UP Law BOC 2022 Political Law Reviewer Unlocked

TABLE OF CONTENTS 5. Double Taxation.......................................
44
6. Exemption from Taxation ...................... 45
CONSTITUTIONAL .............................. 1 7. Escape from Taxation ............................. 46
8. Equitable Recoupment ............................ 49
LAW 1 ...................................................... 1 9. Prohibition on Compensation and Set-off
I. BASIC CONCEPTS UNDER THE 49
1987 CONSTITUTION .............................. 2 III. LEGISLATIVE DEPARTMENT . 50
A. Declaration of Principles and State of A. Legislative Power .......................................... 50
Policies ........................................................................ 2 1. Scope and limitations ............................... 50
Article II, 1987 Constitution: Declaration of........ 2 2. Principle of Non-delegability; Exceptions
Principles and State Policies .................................... 2 50
Sections 1-6: Binding rules which must be ........... 2 B. Houses of Congress; Compositions and
observed in the conduct of government ............... 2 Qualifications .......................................................... 51
[Bernas]. ...................................................................... 2 1. Senate ......................................................... 52
Sections 7-28: Guidelines for the............................ 2 2. House of Representatives ....................... 52
Orientation of the State [Bernas] ............................ 2 C. Legislative Privileges, Inhibitions, and
B. National Territory............................................ 5 Qualifications .......................................................... 54
1. The Philippines as a State .......................... 5 Privileges ............................................................. 54
2. Definition..................................................... 5 Inhibitions and Disqualifications..................... 55
C. Separation of Powers........................................... 7 Duty to Disclose ................................................ 56
D. Checks and Balances ........................................... 8 D. Quorum and Voting Majorities................... 57
E. State Immunity ..................................................... 9 1. Quorum........................................................... 57
F. Delegation of Powers ........................................ 13 2. Voting Majorities ........................................... 57
G. Fundamental Powers of the State ................... 14 E. Discipline of Members ................................. 60
1. Police Power ................................................... 14 F. Process of law-making.................................. 60
2. Eminent Domain ........................................... 16 1. Requirements as to bills ................................ 60
3. Taxation........................................................... 18 2. Procedure for Passage of Bills ..................... 61
II. GENERAL PRINCIPLES OF 3. The President’s Veto Power ........................ 63
4. Doctrine of Inappropriate Provision .......... 63
TAXATION ................................................ 21
5. Effectivity of Laws ........................................ 63
A. Definition, characteristics and purpose of
6. Limitations on Legislative Power ................ 63
taxation ..................................................................... 21
G. Appropriation and Re-Alignment............... 63
1. Definition and concept ................................. 21
H. Legislative Inquiries and Oversight
2. Purpose ............................................................ 21
Functions ................................................................. 64
3. Tax for special purpose ................................. 22
1. Requisites of Legislative Inquiries ............... 64
B. Power of Taxation as Distinguished from
2. Legislative Inquiries vs. Question Hour..... 64
Police Power and Eminent Domain .................... 22
3. Additional Limitation: Executive Privilege 65
C. Scope and Limitations of Taxation ............. 24
4. Elements of Presidential Communications
1. Inherent Limitations................................. 24
Privilege ............................................................... 65
2. Constitutional Limitations ............................ 27
5. Contempt Power ........................................... 65
D. Requisites of Valid Tax ................................. 35
6. Concept of Congressional Oversight ......... 65
E. Tax as Distinguished from Other Forms of
7. Categories of Congressional Oversight
Exactions .................................................................. 35
Functions ............................................................ 66
1. Tariff ........................................................... 35
I. Power of impeachment ................................ 66
2. Toll .............................................................. 35
1. Initiation: Regular Procedure [Section 3(2) &
3. License or Permit Fee .............................. 36
(3), Article XI, 1987 Constitution] .................. 66
4. Special Assessment ................................... 37
2. Notes on Initiation [Gutierrez v. HOR
5. Debt ............................................................ 37
Committee on Justice, G.R. No. 193459 (2011)] . 66
6. Penalty ........................................................ 38
3. Trial.................................................................. 67
F. Kinds of Taxes............................................... 38
4. 10-3-60-10 Rule.............................................. 67
1. As to object ..................................................... 38
J. Electoral Tribunals and the Commission on
2. As to burden or incidence ............................ 38
Appointments ......................................................... 67
3. As to tax rates ................................................. 38
1. Powers and Jurisdiction ........................... 67
4. As to purpose ................................................. 39
K. Initiative and referendum............................. 69
5. As to scope or authority imposing the tax . 39
1. Initiative .......................................................... 69
6. As to graduation ............................................. 39
2. Referendum .................................................... 69
G. Doctrines in Taxation ................................... 40
1. Lifeblood Theory ...................................... 40 IV. EXECUTIVE DEPARTMENT ..... 71
2. Construction and interpretation of tax A. Qualifications, Election, and Term of the
laws, rules, and regulations ............................... 40 President and Vice-President ................................ 71
3. Prospectivity of Tax Laws ....................... 42 1. Qualifications ................................................. 71
4. Imprescriptibility of Taxes ...................... 43 2. Election .......................................................... 71
3. Jurisprudence on Canvassing ...................... 71 3. Commander-in-Chief powers vs.
4. The Supreme Court as Presidential Electoral Emergency Powers ............................................ 89
Tribunal ............................................................... 71 4. Power to Issue Rules and Regulations ...... 89
5. Term of Office ............................................... 71 5. When Emergency Powers Cease ................. 90
B. Privileges, Inhibitions, and Disqualifications 6. Inconsistency between the Constitution and
71 the cases [Barlongay]: ........................................ 90
1. Official residence ........................................... 71 K. Residual Powers ............................................ 90
2. Salary ............................................................... 71 L. Veto Powers................................................... 90
3. Presidential Immunity .................................. 72 M. Executive Privilege ................................... 91
4. Presidential Privilege .................................... 72 1. Two (2) Kinds of Executive Privilege in Neri
5. The Vice-President ........................................ 72 v. Senate Committee [G.R. No. 180643 (2008)]
6. Prohibitions on the Executive Department72 .............................................................................. 91
7. Prohibited Acts .............................................. 72 2. Varieties of Executive Privilege (US) ........ 91
C. Powers of the President................................ 74 3. Scope .............................................................. 91
General Executive and Administrative Powers 4. Requisites for invoking Presidential Privilege
.............................................................................. 74 .............................................................................. 91
1. Power of Appointment ................................. 75 5. Requisites for Validity of Claim of Privilege
2. Power of removal........................................... 78 .............................................................................. 91
D. Power of Control and Supervision ............. 79 6. Diplomatic Negotiations Privilege .............. 92
1. Doctrine of Qualified Political Agency . 79 N. Rules on Succession ...................................... 92
2. Executive Departments and Offices...... 79 1. Who shall act as President............................ 92
3. Local Government Units......................... 80 2. What if the Senate President and Speaker
E. Emergency Powers........................................ 80 are also not capable to act as President?......... 92
1. Emergency Powers ........................................ 80 3. Vacancy in the Office of the President ..... 93
2. Nature of Grant ............................................ 80 4. Vacancy in the Office of the Vice-President
3. Requisites of Grant of Emergency Powers .............................................................................. 95
.............................................................................. 80
4. Concept of Emergency ................................ 80 V. JUDICIAL DEPARTMENT ............. 96
F. Military powers .............................................. 81 A. Judicial Power ................................................ 96
1. Calling Out Powers........................................ 82 B. Judicial Review............................................... 96
2. Declaration of Martial Law and Suspension 1. Requisites ................................................... 96
of the Privilege of the Writ of Habeas Corpus; Requisites of Judicial Review ........................... 96
Extension............................................................. 83 2. Political Question Doctrine .................... 98
G. Executive clemency ....................................... 85 3. Moot Questions........................................ 99
1. Forms and Limitations............................. 85 4. Operative Fact Doctrine ....................... 100
b. Forms of Executive Clemency ................... 85 C. Judicial Independence and Fiscal Autonomy
H. Diplomatic Power ......................................... 87 100
1. Scope of Diplomatic Power ......................... 87 1. Concepts ....................................................... 100
2. Treaty-Making Power ................................... 87 2. Safeguards of Judicial Independence ........ 100
3. Military Bases Treaty .................................... 87 D. Appointments to the Judiciary .................. 101
4. Visiting Forces Agreement (VFA) ............. 87 1. Qualifications .......................................... 101
5. Executive Agreements .................................. 88 2. Judicial and Bar Council (composition
6. Two (2) Classes of Executive Agreements. 88 and powers) ...................................................... 102
7. Deportation of Undesirable Aliens ............. 88 E. The Supreme Court (Composition, Powers,
8. Two (2) Ways of Deporting an Undesirable and Functions) ...................................................... 103
Alien ..................................................................... 88 1. Composition ................................................. 103
9. Scope of the Power........................................ 88 5. Powers and Functions ................................ 104
I. Powers Relative to Appropriation Measures VI. CONSTITUTIONAL
88 COMMISSIONS ....................................... 107
1. Contracting and Guaranteeing Foreign A. Common Provisions ................................... 107
Loans; Requisites ................................................ 88 1. Constitutional Safeguards to Ensure
2. Role of Congress in such Foreign Loans .. 89 Independence of Commissions ..................... 107
3. Preparing and Submitting the Budget ........ 89 2. Promotional Appointment of
4. Program of Expenditure .............................. 89 Commissioner to Chairman ........................... 107
5. Fixing of Tariff Rates [Section 28, Article VI, 3. Jurisprudence on Section 1(2), Article IX-D
1987 Constitution] ............................................. 89 ............................................................................ 107
6. Rationale for Delegation ............................... 89 4. Term of Office of Commission Members108
J. Delegated Powers .......................................... 89 B. Powers, Functions, and Jurisdiction ......... 108
1. Principle........................................................... 89 1. Civil Service Commission........................... 108
2. Emergency Powers [Section 23, Article VI, 2. Commission on Elections .......................... 109
1987 Constitution] ............................................. 89 3. Commission on Audit ................................. 111
C. Composition and Qualifications of Members B. Regalian Doctrine........................................ 125
112 1. Nationality and Citizenship Requirement
1. Civil Service Commission ........................... 112 Provisions.......................................................... 125
2. Commission on Elections........................... 113 2. Two Tests to Determine Whether or Not
3. Commission on Audit ................................. 113 Nationality Requirement Was Met ................ 126
D. Prohibited Offices and Interests ............... 113 3. Filipino First ................................................. 126
E. Judicial Review of Final Orders, Resolutions, 4. R.A. No. 11659 ............................................ 126
and Decisions of Constitutional Commissions 114 C. Exploration, Development, and Utilization
1. Decisions ....................................................... 114 of Natural Resources............................................ 127
2. Certiorari Jurisdiction of the Supreme Court 1. La Bugal-B’Laan Tribal Assn. v. Ramos
............................................................................ 114 [G.R. No. 127882 (2004)] ............................... 127
3. Synthesis on the Rules of Modes of Review 2. FTAA vs. Service Contract ........................ 128
............................................................................ 114 3. Service Contracts not Prohibited ............. 128
4. Requisites for a Valid Service Contract
VII. BILL OF RIGHTS ........................ 115 Under the Constitution ................................... 129
VIII. CITIZENSHIP ............................. 115 D. Franchises, Authority and Certificates for
A. Who are Filipino citizens............................ 115 Public Utilities ....................................................... 129
1. Classification of Citizens............................. 115 E. Acquisition, Ownership and Transfer of
2. Citizens of the Philippines [Section 1, Public and Private Lands ..................................... 130
Article IV, 1987 Constitution] ........................ 117 F. Practice of Profession................................. 131
3. Citizens of the Philippines at the time of the G. Organization and Regulation of
adoption of the 1987 Constitution ................ 117 Corporations, Private and Public ....................... 131
4. Citizens of the Philippines on May 14, 1935 H. Monopolies, Restraint of Trade and Unfair
............................................................................ 118 Competition........................................................... 131
5. Foundlings .................................................... 118 X. SOCIAL JUSTICE AND HUMAN
6. Application.................................................... 118 RIGHTS .................................................... 133
B. Modes of Acquiring Citizenship ............... 119
A. Concept of Social Justice ........................... 133
1. By Birth ......................................................... 119
B. Economic, Social, and Cultural Rights .... 133
2. By Naturalization ......................................... 119
1. Economic and Social................................... 133
3. Derivative Naturalization............................ 119
2. Agrarian and Natural Resources Reforms 133
4. Election of Filipino Citizenship ................. 119
3. Urban Land Reform and Housing ............ 134
5. Reglementary Period ................................... 119
4. Health ............................................................ 134
6. Eligibility under the Administrative
5. Women .......................................................... 135
Naturalization Law; Rationale ........................ 120
6. Role and Rights of Peoples Organizations
7. Qualifications prescribed under Act 473
............................................................................ 135
NOT applicable to R.A. No. 9139 ................ 120
7. Cultural .......................................................... 135
C. Loss and Re-Acquisition of Philippine
C. Commission on Human Rights ................ 135
Citizenship ............................................................. 120
1. Powers ........................................................... 135
1. Grounds for Loss of Philippine Citizenship
2. Composition and Qualification of Members
............................................................................ 120
............................................................................ 136
2. General Rule ................................................. 120
3. Exception ...................................................... 120 XI. AMENDMENTS OR REVISIONS
4. Reacquisition................................................. 121 OF THE CONSTITUTION ................... 137
5. R.A. No. 9225 (CITIZENSHIP A. Definitions ........................................................ 137
RETENTION AND REACQUISITION A. Difference .................................................... 137
ACT OF 2003) ................................................. 121 B. Procedure to amend or revise the
6. Repatriation under R.A. No. 8171............. 122 Constitution ........................................................... 137
7. Repatriation under R.A. No. 9225............. 122
8. R.A. No. 9225 is NOT violative of Section 5 XII. EDUCATION, SCIENCE,
of Article IV of the Constitution prohibiting TECHNOLOGY, ARTS, CULTURE AND
dual allegiance ................................................... 122 SPORTS .................................................... 143
9. Citizenship Reacquired by Repatriation A. Academic Freedom ..................................... 143
under Repatriation Laws ................................. 123 B. Constitutional Tax Exemptions for Certain
D. Dual Citizenship and Dual Allegiance ...... 123 Educational Institutions ...................................... 143
1. Dual Citizenship........................................... 123
2. Dual Allegiance ............................................ 123 CONSTITUTIONAL .......................... 144
3. Dual citizenship vs. dual allegiance ........... 123
LAW 2................................................... 144
IX. NATIONAL ECONOMY AND
I. BILL OF RIGHTS ............................ 145
PATRIMONY .......................................... 125 A. Due Process ................................................. 145
A. Goals [Section 1, Article XII, 1987 1. Procedural and substantive ................... 145
Constitution] .......................................................... 125 2. Void-for-Vagueness ............................... 146
3. Judicial and Administrative Due Process 3. Presumption of Innocence ................... 187
148 4. Right to be Heard................................... 188
B. Equal Protection .......................................... 151 5. Right to Counsel..................................... 188
Concept ............................................................. 151 6. Right to be Informed of the Nature and
1. Requisites for valid classification .......... 151 Cause of Accusation ........................................ 189
2. Tests to Determine the Reasonableness of 7. Right to Speedy, Impartial and Public
a Classification [Serrano v. Gallant Maritime, Trial 189
supra] ................................................................... 151 8. Right to Confrontation .......................... 189
C. Arrests, Searches and Seizures ................... 152 9. Right to Compulsory Processes ........... 189
1. Requisites of a Valid Warrant ............... 152 10. Trial In Absentia ................................ 190
2. Warrantless Arrests and Detention ...... 154 N. Right to Speedy Trial and Speedy
3. Warrantless Searches .............................. 155 Disposition of Cases ............................................ 190
4. Exclusionary Rule ................................... 158 O. Right against Self-Incrimination ............... 191
D. Privacy of Communications and 1. Extent of the Right ................................ 191
Correspondence .................................................... 158 2. Immunity Statutes .................................. 192
1. Private and Public Communications ... 158 P. Right against Double Jeopardy ................. 192
2. Intrusion, when allowed ........................ 159 1. Requisites ................................................. 192
3. Exclusionary Rule ................................... 160 2. Limitations............................................... 193
D. Freedom of Speech and Expression ......... 161 Q. Right against Involuntary Servitude ......... 193
1. Prior Restraint and Subsequent R. Right against Excessive Fines, and Cruel and
Punishment ....................................................... 161 Inhuman Punishments ......................................... 194
2. Content-based and content-neutral S. Non-imprisonment for Debts ................... 195
regulations ......................................................... 162 T. Ex Post Facto Laws and Bills of Attainder
3. Facial Challenges and Overbreadth 195
Doctrine............................................................. 163 U. Writs of Habeas Corpus, Kalikasan, Habeas
4. Tests to Determine the Validity of Data, and Amparo ................................................ 197
Governmental Regulation ............................... 164
5. State Regulation of Different Types of LAW ON PUBLIC OFFICERS ........... 201
Mass Media........................................................ 165 I. GENERAL PRINCIPLES ............... 202
6. Unprotected Speech ............................... 166
E. Freedom of Religion ................................... 169 II. KINDS OF APPOINTMENT ......... 210
1. Non-Establishment and Free Exercise
Clauses ............................................................... 169 III. DISABILITIES AND
2. Conscientious Objectors ....................... 171 INHIBITIONS OF PUBLIC OFFICERS
3. Tests to Determine the Validity of 214
Governmental Regulation ............................... 171
IV. POWERS AND DUTIES OF PUBLIC
F. Liberty of Abode and Right to Travel ...... 171
1. Scope and Limitations............................ 171
OFFICERS ............................................... 220
1. Scope of Power of a Public Officer............... 220
2. Watch-List and Hold Departure Orders
173 IV. DE FACTO VS DE JURE
G. Right to Information................................... 173 OFFICERS ............................................... 223
1. Scope and Limitations............................ 174 1. De Facto Officers............................................. 223
H. Eminent Domain ......................................... 175
1. Concept .................................................... 175 V. THE CIVIL SERVICE ..................... 227
2. Just Compensation ................................. 176
3. Expropriation by Local Government
VI. ACCOUNTABILITY OF PUBLIC
Units ................................................................... 178 OFFICERS ............................................... 239
I. Right to Association .................................... 178 A. Discipline...................................................... 239
1. Scope and Limitations............................ 178 1. Grounds................................................... 239
J. Non-impairment of Contracts ................... 179 2. Jurisdiction .............................................. 240
1. Concept and Limitations ....................... 179 3. Dismissal, Preventive Suspension,
K. Free Access to Courts and Adequate Legal Reinstatement and Back Salaries ................... 240
Assistance ............................................................... 180 4. Condonation doctrine............................ 245
L. Rights under Custodial Investigation ....... 181 B. Impeachment ............................................... 246
1. Meaning of Custodial Investigation ..... 182 C. The Ombudsman ........................................ 246
2. Rights of a Person under Custodial 1. Functions ................................................. 247
Investigation...................................................... 182 2. Judicial review in administrative
3. Requisites of a Valid Waiver ................. 183 proceedings ....................................................... 248
4. Exclusionary Doctrine ........................... 183 3. Judicial review in penal proceedings.... 248
M. Rights of the Accused ............................ 184 D. The Sandiganbayan ..................................... 249
1. Criminal Due Process ............................ 185 ADMINISTRATIVE LAW................... 251
2. Bail ............................................................ 185
I. GENERAL PRINCIPLES ................... 252 II. AUTONOMOUS REGIONS AND
THEIR RELATION TO THE
II. POWERS OF ADMINISTRATIVE
NATIONAL GOVERNMENT ............... 327
AGENCIES .............................................. 253
A. Quasi-Legislative (Rule-Making) Power ....... 253 III. LOCAL GOVERNMENT UNITS ... 329
1. Kinds of Administrative Rules and A. Powers............................................................... 329
Regulations ........................................................ 256 1. Police Power (General Welfare Clause) ... 329
2. Requisites for Validity ................................. 257 2. Eminent Domain ......................................... 330
B. Quasi-judicial (Adjudicatory) Power ............. 260 3. Taxing Power ............................................... 332
1. Administrative Due Process ....................... 263 4. Closure and Opening of Roads [Sec. 21,
2. Administrative Appeal and Review ........... 267 LGC] .................................................................. 332
3. Administrative Res Judicata........................ 269 5. Legislative Power ......................................... 333
B. Fact-Finding, Investigative, Licensing, and 6. Corporate Powers ........................................ 340
Rate-Fixing Powers ............................................... 270 7. Ultra Vires Acts ........................................... 341
B. Liability of Local Government Units............ 342
III. DOCTRINES OF PRIMARY C. Settlement of Boundary Disputes ................. 344
JURISDICTION AND EXHAUSTION OF D. Vacancies and Succession .............................. 345
ADMINISTRATIVE REMEDIES ......... 274 E. Recall ................................................................. 349
ELECTION LAW ............................... 280 F. Term Limits ...................................................... 350
I. SUFFRAGE ........................................... 281 IV. LOCAL TAXATION ......................... 353

