said offer was
to reacquire the same.”
NOT accepted.
In case of immediate possession
Add: Filstream international Inc. vs. City of
Manila HR no. 125218, January 23, 1998 (in re: Before a local government unit may enter into the
expropriation for urban development and housing) possession of the property sought to be expropriated,
it must: (1) file a complaint for expropriation sufficient
5. Priorities in the acquisition of land shall be
in form and susbtance in the proper court and (2)
complied with as mandated by RA no. 7279
deposit with the said court at least 15% of the
(Urban Development and Housing Act of 1992)
property’s fair market vaue based on its current tax
(meaning: private lands should be last in
declaration. The law does nto make the
the election of land) (Sec 9 of RA 7279)
determination of a public purpose a condition the
6. Expropriation shall be resorted to only when
determination of a public purpose a condition
other modes of acquisition have been
precedent to the issuance of a writ of possession.
exhausted (Sec 10, RA 7279)
(Francia vs. Meyauayan [2008])
Note: (Jesus is Lord Case)
Requisites for Validity of Contracts and entered
into by LGUs (asked in the Bar many times)
 The LGU has the burden of proving that the
foregoing requirements have been complied
A. The local government unit must have the
power to enter into the particular contract;
34
 POLITICAL LAW REVIEW JD CLASS 2016-2017
B. Pursuant to Section 22 (c) of the Local
Government Code, there must be prior
authorization by the Sanggunian
concerned, and a legible copy of the contract
shall be posted at a conspicuous place in the
provincial capitol or the city, municipal or
barangay hall;
C. In accordance with Sec 46 and47, Chapter 8,
Subtitle B, Book V, 1987 Admin Code if the
contract involves the expenditure of public
funds, there should be actual appropriation
AND a certificate of availability of funds by
the treasurer of the local government unit
(except in the case of a contract for supplies to
be carried in stock)
D. The contract must conform with the formal
requisites of written contracts prescribed by
law
Effects of Non-compliance with requisites
When a contract is entered into without compliance
with A and C requisites, the same is ultra vires and is
null and void Such contract cannot be ratified or
validated.
Ratification of defective municipal contracts is possible
only when there is non-compliance with B and D
requirements. Ratification may either be express of
implied.
2 kinds of Ultra Vires Acts:
An act which is outside of the municipality’s jurisdiction
is considered as a void ultra vires act, ahile an act
attended only by an irregularity but remains within the
municipality’s power is considered as an ultra vires
act subject to ratification and/or validation. To
the former belongs municipal contracts which (a) are
entered into beyond the express, implied or inherent
powers of the LGU; and (b) do not comply with the
substantive requirements of the law e.g., when
expenditure of public funds is to be made, there must
be an actual appropriation and certificate of availability
of funds while to the latter belongs those which (a) are
entered into by the improper department, board,
officer of agent; and (b) do not comply with the formal
requirements of a written contract e.g., the statute of
frauds. (Land Bank vs. Cacayuran, GR no. 191667,
April 17, 2013)
LOCAL ELECTIVE OFFICIALS
2005 Bar
In the May 8, 1995 elections for local officials whose
terms were to commence on June 30, 1995, Ricky filed
on March 20, 1995 his certificate of candidacy for the
Office of Governor of Laguna. He won, but his
qualification as an elected official was questioned. It is
admitted that he is a repatriated Filipino citizen and a
resident of the Province of Laguna. To be qualified for
the office to which a local official has been elected,
when at the latest should he be:
a) A Filipino citizen? Explain.
b) A resident of the locality? Explain. (5%)
Citizenship
35
 Natural-born or otherwise, including
“naturalized” citizen of the Philippines
Frivaldo case: The qualifications in the LGC refer to
that of “Elective” Officials (and not of “Candidates”),
hence, these qualifications need to be possessed by
the official not at the time he filed his certificate of
candidacy BUT at the time he takes his oath of office
ad assumes his post (2005 bar exam)
Residence
Residence – synonymous with “domicile” in election
laws
 Residence – temporary (physical presence for
particular or temporary purpose/calling) or
permanent
 Domicile – permanent (coupled with animus
manendi)
Note: there can only be one domicile at a time. There
can be 2 or more residences at a time (ex. Domicile
and different temporary residence)
PROOF OF NON-ABANDONMENT OF DOMICILE:
1. Animus manendi and
2. Animus revertendi
PROOF OF ABANDONMENT OF OLD DOMICILE:
1. Actual physical presence in the new domicile
2. Animus manendi in the new domicile; and
3. Animus non-revertendi to domicile of origin
(Gallego and Romualdez case)
Some Important Rulings:
 Faypon Case – out of domicile of origin to
pursue studies, engage in business or practive
vocation, not sufficient to constitute
abandonment of domicile of origin
 Coquilla case- naturalization in foreign country
results in abandonment
 Caasi case – becoming a permanent immigrant
(“greencard holder”) to the US constitutes
abandonment of residency
 S. Jalosjos vs. Comelec June 25, 2013: A
temporary stay in a dtranger’s house cannot
amount to residence.
*Approval of voter registration does not presuppose
six-month residency in the place prior to registration.
Disqualifications (Sec 40, LGC)
1. Sentenced by final judgment for (1) offense
involving moral turpitude OR (2) offense
punishable by one year or more of
imprisonment, within 2 years after service
of sentence.
a. Hence, after 2 years- the individual or
candidate regains his eligibility.
i. XPN: UNLESS, the crime for
which had been convicted
carries with it as principal or
accessory penalty perpetual
disqualification under RPC
(Jalosjos vs. Comelec)
 POLITICAL LAW REVIEW JD CLASS 2016-2017
Art 40 of the LGC and Perpetual Absolute
Disqualification to Hold Public Office in RPC
 While Section 40 (a) of the LGC allows a prior
conviction to run for local elective office after
the lapse of 2 years from the time he serves
his sentence, the said provision should not be
deemed to cover cases wherein the law
imposes a penality, either as principal or
accessory, which has the effect of
disqualifying the convict to run for public
office. (Jalosjos vs. Comelec, GR no. 205033,
June 18,2013)
“Within 2 years from service”
The phrase “within 2 years after serving sentence”
should have been interpreted and understood to apply
both to those who have been sentenced by final
judgment for an offense involving moral
turpitude and to those who have been sentenced
by final judgment for an offense punishable by
one (1) year or more of imprisonment. The place
of the comma (,) in the provision means that the
phrase modifies both parts of Sec 40 (a) of the LGC.
(Moreno vs. Comelec [2006, En banc])
Effect of Probation:
This is as good a time as any to clarify that those who
have not served their sentence by reason of a grant of
probation which, we reiterate, should not be equated
with service of sentence, should not likewise be
disqualified from running for a local elective office
because the two-year period of ineligibility under Sec
40 (a) of the LGC does not even begin to run. (Moreno
vs. Comelec, 2006)
Examples of “moral turpitude” crimes
 Hanrieder vs. De Rivera (2007) and Inre: Re:
Conviction of Imelda B. Fortus, Clerk III, RTC
Br. 40, Calapaan City, the Court characterized
the violation of BP 22 as a crime involving
moral turpitude.
 De la Torre vs. Comelec: Violation of Anti-
Fencing Law is a crim involving moral turpitude
Continued…
2. Removed from office as a result of
administrative case (prospective application
only; any “office” {See: Osorio case 2004])
a. This ground is new in LGC and not
present in the old one. One must have
been removed under the LGC of 1991
to be disqualified under this ground.
3. Convicted by final judgment for violating the
oath of allegiance to the Republic
4. Those with dual citizenship. (Manzano vs.
Mercado: should be interpreted as “dual
allegiance”) See also Cordora (2009)
a. Give at least 2 basis for distinction of
dual citizenship and dual allegiance.
i. Dual allegiance is inimical to
national interest
ii. By nature: dual citizenship is
involuntary and therefore,
cannot be blamed to have
36
acquired such as compared to
dual allegiance.
Macquiling vs. Comelec *April 16, 2013; July 2,
2013)
 Arnado, by using his US passport after
renouncing his American citizenship, has
recanted the same Oath of Renunciation he
took. Section 40 (d) of the LGC applies to his
situation. He is disqualified not only from
holding the public office but even from
becoming a candidate
 Arnado’s category of dual citizenship is that by
which foreign citizenship is acquired through a
positive act of applying for naturalization.
 This is distinct from those considered dual
citizens by virtue of birth, who are not required
by law tot ake the oath of renunciation as the
emre filing of the certificate of candidacy
already carries with it an implied renunciation
of foreign citizenship. Dual citizens by
naturlizaton, on the other hand, are required
tot ake not only the Oath of Allegiance to the
Republic of the Philippines but also to
personally renounce foreign citizenship in order
to qualify as a candidate for public office.
 Arnado became dual citizen by naturalization
hence, needs to personally renounce foreign
citizenship. As compared to Manzano, who was
dual citizen by birth, oath of allegiance was
held to be enough.
Rodriguez vs. Comelec (1996)
“FUGITIVE FROM JUSTIVE includes not only those who
flee after conviction to avoid punishment but likewise
who, after being charged, flee to avoid prosecution.”
The definition thus indicates that the intent to evade
is the compelling factor that animates one’s flight from
a particular jurisdiction. And obviously, there can only
be an intent ot evade when there is knowledge by
fleeing subject of an already instituted indictment, or
of a promulgated judgment of conviction.
Eligibility of Ecclesiastics to a local elective
position
 Section 2175 of the Old Admin Code stated:
“In no case shall there be elected or appointed
to a municipal office ecclesiastics, soldiers in
active service, persons receiving salaries or
compensation from provincial or national
funds, or contractors for public works of the
municipality”
 In Pamil vs. Teleron (1978), the voter for 7
was not enough to declare the above provision
unconstitutional
Term of office
Art X, Sec 8 of Constitution – 3 years (2006 bar)
Terms of Barangay officials – fixed by law
 RA no. 8524 (1998) – 5 years
 RA 9160 (2002) – 3 years (up to three terms
only and to begin in year 1994)
 RA 9340 (2005) – extended the term (which
ended on Nov. 30, 200) to Nov. 30, 2007
 POLITICAL LAW REVIEW JD CLASS 2016-2017