A. Fundamental Principles of Local and Real
A. Concept ............................................................. 281
Property Taxation ................................................. 353
B. Qualification and Disqualification of Voters282
B. Common Limitations on the Taxing Power of
C. Registration and Deactivation ........................ 283
the LGU ................................................................. 353
D. Inclusion and Exclusion Proceedings .......... 287
C. Requirements for a Valid Tax Ordinance .... 354
E. Local and Overseas Absentee Voting [Sec. 3(a),
D. Procedure for Approval and Effectivity of Tax
R.A. No. 9189, The Overseas Absentee Voting
Ordinances............................................................. 355
Act, as amended by R.A. No. 10590, The
E. Exemptions from Real Property Taxes ........ 355
Overseas Voting Act of 2013] ............................. 290
F. Detainee Voting................................................ 291 PUBLIC INTERNATIONAL LAW .... 357
II. CANDIDACY ...................................... 293 I. CONCEPTS .......................................... 358
A. Qualifications and Disqualifications of
Candidates .............................................................. 293 II. RELATIONSHIP BETWEEN
B. Filing of Certificates of Candidacy ................ 296 INTERNATIONAL AND PHILIPPINE
1. Effect of Filing ............................................. 297 DOMESTIC LAW .................................... 360
2. Substitution and Withdrawal of Candidates
............................................................................ 298 III. SOURCES OF OBLIGATIONS IN
3. Nuisance Candidates ................................... 299 INTERNATIONAL LAW ....................... 362
4. Effect of Disqualification ........................... 300
IV. SUBJECTS OF INTERNATIONAL
III. CAMPAIGN ....................................... 302 LAW........................................................... 370
A. Concept ............................................................. 302 A. States ................................................................. 370
B. Premature Campaigning .................................. 304 B. International Organizations ........................... 372
C. Contributions.................................................... 305 C. Individuals ........................................................ 373
D. Lawful and Prohibited Election Propaganda
................................................................................. 306 V. JURISDICTION OF STATES............ 374
A. Basis of Jurisdiction ........................................ 374
E. Limitations on Expenses ................................ 307
F. Statement of Contributions and Expenses 1. Territoriality Principle ............................ 374
(SOCE) [Sec. 14, R.A. No. 7166] ....................... 307 2. Nationality Principle .............................. 374
3. Protective Principle ................................ 374
IV. REMEDIES AND JURISDICTION 309 4. Universality Principle ............................. 374
A. Petition Not to Give Due Course or Cancel a 5. Passive Personality Principle ................ 374
Certificate of Candidacy ....................................... 309 B. On Nationality and Statelessness .................. 374
B. Petition for Disqualification ........................... 309 C. Exemptions from Jurisdiction ....................... 376
C. Failure of Election Versus Annulment of 1. Acts of State Doctrine ................................ 376
Election Results..................................................... 311 2. State Immunity ............................................. 376
D. Pre-Proclamation Controversy ...................... 312 3. Diplomatic Immunity ................................. 377
E. Election Contest .............................................. 316 4. International Organizations and their
Officers.............................................................. 380
LOCAL GOVERNMENTS ................. 320
VI. GENERAL PRINCIPLES OF
I. PRINCIPLES OF LOCAL AUTONOMY TREATY LAW.......................................... 381
................................................................... 321
VII. DOCTRINE OF STATE
RESPONSIBILITY.................................. 387
VIII. REFUGEES .................................... 393
IX. EXTRADITION ................................ 395
1. How To Enforce the International
Responsibility arising from the International
Delinquency ...................................................... 395
Local remedies do not need to be exhausted
where: ................................................................. 396
X. BASIC PRINCIPLES OF
INTERNATIONAL HUMAN RIGHTS
LAW .......................................................... 398
XI. BASIC PRINCIPLES OF
INTERNATIONAL HUMANITARIAN
LAW .......................................................... 401
XII. LAW OF THE SEA .......................... 405
A. Definition .......................................................... 405
B. Nature of the UNCLOS treaty ...................... 405
C. Baselines ............................................................ 405
D. Archipelagic States .......................................... 405
E. Internal waters .................................................. 406
F. Territorial Sea.................................................... 406
G. Contiguous Zone............................................. 408
H. Exclusive Economic Zone (EEZ) ................ 408
I. Continental Shelf ............................................... 409
J. The International Tribunal for the Law of the
Sea (ITLOS) ........................................................... 410
XIII. INTERNATIONAL
ENVIRONMENTAL LAW..................... 411
CONSTITUTIONAL
LAW 1
POLITICAL LAW
CONSTITUTIONAL LAW I POLITICAL LAW
I. BASIC CONCEPTS Adoption of Generally Accepted Principles

of International Law
UNDER THE 1987 Generally accepted principles of international
law, by virtue of the incorporation clause of the
CONSTITUTION Constitution, form part of the laws of the land
even if they do not derive from treaty
A. Declaration of Principles and obligations.
State of Policies
Transformation: Requires that an
international law be transformed into a
Article II, 1987 Constitution: Declaration of
domestic law through a constitutional
Principles and State Policies
mechanism such as local legislation.
Sections 1-6: Binding rules which must be
Incorporation: When, by mere constitutional
observed in the conduct of government
declaration, international law is deemed to
[Bernas].
have the force of domestic law [Pharmaceutical
and Health Care Assoc. Of the Philippines v.
Sections 7-28: Guidelines for the
Duque III, G.R. No. 173034 (2007)].
Orientation of the State [Bernas]
"Generally accepted principles of
General Rule: Article II of the Constitution is
international law" - norms of general or
not intended to be self-executing principles
customary international law which are binding
ready for enforcement through courts [Tanada
on all states, i.e.
v. Angara, G.R. No. 118295 (1997)].
1. Renunciation of war as an instrument
of national policy,
Exception: The right to a balanced and
2. The principle of sovereign immunity,
healthful ecology [Oposa v. Factoran, G.R No.
3. A person's right to life, liberty and due
101083 (1993)]
process, and
The Philippines is a Democratic and
International customary rules are accepted as
Republican State
binding as a result from the combination of two
SECTION 1, ARTICLE II. The Philippines is a elements:
democratic and republican State. Sovereignty 1. The established, widespread, and
resides in the people and all government authority
emanates from them.
consistent practice on the part of
States; and
2. A psychological element known as the
The Philippines, under the 1987 Constitution, is opinion juris sive necessitates (opinion
not just a representative government but also as to law or necessity) [Poe-
shares some aspects of direct democracy such Llamanzares v. COMELEC, G.R. No.
as, for instance, the “initiative and referendum” 221697 (2016)].
under Section 32, Article VI [Bernas].
Civilian Supremacy
Renunciation of War
SECTION 3, ARTICLE II. Civilian authority is, at all
SECTION 2, ARTICLE II. The Philippines times, supreme over the military. The Armed Forces
renounces war as an instrument of national policy, of the Philippines is the protector of the people and
adopts the generally accepted principles of the State. Its goal is to secure the sovereignty of the
international law as part of the law of the land and State and the integrity of the national territory.
adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.
The supremacy of civilian authority over the
military is implemented under the 1987
Only refers to wars of aggression, not Constitution with the President as
defensive war. Commander-in-Chief of the Armed Forces of
the Philippines.
Civilian authority (Section 3, Article II) is not
defeated in a joint task force between the PNP
and Marines for the enforcement of law and
Page 2 of 412
UP Law Bar Operations Commission 2022
order in Metro Manila as long as control is left such as the right to religion [Ebralinag v.
to the PNP [IBP v. Zamora, G.R. No. 141284 Division Superintendent of Schools of Cebu,
(2000)]. G.R. No. 95770 (1993)].
Role of the Armed Forces Independent Foreign Policy

a. Protector of the people and the State SECTION 7, ARTICLE II. The State shall pursue an
b. Secure the sovereignty of the State and the independent foreign policy. In its relations with other
integrity of the national territory states the paramount consideration shall be national
sovereignty, territorial integrity, national interest, and
Compulsory military and civil service the right to self-determination.
SECTION 4, ARTICLE II. The prime duty of the

Government is to serve and protect the people. The Paramount considerations: national
Government may call upon the people to defend the sovereignty, territorial integrity, national
State and, in the fulfillment thereof, all citizens may interest, and the right to self-determination.
be required, under conditions provided by law, to
render personal military or civil service.
Freedom from Nuclear Weapons
SECTION 8, ARTICLE II. The Philippines,
The phrase "under conditions provided by law." consistent with the national interest, adopts and
was placed in lieu of "with due regard for pursues a policy of freedom from nuclear weapons
objections of conscience" and was intended to in its territory.
give to Congress a flexible guideline for dealing
with conscientious objectors [Bernas].
The ban on nuclear arms includes not only
Maintenance of Peace and Order, possessing, controlling and manufacturing
Promotion of General Welfare nuclear but also nuclear tests in our territory, as
well as the use of our territory as dumping
SECTION 5, ARTICLE II. The maintenance of ground for radioactive wastes [Bernas].
peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare
are essential for the enjoyment by all the people of
Promote a Just and Dynamic Social Order
the blessings of democracy. SECTION 9, ARTICLE II. The State shall promote a
just and dynamic social order that will ensure the
prosperity and independence of the nation and free
Recognition of Hierarchy of Rights [Bernas; the people from poverty through policies that provide
Section 5, supra] adequate social services, promote full employment,
a. Life a rising standard of living, and an improved quality
b. Liberty of life for all.
c. Property
Promote Social Justice in All Phases of
Separation of Church and State National Development
SECTION 6, ARTICLE II. The separation of Church SECTION 10, ARTICLE II. The State shall promote
and State shall be inviolable. social justice in all phases of national development.
The fact that R.A. No. 3350 grants a privilege Personal Dignity and Human Rights
to members of said religious sects cannot by
itself render the Act unconstitutional, for the Act SECTION 11, ARTICLE II. The State values the
dignity of every human person and guarantees full
only restores to them their freedom of respect for human rights.
association which closed shop agreements
have taken away and puts them in the same
plane as the other workers who are not Family as Basic Social Institution and
prohibited by their religion from joining labor Natural and Primary Right and Duty of
unions [Victoriano v. Elizalde Rope Workers, Parents in the Rearing of the Youth
G.R. No. L-25246 (1974)]. SECTION 12, ARTICLE II. The State recognizes the
sanctity of family life and shall protect and
The duty of the state to inculcate values of strengthen the family as a basic autonomous social
patriotism and nationalism such as a flag salute institution. It shall equally protect the life of the
cannot intrude into other fundamental rights, mother and the life of the unborn from conception.
Page 3 of 412
The natural and primary right and duty of parents in
Protection of the Life of the Mother and the
the rearing of the youth for civic efficiency and the Life of the Unborn from Conception
development of moral character shall receive the The question of when life begins is a scientific
support of the Government. and medical issue that should not be decided
(in the RH petitions) without proper hearing and
The right and duty referred to here is primary, evidence [Imbong v. Ochoa, supra].
not exclusive.
Vital Role of Youth in Nation-Building
Doctrine of Parens Patriae SECTION 13, ARTICLE II. The State recognizes the
Parens patriae holds the State under obligation vital role of the youth in nation-building and shall
to provide protection and look after the welfare promote and protect their physical, moral, spiritual,
intellectual, and social well-being. It shall inculcate
of its people especially those who cannot tend in the youth patriotism and nationalism, and
to themselves. Parens patriae means parent of encourage their involvement in public and civic
his or her country, and refers to the State in its affairs.
role as "sovereign", or the State in its capacity
as a provider of protection to those unable to
care for themselves [Southern Luzon Drug Role of Women in Nation Building
Corporation v. DSWD, G.R. No. 199669 Fundamental Equality Before the Law of
(2017)]. Women and Men
SECTION 14, ARTICLE II. The State recognizes the
The State, as parens patriae, has an inherent role of women in nation-building, and shall ensure
right to aid parents in the moral development of the fundamental equality before the law of women
the youth. Hence, the provision in the RH Law and men.
mandating the teaching of age- and
development- appropriate reproductive health Right to Health
education is not per se unconstitutional; a
SECTION 15, ARTICLE II. The State shall protect
ruling on its constitutionality would be and promote the right to health of the people and
premature absent an actual curriculum instill health consciousness among them.
formulated by the Department of Education
[Imbong v. Ochoa, G.R. No. 204819 (2014)].
Right to a Balanced and Healthful Ecology
Quezon City’s imposed curfew does not violate SECTION 16, ARTICLE II. The State shall protect
Section 12, Article II of the Constitution and advance the right of the people to a balanced
because the curfew was done within the role of and healthful ecology in accord with the rhythm and
the State as parens patriae. While parents harmony of nature.
have a primary role in raising a child, “when
actions concerning the child have a relation to Citizens have a public right to a balanced and
the public welfare or the well-being of the child, healthful ecology, the right of which need not
the State may act to promote these legitimate be written in the Constitution for it is assumed
interests”, especially in cases that may bring to be an issue of transcendental importance
harm to a child or to public safety. This with intergenerational implications. Such right
overrides a parent’s right to control upbringing carries with it the correlative duty to refrain from
of a child. The State is mandated to support impairing the environment [Oposa v. Factoran,
parents in exercise of rights and duties, and G.R. No. 101083 (1993)].
state authority is therefore, not exclusive of, but
rather complementary to parental supervision. Priority to Education, Science, and
The Curfew Ordinances merely serve as legal Technology, Arts, Culture, and Sports
restrictions designed to aid parents in
SECTION 17, ARTICLE II. The State shall give
promoting their child’s welfare. Though these priority to education, science and technology, arts,
are inherently limiting on the part of the minor, culture, and sports to foster patriotism and
this is necessary because the youth is nationalism, accelerate social progress, and
vulnerable and inexperienced, and “their moral promote total human liberation and development.
well-being is likewise imperiled as minor
children are prone to making detrimental
decisions” [SPARK v. Quezon City, G.R. No.
225442 (2017)].
Page 4 of 412
Labor as a Primary Social Economic Force service, and prohibit political dynasties as may be
SECTION 18, ARTICLE II. The State affirms labor defined by law.
as a primary social economic force. It shall protect
the rights of workers and promote their welfare.
The state policy against political dynasties is
not self-executing. It does not provide a
Self-Reliant and Independent National judicially enforceable constitutional right but
Economy merely specifies a guideline for legislative or
SECTION 19, ARTICLE II. The State shall develop executive action [Belgica v. Ochoa, G.R. No.
a self-reliant and independent national economy 208566 (2013)].
effectively controlled by Filipinos.
Honesty and Integrity in Public Service
Role of Private Sector SECTION 27, ARTICLE II. The State shall maintain
honesty and integrity in the public service and take
SECTION 20, ARTICLE II. The State recognizes the positive and effective measures against graft and
indispensable role of the private sector, encourages corruption.
private enterprise, and provides incentives to
needed investments.
Policy of Full Public Disclosure
Comprehensive Rural Development and SECTION 28, ARTICLE II. Subject to reasonable
Agrarian Reform conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its
SECTION 21, ARTICLE II. The State shall promote transactions involving public interest.
comprehensive rural development and agrarian
reform.
B. National Territory
Recognition and Promotion of Rights of
Indigenous Cultural Communities 1. The Philippines as a State
SECTION 22, ARTICLE II. The State recognizes
and promotes the rights of indigenous cultural Elements of a State:
communities within the framework of national unity a. People
and development. b. Territory
c. Government
Community-Based, Sectoral Organizations d. Sovereignty
SECTION 23, ARTICLE II. The State shall
encourage non-governmental, community-based, or 2. Definition
sectoral organizations that promote the welfare of
the nation. The national territory is comprised of —
(1) Philippine archipelago, with all the islands
Rule of Communication and Information in and waters embraced therein; Internal waters –
Nation-Building waters around, between, and connecting the
islands of the archipelago, regardless of
SECTION 24, ARTICLE II. The State recognizes the breadth and dimension; and
vital role of communication and information in
nation-building.
(2) All other territories over which the
Philippines has sovereignty or jurisdiction. It
Autonomy of Local Governments consists of —
SECTION 25, ARTICLE II. The State shall ensure (a) Territorial sea, seabed, subsoil, insular
the autonomy of local governments. shelves, and other submarine areas
(b) Terrestrial, fluvial, and aerial domains
[Article I, 1987 Constitution]
Equal Access for Public Service and
Prohibition of Political Dynasties Internal Waters: The waters around, between,
SECTION 26, ARTICLE II. The State shall and connecting the islands of the archipelago,
guarantee equal access to opportunities for public regardless of their breadth and dimensions,
form part of the internal waters of the
Philippines [Article I, 1987 Constitution].
Page 5 of 412
Treaty limits of the Philippine archipelago accretion, cession and prescription, not by
executing multilateral treaties on the
1. Treaty of Paris of 10 December 1898: regulations of sea-use rights or enacting
“Spain cedes to the United States the statutes to comply with the treaty's terms to
archipelago known as the Philippines delimit maritime zones and continental
Islands, and comprehending the shelves. Territorial claims to land features are
islands lying within the following line” outside UNCLOS III and are instead governed
xxx by the rules on general international law
Article 3 defines the metes and bounds [Magallona v. Ermita, G.R. No. 187167 (2011)].
of the archipelago by longitude and
latitude, degrees and seconds. R.A. No. 9522 (March 10, 2009) - The current
2. Treaty of Washington of 7 November baselines law created 101 base points around
1900 between the United States and the Philippines to determine the baseline. This
Spain: Ceding Cagayan, Sibuto and aims to demarcate the country's maritime zone
Sulu. and continental shelf in accordance with
3. Treaty of 12 January 1930 between UNCLOS III and is not meant to delineate
the United States and Great Britain: Philippine territory. Under the Treaty of Paris,
Ceding the Turtle and Mangsee Islands baselines cannot be drawn from the
[Bernas (2003), cited in Justice boundaries or other portions of the rectangular
Velasco’s concurring opinion in area but the outermost islands and drying reefs
Magallona v. Ermita, G.R. No. 187167 of the archipelago.
(2011)].
R.A. No. 9522 is not unconstitutional: (1) it is
Methods of Baseline Determination a statutory tool to demarcate the maritime zone
Baselines laws such as R.A. No. 9522 are and continental shelf of the Philippines under
enacted by United Nations Convention on the UNCLOS III and does not alter the national
Law of the Seas III (UNCLOS III) State parties territory. (2) While UNCLOS III does not bind
to mark-out specific basepoints along their the Philippines to pass a baselines law,
coasts from which baselines are drawn, either Congress may do so. (3) The law also does not
straight or contoured, to serve as geographic abandon the country's claim to Sabah, as it
starting points to measure the breadth of the does not expressly repeal the entirety of R.A.
maritime zones and continental shelf. No. 5446.
UNCLOS III and its ancillary baselines laws
play no role in the acquisition, enlargement or, R.A. No. 9522 uses the framework of regime of
as petitioners claim, diminution of territory. islands in determining the maritime zones of
the Kalayaan Island Group (KIG) and
UNCLOS III has nothing to do with the Scarborough Shoal. Regime of islands refers to
acquisition (or loss) of territory. It is a any natural formed area of land surrounded by
multilateral treaty regulating, among others, water that generate their own applicable
sea-use rights over maritime zones (i.e., the maritime zone [UNCLOS III].
territorial waters [12 nautical miles from the
baselines], contiguous zone [24 nautical miles Straight baseline method — Consists of
from the baselines], exclusive economic zone drawing straight lines connecting appropriate
[200 nautical miles from the baselines]), and points on the coast without departing to any
continental shelves that UNCLOS III delimits. appreciable extent from the general direction of
the coast, in order to delineate the internal
UNCLOS III was the culmination of decades waters from the territorial waters of an
long negotiations among United Nations archipelago. (Note: This is the method
members to codify norms regulating the prescribed under the UNCLOS)
conduct of States in the world's oceans and
submarine areas, recognizing coastal and R.A. No. 9522 amends R.A. No. 3046 (as
archipelagic States' graduated authority over a amended by R.A. No. 5446). R.A. No. 3046
limited span of waters and submarine lands determined appropriate points of the outermost
along their coasts. XXX Under traditional islands of the archipelago, then connected
international law typology, States acquire (or them by means of a straight line until all islands
conversely, lose) territory through occupation, were surrounded or enclosed by the imaginary
Page 6 of 412
lines. R.A. No. 5446 states that the definition of Political Question Doctrine
the baselines of the territorial sea of the A question in which resolution has been vested
Philippine Archipelago is without prejudice to by the Constitution exclusively in the people, or
the delineation of the baselines of the territorial in which full discretionary authority has been
sea around the territory of Sabah, situated in delegated to a co-equal branch of the
North Borneo, over which the Republic of the government (separation of powers) cannot be
Philippines has acquired dominion and decided upon by the Courts.
sovereignty.
This is as opposed to a justiciable question
C. Separation of Powers which deals with matters re: the law and its
interpretation, not left to the wisdom of the
People.
Separation of powers is a fundamental
principle in our system of government and is
Application
founded on the belief that, by establishing
A. Belgica v. Ochoa, supra
equilibrium among the three (3) power holders,
The Pork Barrel System violates the separation
harmony will result and power will not be
of powers because it is a form of post
concentrated and tyranny will be avoided
enactment authority in the implementation or
[Bernas]. Any system that is violative of the
enforcement of the budget.
principle of separation of powers is
1. The system permits legislative
unconstitutional and void [Belgica v. Ochoa,
encroachment upon the executive
supra].
prerogative of implementing the law, by
giving individual legislators: (a) The
Each of the three branches of government has
power to determine projects after the
exclusive cognizance of and is supreme in
General Appropriations Act (GAA) is
matters falling within its constitutionally
passed; and (b) through congressional
allocated sphere; each branch cannot invade
committees, authority in the areas of
the domain of others. Powers of the
fund release and realignment, the
government are separated to avoid
system encroaches on the Executive’s
concentration of powers in any one branch
power to implement the law.
[Gatmaytan].
2. Furthermore, identification of a project
by a legislator being a mandatory
Three (3) branches of the Philippine
requirement before his PDAF can be
government:
tapped as a source of funds, his act
1. Legislative
becomes indispensable in the entire
2. Executive
budget execution process.
3. Judiciary
B. Ocampo v. Enriquez, G.R. No. 225973
The principle of separation of powers ordains
(2016)
that each of the three government branches
In allowing the internment of Marcos at the
has exclusive cognizance of and is supreme in
LNMB, which is a land of the public domain
concerns falling within its own constitutionally
devoted for national military cemetery and
allocated sphere. It intends to secure action, to
military shrine purposes, President Duterte
forestall over-action, to prevent despotism, and
decided a question of policy based on his
to promote efficiency.
wisdom that it shall promote national healing
and forgiveness. There being no taint of grave
While the separation of powers is not expressly
abuse of discretion, as discussed below,
provided for in the Constitution, it obtains from
President Duterte’s decision on that political
actual division in the Constitution (found in
question is outside the ambit of judicial review.
Section 1 of Articles VI, VII, and VIII). Each
department has exclusive cognizance of
C. Forietrans Manufacturing Corporation v.
matters within its jurisdiction and is supreme
Davidoff Et Cia. SA, G.R. No. 197482 (2017)
within its own sphere [Angara v. Electoral
The task of determining probable cause is
Commission, G.R. No. L-45081 (1936)].
lodged with the public prosecutor and
ultimately, the Secretary of Justice. Under the
doctrine of separation of powers, courts have
Page 7 of 412
no right to directly decide matters over which 1. Scrutiny: Congress’ power of
full discretionary authority has been delegated appropriation, i.e. budget hearings, and
to the Executive Branch of the Government. power of confirmation
2. Investigation and monitoring of
D. OCA v. Reyes, A.M. No. P-08- 2535 (2010) implementation of laws: Using its
Legislative power cannot limit the Court’s power to conduct inquiries in aid of
power to impose disciplinary actions against legislation [Abakada Guro Partylist v.
erring justices, judges and court personnel. Purisima, G.R. No. 166715 (2008)].
Neither should such policy be used to restrict
the Court’s power to preserve and maintain the Note: A fuller discussion on congressional
Judiciary’s honor, dignity and integrity and oversight is provided in Macalintal v.
public confidence that can only be achieved by COMELEC, which concludes with the Supreme
imposing strict and rigid standards of decency Court "[adopting] the separate opinion of
and propriety governing the conduct of justices, Justice Reynato S. Puno as part of the
judges and court employees. ponencia on the unconstitutionality of Sections
17.1, 19 and 25 of R.A. No. 9189 insofar as
E. Angara v. Electoral Commission, supra they relate to the creation of and the powers
The separation of powers is a fundamental given to the Joint Congressional Oversight
principle in our system of government. It Committee."
obtains not through express provision but by
actual division in our Constitution. Each A legislative veto, i.e. statutory provision (which
department of the government has exclusive may take the form of a congressional oversight
cognizance of matters within its jurisdiction, committee) that requires the President or an
and is supreme within its own sphere. But it agency to submit the proposed implementing
does not follow from the fact that the three rules and regulations of a law to Congress for
powers are to be kept separate and distinct that approval, is unconstitutional. It encroaches on:
the Constitution intended them to be absolutely 1. The Executive: For it allows Congress
unrestrained and independent of each other. to take a direct role in the enforcement
The Constitution has provided for an elaborate of its laws;
system of checks and balances to secure 2. The Judiciary: Administrative
coordination in the workings of the various issuances enjoy a presumption of
departments of the government. validity, and only the courts may decide
whether or not they conform to statutes
D. Checks and Balances or the Constitution [Abakada Guro
Partylist v. Purisima, supra]
Corollary to Separation of Powers: Prevents
Application
authority from being concentrated in one
The Pork Barrel system is unconstitutional,
branch. Each branch is supreme within their
among others, because it violates the system
own sphere.
of checks and balances.
1. It deprives the president of his item-
It does not follow from the fact that the three
veto power. As lump-sum
powers are to be kept separate and distinct that
appropriations, the actual projects
the Constitution intended them to be absolutely
under each congressman’s PDAF are
unrestrained and independent of each other.
determined by the congressman only
The Constitution has provided for an elaborate
after the GAA is passed. The president
system of checks and balances to secure
then would not be able to discern
coordination in the workings of the various
whether or not he should veto the
departments of the government [Angara v.
appropriation.
Electoral Commission, supra].
2. It has a detrimental effect on
Congressional Oversight. Because
Congressional oversight is not per se violative,
legislators effectively intervene in
but is integral to separation of powers.
project implementation, it becomes
However, for a post-enactment congressional
difficult for them to exercise their (valid)
measure to be valid, it must be limited to:
post enactment role of scrutinizing,
investigating, or monitoring the
Page 8 of 412
implementation of the law, when they would be spent defending itself
are no longer disinterested observers from suits and this would prevent it
[Belgica v. Ochoa, supra]. from performing its other functions
[Republic v. Villasor, G.R. No. L-
Section 8(2) of R.A. No. 6770, providing that 30671 (1973)].
the President may remove a Deputy
Ombudsman, is unconstitutional. Subjecting Exception: When the State consents to be
the Deputy Ombudsman to discipline and sued.
removal by the President, whose own alter
egos and officials in the Executive department How consent is given:
are subject to the Ombudsman’s disciplinary 1. Express
authority, cannot but seriously place at risk the a. Through general law; or
independence of the Office of the Ombudsman b. Through special law
itself. Section 8(2) of R.A. No. 6770 intruded 2. Implied
upon the constitutionally-granted a. When the State enter into business
independence of the Office of the Ombudsman. contracts with individuals
By so doing, the law directly collided not only (performing proprietary functions);
with the independence that the Constitution b. When the State commences
guarantees to the Office of the Ombudsman, litigation and becomes vulnerable
but inevitably with the principle of checks and to counterclaim;
balances that the creation of an Ombudsman c. When it would be inequitable for
office seeks to revitalize. What is true for the the State to invoke immunity; and
Ombudsman must equally and necessarily be d. In eminent domain cases.
true for her Deputies who act as agents of the
Ombudsman in the performance of their duties. Money claims
The Ombudsman can hardly be expected to When a money judgment is given against the
place her complete trust in her subordinate government, the ordinary rule for execution
officials who are not as independent as she is, would not apply, for the consent of the
if only because they are subject to pressures government to be sued is only up to the point
and controls external to her Office [Gonzales III of judgment. If it does not pay, it cannot be
v. Office of the President, G.R. No. 196231 compelled to pay by attachment or otherwise.
(2014)].
State
E. State Immunity A community of persons, more or less
numerous, permanently occupying a definite
Summary of Rule portion of territory, independent of external
control, and possessing a government to which
General Rule: The State cannot be sued a great body of the inhabitants render habitual
● Constitutional Basis: Section 3, Article obedience; a politically organized sovereign
XVI. The State may not be sued without its community independent of outside control
consent. bound by ties of nationhood, legally supreme
● International Law Basis: Par in parem within its territory, acting through a government
non habet imperium. functioning under a regime of law [Collector of
○ “an equal does not have power Internal Revenue v. Campos Rueda, G.R. No.
over an equal” 13250 (1971)].
● Jurisprudential Basis
○ Positivist Theory – There can be The State as a person of international law
no legal right as against the should possess the following qualifications: (a)
authority that makes the laws on a permanent population; (b) a defined territory;
which the right depends. Also (c) government; and (d) capacity to enter into
called the doctrine of Royal relations with the other States [Article 1,
Prerogative of Dishonesty Montevideo Convention].
[Department of Agriculture v.
NLRC, G.R. No. 104269 (1993)].
○ Sociological Theory – If the State
is amenable to suits, all its time
Page 9 of 412
Two Theories of Sovereign Immunity [US v. an action in rem that does not name the
Ruiz, G.R. No. L-35645 (1985)] government in particular.
1. Absolute Theory — A sovereign Action in personam vs. Action in rem