Note: “Hold-over Principle” validly applies to
barangay officials ONLY. (Sambarani vs. Comelec
[2004])
The “three term limit rule”
Elements:
1. That the official concerned has been elected for
three consecutive terms in he same local govt
pose AND
2. That he has fully served three consecutive
terms.
Adela served as Mayor of Kasim for 2 consecutive
terms. On her third term, COMELEC ousted her in an
election protest that Gudi, her opponent, filed against
her. Two years later, Gudi faced recall proceedings and
Adela ran in the recall election against him. Adela won
and served as Mayor for Gudi’s remaining term. Can
Adela run again for Mayor in the next succeeding
election without violating the 3 term limit? (Lonzanida
and Socretes case)
Illustration

Interruption: Mayor X XXX

V-Mayor Y PPP
 Voluntary – resignation, abandonment
Councilors
(Aldovino case) => covered by the concept of
A XXX
renunciation of the office and not merely an
B XXX
interruption.
C PPP
 Involuntary – not the initiative of the official,
D PPP
he may have been ordered to step down; when
E KKK
he agrees with the Comelec to step down =>
F Independent
It interrupts the consecutiveness of the terms
G YYY
of office
H PPP
2008 Bar
Navarro vs. CA (2001)
Abdul ran and won in the May 2001, 2004 and 2007 The reason behind the right given to a political party to
elections for Vice-Governor of Tawi-Tawi. After being nominate a replacement where a permanent vacancy
proclaimed Vice-Governor in 2004 elections, his occurs in the Sanggunian is to maintain the party
opponent, Khalil, filed an election protest before the representation as willed by the people in the election.
Comelec. Ruling with finality on the protest, the
Comelec declared Khalil as duly elected Vice-Governor RULES ON SUCCESSION:
though the decision was promulgated only in 2007,
As per Navarro vs. CA - A is the one who caused the
when Abdul had wholly served 2004-2007 term and
vacancy
was in fact already on his 2007-2010 term as Vice-
Governor.
This rule has been emphasized under Damasen vs.
Tumamao (2010):
a) Abdul now consults you if he can still run for
Vice Governor of Tawi-Tawi in the forthcoming
 Conditions for the rule of succession under
May 2010 elections on the premise that he
Section 45 of the LGC to apply:
could not be considered as having served a
a) The appointee shall come from the
Vice-Governor from 2004-2007 because he
same political party as that of the
was not duly elected to the post, as he
Sanggunian member who caused
assumed office merely as a presumptive
the vacancy;
winner and that presumption was later
b) The appointee must have nomination
overturned when the COMELEC decided with
and a certificate of Membership
finality that he had lost in the May 2004
(bona fide membership) from the
elections. What will be your advice? (3%)
highest official of the political party
concerned.
Court: For purposes of counting terms, we do not
distinguish whether it was de jure or de facto
2008 Bar
On August 8, 2008, the Governor of Bohol died and
2011 Bar
Vice-Governor Cesar became the Governor by
Alfredo was elected municipal mayor for 3 consecutive operation of law. Accordingly, Benito, the highest
terms. During his 3rd term, the municipality became a ranking member of the Sangguniang Panlalawigan was
city. Alfredo ran for city mayor during the next elevated tot eh position of Vice-Governor. By the
immediately succeeding election. Voltaire sought his elevation of Benito to the office of the Vice-Governor, a
disqualification citing the 3 term limit for elective vacancy in the Sangguniang Panlalawigan was created.
officials. Will Voltaire’s action prosper? How should the vacancy be filled? (3%)