cannot, without its consent, be made a 1. Action in personam — The government as
respondent in the courts of another the named defendant.
sovereign. 2. Action in rem — Does not name the
government in particular.
This derives from the principle of sovereign
equality found in Article 2(1) of the UN Charter Official Capacity vs. Personal Capacity
as well as generally accepted principles of The doctrine of non-suability applies only in
international law. cases wherein the complaint is against officials
of state for acts performed in discharge of
2. Restrictive Theory — The immunity of duties or his official capacity. When officials
the sovereign is recognized only with abuse this authority gravely (like discriminatory
regard to public acts or acts (jure behavior), this is no longer an official state act
imperii) of state, but not regard to and the official may now be sued in his
private acts or acts (jure gestionis) personal capacity [Shauf v. CA, G.R. No.
The Philippines follows the restrictive theory. 90314 (1990)].
Suits Against the State Beyond Scope of Authority

A suit against the state will only prosper if the When officials, while discharging their official
state gives its express consent. functions, commit acts that are beyond their
scope of authority (i.e. police forces firing upon
When is a suit considered a suit against the civilians and killing them, mistakenly believing
State? they were Communists), they will be liable in
1. If it produces adverse consequences to their personally capacity and thus will not be
public treasury in terms of covered by state immunity [Republic v.
disbursement as well as loss of Sandoval, G.R. No. 84607 (1993)].
government property, regardless of the
defense; Waiver of Immunity
2. When the Republic is sued in its name; When the State expressly states their consent
3. When the suit is against an to be sued through legislation (including
unincorporated government agency; treaties), it waives its immunity from suit.
and However, this waiver of immunity may be
4. Even when the suit, on its face, is limited to certain legal actions (i.e. under the
against an officer but liability will belong VFA, there is a waiver of immunity by the US
to/fall on the government. under criminal jurisdiction but not to civil
actions) [Arigo v. Swift, G.R. No. 206510
When is a suit NOT against the State? (2014)].
1. When it partakes of the nature of ordinary
business rather than functions of a Consent To Be Sued
governmental or political character; Express Consent
2. When the purpose of the suit is to compel Effected only by the will of the legislature
an officer charged with the duty of making through the medium of a duly enacted statute;
payments pursuant to an appropriation may be embodied either in a general law or a
made by law in favor of the plaintiff to make special law.
such payment, since the suit is intended to
compel performance of a ministerial duty General Law
[Begosa v. Philippine Veterans Authorizes any person who meets the
Association, G.R. No. L-25916 (1970)]; conditions stated in the law to sue the
3. When it is clear that the respondent is a government in accordance with the procedure
public officer sued in a private capacity; in the law; e.g.
4. When the action is not in personam with the
government as the named defendant, but
Page 10 of 412
a. Money claims arising from contract 3. Liability under the Local
express or implied Government Code
Act No. 3083: An Act Defining the Conditions Local government units and their
under which the Government of the Philippines officials are not exempt from liability for
may be sued. death or injury to persons or damage to
property [Section 24, LGC].
SECTION 1. Subject to the provisions of this Act, the
Government of the Philippines hereby consents and Special Law — May come in the form of a
submits to be sued upon any moneyed claim
involving liability arising from contract, express or
private bill authorizing a named individual to
implied, which could serve as a basis of civil action bring suit on a special claim.
between private parties.
Implied Consent
SECTION 2. A person desiring to avail himself of the a. In instances when the State takes
privilege herein conferred must show that he has private property for public use or
presented his claim to the Commission on Audit and
that the latter did not decide the same within two
purpose (eminent domain)
months from the date of its presentation. b. When the State enters into a business
contract (in jure gestionis or proprietary
SECTION 5. When the Government of the functions)
Philippines is plaintiff in an action instituted in any c. When it would be inequitable for the
court of original jurisdiction, the defendant shall have State to invoke its immunity.
the right to assert therein, by way of set-off or
counterclaim in a similar action between private
d. If the government files a complaint, the
parties. defendant may file a counterclaim
against it. When the state files a
complaint, suability will result only
b. Torts where the government is claiming
affirmative relief from the defendant.
1. Liability of local government units
Provinces, cities and municipalities Note: When the DOTC constructed the
shall be liable for damages for the encroaching structures and subsequently
death or injuries suffered by any person entered into the FLA with Digitel for their
by reason of the defective conditions maintenance, it was carrying out a sovereign
of roads, streets, public buildings and function. Therefore, these are acts jure imperii
other public works under their control that fall within the cloak of state immunity.
and supervision [Article 2189, CC]. However, the doctrine of state immunity cannot
serve as an instrument for perpetrating an
2. Vicarious liability for special agents injustice to a citizen. The SC, citing Ministerio
The Government is only liable for the v. CFI (1971), held that when the government
acts of its agents, officers and takes any property for public use, which is
employees, when they act as special conditioned upon the payment of just
agents within the meaning of the compensation, to be judicially ascertained, it
provision [Article 2180(6), CC]. makes manifest that it submits to the
jurisdiction of a court. The Department's entry
Special Agent — One who receives a into and taking of possession of the
definite and fixed order or commission, respondents' property amounted to an implied
foreign to the exercise of the duties of waiver of its governmental immunity from suit
his office if he is a special official [DOTC v. Sps. Abecina, G.R. No. 206484
[Merritt v. Government of the Philippine (2016)].
Islands, G.R. No. L-11154 (1916)].
Specific Rules
One who performs his regular Suits against Government Agencies:
functions, even if he is called a “special Suability depends on whether the agency is
agent”, is not a special agent within the incorporated (i.e. there is a separate charter) or
context of Government liability [USA v. unincorporated (i.e. no separate personality).
Guinto, G.R. No. 76607 (1990)].
a. Incorporated: If the charter provides that
the agency can sue, then the suit will lie.
Page 11 of 412
The provision in the charter constitutes proceedings anterior to the stage of execution.
express consent [SSS v. Court of Appeals, The power of the court ends when the
G.R. No. L-41299 (1983)]. judgment is rendered because government
b. Unincorporated: There must be an inquiry funds and property may not be seized pursuant
unto the principal functions of government. to writs of execution or writs of garnishment to
i. If governmental: No suit without satisfy such judgments. The functions and
its consent [Bureau of Printing v. public services of the State cannot be allowed
Bureau of Printing Employees to be paralyzed or disrupted by the diversion of
Association, G.R. No. L-15751 public funds from their legitimate and specific
(1961)]. objects, and as appropriated by law. The rule is
ii. If proprietary: The suit will lie based on obvious considerations of public
because when the State engages policy [National Housing Authority v. Roxas,
in principally proprietary functions, G.R. No. 171953 (2015)].
it descends to the level of a private
individual, and may, therefore be Suits against Public Officers
vulnerable to suit [Civil Aeronautics General Rule: The doctrine of state immunity
Administration v. Court of Appeals, also applies to complaints filed against officials
G.R. No. L-51806 (1988)]. of the State for acts performed by them in the
discharge of their duties within the scope of
The State may only be liable for their authority.
proprietary acts (jure gestionis) and
not for sovereign acts (jure imperii). Exception: The doctrine of immunity from suit
will not apply and may not be invoked where
the public official is being sued in his (1) private
and personal capacity as an ordinary citizen,
Type Function Role
for (2) acts without authority or in excess of the
powers vested in him [Lansang v. CA, G.R. No.
Incorporated Governmental CAN be
102667 (2000)].
or sued
proprietary ONLY IF
Note: Acts done without authority are not acts
charter
of the State (see Beyond Scope of Authority).
allows
Exceptions to Prior Consent Rule
Unincorporat Governmental CANNOT Jurisprudence provides these exceptions,
ed be when the State or public officer may be sued
sued without prior consent:
unless 1. To compel the State or public officer to do
consent is an act required by law;
given 2. To restrain the State or public officer from
enforcing an act claimed to be
Proprietary CAN be unconstitutional;
sued 3. To compel the payment of damages from
an already appropriated assurance fund or
to refund tax over-payments from a fund
Note: The State's immunity from suit did not already available for the purpose;
extend to the NHA despite its being a 4. To secure a judgment that the officer
government owned and controlled corporation. impleaded may satisfy by himself without
Under Section 6(i) of PD No. 757, which was the State having to do a positive act to
its charter, the NHA could sue and be sued. assist him;
There is no question that the NHA could sue or 5. Where the government itself has violated
be sued, and thus could be held liable under its own laws [Sanders v. Veridiano II, G.R.
the judgment rendered against it. But the No. L-46930 (1988)].
universal rule remains to be that the State,
although it gives its consent to be sued either Scope of Consent
by general or special law, may limit the Consent to be sued is not a concession of
claimant's action only up to the completion of liability. Suability depends on the consent of the
Page 12 of 412
State to be sued, and liability on the applicable its use or the manner of its exercise which
law and the established facts. The determines the validity of its delegation.
circumstance that a State is suable does not
necessarily mean that it is liable, but it can General Rule: Only Congress (as a body) may
never be held liable if it does not first consent exercise legislative power.
to be sued. When the State does waive its
sovereign immunity, it is only giving the plaintiff Exceptions
the chance to prove that it is liable [USA v. a. Delegated legislative power to local
Guinto, G.R. No. 76607 (1990)]. governments: Local governments, as an
Estoppel immemorial practice, may be allowed to
legislate on purely local matters [See Rubi v.
General Rule: The State cannot be put in Provincial Board, G.R. No. L-14078 (1919)
estoppel by the mistakes or errors of its officials cited in Belgica v. Ochoa, supra. See also
or agents [Republic v. Galeno, G.R. No. Section 9, Article X, 1987 Constitution,
215009 (2017)]. explicitly mentioning “legislative bodies of local
governments;” and Section 20 providing for the
Exception: Estoppel may not be invoked coverage of legislative powers delegated to
where they would operate to defeat the autonomous regions via the latter’s organic
effective operation of a policy adopted to acts].
protect the public, or in those special cases
where the interest of justice clearly required it. b. Constitutionally-grafted Exceptions
Respondent had already acquired a vested i. Emergency power delegated to the Executive
right on the tax classification of its San Mig during the State of War or National Emergency
Light as a new brand. To allow petitioner to [Section 23(2), Article VI, 1987 Constitution];
change its position will result in deficiency and
assessments in substantial amounts against ii. Certain taxing powers of the President
respondent to the latter's prejudice [Section 28(2), Article VI, 1987 Constitution].
[Commissioner of Internal Revenue v. San
Miguel Corporation, G.R. Nos. 205045 & The Congress may authorize the President to
205723 (2017)]. fix, within specified limits, and subject to such
limitations and restrictions as it may impose,
F. Delegation of Powers tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or
Rule of Non-Delegation of Legislative imposts within the framework of the national
Power development program of the Government.
Principle: Delegata potestas non potest
delegari – What has been delegated can no c. The extent reserved to the people by the
longer be delegated. provision on initiative and referendum
[Section 1, Article VI, 1987 Constitution].
Rationale: Since the powers of the
government have been delegated to them by Subordinate legislation made by
the people, who possess original sovereignty, administrative agencies
these powers cannot be further delegated by The principle of non- delegability should not be
the different government departments to some confused with the delegated rule-making
other branch or instrumentality of the authority of implementing agencies [Belgica v.
government. Ochoa, supra]. Strictly speaking, what is
delegated is not “law-making” power, but rule-
The powers which Congress is prohibited from making power, limited to (a) filling up the details
delegating are those which are strictly, or of the law; or (b) ascertaining facts to bring the
inherently and exclusively, legislative. Purely law into actual operation.
legislative power which can never be delegated
is the authority to make a complete law - Traditional/Simplified Formulation: Who
complete as to the time when it shall take effect may exercise legislative powers:
and as to whom it shall be applicable, and to
determine the expediency of its enactment. It is General Rule: Congress only.
the nature of the power and not the liability of
Page 13 of 412
Exceptions: PLATE the law [Pelaez v. Auditor General, G.R. No. L-
1. Delegation to the People (by initiative and 23825 (1965)]; and
referendum) b. Sufficient Standard Test: The standard is
2. Delegation to the Local governments sufficient if it defines legislative policy, marks its
3. Delegation to the Administrative bodies limits, maps out its boundaries and specifies
a. Increasing complexity of the task of the public agency to apply it. It indicates the
government circumstances under which the legislative
b. Lack of technical competence of command is to be effected [Edu v. Ericta, G.R.
Congress No. L-32096 (1970)].
c. Administrative bodies may fill up
details of statute for The standard must specify the limits of the
implementation delegates authority, announce the legislative
d. Legislature may pass “contingent policy and identify the conditions under which it
legislation”, which leaves to is to be implemented, e.g.:
another body the business of • Public interest
ascertaining facts • Justice and equity
4. Delegation of Tariff powers to the President • Simplicity, sufficiency, and economy
under Constitution [Article 6, Section 28(2),
1987 Constitution] Note: Acts which are purely legislative in
5. Delegation of Emergency powers to the character (e.g. making of laws) cannot be
President under Constitution [Article 6, delegated to an administrative body (in contrast
Section 23(2), 1987 Constitution] to the ascertainment of facts or the filling in of
details which can be delegated to
Note: The President did not proclaim a national administrative agencies).
emergency, only a state of emergency in the
three places in ARMM. And she did not act
pursuant to any law enacted by Congress that
G. Fundamental Powers of the
authorized her to exercise extraordinary State
powers. The calling out of the armed forces to
prevent or suppress lawless violence in such The following are inherent in a State,
places is a power that the Constitution directly inseparable from its sovereigny. Hence, these
vests in the President. She did not need can be exercised even without being expressly
congressional authority to exercise the same granted in the Constitution or laws. However,
[Ampatuan v. Puno, G.R. No. 190259 (2011)]. the conditions for their exercise can be
regulated and limited [De Leon].
There is neither an express prohibition nor an 1. Police Power;
express grant of authority in the Constitution for 2. Eminent Domain; and
Congress to delegate to regional or local 3. Taxation
legislative bodies the power to create local
government units. However, under its plenary 1. Police Power
legislative powers, Congress can delegate to It is the inherent and plenary power of the State
local legislative bodies the power to create which enables it to prohibit all that is hurtful to
local government units, subject to reasonable the comfort, safety and welfare of society
standards and provided no conflict arises with [Ermita-Malate Hotel and Motel Operators
any provision of the Constitution [Sema v. Association, Inc. v. Mayor of Manila, G.R. No.
COMELEC, G.R. No. 177597 (2008)]. L-24693 (1967)].
Test for Valid Delegation It is a power coextensive with self-protection,

Rule: There is a valid delegation of legislative and is not inaptly termed the “law of the
power when it passes the following tests – overruling necessity” [Rubi v. Provincial Board
of Mindoro, G.R. No. L-14078 (1919)].
a. Completeness test: The law sets forth the
policy to be executed, carried out, or Police power, while incapable of an exact
implemented by the delegate [Abakada Guro definition, has been purposely veiled in general
Partylist v. Purisima, supra], such that there is terms to underscore its comprehensiveness to
nothing left for the delegate to do but to enforce meet all exigencies and provide enough room
Page 14 of 412
for an efficient and flexible response as the Delegated
conditions warrant” [White Light Corporation v. 1. The President
City of Manila, G.R. No. 122846 (2009)]. 2. Administrative bodies
3. Law-making bodies of LGUs
Scope and Limitations
“The State in order to promote the general Limitations on Delegation of Police Power
welfare, may interfere with personal liberty, 1. It must be made through an express grant by
with property, and with business and law;
occupations. Persons may be subjected to all 2. It must be exercised within the territorial
kinds of restraints and burdens, in order to jurisdiction of LGUs; and
secure the general comfort, health and 3. It must not be contrary to law.
prosperity of the state and to this fundamental
aim of our Government, the rights of the TEST OF VALID EXERCISE
individual are subordinated” [Ortigas and Co., A. Means Purpose Test
Limited Partnership v. Feati Bank and Trust 1. Lawful Subject - The interests of the public,
Co., G.R. No. L- 24670 (1979)]. generally, as distinguished from those of a
particular class, require such interference and
As police power derives its existence from the that the subject of the measure is within the
very existence of the State itself, it does not scope of the police power [Ichong v.
need to be expressed or defined in its scope. Hernandez, supra]
XXX So it is that Constitutions do not define the 2. Lawful Means - The means employed are
scope or extent of the police power of the State; reasonably necessary for the accomplishment
what they do is to set forth the limitations of the purpose and not unduly oppressive upon
thereof. The most important of these are the individuals [National Development Company v.
due process clause and the equal protection Philippine Veterans Bank, G.R. Nos. 84132-33
clause [Ichong v. Hernandez, G.R. No. L-7995 (1990)].
(1957)].
B. Reasonability Test
Police power has been characterized as the The limit to police power is reasonability. The
most essential, insistent, and the least limitable Court looks at the test of reasonability to decide
of powers, extending as it does to all the great whether it encroaches on the right of an
public needs [Ermita-Malate Hotel and Motel individual. So long as legitimate means can
Operators Association, Inc. v. Mayor of Manila, reasonably lead to create that end, it is
supra]. reasonable [Morfe v. Mutuc, G.R. No. L-20387
(1968)].
Taxation and Eminent Domain as
Implements on Police Power Application
Taxation may be used as an implement of The PWD mandatory discount on the purchase
police power [Lutz v. Araneta, G.R. No. L-7859 of medicine is supported by a valid objective or
(1955)]. purpose as aforementioned. It has a valid
subject considering that the concept of public
Eminent domain may be used as an implement use is no longer confined to the traditional
to attain the police objective [Association of notion of use by the public, but held
Small Landowners v. Secretary of Agrarian synonymous with public interest, public benefit,
Reform, G.R. No. 78742 (1989)]. public welfare, and public convenience.
Specific Coverage As in the case of senior citizens, the discount

1. Public Health privilege to which the PWDs are entitled is
2. Public Safety actually a benefit enjoyed by the general public
3. Public Morals to which these citizens belong. The means
4. General Welfare [Abe v. Foster Wheeler employed in invoking the active participation of
Corporation, G.R. No. L-14785 & L-14923 the private sector, in order to achieve the
(1960)] purpose or objective of the law, is reasonably
and directly related. Also, the means employed
Who may Exercise Police Power to provide a fair, just and quality health care to
Generally: Legislature PWDs are reasonably related to its
Page 15 of 412
accomplishment, and are not oppressive, within the territorial sovereignty, to public
considering that as a form of reimbursement, purpose [Republic v. Heirs of Borbon, G.R. No.
the discount extended to PWDs in the 165354 (2015)].
purchase of medicine can be claimed by the
establishments as allowable tax deductions Two mandatory requirements should
pursuant to Section 32 of R.A. No. 9442 as underlie the Government’s exercise of the
implemented in Section 4 of DOF Revenue power of eminent domain:
Regulations No. 1-2009. Otherwise stated, the (a) It is for a particular public purpose; and
discount reduces taxable income upon which (b) Just compensation should be paid to the
the tax liability of the establishments is property owner [Mactan-Cebu International
computed [Drugstores Association of the Airport Authority v. Lozada, Sr., G.R. No.
Philippines, Inc. v. National Council on 176625 (2010)]
Disability Affairs, G.R. No. 194561 (2016)].
It is well settled that eminent domain is an
Exercise of Police Power is subject to inherent power of the State that need not be
judicial inquiry granted even by the fundamental law. Sec. 9,
The Legislature’s determination as to what is a Art. III merely imposes a limit on the
proper exercise of its police powers is not final government’s exercise of this power [Republic
or conclusive, but it is subject to the supervision v. Tagle, G.R. No. 129079 (1998)].
of the courts [US v. Toribio, G.R. No. L-5060
(1910)]. Who may Exercise Eminent Domain
Generally: Legislature
However, courts cannot delimit beforehand the Delegated (through charter):
extent or scope of the police power, since they 1. LGUs
cannot foresee the needs and demands of 2. Other government entities
public interest and welfare. So it is that
Constitutions do not define the scope or extent The repository of eminent domain powers is the
of the police power of the State; what they do legislature, i.e. exercised through the
is to set forth the limitations thereof. The most enactment of laws. But power may be
important of these are the due process clause delegated to LGUs and other government
and the equal protection clause [Ichong v. entities (via charter); still, the delegation must
Hernandez, supra]. be by law [Manapat v. CA, G.R. No. 110478
(2007)].
Example of a Legitimate Exercise of Police
Power Requisites for the Valid Exercise of Eminent
R.A. No. 9257, the Expanded Senior Citizens Domain
Act of 2003, is a legitimate exercise of police 1. Necessity
power. Administrative Order No. 177 issued by 2. Private Property
the Department of Health, providing that the 3. Public Use
20% discount privilege of senior citizens shall 4. Taking
not be limited to the purchase of unbranded 5. Just Compensation
generic medicine but shall extend to both 6. Due Process
prescription and non-prescription medicine,
whether branded or generic, is valid [Carlos
Superdrug Corporation v. DSWC et al., G.R. 1. Necessity
No. 166494 (2007)]. There must be a necessity which must be of
public character [Manapat v. CA, supra].
2. Eminent Domain
The power of eminent domain is the inherent Difference as to the exercising officer
right of the State to condemn private property [Manapat v. CA, supra].
to public use upon payment of just If exercised by Nature of necessity
compensation.
Congress Political question
The right of eminent domain is the ultimate right
of the sovereign power to appropriate, not only A delegate, under Justiciable question
the public but the private property of all citizens
Page 16 of 412
Not an instance of taking
general authority
Imposition of restrictions on the use of property
A delegate, under a Political question to protect the public health safety or morals
special authority for a from danger is not taking as there is no
special purpose dedication to public use [Association of Small
Landowners in the Philippines, Inc. v. Sec. of
Agrarian Reform, G.R. No. 78742 (1989)].
2. Private Property
General Rule: All private property capable of 5. Just Compensation
ownership may be expropriated and it may Just compensation is defined as the full and fair
include public utility and services [Republic v. equivalent of the property taken from its owner
PLDT, G.R. No. 18841 (1961)]. by the expropriator. The measure is not the
taker's gain, but the owner's loss. The word
Exceptions "just" is used to intensify the meaning of the
a. Money word "compensation" and to convey thereby
b. Choses in Action the idea that the equivalent to be rendered for
the property to be taken shall be real,
Chose in Action substantial, full, and ample [National
It is a personal right not reduced into Transmission Corporation v. Oroville
possession such as debts owed by another Development Corporation, G.R. No. 223366
person. It is the right to recover a debt, (2017)].
demand, or damages on a cause of action ex
contractu or for a tort or omission of a duty Determination of Just Compensation
[Black’s Law Dictionary]. General Rule: It is computed at the time of the
filing of the complaint for expropriation [Section
3. Public Use 4, Rule 67, ROC].
Public use includes not only use directly Exception: At the time of taking, when taking
available to the public but also those which precedes filing of the complaint.
redound to their indirect benefit [Heirs of
Ardona v. Reyes, G.R. Nos. L-60549, 60553- Inflation will not be considered in determining
55 (1983)]. what the value of a property is for purposes of
computing just compensation [Nepomuceno v.
As long as the public has the right of use, CA, G.R. No. 166246 (2008)].
whether exercised by one or many members of
public, a public advantage or public benefit Determination of Just Compensation is a
accrues sufficient to constitute a public use Judicial Function
[Manosca v. CA, G.R. No. 106440 (1995)]. The determination of just compensation is a
judicial function. The executive or legislature
4. Taking may make the initial determination but when a
There is taking of property when the following party claims a violation in the Bill of Rights, no
are present [Republic v. Castellvi, G.R. No. L- statute, decree, or executive order can
20620 (1974)]: mandate that its own determination shall
a. The expropriator must enter a private prevail over the court’s mandate [EPZA v.
property; Dulay, G.R. No. L-59603 (1987)].
b. The entrance into private property must
be for more than a momentary period; Eminent Domain vs. Regulatory Taking
c. The entry into the property should be
under warrant or color of legal Eminent Domain Regulatory Taking
authority;
Eminent domain is Regulatory taking is
d. The property must be devoted to a
an inherent power of the exercise of the
public use;
the State based on State of its police
e. The utilization of the property ousts the
the Constitution. power. In this case,
owner and deprives him of all beneficial
Just compensation just compensation
enjoyment of the property.
must be paid. need not be paid.
Page 17 of 412
Two stages of Eminent Domain b. Progressive system of taxation
a. Determination of the authority of the The rate increases as the tax base increases,
expropriator to exercise the power of with social justice as basis. Taxation here is an
eminent domain and the propriety of its instrument for a more equitable distribution of
exercise wealth.
b. Determination by the court of the just
compensation [Municipality of Biñan v. c. Delegated tax legislation
Garcia, G.R. No. 69260 (1989)]. Congress may delegate law-making authority
when the Constitution itself specifically
3. Taxation authorizes it.
It is the power by which the State raises
revenue to defray the necessary expenses of Scope and Limitation
the Government. It is the enforced proportional General Limitations
contributions from persons and property, levied a. The power to tax exists for the general
by the State by virtue of its sovereignty, for the welfare. It should be exercised only for a
support of the government and for all public public purpose
needs. It is as broad as the purpose for which b. Might be justified as for public purpose
it is given. even if the immediate beneficiaries are
private individuals
Purpose: c. Tax should not be confiscatory. If a tax
a. To raise revenue measure is so unconscionable as to
b. Tool for regulation amount to confiscation of property, the
c. Protection/power to keep alive Court will invalidate it. But invalidating a tax
measure must be exercised with utmost
Lifeblood theory and Necessity theory caution, otherwise, the State’s power to
Taxes are the lifeblood of the government, for legislate for the public welfare might be
without taxes, the government can neither exist seriously curtailed.
nor endure. A principal attribute of sovereignty, d. Taxes should be uniform and equitable
the exercise of taxing power derives its source [Section 28(1), Article VI, 1987
from the very existence of the state whose Constitution].
social contract with its citizens obliges it to
promote public interest and common good. The Judicial review for unconscionable and
theory behind the exercise of the power to tax unjust tax amounting to confiscation of
emanates from necessity; without taxes, property
government cannot fulfill its mandate of The legislature has discretion to determine the
promoting the general welfare and well-being nature, object, extent, coverage, and situs of
of the people [NPC v. Cabanatuan, G.R. No. taxation. But where a tax measure becomes so
149110 (2003)]. unconscionable and unjust as to amount to
confiscation of property, courts will not hesitate
Tax for special purpose to strike it down; the power to tax cannot
Treated as a special fund and paid out for such override constitutional prescriptions [Tan v. del
purpose only; when the purpose is fulfilled, the Rosario, G.R. No. 109289 (1994)].
balance, if any, shall be transferred to the
general funds of the Government [Section Specific Limitations
29(3), Article VI, 1987 Constitution]. a. Uniformity of taxation
General Rule: Simply geographical uniformity,
Requisites [Section 28(1), Article VI] meaning it operates with the same force and
a. Uniform and Equitable effect in every place where the subject of it is
Taxes should be (a) uniform (persons or things found
belonging to the same class shall be taxed at
the same rate) and (b) equitable (taxes should Exception: Rule does not prohibit
be apportioned among the people according to classification for purposes of taxation, provided
their ability to pay). the requisites for valid classification are met
[Ormoc Sugar v. Treasurer of Ormoc, G.R. No.
L-23793 (1968)].
Page 18 of 412
b. Tax Exemptions
No law granting any tax exemption shall be
passed without the concurrence of a majority of
all the Members of Congress [Section 28(4),
Article VI, 1987 Constitution].
There is no vested right in a tax exemption.