ANSWER: NO. The Supreme Court focused on

the spirit of the law which is to prevent the Illustration
perpetual holding of a position by a single Mayor X XXX
person or clan. Permitting Voltaire’s action V-Mayor Y PPP
would circumvent the intent. He has served the Councilors
same territory and inhabitants. A Independent
B XXX
2011 Bar C PPP
37
 POLITICAL LAW REVIEW JD CLASS 2016-2017
D PPP
E KKK
F Independent
G YYY
H PPP
Problem
X, Y and Z were the candidates for Mayor in
Municipality of ABC. Y had earlier filed a petition for
the cancellation of X’s certificate of candidacy on the
ground that X failed to comply with the 6-month
residency requirement. During the election, and while
the disqualification case was still pending, X received
the highest number of votes followed by Y. Thereafter,
the COMELEC disqualified X. W, the elected Vice-
Mayor, insisted that he should become the Mayor.
Should W be allowed to assume the office of the
Mayor?
 Before COC filing – petition to deny due course
 If COC has been given due course- remedy is
cancellation of coc; general petition for
disqualification
 After proclamation – election contests, quo
warranto
A: Apply rules on succession Sec 44 of LGC. Vice
Mayor was permitted to assume office instead of the
2nd placer. One who runs who violated the 3 term limit
rule has failed to become a candidate and therefore,
not open for substitution.
vetlana Jalosjos vs. Comelec (June 25, 2013)
The rule on succession in Section 44 of the Local
Government Code cannot apply in instances when a de
facto officer is ousted from office and the de jure
officer takes over. The ouster of a de facto officer
cannot create a permanent vacancy as contemplated in
the Local government Code. There is no vacancy to
speak of as the de jure office, the rightful winner in the
elections, has the legal right to assume the position.
Note; Distinguish this case from Talaga Case (2012)!!
See, however, Chua vs. Comelec (April 5, 2016)
**The safest approach is to apply majority in Talaga.
But if same with Jalosjos, apply Jalosjos. But if dual
citizenship – when there is no renunciation of Am
citizenship and use of US passport –
DISCIPLINARY ACTIONS
Filing of Complaint:
 Office of the President – Province, HUC & City
 Sangguniang Panlalawigan – Municipality
(appealable to the Office of the President)
 SP or SB – Barangay
[final and executory]
Concurrent Jurisdiction with Ombudsman
 In administrative cases involving concurrent
jurisdiction of two are more disciplining
authorities, the body where the complaint is
38
filed first, and which opts to take cognizance of
the case, acquires jurisdiction to the exclusion
of other tribunals exercising concurrent
jurisdiction.
 Under RA 7160, the sangguniang panlungsod
or sangguniang bayan has disciplinary
authority over any elective barangay official.
Since the complaint against the petitioner was
initially filed with the office of the
Ombudsman, the Ombudsman’s exercise of
jurisdiction is to the exclusion of the
sangguniang bayan whose exercise of
jurisdiction is concurrent. (Alejandro vs. office
of the Ombudsman, GR no 173121, April 3,
2013)
Rules and Prohibitions during Investigation
1. Investigation shall commence 10 days after
respondent answers;
2. Investigation shall be held only in the place
where the respondent holds office;
3. No investigation within 90 days
immediately prior to local election and no
preventive suspension shall be imposed
within said period (if already imposed ipso
facto lifted);
Preventive Suspension
 It is not a penalty, hence invocation of due
process is generally not appropriate
 The sole objective of an administrative
suspension is “to prevent the accused from
hampering the normal course of the
investigation with his influence and authority
over possible witnesses or to keep him off the
records and other evidence” and “to assist
prosecutors in firming up a case, if any,
against an erring local official.” (Bunye vs.
Escareal [1993]; Ganzon vs. CA [1991])
Authority:
1. President, in the case of HUC and ICC
2. Governor, in the case of CC and Mun;
3. Mayor; in the case of Barangay
CSQN:
a) issues have already been joined;
b) evidence of guilt is strong
c) given the gravity of the offense, a responent
might influence witnesses or pose a threat to
records/evidence [Sec 63; Jason III vs. CA,
2006]
Rights of Respondent
 Hearing
 Counsel
 Cross-Examine witnesses
 Compulsory Process
 Period of Investigation(90 days)
 Period to Decide (30 days)
 Penalty of Suspension shall not exceed the
unexpired term or a period of 6 months per
administrative case, nor a bar to a candidacy
(Sec 66[b])
Famous (or infamous) Aguinaldo Doctrine
 POLITICAL LAW REVIEW JD CLASS 2016-2017
 A public official cannot be removed from office
for administrative conduct committed during a
prior term, since his re-election to the office
operates as a condonation of the officer’s
previous misconduct to the extend of cutting
off his right to remove him therefore.
 It applies only to administrative case for
misconduct, so the official may still be held
criminally or civilly liable for the same act (CF:
Three-Fold-Liability)
Garcia vs. Mojica
 Supreme Court disagreed because it is really
impossible to determine actual or lack of
knowledge by the electorates about the
misconduct at the time they case their votes.
What can be determined is that the misconduct
was committed during a prior term. The fact
that the misconduct was committed
during the prior term, Aguinaldo doctrine
applies.
2011Bar
Governor Paloma was administratively charged with
abuse of authority before the Office of the President.
Pending hearing, he ran for re-election and won a
second term. He then moved to dismiss the charge
against him based on this supervening event. Should
the motion be granted?
Administrative Appeals
 Office of the President, in case of decision of
SP of Province, HUC and ICC;
 SP of Province, in the case of decision of SP
of CC and municipality
Note: Decision of the Office of the President shall be
final and executory
Execution Pending Appeal
 The respondent shall be considered as
having been placed under preventive
suspension during the pendency of the appeal
in the event he wins such appeal. He shall
be paid his salary and benefits if the appeal
exonerates him.
RECALL
 Recall is a mode of removing an elected official
by the people before the end of his term
 Ground: “loss of trust and confidence”;
 No more preparatory recall assembly (PRA) as
mode of initiating recall.
 There is only one mode of initiating recall: By
the Registered Voters (following certain
percentage)
See: RA 9244 (Feb 19, 2004)
Effectivity of Recall
 Upon the election and proclamation of a
successor (elected candidate other than the
official subject of recall) in a recall election.
 If the official subject of the recall wins in the
recall election, recall “fails”.
39
Prohibitions in Recall Proceedings:
 No registration during recall process;
 Recall election should only be once during the
term of the official. (Note of “election””, not
“proceeding”)
 No recall (election) shall take place within
one (1) year from date of official’s assumption
to office or one (1) year immediately preceding
a regular election (day of election and that
election affecting the office of the official
concerned).
2011 Bar
A was the duly elected Mayor of Tunawi in the local
elections of 2004. He got 51% of all the votes cast.
Fourteen months later, B, who also ran for mayor, filed
with the Local Election Registrar, a petition for recall
against A. The COMELEC approved the petition and set
a date for its signing by other qualified voters in order
to garnet at least 25% of the totla registered voters or
total number of those who actually voted during the
local election in 2004, whichever is lower. A attacked
the COMELEC resolution for being invalid. Do you
agree with A?
Human Resource and Development
 Who may appoint local officials and
employees?
 What law governs the appointments of local
officials and employees?
 Does the appointment process require the
attestation of the Civil Service Commission?
 How will the resignation of a Vice-Mayor and a
Member of the Sanggunian be effected?
 What are the grounds for the preventive
suspension of an appointive local official or
employee?
 What penalty may be imposed upon erring
local officials and employees?
Who among the following local elective officials can
practice his profession?
 Mayor X, who is a doctor – he can practice
 Vice-Mayor Y, who is an engineer – he can
practice
 Councilor Z, who is a lawyer – he can practice
because he’s not a local chief executive
because he’s a member of the sanggunian
Subject to the rules on conflict of interest.
 There is also no prohibition among these
officers NOT to have financial interest.
Problem
The Sangguniang Panlungsod (SP) of Politika City is
composed of X, the Vice-Mayor/Presiding Officer, 10
regular members (Councilors A-J), 2 ex-officio
members (Liga ng mga Barangay and SK Presidents).
A. What is the quorom of the SP? Count the vice-
mayor in determining the quorom since he is the
presiding officer
B. If Councilor A is on leave and Councilor B is outside
the country, what is the quorom of the SP of Politika
City? If one is out of the country, beyond the
compulsory process of the senate, then the quorom
 POLITICAL LAW REVIEW JD CLASS 2016-2017

should only be on the basis of those who are in the

Philippines.

C. How many votes are required in order to suspend

Councilor C for disorderly behavior?