Being a mere statutory privilege, a tax
exemption may be modified or withdrawn at will
by the granting authority [Republic v. Caguioa,
G.R. No. 168584 (2007)].
Exemptions may either be constitutional or

statutory:
1. Constitutional exemptions [Section 28(3),
Article VI, 1987 Constitution]
2. If statutory, it has to have been passed by
majority of all the members of Congress
[Section 28(4), Article VI, 1987 Constitution]
Page 19 of 412
Police Power Eminent Domain Taxation
1. As to Concept Power to make and Power to take private Power to enforce

implement laws for the property for public use contribution to raise
general welfare with just compensation government funds
2. As to Scope Broad in application as Merely a power to Plenary,

it pertains to the take private property comprehensive and
general power to make for public use supreme
and implement laws
3. As to the Government and its Generally, by the Government and its

exercising authority political subdivisions government but the political subdivisions
power may be granted
to public service or
public utility
companies
4. As to the Purpose Promotion of general The taking of private Enforced contribution

welfare property is for public is to support the
use government
5. As to delegation Upon valid delegation, Upon valid delegation, Upon valid delegation,
it may be exercised by it may be exercised by the President and the
the President, the President, law-making bodies of
lawmaking Bodies of lawmaking bodies of the LGUs can exercise
LGUs, and LGUs, public it
Administrative corporation, quasi-
Agencies public corporation and
administrative
agencies
6. As to the Relatively free from Superior to and may Subject to

relationship to the constitutional override constitutional constitutional and
Constitution limitations and is impairment provision inherent limitations;
superior to the non- because the welfare Inferior to non-
impairment clause of the State is superior impairment
to any private contract clause
7. As to Limitation Limited by the demand Bounded by public Constitutional and

for public interest and purpose and just inherent limitations
due process compensation
Page 20 of 412
II. GENERAL PRINCIPLES to be within the police power of the state. Thus,
taxation can:
OF TAXATION
1. Promote general welfare of the people as
an implement of police power
A. Definition, characteristics
and purpose of taxation The so-called “sin taxes” on alcohol and
tobacco manufacturers help dissuade the
1. Definition and concept consumers from excessive intake of these
potentially harmful products [Southern
a. As a Revenue Raising Measure Cross Cement Corporation v. Cement
The process or means by which the sovereign, Manufacturers Association of the
through its law-making body, raises income to Philippines, et al., G. R. No. 158540
defray the necessary expenses of government; (2005)].
a method of apportioning the cost of 2. Strengthen anemic enterprises or provide
government among those who in some incentives to greater production through
measure are privileged to enjoy its benefits and grant of tax exemptions or the creation of
must, therefore, bear its burdens [51 Am. Jur. conditions conducive to their growth.
34; 1 Cooley 72-93]. 3. Protect local industries against foreign
competition by imposing additional taxes
b. As a Power on imported goods, or encourage foreign
i. It refers to the inherent power of the State trade by providing tax incentives on
to demand enforced contributions for imported goods.
public purpose. 4. Be a bargaining tool by setting tariff rates
ii. It is described as a destructive power first at a relatively high level before trade
which interferes with the personal and negotiations are entered into with another
property rights of the people and takes country.
from them a portion of their property for 5. Halt inflation in periods of prosperity to curb
the support of the government [Paseo spending power; ward off depression in
Realty & Development Corporation v. CA, periods of slump to expand business.
G.R. No. 119286 (2004)]. 6. Reduce inequalities in wealth and incomes,
as for instance, the estate, donor's and
2. Purpose income taxes, their payers being the
recipients of unearned wealth or mostly in
a. Primary - Raise Funds the higher income brackets. Progressivity
The primary purpose is to generate funds for is based on the principle that those who are
the State to finance the needs of the citizenry able to pay more should shoulder the
and to advance the common weal [Napocor v. bigger portion of the tax burden
Province of Albay, G.R. No. 87479 (1990)]. [Mamalateo].
7. Encourage economic growth through the
Fees may be properly regarded as taxes even grant of incentives or exemptions, which
though they also serve as an instrument of encourage investment and thereby
regulation. If the purpose is primarily revenue, stimulate economic activity.
or if revenue is, at least, one of the real and 8. Taxes may be levied to promote science
substantial purposes, then the exaction is and invention [see R.A. No. 5448] or to
properly called a tax [PAL v. Edu, G.R. No. L- finance educational activities [see R.A. No.
41383 (1988)]. 5447] or to improve the efficiency of local
police forces in the maintenance of peace
b. Secondary - Regulatory Function and order through grant of subsidy [see
Taxation is often employed as a device for R.A. No. 6141].
regulation by means of which certain effects or 9. To push for the government’s health
conditions envisioned by governments may be measure, just like what happened in the
achieved. Taxes may be levied with a landmark legislation on sin taxes in 2012
regulatory purpose to provide means for the [see R.A. No. 10351].
rehabilitation and stabilization of a threatened
industry which is affected with public interest as
Page 21 of 412
3. Tax for special purpose
Special/Regulatory/Sumptuary Tax are

levied for special purposes, i.e., to achieve
some social or economic ends irrespective of
whether revenue is actually raised or not (e.g.,
protective tariffs or customs duties on imported
goods to enable similar products manufactured
locally to compete with such imports in the
domestic market).
Tariff duties intended mainly as a source of

revenue are relatively low so as not to
discourage imports.
B. Power of Taxation as
Distinguished from Police
Power and Eminent Domain
When the distinction of exercise of powers
is relevant
The distinction is important when the one

exercising it is the LGU (mere delegated
authority).
Since Congress has the power to exercise the

State inherent powers of Police Power,
Eminent Domain and Taxation, the distinction

between police power and the power to tax
would not be of any moment when Congress
itself exercises the power [NTC v. CA, G.R.
No. 127937 (1999)].
Page 22 of 412
Taxation Eminent Domain Police Power
Authority (who May be exercised only by May be exercised by the May be exercised only
exercises the the government; or its government; its political by the government; or
Power) political subdivisions. subdivisions; its political subdivisions.
or may be granted to public
service companies or public
utilities.
Purpose The property (generally in To facilitate the taking of The use of the property
the form of money) is private property for public is “regulated” for the
taken for the support of use. purpose of promoting
the government. the general welfare; it is
not compensable.
Persons Operates upon: a Operates on: an individual as Operates upon: a

Affected community; or class of the owner of a particular community; or a class of
individuals. property. individuals.
Effect The money contributed There is a transfer of the right There is no transfer of
becomes part of the public to property. title. At most, there is
funds. restraint on the injurious
use of property.
Benefits Protection and benefits he Market value of the property Indirect benefits
Received receives.
He receives the market value The person affected
The enjoyment of the of the property taken from receives indirect
privileges of living in an him. benefits as may arise
organized society, from the maintenance of
established and a healthy economic
safeguarded by the standard of society.
devotion of taxes to public
purpose.
Amount of Generally, there is no limit No amount imposed but Amount imposed should
Imposition on the amount of tax that rather the owner is paid the just be commensurate
may be imposed. market value of property to cover the cost of
taken. regulation,
issuance of a license or
surveillance
Relationship to Subject to constitutional Inferior to the impairment Relatively free from