QUOROM PUBLIC INTERNATIONAL LAW

La Carlota City vs. Rajo (2012) Definitions of Public International Law

“the entire membership must be taken into account in Post Modern or Contemporary Definition
computing the quorom of the sangguniang
 Sec 101, Restatement (third) of the law by the
panlalawigan, for while the constitution merely states
American Law Institute of Foreign Relations
that “majority of each House constitute a quorom,”
Law of the United States (1987): “rules and
Section 53 of the LGC is more exacting as it requires
principles of general application dealing with
that the “majority of all members of the
the conduct of states and of international
sanggunian…elected and qualified” shall constitute
organizations and with their relations inter se,
a quorom. The trial court should thus have based its
as well as with some of their relations with
determination of the existence of a quorom on the
persons, whether natural or juridical”
total number of members of the Sanggunian without
regard to the filing of a leave of absence by Board
What are the Regimes or Divisions of PIL? Explain each
Member Sotto.” (citing Zamora vs. Caballero, 2004)
briefly.
LOCAL LEGISLATIONS
Three Regimes/Divisions of PIL
 Ordinance vs. Resolution
 LAW OF PEACE
 Approval of Ordinance
o Law of treaties
 Veto by Gov./Mayor (vs. Punong
o Law of the sea
Barangay)
o Diplomatic relations
 Veto by the LCE vs. Review by Mother SP
 LAWS OF WAR
 Rules on Veto (Is item veto allowed?;
o Jus Ad Bellum (Legality of engaging in
How many times may the LCE veto?)
war)
 Effectivity of Ordinance (See Arts. 113-
o Jus in Bello (legality of conduct of war)
114, IRR); What is the effect of Review
 LAW OF NEUTRALITY
mechanism by the Mother SP to the
o Governs the conduct of states not
effectivity of the ordinance?;
engaged in war
 What ordinance should be published?
Is the United Nations (UN) a “subject” or “object” of
Initiative and Referendum
international law?
 Distinction
 UN is a non-state actor which is a subject of
 Subject matter
international law. UN and WTO have been
 Limitations
accepted in the family of nations as actors in
 Effectivity of local proposition
international community.
 Authority of Courts
Reparation for Injuries case (ICJ ADVISORY
Settlement of Boundary Disputes
OPINION, 1949)
 Amicable Settlement first by the SP concerned
Meaning of International legal personality:
within 60 days
 Joint referral for settlement ICJ: The ability to possess international rights and
 If not settled amicably, SP issues certification duties and the power to sustain these rights by
and TRIES the case. The SP shall decide the bringing international claims”
case within 60 days from date of certification.
 Decision of SP may be appealed to the RTC While it is conceded that original international legal
personality belongs to the main actors of international
If there is adamant refusal from the Province, you can law, namely states, the UN had international legal
go to RTC directly. personality through the fact that its member states, by
the very fact of creating such an organization, must
have transferred some of their powers over the
organization. (“Derivative International Legal
Personality”)

ICJ: ‘The requirements of international life and the

progressive increase in the collective activities of
States had already given rise to instances of action
upon the

SUBJECTS OF INTERNATIONAL LAW

40
 POLITICAL LAW REVIEW JD CLASS 2016-2017
 SUBJECTS: those that enjoy international
legal personality and being capable of
possessing international rights and duties,
including the right to bring international
claims.
 Primarily: STATES
 Secondarily: International organizations (UN<
WTO), individuals (protected persons of IHL,
insurgents and national liberation movements,
minorities), juridical persons (institutional
companies), and NGOs (ICRC, Greenpeace,
Amnesty international)
 Case: Reparation for Injuries Case (ICJ
Advisorty Opinion 1949)
Questions:
1. Distinguish between material and formal
sources of PIL
a. Formal – manner by which it was
established inks the legitimacy of that
international law; like treaty,
legislation, state practice
b. Material- substantive content of
international law; that’s where we can
find the law.
2. What are the sources of PIL
3. Distinguish between “law-creating” sources
from “law-determining” sources of PIL
Sources (Formal or Material) of PIL
 Art 38 (1) Statute of ICJ:
 Primary: create the law; existence
a) International conventions
b) International custom
c) General principles of law
 Subsidiary: confirmation that these laws exists
a) Judicial decisions and teaching od most
highly qualified publicists.
* remember that PIL is common law – in the same
manner that stare decisis do not apply; no fixed rule
on judicial reasoning.
PRIMARY vs. SUBSIDIARY
 “law creating” processes vs. “law determining”
(Schwarzenberger)
 Overlapping of sources (Shaw)
NICARAGUA CASE
The US obliged by declaring that they will submit to
the J of ICJ in advance with reservation is on the
application of a multi-lateral treaty. US: Nicaragua is
invoking the UN charter that is a multi-lateral
convention, therefore, ICJ cannot have jurisdiction.
ICJ: US is charged with violation of non-use of force
which has turned into an international customary
international law. Even if transposed to a convention
law, customary international law may exist WITH
convention law. Hence, there can be overlapping of
sources.
 Hierarchy of sources? (See Travaux
Preparatories)
International Conventions/Treaties
41
 “…whether general or particular and
establishing rules expressly recognized by the
contesting States”
 The term “convention” includes (and actually
means) treaty
 Other terms: agreements, pact,
understanding, protocol, charter, statute, act,
covenant, declaration, engagement,
arrangment, accord, regulation and provision
 “Law-Making Treates” vs. “Contract Treaties”
o Convention and treaties may develop
to customary international laws. This
applies to law-making treaties only.
o Contract-treaties are still binding but
they do not develop to customary
international law – being temporary in
character (ad hoc). Both are binding
but the effect of a contract treaty only
binds those who signed it.
CUSTOM
 Art 38 (1), ICJ Statute: “…As evidence of a
general practice accepted as law”;
 Sec 102, Restatement (third): “Customary
international law results from a general and
consistent practice of states followed by them
from a sense of legal obligation.”
 Two elements:
o OBJECTIVE – state practice
o SUBJECTIVE – opinio juris sive
necessitates
Cases on Custom as Sources of PIL:
 Paquete Habana Case
 Nicaragua vs. USA, ICJ Report (1986)
 North Sea Continental Shelf Cases (Germany
vs. Denmark & Germany vs. Netherlands, ICJ
Report, 1969)
 Continental Shelf Case (Libya vs Malta, ICJ
Report, 1985)
 Asylum Case (Columbia vs. Peru, ICJ Report,
1950)
 Anglo Norwegian Fisheries Case (UK vs.
Norway, ICJ Report, 1951)
 Fisheries Jurisdiction case (UK vs. Iceland, ICJ
Report, 1973)
 Legality of the Threat or Use of Nuclear
Weapons Case (ICJ Advisory Opinion, 1996)
 Lotus Case (France vs. Turkey, PCIJ Series A
no. 1018, 1927)
Guide Questions in Understanding CIL:
1. What constitutes state practice?
a. The act must be official
b. The act must be done by a state which
may be affected by the norm –
relevant state practice principle
i. The concept of such principle is
to know the generality of the
practice
ii. See: Norway Fisheries case
2. How much practice is required? (duration,
consistency, repetition and general
requirements)
 POLITICAL LAW REVIEW JD CLASS 2016-2017
a. Relevant State Practice Principle
3. What is the value of a state’s (1) abstention or
failure to protest against a norm AND (2)
protest against a norm? (1) May be a tacit
consent to the norm; (2) protest against the
norm cannot bar the growth of CIL
4. Are dissenting and non-participating states
bound by custom?
a. no requirement of unanimity
b. Persistent objector/dissenter
principle” – to be exempt under CIL”
i. Must have dissented to the
application of the norm at the
outset (formation of CIL)
ii. The objection or dissent must
be categorical and consistent
c. UK vs. Norway in delimiting fisheries
zone – ICJ noted that the 10-mile rule
had been objected to by Norway for
several years already and so ICJ noted
that Norway had never applied the 10-
mile rule in delimiting its fisheries
zone.
5. What evidence is required for opinio juris?
6. May treaties be invoked as evidence of
customary law?
7. Is there a normative hierarchy in customary
law?
8. Would declarations of law adopted by the UN
G.A. constitute presumptive evidence of
accepted international law, irrespective of
actual state practice?
The Paquete Habana Case 175 US 677 (1900)
Fact: Fishing vessels of Spain were captured by US
Armed Forces as prize of war. It was established that
the vessels, which were not armed, were not aware of
the existing war between Spain and the US and the
blockade ordered by the US government against Cuba.
Held: It is customary international law that coast
fishing vessels, pursuing their vocation of catching and
bringing in fresh fish, are exempt, with their cargoes
and crews, from capture as prize of war. This the US
has also recognized as law as shown in the various
treaties it had entered into the past.
1. Why was it important for the US Court to
characterize the status of the norm on
captured fishing vessels in times of war as CIL?
2. How did the US SC determine state practice in
the norm?
Some evidence of state practice in Paquete
Habana case:
 In 1403 and 1406, Henry IV of England issued
orders protecting fishermen of foreign states;
 1521 Treaty between Emperor Charles V and
Francis I of France;
 1536 Dutch edicts which permitted herring
fishing in time of war;
 During the American war, Louis XVI of France
addressed a letter to his admiral exempting
fishermen from apture;
42
 1785 Treaty between the US and Prussia
calling for the protection of fishermen in time
of war;
 1848 Treaty between the US and Mexico
incorporating the terms in the 1785 US-Prussia
Treaty
Nicaragua vs. USA, ICJ Report (1986)
Key Principles:
1. General customary international law must be
determined by the general practice of the
states and not just by the states party to the
dispute before the ICJ. Opinio Juris may be
deduced from the attitude of the parties
concerned and that of states to certain General
Assembly Resolutions.
2. The prohibition on the use of force is jus
cogens.
3. Principle of non-intervention is customary
international law and therefore, not affected by
treaty stipulation.
4. Customary International Law can exist
alongside treaties
Proof of OPINIO JURIS in Nicaragua case
On the Prohibition against the use of force and
principle of non-intervention:
 General Assembly Resolution 2625 (XXV)
 Resolution of the 6th international conference
of American States Concerning Aggression 18
Feb 1928
 Montevideo Convention on the Rights and
Duties of States 26 December 1933
Q: Is “long period of practice” relevant and
important in determining the formation of
customary international law? May customary
international law be formed in a short period of
time? Is there such a norm as “instant customary
law”?
North Sea Continental Shelf Cases:
Key principles:
 Short passage of time is not necessarily a bar
to the formation of customary international
awl. What is controlling is that the state
practice, including that of states whose
interests are specially affected, must be
extensive and virtually unfirms with regard to
the provision in such a way as to show a
general recognition that it is a binding law.
 Like in the case of the attack on the World
trade Center in NY which prompted to the
instant customary law classifying the attach as
an armed attach justifying collective self-
defense.
Q: Who has the burden of proving the existence
of a customary international law?
Asylum Case (Columbia vs Peru, ICJ report,
1950)
 POLITICAL LAW REVIEW JD CLASS 2016-2017
**Apart from consistency and generality, uniformity is
also important in Customary International Law
Key Principle:
 The burden of proof lies with the party alleging
the existence of the custom. It must
demonstrate that the custom relied upon was
established in such a manner so as ot become
binding on the other day. An alleged regional
custom demands greater uniformity in practice
than a general custom.
Anglo Norwegian Fisheries Case (Uk vs. Norway,
ICJ Reports, 1951)
Key Principle:
 A state, that from the outset consistently
ibjects to a particular practice, is not bound by
any rule of alleged customary international law
which may arise from practice
 ICJ: In any event, the ten-mile rule would
appear to be inapplicable as against Norway,
inasmuch as she has always opposed an
attempt to apply it to the Norwegian coast.
ICJ Opinion and Voting:
 Unanimous, on the principle that “there is in
neither customary customary nor conventional
international law any specific authorization of
the threat or use of nuclear weapons”
 Unanimous on the principle that “a threat or
use of nuclear weapons should also be
compatible with the requirements of the
international law applicable to armed conflict
and IHL as well as specific obligations under
treaties dealing with nuclear weapons”
 7-7, on the principle that “while the threat or
use of nuclear weapons would generally be
contrary to the rules of IHL in armed conflict,
the Court cannot conclude definitively whether
it would be lawful or unlawful in an extreme
circumstance of self-defense, in which the very
survival of the State would be at stake”
 Unanimous, on the principle that there exists
an obligation to pursue in good faith towards
nuclear disarmament.
Problem:
Lotus, a French steamer, and a Turkish steamer,
collided on the high seas. The Turkish steamer sank
and eight Turkish sailors died. The French officer on
watch of the Lotus was prosecuted in Turkey. French
government argued that the “flag state rule” is not
exclusive and that there has been no rule of customary
international law which gave exclusive jurisdiction of
the flag state.
Lotus Case (France vs. Turkey, PCIJ Series A no.
1018, 1927)
Key Principle:
1. Restriction upon the independence or
sovereignty of states cannot be presumed;
43
2. Jurisdiction is territorial but international law