Constitution limitations, including the prohibition; government constitutional limitations
prohibition against cannot expropriate private and is superior to the
impairment of the property, which under a impairment of contract
obligation of contracts. contract had previously provision.
bound itself to purchase from
the other contracting party.
[Mamalateo, Reviewer on Taxation 2nd Edition (2008), pp. 11-12]
Page 23 of 412
C. Scope and Limitations of revenue is something which is the duty of
the State as a government to provide.
Taxation b. Promotion of General Welfare Test —
Whether the proceeds of the tax will directly
1. Inherent Limitations promote the welfare of the community in
equal measure.
The following are the inherent limitations of c. Character of the Direct Object of the
taxation: Expenditure — It is the essential character
a. Public Purpose of the direct object of the expenditure which
b. Inherently Legislative must determine its validity as justifying a
c. International Comity tax and not the magnitude of the interests
d. Territoriality to be affected nor the degree to which the
e. Exemption of Government Entities, general advantage of the community, and
Agencies, and Instrumentalities thus the public welfare, may be ultimately
benefited by their promotion [Pascual v.
a. Public Purpose Sec. of Public Works, supra].
Taxes should be imposed for a public purpose,
and not for a private purpose. It should be for a b. Inherently Legislative
governmental purpose - for the public welfare General Rule: Delegata potestas non potest
or the common good. delegari. (No delegated powers can be further
delegated)
The proceeds of the tax must be used:
i. For the support of the State; or The power to tax is exclusively vested in the
ii. For some recognized objects of legislative body and it may not be re-delegated.
government or directly to promote the Judge Cooley enunciates the doctrine in the
welfare of the community. following oft-quoted language: "One of the
settled maxims in constitutional law is that the
Test: Whether the statute is designed to power conferred upon the legislature to make
promote the public interest, as opposed to the laws cannot be delegated by that department
furtherance of the advantage of individuals, to any other body or authority” [People v. Vera,
although each advantage to individuals might G.R. No. L-45685 (1937)].
incidentally serve the public [Pascual v. Sec. of
Public Works, G.R. No. L-10405 (1960)]. Stated in another way, taxation may
exceptionally be delegated, subject to such
The public purpose of a tax may legally exist well-settled limitations as:
even if the motive which impelled the a. The delegation shall not contravene any
legislature to impose the tax was to favor one constitutional provision or the inherent
industry over another [Tio v. Videogram, G.R. limitations of taxation;
No. L-75697 (1987)]. b. The delegation is effected either by:
i. The Constitution; or
Public use is no longer confined to the ii. By a validly enacted legislative
traditional notion of use by the public but held measures or statute; and
synonymous with public interest, public benefit, c. The delegated levy power, except when the
public welfare, and public convenience delegation is by an express provision of the
[Commissioner of Internal Revenue v. Central Constitution itself, should only be in favor of
Luzon Drug Corporation, G.R. No. 159647 the local legislative body of the local or
(2005)]. municipal government concerned [Vitug
and Acosta].
It is the purpose which determines the public For a valid delegation of power, it is essential
character of the tax law, not the number of that the law delegating the power must be:
persons benefited [Dimaampao]. 1. Complete in itself, that is, it must set forth
the policy to be executed by the delegate
Tests in Determining Public Purpose: and;
a. Duty Test — Whether the thing to be 2. It must fix a standard — limits of which are
furthered by the appropriation of public sufficiently determinate or determinable —
to which the delegate must conform
Page 24 of 412
[Osmena v. Orbos, G.R. No. 99886 iii. Delegation to administrative
(1993)]. agencies
Limited to the administrative implementation
Legislature has the power to determine the: that calls for some degree of discretionary
a. Nature (kind); powers under sufficient standards expressed
b. Object (purpose); by law or implied from the policy and purposes
c. Extent (rate); of the Act.
d. Coverage (subjects); and
e. Situs (place) of taxation There are certain aspects of the taxing process
that are not legislative and they may, therefore,
Exceptions be vested in an administrative body. The
i. Delegation to local governments powers which are not legislative include:
This exception is in line with the general 1. The power to value property for
principle that the power to create municipal purposes of taxation pursuant to fixed
corporations for purposes of local self- rules;
government carries with it, by necessary 2. The power to assess and collect the
implication, the power to confer the power to taxes; and
tax on such local governments [1 Cooley 190]. 3. The power to perform any of the
This is logical for after all, municipal innumerable details of computation,
corporations are merely instrumentalities of the appraisement, and adjustment, and
state for the better administration of the the delegation of such details.
government in respect to matters of local
concern [Pepsi-Cola Bottling Co. of the Phil. The exercise of the above powers is really not
Inc. v. Mun. of Tanauan, G.R. No. L-31156 an exception to the rule as no delegation of the
(1976)]. strictly legislative power to tax is involved.
Under the new Constitution, however, LGUs The powers which cannot be delegated
are now expressly given the power to create its include:
own sources of revenue and to levy taxes, fees ● The determination of the subjects to be
and charges, subject to such guidelines and taxed;
limitations as the Congress may provide which ● The purpose of the tax, the amount or
must be consistent with the basic policy of local rate of the tax;
autonomy [Section 5, Article X, 1987 ● The manner, means, and agencies of
Constitution]. collection; and
● The prescribing of the necessary rules
ii. Delegation to the President with respect thereto.
1. Tariff powers by Congress under the
Flexible Tariff Clause c. International Comity
The Congress may, by law, authorize Comity – Respect accorded by nations to each
the President to fix within specified other because they are sovereign equals.
limits, and subject to such limitations Thus, the property or income of a foreign State
and restrictions as it may impose, tariff or government may not be the subject of
rates, import and export quotas, taxation by another State.
tonnage and wharfage dues, and other
duties or imposts within the framework Reasons:
of the national development program of 1. In par in parem non habet imperium. As
the Government [Section 28(2), Article between equals, there is no sovereign
VI, 1987 Constitution]. (Doctrine of Sovereign Equality among
2. Emergency Powers [Section 23(2), States under international law). One State
Article VI, 1987 Constitution] cannot exercise its sovereign powers over
3. To enter into executive agreements; another. All States, including the smallest
and and least influential, are also entitled to
4. To ratify treaties which grant tax their dignity and the protection of their
exemption subject to Senate honor and reputation [Dimaampao].
concurrence.
Page 25 of 412
2. In international law, a foreign government General Rule: Agencies and instrumentalities
may not be sued without its consent. of the government are exempt from tax. Their
Therefore, it is useless to impose a tax exemption rests on the State's sovereign
which could not be collected. immunity from taxation. The State cannot be
3. Usage among States that when a foreign taxed without its consent and such consent,
sovereign enters the territorial jurisdiction being in derogation of its sovereignty, is to be
of another, there is an implied strictly construed [Gomez v. Palomar, GR No.
understanding that the former does not L-23645 (1968)].
intend to degrade its dignity by placing itself
under the jurisdiction of the other. Note: Unless otherwise provided by law, the
exemption applies only to government entities
d. Territoriality through which the government immediately
Rule: A state may not tax property lying outside and directly exercises its sovereign powers.
its borders or lay an excise or privilege tax upon With respect to government-owned or
the exercise or enjoyment of a right or privilege controlled corporations performing proprietary
derived from the laws of another state and (not governmental) functions, they are
therein exercise and enjoyed [51 Am.Jur. generally subject to tax unless exempted under
8788]. Section 27(C) of the Tax Code or, in certain
cases, if there is a tax exemption provisions in
Reasons: their charters or the law creating them in line
a. Tax laws do not operate beyond a country’s with the rule that a specific law overrides a
territorial limits. general law.
b. Property which is wholly and exclusively
within the jurisdiction of another state If the taxing authority is a local government
receives none of the protection for which a unit
tax is supposed to be a compensation. R.A. No. 7160 expressly prohibits LGUs from
levying tax on the National Government, its
Note: Where privity of relationship agencies and instrumentalities and other LGUs
exists. It does not mean, however, that a [Section 133(o), LGC].
person outside of state is no longer subject
to its taxing powers. The fundamental basis Reasons for the exemption
of the right to tax is the capacity of the a. To levy a tax upon public property would
government to provide benefits and render necessary new taxes on other
protection to the object of the tax. A person public property for the payment of the tax
may be taxed where there is between him so laid and thus, the government would be
and the taxing state, a privity of the taxing itself to raise money to pay over for
relationship justifying the levy. Thus, the itself.
citizen’s income may be taxed even if he b. This immunity also rests upon fundamental
resides abroad as the personal (as principles of government, being necessary
distinguished from territorial) jurisdiction of in order that the functions of government
his government over him remains. In this shall not be unduly impeded [1 Cooley
case, the basis of the power to tax is not 263].
dependent on the source of the income nor c. The practical effect of an exemption
upon the location of the property nor upon running to the benefit of the government is
the residence of the taxpayer but upon his merely to reduce the amount of money that
relation as a citizen to the state. As such a has to be handled by the government in the
citizen, he is entitled, wherever he may be, course of its operations: For these
inside or outside of his country, to the reasons, provisions granting exemptions to
protection of his government. government agencies may be construed
liberally in favor of non-tax liability of such
e. Exemption of Government Entities, agencies [Maceda v. Macaraig, Jr., G.R.
Agencies, and Instrumentalities No. 88291 (1991)].
If the taxing authority is the National Exception: Government-owned or controlled

Government: corporations (GOCCs) that perform proprietary
Page 26 of 412
functions hence, they are subject to taxation vi. Majority vote of Congress for grant of
[Dimaampao]. tax exemption;
vii. Prohibition on use of tax levied for
Exception to the Exception: The following special purpose;
GOCCs are not subject to income tax: viii. President’s veto power on
1. Government Service Insurance System appropriation, revenue, tariff bills;
(GSIS) ix. Non-impairment of jurisdiction of the
2. Social Security System (SSS) Supreme Court;
3. Home Development Mutual Fund (HDMF) x. Grant of power to the local government
4. Philippine Health Insurance Corporation units to create its own sources of
(PHIC) revenue;
5. Local water districts [Sec 27(C), NIRC] xi. Flexible tariff clause;
xii. Exemption from real property taxes;
There is no constitutional prohibition against and
the government taxing itself [Coll. v. Bisaya xiii. No appropriation or use of public
Land Transportation, 105 Phil. 338 (1959)]. money for religious purposes
Tax Exemption of the Bangko Sentral ng b. Provisions indirectly affecting taxation:

Pilipinas (BSP) i. Due process;
The BSP shall be exempt from all national ii. Equal protection;
internal revenue tax on income derived from its iii. Religious freedom;
governmental functions, specifically: iv. Non-impairment of obligations of
a. Income from its activities or transactions in contracts;
the exercise of its supervision over the v. Freedom of speech and expression;
operations of banks and its regulatory and vi. Presidential power to grant reprieves,
examination powers over non-bank communications, and pardons, and
financial institutions performing quasi- remit fines and forfeitures after
banking functions, money service conviction by final judgment; and
businesses, credit granting businesses and vii. No taking of private property for public
payment systems operators; and use without just compensation
b. Income in pursuit of its primary objective to
maintain price stability conductive to a a. Provisions directly affecting taxation
balanced and sustainable growth of the
economy, and the promotion and 1. Prohibition against imprisonment for
maintenance of monetary and financial non-payment of poll tax
stability and the convertibility of the peso No person shall be imprisoned for debt or non-
payment of a poll tax [Section 20, Article III,
All other incomes not included above shall be 1987 Constitution].
taxable [RR No. 2-2020; R.A. No. 11211]. Capitation or poll taxes are taxes of a fixed
amount upon all persons, or upon all the
2. Constitutional Limitations persons of a certain class, resident within a
The following are the constitutional limitations specified territory, without regard to their
of taxation: property or the occupations in which they may
a. Provisions directly affecting taxation: be engaged. Taxes of a specified amount upon
i. Prohibition against imprisonment for each person performing a certain act or
non-payment of poll tax; engaging in a certain business or profession
ii. Uniformity and equality of taxation; are not poll taxes [51 Am. Jur. 66-67].
iii. Grant by Congress of authority to the
President to impose tariff rates; 2. Uniformity and equality of taxation
iv. Prohibition against taxation of religious, The rule of taxation shall be uniform and
charitable entities, and educational equitable. Congress shall evolve a progressive
entities; system of taxation [Section 28(1), Article VI,
v. Prohibition against taxation of non- 1987 Constitution].
stock, non-profit educational a. Uniformity – All taxable articles or
institutions; properties of the same class shall be
Page 27 of 412
taxed at the same rate [City of Baguio affected by a tax. Where the
v. De Leon, G.R. No. L-24756 (1968)]. “tax differentiation is not based
i. Uniformity of operation on material or substantial
throughout tax unit – The rule differences,” the guarantee of
requires the uniform equal protection of the laws
application and operation, and the uniformity rule will
without discrimination, of the likewise be infringed.
tax in every place where the
subject of it is found. This Taxation does not require identity or equality
means, for example, that a tax under all circumstances, or negate the
for a national purpose must be authority to classify the objects of taxation.
uniform and equal throughout
the country and a tax for a Equality vs. Uniformity
province, city, municipality, or
Equality Uniformity
barangay must be uniform and
equal throughout the province, The burden of the tax The principle by
city, municipality or barangay. falls equally and which all taxable
ii. Equality in burden – impartially upon all articles or kinds of
Uniformity implies equality in the persons and property of the same
burden, not equality in amount property subject to it. class shall be taxed
or equality in its strict and literal at the same rate. A
meaning. The reason is simple tax is uniform when it
enough. If legislation imposes operates with the
a single tax upon all persons, same force and
properties, or transactions, an effect in every place
inequality would obviously where the subject of
result considering that not all it is found. It does
persons, properties, and not signify an
transactions are identical or intrinsic but simply a
similarly situated. Neither does geographical
uniformity demand that taxes uniformity.
shall be proportional to the
relative value or amount of the [Churchill v. Concepcion, GR No. 11572
subject thereof. Taxes may be (1916)]
progressive.
Test of Valid Classification
b. Equity Classification, to be valid, must be reasonable
i. Uniformity in taxation is and this requirement is not deemed satisfied
effected through the unless:
apportionment of the tax a. It is based upon substantial distinctions
burden among the taxpayers which make real differences;
which under the Constitution b. These are germane to the purpose of the
must be equitable. “Equitable” legislation or ordinance;
means fair, just, reasonable c. The classification applies not only to
and proportionate to the present conditions but also to future
taxpayer’s ability to pay. conditions substantially identical to those of
Taxation may be uniform but the present; and
inequitable where the amount d. The classification applies equally to all
of the tax imposed is excessive those who belong to the same class [Pepsi-
or unreasonable. Cola v. Butuan City, G.R. No. L-22814
ii. The constitutional requirement (1968)].
of equity in taxation also
implies an approach which The progressive system of taxation would
employs a reasonable place stress on direct rather than indirect taxes,
classification of the entities or on non-essentiality rather than essentiality to
individuals who are to be the taxpayer of the object of taxation, or on the
Page 28 of 412
taxpayer’s ability to pay. Example is that b. Its real properties are actually, directly and
individual income tax system that imposes exclusively used for charitable purposes.
rates progressing upwards as the tax base
(taxpayer’s taxable income) increases. A Revenue or income from trade, business or
progressive tax, however, must not be other activity, the conduct of which is not
confused with a progressive system of taxation. related to the exercise or performance of
religious, educational and charitable purposes
While equal protection refers more to like or functions shall be subject to internal revenue
treatment of persons in like circumstances, taxes when the same is not actually, directly or
uniformity and equity refer to the proper exclusively used for the intended purposes
relative treatment for tax purposes of persons [BIR Ruling 046-2000].
in unlike circumstances.
Tax Neutrality on Islamic Banks Test of Use of the property, and not
R.A. No. 11439 mandates a neutral tax Exemption the ownership [Abra Valley
treatment between Islamic banking College v. Aquino, G.R. No.
transactions and equivalent conventional L-39086 (1988)]
banking transactions within the provisions of
the NIRC [R.R. No. 17-2020]. Nature of Actual, direct and exclusive
Use use for religious, charitable
3. Grant by Congress of authority to the or educational purposes
President to impose tariff rates [Lladoc v. CIR, supra]
Delegation of tariff powers to the President Scope of Real property taxes on

under the Flexible Tariff Clause [Section 28(2), Exemption facilities which are actual,
Article VI, 1987 Constitution], which authorizes incidental to, or reasonably
the President to modify import duties [Section necessary for the
1608, Customs Modernization and Tariff Act accomplishment of said
(CMTA)]. purposes such as in the
case of hospitals, a school
for training nurses, a
4. Prohibition against taxation of religious, nurses’ home, property to
charitable entities, and educational provide housing facilities
entities for interns, resident doctors
and other members of the
Section 28(3), Article VI, 1987 Constitution: hospital staff, and
a. Charitable institutions, churches and recreational facilities for
personages or convents appurtenant student nurses, interns and
thereto, mosques, non-profit cemeteries, residents, such as athletic
and all lands, buildings, and improvements, fields [Abra Valley College
b. Actually, directly, and exclusively used for v. Aquino, supra].
religious, charitable, or educational
purposes shall be exempt from taxation. TEST: Whether an enterprise is charitable or
c. The tax exemption under this constitutional not:
provision covers property taxes only and ● Whether it exists to carry out a purpose
not other taxes [Lladoc v. CIR, G.R. No. L- recognized in law as charitable; or
19201 (1965)]. ● Whether it is maintained for gain, profit,
d. In general, special assessments are not or private advantage.
covered by the exemption because by
nature they are not classified as taxes A charitable institution does not lose its
[Apostolic Prefect v. City Treasurer of character as such and its exemption from taxes
Baguio, G.R. No. L-47252 (1941)]. simply because it derives income from paying
patients, whether out-patient, or confined in the
To be entitled to the exemption, the hospital, or receives subsidies from the
petitioner must prove that: government, so long as the money received is
a. It is a charitable institution devoted or used altogether to the charitable
Page 29 of 412
object which it is intended to achieve; and no by law, including restrictions on dividends and
money inures to the private benefit of the provisions for reinvestment.
persons managing or operating the institution
(including honoraria to members of the board Subject to conditions prescribed by law, all grants,
of trustees) [BIR Ruling No. 558-18, among endowments, donations, or contributions used
actually, directly, and exclusively for educational
others].
purposes shall be exempt from tax.
“Exclusive" – Possessed and enjoyed to the