does not prohibit a state from exercising
jurisdiction in its own territory over a case
relating to acts which have taken place abroad;
3. No definite rule of customary international law
regarding collision cases in the high seas
(note: there are some rules now on collision
cases in the high seas under UNCLOS III of
1982); What about “abstention” by some
states to exercise criminal jurisdiction for
crimes committed abroad, does it offer
evidence that such practice of abstention is
obligatory?
General Principles of Law
 Recognized by civilized (peace-loving) nations;
 Aimed at providing solutions to controversies
where treaty law or customary law provides no
guidance
 “LAW” can refer to both “international law” and
“municipal law”
 GPL – principles of law practiced and obtaining
in practice of courts in nations which
transposed to GPL like prior exhaustion of
admin remedies, estoppel, prescription, good
faith
Cases:
Barcelona Traction (Belgium vs. Spain, 2nd Phase,
ICJ Report, 1970)
Barcelona alleged that it was in bankruptcy because of
Spain regulations. Canada did not clearly commit on
extending diplomatic protection over Barcelona
Traction. So Barcelon traction thought of having
Belgium protect it since most of its stockholders were
Belgians. Court denied diplomatic protection extended
by Belgium using Corpo Law principle – that the
corporation has a separate and distinct personality
apart from its stockholders.
Key Principle:
 In the absence of applicable international law,
cognizance must be given to the relevant
institutions of domestic law, otherwise, the ICJ
 ICJ: “In the field of diplomatic protection,
international law was in continuous evolution
and was called upon to recognize institutions of
municipal law. In municipal law, the concept of
the company was founded on a firm distinction
between the rights of the company and those
of the shareholder. Only the company, which
was endowed with legal personality, could take
action in respect of matters that were of a
corporate character. A wrong done to the
company frequently cause prejudice to its
shareholders, but his did not imply that both
were entitled to claim compensation.
Whenever a shareholder’s interest were
harmed by an act done to the company, it was
to the latter that he had to look to institute
appropriate action.”
 POLITICAL LAW REVIEW JD CLASS 2016-2017
South-west Africa Case (2nd Phase, ICJ Report
1966)
Key Principle:
 ACTIO POPULARIS (the action to obtain
remedy by a person or a group in the name of
the general public without being or directly
representing the victim) is not recognized as a
general principle of law. In international law, it
refers to the action taken by a State in the
name of the international community even if it
is not directly the victim.
Netherlands vs. Belgium (PCIJ 1937, The River
Meuse Case)
Key Principle:
 The Statue expressly directs the application of
general principles of law recognized by civilized
nations, and principles of equity have an
established place in the legal system.
 Q: What general principle of law was applied
by the PCIJ in deciding the case? Clean Hands
doctrine
Chorzow Factory Case (Germany vs. Poland, PCIJ
1928)
 “It is a general conception of law that any
breach of an engagement involved an
obligation to make reparation…it is a principle
of international law that a reparation of a
wrong may consist in an indemnity
corresponding to the damage which the
nationals of the injured State have suffered as
a result of the act which is contrary to
international law” (at 27-29)
 Just and Fair Treatment – principle of law that
all states which permitted the lawful stay of
foreigners in their territory that they must
afford the foreigners and their rights over their
property JUST AND FAIR TREATMENT
 ICJ: “It (UN) is at present the supreme type of
international organization, and it could not
carry out the intention of the founders if it was
devoid of international personality. It must be
acknowledged that its Member, by entrusting
certain functions to it, with the attendant
duties and responsibilities, have clothes it with
the competence required to enable those
functions to be effectively discharged”
Has the ICJ listed down who are the MOST highly
qualified publicists? NO. but it is ascertainable like
Grotius, Ackeherst, Crawford
JUDICIAL DECISIONS AND PUBLICISTS
 ICJ decisions – no stare decisis, therefore only
applicable to ICJ and the parties.
 Brownly observes that ICJ looks at its past
decisions to guide them with present cases.
 Subsidiary means only
 Subject to Article 59 of the Statute of the ICJ
(the decision of the Court has no binding force
except between the parties and in respect of
that particular case), in other words, there is
44
no doctrine of stare decisis in ICJ decision. If
we distinguish retio decidendi from obiter
dictum, then it’s like we acknowledge stare
decisis.
 ICJ decisions are independent of judicial
decisions of other newly created tribunals such
as the ICC, etc. for lack of formal relationship
between these tribunals
 Teaching of the MOST highly qualified
publicists
 The role of the international law commission
(ILC)
o Confirmed by the case of Hungary vs.
Slovakia
 Opinions of international organizations and soft
laws may also be considered sources of
international law.
o Soft Laws are non-legally binding
documents.
o What document in international law
Princple of Non Liquet vs. Ex Aequo Et Bono
NON LIQUET – not clear, consequence of this principle
ICJ can make use of equitable principles to avoid
vacuum on PIL
EX AEQUO ET BONO – there is a principle of law
applicable to the dispute but the parties found the law
to be not reasonable or applicable, hence, agreed not
to apply the law and apply equity instead.
Art 38 (2) ICJ Statute Ex Aequo et bono
CUSTOM VS. USAGE/COMITY
 Custom – is a practice tht states believe
themselves to be under a legal
 COMITY – convenience, equity (insert more)
Questions:
1. What is jus cogens norms?
2. What is the relationship between jus cogens
norms and erga omnes norms?
3. What is the difference between erga omnes
norms and erga omnes inter partes norms?
4. Has the municipal law principle of actio
popularis been elevated as general principle of
law in international law?
Jus Cogens and Erga Omnes
All state for that matter are affected parties to the
case. That’s why the traditional prohibition against
piracy, universal jursidiction may be exercised.
Even the general principle of proper party holds true in
international courts. However, if the obligation
involved is erga omnes then any state can be a party.
Barcelona Traction Case
 “33. In particular, an essential
International Law and Municipal Law
 POLITICAL LAW REVIEW JD CLASS 2016-2017
 Which law prevails in case of conflict?
o Theories: Monist (incorporation)
&Dualism
 Are domestic laws relevant in international
law?
 How do rules of international law take effect in
domestic legal system?
o Theories: Incorporation and
Transformation
(Strong vs. Weak)
o All three branches in PH can transform
PIL into domestic law. By strong
transformation – state permits only
transformation via legislative action
(UK);
 What is the status of PIL in Philippine Legal
System?
o GAPIL
o TBPIL
STATES and GOVERNMENTS
Elements of “State”:
1. Permanent population
2. Defined territory
3. Government
4. Capacity to enter into relations with other
States
(Art 1, 1933 Montevideo Convention on the
Rights and Duties of States)
“State” vs. “Government”
 State consists of government and other
elements of state; government is the agency
through which the will of the State is
formulates, expressed and carried out.
 States, not governments, are the bearers of
the rights and duties under international law;
 “Doctrine of State Continuity”
 How the State “governs” internally may be
relevant in recognition of government issues
“Permanent Population”
 How many people are required? (Liechtenstein
with 34,000 in 1990 and Nauru with 14,000
people in 1999, became UN Members. Vatican
City has about less than 500 citizens and about
800 residents. Other mini states are
Micronesia, Tonga, San Marino, Palau, and
Monaco)
 Effective Nationality Theory (Nottebohm Case)
and the Right to Diplomatic Protection
“Defined Territory”
 Island of Palmas Case (Netherlands vs. US
Arbtirator Max Huber of PCIJ, 1928) on
“Territorial Sovereignty”;
 See again North Sea Continental Shelf Cases
on whether definition of borders is a
requirement: “sufficient consistency”, not
“accurate definition”; Cf: Effective Control Test
 Extent of and jurisdiction over Territory:
o Modes of Acquiring over Territory
o Law of the Sea (1982 UNCLOS or
UNCLOS III)
o Airspace
45
o Criminal jurisdiction, etc.; Extradition
Island of Palmas Case (Netherlands vs. US,
Arbitrator Max Huber of PCIJ, 1928)
Meaning of “Territorial Sovereignty”
 It refers to the right to exercise in a territory,
to the exclusion of any other state, the
functions of a state. It must be open and
public. Discovery could only exist as an
inchoate title, as a claim to establish
sovereignty by effective occupation.
“Government”
 Effective Control Test – sovereignty, not
legitimacy, required; but mere existence of
government is not sufficient;
 See Aland Islands Questions Case, 1920 on
“stable political organization” test
 The required level of Effectiveness depends on
different conditions (see Crawford, 2006)
 However, it is argued that in case of temporary
deprivation of effective control, the state
(‘failed state”) does not cease to exist. (e.g.
Congo, Rwanda and Somalia)
“Capacity to enter into relations with other
states”
 Article 3, Montevideo Convention: “The political
existence of the State is independent of
recognition by the other States. Even before
recognition, the State has the right to defend
its integrity and independence…”
 Also implied “independence” (legal or factual?)
from foreign control
 What is the effect of a third state’s intervention
that forments secession? Is the seceding
territory’s status as state affected?
 “Limited Capacity” to enter into international
relations does not prevent the existence of a
state.
Principle of “Uti Possidetis Juris”
A general rule of international law, it states that the
boundaries of colonial territories ought to
become international boundaries when those
territories attained independence unless altered by
agreement.
Developed in South America in connection with the
independence of states from Spain and Portugal, it was
also adopted in 1964 by the Organization of African
Unity which states that “all member states pledge
themselves to respect the borders existing on their
achievement of national independence”
Secession and Statehood
Opinion of the Supreme Court of Canda in re:
Secession of Quebec (1998):
Q: “Is there a right to self-determination under
international law that would give the National
Assembly, Legislature or Government of Quebec the
 POLITICAL LAW REVIEW JD CLASS 2016-2017

right to effect Quebec’s unilateral secession from b.

Stability and permanence
Canada?” c.
Popular support
d.
Ability and willingness to fulfill
 Secession is not authorized by the Constitution international obligations
of Canada; 2. Tobar or Wilson Doctrine: precludes
 International law does not specifically recognition of any government established by
authorize nor prohibit unilateral secession; revolutionary means until constitutional
 But, states have the implied duty (erga omnes) reorganization by free election of
to recognize peoples’ “right to self- representatives;
determination”; 3. Stimson Doctrine: no recognition of a
 Right to self-determination must be exercised government established through external
within the framework of sovereign states and aggression. (adopted by the League of
consistent with territorial integrity of those Nations)
states (“right to internal self-determination”) 4. Estrada Doctrine: If a government was
vs. “Right to external self-determination” established through political upheaval, a state
(unilateral secession). may not issue a declaration giving recognition
to such government, but may merely accept
When “Right to external self-determination” may whatever government is in effective control
be exercised without raising the issue of recognition.
Dealing or not dealing with the government is
SC of Canada: not a judgment on the legitimacy of the said
government.
 “the international law right to self-
determination only generates, at best, a right “State Succession”
to external self-determination in situations of
former colonies; where a people is Where there is a change in legal personality of a state,
oppressed, as for example under foreign “state succession” occurs. This involves substitution of
military occupation; or where a definable new sovereign over a territory. This happens in cases
group is denied meaningful access to of cession, annexation, merger, consolidation and
government to pursue their political, decolonization. It will have legal effects in treaty and
economical, social, and cultural international obligations of the predecessor State (Cf:
development” (meaning, where the people “Clean State Doctrine”/”tabula rasa”) [Vs.
have been denied the right to internal self- “Government Succession”]
determination)
Effects of “State Succession”
OCJ Advisory Opinion on Kosovo (2010)
1. Transfer of allegiance of inhabitants
Main Question: Is the unilateral declaration of 2. Political laws, automatically abrogated; non-
independence by the Provisional Institutions of Self- political laws, deemed continued unless
government of Kosovo in accordance with international expressly repealed or inconsistent with
law? domestic laws of new sovereign
3. Public property, acquired; torts liability, not
 Even during the 18th to early 20th centuries, acquired; new sovereign has option to assume
state practices on secession had not resulted in liability
international law prohibiting “declarations of 4. Treaties of predecessor state, not binding on
independence” as illegal. new sovereign except those dealing with local
 Decolonization during the second half of the rights and affecting territory (e.g. servitudes
20th century developed the concept of “right to and boundaries)
self-determination” that justified declaration of
independence of peoples in non-self governing Criminal Jurisdiction:
territories.
 The right to territorial integrity of States, a Various Principles/Theories:
customary international law, is relevant.
 The ICJ acknowledges the development of the  Territorial Principle (Subjective vs. Objective)
so-called “remedial secession”  Nationality Principle (Active vs. Passive)
 The ICJ declares that “general international law  Protective Principle (vs. Diplomatic protection)
contains no applicable prohibition of  Universality Principle (Cf: Erga Omnes Norms)
declarations of independence”
Extradition vs. Deportation
Question: Distinguish “State Succession” from
“Government Succession”
Deportation Extradition
Recognition of Government 1. Treaty
1. Unilateral 2. The person to be
2. Does not need a extradited had been
APPROACHES: (Note: recognition is a political question
treaty charged or convicted
and largely involves discretion of the executive) 3. Destination of of extraditable offense
deportee is irrelevant 3. Extraditable offense is
1. Traditional: recognizing state considers: either (1) listed or (2)
a. Efectiveness and control covered by “double or
46
 POLITICAL LAW REVIEW JD CLASS 2016-2017
dual criminality
principle/clause”
Basic Principles in Extradition
 No treaty, no obligation to extradite
 Pacta Sunt Servanda applies
 Dual Purposes:
o Prosecution
o Execution
 Could not cover “political offenses”
o Cf: “Attentat Clause”
 Rule of Specialty must be followed
 Ex post facto Law prohibition does not apply
Immunity from Jurisdiction
 Sovereign or State Immunity (cf: 2004 UN
Convention on Jurisdictional Immunities of
States and their property [UN Doc
A/Res/59/38]
o Doctrine of Qualified Immunity
(immunity in acts “jure imperii” not
“jure gestionis”)
o The Act of State Doctrine (judicial
deference)
 Head of State and Foreign Ministers Immunity
 Diplomatic Immunity
o Immunity from jurisdiction of courts
o Other privileges and immunities
 Consular Immunity
 Immunities of International Organizations
 Waiver of Immunity
Restrictive Theory of State Immunity
 The immunity of the sovereign is recognized
only with regard to public acts or acts jure
imperii of a state, but not with regard to
private acts or acts jure gestionis
 Immunity applies not only to the State itself
but also in respect of its property (See: UN
Convention on Jurisdictional Immunities of
States and their property of 2004)
 Nature Test or Purpose test?
Note: In the Philippines, the Supreme Court had
considered the following transactions by a foreign state
with private parties as acts jure imperii: (1) the lease
by a foreign government of apartment buildings for
use of its military officer; (2) the conduct of public
bidding for the repair of a wharf at a United States
Naval Station; and (3) the change of employment
status of base employees; and the following
transactions as acts jure gestionis: (1) the hiring of a
cook in the recreation center, consisting of 3
restaurants, a cafeteria, a bakery, a store, and a coffee
and pastry shop at the John Hay Air Station in Baguio
City to cater to American servicemen and the general
public; and (2) the bidding for the operation of barber
shops in Clark Air Base in Angeles City.
Head of State and Diplomatic Immunity
DRC vs. Belgium (ICJ 2002)
Facts: An international arrest warrant was issued for
the arrest of a foreign minister of the Congo for crimes
under international law
47
Issue: Do head of State immunities apply to foreign
minsiters even for international crimes?
Holding: The ICJ said that immunity for current
foreign ministers is absolute, even for
international crimes – there is no exception to
head of state immunity for all violations of
international law (including jus cogens,
customary international law, etc)
Scope of Diplomatic personal Inviolability
 Private Residence (whether owned or not,
hotel room or apartment)
 Papers and Correspondence
 Property (unless otherwise provided in Sec 1,
Art 31)
 As witness (art 31)
 Processes (Art 31)
 Extends to members of the family (Art. 37)
 Extends to administrative and technical staff
and their member of the family in criminal
jurisdiction (Art 36)
 Extends to civil and administrative jurisdiction
over the foregoing persons and to members of
the service staff when acts are intra vires.
 Does not cover jurisdiction of sending state
(Art 31)
Personal and Functional Immunity of Diplomatic
Officials
In terms of immunity from jurisdiction, a distinction
must be drawn between civil and criminal process.
In terms of criminal jurisdiction, diplomatic agents
have total immunity from the law of the receiving
state is to declare the diplomat persona non grata. The
immunity from criminal jurisdiction applies to any
offense committed by the diplomat whether official or
not. In terms of civil jurisdiction, diplomats are
immune from the civil jurisdiction of the receiving state
except in three (3) cases. The immunity of diplomats
extends to “arrests” and “detentions”. (See: DR of
Congo vs. Belgium, 2002)
Functional Immunity of Consular Officials
As for CONSULS, however, although they enjoy more
or less the same immunities and privileges as
diplomats, their immunity from criminal and civil
jursidiction extends to their official acts only.
Non-interference with Mission’s official
communication
Under Article 27 of VCDR, a receiving state shall
permit and protect the free communication on behalf
of the mission for all official purposes. Such official
communication shall not be interfered with. The
diplomatic bag shall not be opened or detained.
The use of sniffer dogs and external examination of the
bag is, however, permitted customarily per ILC Draft
Articles. A reasonable suspicion that the bag contains
illegal article will also allow the authorities to have the
bag opened in the presence of a representative of the
sending state. The bag, however, must bear visible
external marks of its character and contain only
 POLITICAL LAW REVIEW JD CLASS 2016-2017
diplomatic documents or official articles. (What about
electronic examinations? See Art 28 of the 1989 ILC
Draft Articles on Diplomatic Courier and Diplomatic
Bag: “directly or indirectly”)
Legal Status of Embassies and Consulates
Basic Rule: INVIOLABILITY OF PREMISES
 Vienna Convention on Diplomatic Relations,
Article 22:
A. Duty of the receiving state to refrain
from entering the premises without the
consent of the head of mission
B. Duty of the receiving State to protect
the premises against any intrusion,
damage, disturbance, etc.
 States can waive their inviolability
o Waiver must be express
 Theories behind inviolability of embassies and
consulates: “extraterritoriality”,
“representational” and “functional necessity”
Article 22 sets out the negative (not to enter) and
positive (to protect) obligations of the receiving state,
including immunity from processes (search, execution,
attachment, etc.)
 Inviolability extends (a) even in cases of
armed conflict [Art 45], (b) to archives and
documents of the mission [Art 24[, (c) and to
the ambassador’s residence, papers and
correspondence [Art 30]
Q: is this “inviolability” absolute?
Inviolability of Premises of Foreign Diplomatic
Mission
The premises of a foreign diplomatic mission are
inviolable and no person, even a member of the
government of the receiving state, may enter the
premises without the authority of the mission. The
receiving state has in fact the duty to protect the
mission against intrusion or damage and to prevent
disturbances of the peace of the mission or impairment
of its dignity. (See Art 22 of the Vienna Convention on
Diplomatic Relations [VCDR])
See: US Diplomatic and Consular Staff in Tehran Case
(US vs. Iran, 1980)
Underhill vs. Hernandez, 168 US 250 (1897) pg.
619:
 “Every sovereign State is bound to respect the
independence of every other sovereign State,
and the courts of one country will not sit in
judgment on the acts of the government of
another done within its own territory. Redress
of grievances by reason of such acts must be
obtained through the means open to be availed
of by sovereign powers as between
themselves.”
 Distinction must, however, be made between:
 Domestic Jurisdiction over Head of State
VS.
 Jurisdiction of International Criminal
Court for International crimes
48
 See: DRC vs. Belgium (Arrest Warrant Case,
2002)
Arrest Warrant Case (DRC vs. Belgium, 2002)
“S1. In international law it is firmly established that, as
also diplomatic and consular agents, certain holders of
high-ranking office in a State, such as the Head of
State, Head of Government and Minister of
Foreign Affairs, enjoy immunities from jurisdiction in
other States, both civil and criminal. For the purposes
of the present case, it is only the immunity from
criminal jurisdiction and the inviolability of an
incumbent Minister of Foreign Affairs that fall for the
Court to consider…”
CAPACITY TO ENTER INTO treaties
 States have inherent capacity to enter into
treates (Art 6. VCLT) {this is CIL}
 Since states are legal persons, they are
represented by their agents (individuals). So,
who is permitted to represent the state?
o He must have “Full Powers” (Art 7)
[See Art 2 (c) for definition of “full
powers” {pleins pouvoirs})
o Exceptions:
 Art 7 (1) (b)
 Art 7 (2)
 See Art. 8 if person is unauthorized.
TREATIES
 Read: 1969 Vienna Convention on the Law of
Treaties (VCLT) [entered into force on Jan 27,
1980]
 VCLT applies only to treaties after entry into
force (Article 4)
 Before the VCLT, the “law of treaties” had been
customary international law. The VCLT is both
a codification work of CIL and a progressive
development of international law
 The travaux preparatoires was carried out by
the international Law Commission (ILC), so its
commentary is one of the best sources of
interpretation of the VCLT
 A treaty per VCLT is “an international
agreement concluded between States in
written form and governed by
international law, whether embodied in a
single instrument or in two or more
related instruments, and whatever its
particular designation.”
 The VCLT is in itself a treaty.
Legal Obligations before Treaty enters into Force
Article 18:
A State is obliged to refrain from acts which would
defeat the object and purpose of a treaty when: (a) it
has signed the treaty subject to ratification,
acceptance or approval, until it shall have made its
intention clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the
treaty, pnding the entry into force of the treaty and
provided that such entry into force Is not unduly
delayed.
 POLITICAL LAW REVIEW JD CLASS 2016-2017

Consent to be bound Basic Rules:

Article 11: “Consent of the State to be bound by a
treaty may be expressed by signature (Art 12),
exchange or instruments (Art 13) constituting a treaty,
ratification, acceptance, approval (Art 14) or accession
(Art 14) or by any other means if so agreed.
A. Text of the treaty (ordinary meaning +context
+object and purpose of the treaty)
B. Intent of the parties
C. Object and Purpose of the Treaty (Teleological,
Principle of Effectiveness)

 Ratification occurs only when instruments or Means of Interpretation:

ratification are exchanged between the
contracting states or are deposited with the a. Preparatory works (travaux preparatoires)
depositary (Arts 2 (1)(b) and 16) b. Circumstances of conclusion
 By Accession, a third state which did not take (Contemporaneity)
part in the negotiation, consents to be bound
by the treaty and ratifies it.

Q: Is the consenting State now bound by the terms or END

substantive provisions of the treaty?
NOTE: Atty Largo did not finish discussing PIL so there
Reservation: are still several topics not included herein.

Article (2)(1)(d)VCLT:

 “a unilateral statement…made by a State,

when signing, ratifying, accepting, approving
or acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain
provisions of the treaty in their application to
the State.”
 2011 ILC Guide to Practice on Reservations to
Treaties:
o “made by a State or an international
organization…or by a State when
making notification of succession to a
treaty…”

Questions on Reservation:

A. What is Reservation?
B. How is this distinguished from “declaration” or
“understanding”?
C. When is reservation allowed? Not allowed?
D. Does reservation require the acceptance of the
other parties?
E. Can a reserving State be regarded as being a
party to the treaty while still maintaining its
reservation, if the reservation is objected to by
one or more of the parties to the treaty but not
by others?
F. If the answer to the above question is YES,
what is the effect of the reservation as
between the reserving State and:
a. The parties which object to the
reservation?
b. Those which accept it?

What are “secret treaties”? Are secret treaties

valid and binding under international law?

Registration

Article 102 (1) of the UN Charter: “every treaty

entered into by any Member of the UN after the
Charter comes into force shall as soon as possible be
registered with the Secretariat and published by it/”

Effect of non-registration: Art 102 (2) UN charter

Interpretation of Treaties
49