exclusion of others; debarred from participation This provision covers only non-stock,
or enjoyment; nonprofit educational institutions
The exemption covers income, property, and
"Exclusively" - In a manner to exclude; as donor’s taxes, custom duties, and other taxes
enjoying a privilege exclusively. imposed by either or both the national
government or political subdivisions on all
If real property is used for one or more revenues, assets, property or donations, used
commercial purposes, it is not exclusively used actually, directly and exclusively for
for the exempted purposes but is subject to educational purposes.
taxation. The words "dominant use" or
"principal use" cannot be substituted for the In the case of religious and charitable entities
words "used exclusively" without doing and non-profit cemeteries, the exemption is
violence to the Constitution and the law. Solely limited to property tax.
is synonymous with exclusively [Lung Center of
the Philippines v. Quezon City, G.R. No. The exemption does not cover revenues
144104 (2004)]. derived from, or assets used in, unrelated
activities or enterprise
Note: Lung Center, supra, did not necessarily Revenues derived from assets used in the
overturn the case of Abra Valley. Lung Center operation of cafeterias, canteens, and
just provided a stricter interpretation. In Abra bookstores are also exempt if they are owned
Valley, the Court held: The primary use of the and operated by the educational institution as
school lot and building is the basic and ancillary activities and the same are located
controlling guide, norm and standard to within the school premises [RMC No. 76-2003].
determine tax exemption, and not the mere
incidental use thereof. Under the 1935 Similar tax exemptions may be extended to
Constitution, the trial court correctly held that proprietary (for profit) educational
the school building as well as the lot where it is institutions by law subject to such
built, should be taxed, not because the second limitations as it may provide, including
floor of the same is being used by the Director restrictions on dividends and provisions for
and his family for residential purposes reinvestment. The restrictions are designed to
(incidental to its educational purpose), but ensure that the tax-exemption benefits are
because the first floor thereof is being used for used for educational purposes.
commercial purposes. However, since only a
portion is used for purposes of commerce, it is Lands, buildings, and improvements
only fair that half of the assessed tax be actually, directly and exclusively used for
returned to the school involved. educational purposes are exempt from
property tax [Section 28(3), Article VI, 1987
5. Prohibition against taxation of non- Constitution], whether the educational
stock, non-profit educational institution is proprietary or non-profit.
institutions
SECTION 4, ARTICLE XIV. All revenues and assets
of non-stock, nonprofit educational institutions used
actually, directly, and exclusively for educational
purposes shall be exempt from taxes and duties.
Proprietary educational institutions, including those

cooperatively owned, may likewise be entitled to
such exemptions subject to the limitations provided
Page 30 of 412
The provision guaranteeing equal protection of
Section 28, Section 4,
the laws and that mandating the rule of taxation
par. 3, par. 3, Article
shall be uniform and equitable likewise limit,
Article VI XIV
although not expressly, the legislative power to
Type of Charitable Non-stock, grant tax exemption.
Taxpayer institutions, non-profit
churches and educational Grants in the nature of tax exemptions:
parsonages institutions. a. Tax amnesties
or convents b. Tax condonations
appurtenant c. Tax refunds
thereto,
mosques, Note:
non-profit a. Local government units may, through
cemeteries, ordinances duly approved, grant tax
and all lands, exemptions, incentives or reliefs under
buildings, and such terms and conditions as they may
improvement deem necessary [Section 192, LGC].
s, actually, b. The President of the Philippines may, when
directly, and public interest so requires, condone or
exclusively reduce the real property tax and interest for
used for any year in any province or city or a
religious, municipality within the Metropolitan Manila
charitable, or Area [Section 277, LGC].
educational
purposes. 7. Prohibition on use of tax levied for
special purpose
Tax Property Income, All money collected on any tax levied for a
exemptio taxes property, and special purpose shall be treated as a special
n donor’s taxes fund and paid out for such purpose only.
and custom
duties. If the purpose for which a special fund was
created has been fulfilled or abandoned, the
balance, if any, shall be transferred to the
6. Majority vote of Congress for grant of general funds of the Government [Gaston v.
tax exemption Republic Planters Bank, G.R. No. L-77194
SECTION 28, ARTICLE VI. No law granting any tax (1988)].
exemption shall be passed without the concurrence
of a majority of all the Members of the Congress
8. President’s veto power on
Basis: The inherent power of the state to appropriation, revenue, tariff bills
impose taxes carries with it the power to grant SECTION 27(2), ARTICLE VI. The President shall
tax exemptions. have the power to veto any particular item or items
in an appropriation, revenue, or tariff bill, but the veto
shall not affect the item or times to which he does
Exemptions may be created by:
not object.
a. The Constitution, or
b. Statutes, subject to constitutional
limitations. 9. Non-impairment of jurisdiction of the
Supreme Court
Vote required for the grant of exemption: SECTION 2, ARTICLE VIII. The Congress shall
Absolute majority of the members of Congress have the power to define, prescribe, and apportion
(at least ½ + 1 of all the members voting the jurisdiction of the various courts but may not
separately) deprive the Supreme Court of its jurisdiction over
cases enumerated in Section 5 hereof.
Vote required for withdrawal of such grant SECTION 5(2)(b), ARTICLE VIII. The Supreme
of exemption: Relative majority is sufficient Court shall have the following powers: xxx
(majority of the quorum).
Page 31 of 412
(2) Review, revise, modify or affirm on appeal or institutions, churches and personages or convents
certiorari, as the laws or the Rules of Court may appurtenant thereto, mosques, non-profit
provide, final judgments and orders of lower courts cemeteries, and all lands, buildings, and
in xxx improvements, actually, directly, and exclusively
used for religious, charitable, or educational
(b) all cases involving the legality of any tax, impost, purposes shall be exempt from taxation.
assessment or toll or any penalty imposed in relation
thereto.
13. No appropriation or use of public money
for religious purposes
Even the legislative body cannot deprive the
SECTION 29, ARTICLE VI. No public money or
SC of its appellate jurisdiction over all cases
property shall be appropriated, applied, paid, or
coming from inferior courts where the employed, directly or indirectly, for the use, benefit,
constitutionality or validity of an ordinance or or support of any sect, church, denomination,
the legality of any tax, impost, assessment, or sectarian institution, or system of religion, or of any
toll is in question [San Miguel Corp v. Avelino, priest, preacher, minister, other religious teacher, or
G.R. No. L-39699 (1979)]. dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the
armed forces, or to any penal institution, or
SECTION 30, ARTICLE VI. No law shall be passed government orphanage or leprosarium.
increasing the appellate jurisdiction of the Supreme
Court without its advice and concurrence.
b. Provisions indirectly affecting
taxation
Scope of Judicial Review in taxation:
Limited only to the interpretation and
1. Due process
application of tax laws. Its power does not
include inquiry into the policy of legislation. SECTION 1, ARTICLE III. No person shall be
Neither can it legitimately question or refuse to deprived of life, liberty, or property without due
process of law, nor shall any person be denied the
sanction the provisions of any law consistent equal protection of the laws.
with the Constitution [Coll. v. Bisaya Land
Transportation, 105 Phil. 338 (1959)].
Substantive Due Process – An act is done
10. Grant of power to the local government under the authority of a valid law or the
units to create its own sources of Constitution itself.
revenue
LGUs have power to create its own sources of Procedural Due Process – An act is done
revenue and to levy taxes, fees and charges, after compliance with fair and reasonable
subject to such guidelines and limitations as methods or procedures prescribed by law.
the Congress may provide which must be
consistent with the basic policy of local Requirements for Due Process in Taxation
autonomy [Section 5, Article X, 1987 a. Public purpose
Constitution]. b. Imposed within taxing authority’s territorial
jurisdiction
11. Flexible tariff clause c. Assessment or collection is not arbitrary or
Delegation of tariff powers to the President oppressive
under the flexible tariff clause [Section 28(2),
Article VI, 1987 Constitution]. The due process clause may be invoked where
a taxing statute is so arbitrary that it finds no
Flexible tariff clause: The authority given to support in the Constitution, as where it can be
the President, upon the recommendation of shown to amount to the confiscation of property
NEDA, to adjust the tariff rates under Sec. 1608 [Sison v. Ancheta, G.R. No. L-59431(1984)].
of the CMTA in the interest of national
economy, general welfare and/or national Due process is usually violated where:
security. ● The tax imposed is for private, as
distinguished from, public purposes
12. Exemption from real property taxes ● A tax is imposed on property outside the
● State, i.e., extra-territorial taxation; or
SECTION 28(3), ARTICLE VI. Charitable
Page 32 of 412
● Arbitrary or oppressive methods are used prohibiting the free exercise thereof. (Non-
in assessing and collecting taxes. establishment clause)
But, a tax does not violate the due process The free exercise and enjoyment of religious
clause, as applied to a particular taxpayer, profession and worship, without discrimination or
preference, shall forever be allowed. (Free exercise
although the purpose of the tax will result in an
clause)
injury rather than a benefit to such taxpayer.
No religious test shall be required for the exercise of
Due process does not require that the property civil and political rights.
subject to the tax or the amount to be raised
should be determined by judicial inquiry, and a
The free exercise clause is the basis of tax
notice and hearing as to the amount of the tax
exemptions.
and the manner in which it shall be apportioned
are generally not necessary to due process of
The imposition of license fees on the
law [Pepsi-Cola Bottling Co. of the Philippines,
distribution and sale of bibles and other
Inc. v. Municipality of Tanauan, G.R. No. L-
religious literature by a non-stock, non-profit
31156 (1976)].
missionary organization not for purposes of
profit amounts to a condition or permit for the
Instances of violations of the due process
exercise of their right, thus violating the
clause:
constitutional guarantee of the free exercise
● If the tax amounts to confiscation of
and enjoyment of religious profession and
property;
worship which carries with it the right to
● If the subject of confiscation is outside the
disseminate religious beliefs and information
jurisdiction of the taxing authority;
[American Bible Society v. City of Manila, G.R.
● If the tax is imposed for a purpose other
No. L-9637 (1957)].
than a public purpose;
● This is different from a tax on the income of
● If the law which is applied retroactively
one who engages in religious activities or a
imposes just and oppressive taxes.
tax on property used or employed in
● If the law violates the inherent limitations on
connection with those activities.
taxation.
The Constitution, however, does not prohibit
2. Equal Protection Clause
imposing a generally applicable tax on the sale
SECTION 1, ARTICLE III. No person shall be of religious materials by a religious
deprived of life, liberty, or property without due organization [Tolentino v. Secretary of
process of law, nor shall any person be denied the
Finance, G.R. No. 115455 (1994)].
equal protection of the laws.
4. Non-impairment of obligations of
What the Constitution prohibits is class contracts
legislation which discriminates against some SECTION 10, ARTICLE III. No law impairing the
and favors others. As long as there are rational obligation of contracts shall be passed.
or reasonable grounds for so doing, Congress
may, therefore, group the persons or properties
to be taxed and it is sufficient “if all of the same The Contract Clause has never been thought
class are subject to the same rate and the tax of as a limitation on the exercise of the State's
is administered impartially upon them.” [1 power of taxation save only where a tax
Cooley 608]. exemption has been granted for a valid
consideration [Tolentino v. Secretary of
The equal protection clause is subject to Finance, supra].
reasonable classification [See requisites for
valid classification, supra]. c. Territoriality Principle and Situs of
Taxation
3. Religious freedom
Rule
SECTION 5, ARTICLE III. No law shall be made
respecting an establishment of religion, or Situs of taxation literally means the place of
taxation.
Page 33 of 412
● The State where the subject to be taxed
has a situs may rightfully levy and collect
the tax; and
● The situs is necessarily in the State which
has jurisdiction or which exercises
dominion over the subject in question.
Within the territorial jurisdiction, the taxing
authority may determine the situs.
Factors that determine situs

1. Nature of the tax;
2. Subject matter of the tax (person, property,
act or activity);
3. Possible protection and benefit that may
accrue both to the government and the
taxpayer;
4. Citizenship of the taxpayer;
5. Residence of the taxpayer;
6. Source of income.
Situs of Income Tax Situs of Property Tax
Kind of Property Situs

Taxpayer Source of Income
Real property Where it is located,
Citizen- Residen Within Without regardless of whether
ship -cy the owner is a resident
or non-resident (lex rei
sitae)
Filipino Resident Taxable Taxable
Tangible personal Where property is
property physically located
although the owner
Filipino Non- Taxable Non-
resides in another
resident taxable
jurisdiction; or place of
sale or transaction
Alien Resident Taxable Non-
taxable Intangible General Rule:
personal property Domicile of the owner.
(e.g., credits, bills, Mobilia sequuntur
Alien Non- Taxable Non- receivables, bank personam (movables
resident taxable deposits, bonds, follow the person)
promissory notes,
[Section 23, NIRC] mortgage loans, Exceptions: When
judgments and property has acquired
corporate stocks) a business situs in
another jurisdiction; or
When the law provides
for the situs of the
subject of tax (e.g.
Section 104, NIRC)
● Franchise, patents,
copyrights,
trademarks - situs
is the place of the
country where such
Page 34 of 412
intangibles are Sale of real Where the real property is

exercised property located
● Receivables -
Domicile or Sale of personal Where the personal
residence of the property property was sold
debtor
● Bank deposits -
Location of the D. Requisites of Valid Tax
depository bank
1. It must be for a public purpose;
2. Rule of taxation should be uniform;
Situs of Excise Tax 3. The person or property taxed is within the
Kind of jurisdiction of the taxing authority;
Situs 4. Assessment and collection is in
Excise Tax
consonance with the due process clause;
Income Tax Source of the income, AND
nationality or residence of 5. The tax must not infringe on the inherent
taxpayer [Section 23, NIRC] and constitutional limitations of the power
● Occupation - Where the of taxation.
occupation is engaged in
● Transaction - Where the E. Tax as Distinguished from
transaction took place Other Forms of Exactions
Donor’s Citizens, whether residents or
Tax not, and resident aliens — 1. Tariff
Wherever the property may Taxes Tariff
be situated
All embracing term to A kind of tax
Non-resident aliens — include various kinds imposed on articles
Properties situated within the of enforced which are traded
Philippines contributions upon internationally
persons for the
Note: The status and location attainment of public
are determined at the time of purposes
donation.
Estate Tax Citizens, whether residents or Tariff may be used in one of three (3) senses:
not, and resident aliens — 1. A book of rates drawn usually in
Wherever the property may alphabetical order containing the names of
be situated several kinds of merchandise with the
corresponding duties to be paid for the
Non-resident aliens — same; or
properties situated within the 2. The duties payable on goods imported or
Philippines exported; or
3. The system or principle of imposing duties
on the importation (or exportation of goods)
Situs of Business Tax
Kind of 2. Toll
Situs
Business Tax Taxes Toll
VAT Where transaction is Paid for the support Paid for the use of
made (i.e. where the of the government another’s property.
good/ service is
sold/perform and Demand of Demand of
consumed) sovereignty proprietorship
Page 35 of 412
Taxes Toll An enforced Legal

contribution assessed compensation or
Generally, no limit Amount paid depends by the sovereign reward of an officer
on the amount upon the cost of authority to defray for specific services
collected as long as construction or public expenses
it is not excessive, maintenance of the
unreasonable or public improvement Failure to pay does Failure to pay
confiscatory used. not necessarily make makes the act or
the act or business business illegal.
Imposed only by Imposed by the illegal.
the government government or by
private individuals or Penalty for non-
entities. payment:
Surcharges; or
A toll is a sum of money for the use of Imprisonment (except
something, generally applied to the poll tax).
consideration which is paid for the use of a
road, bridge or the like, of a public nature [1 License or permit fee is a charge imposed
Cooley 77]. under the police power for purposes of
regulation.
3. License or Permit Fee
Taxes License Fee License is in the nature of a special privilege,
of a permission or authority to do what is within
Imposed under the Levied under the its terms. It makes lawful an act which would
taxing power of the police power of the otherwise be unlawful. A license granted by the
state for purposes of state. State is always revocable [Gonzalo Sy Trading
revenue. v. Central Bank of the Phil., G.R. No. L-41480
(1976)].
Forced contributions Exacted primarily to
for the purpose of regulate certain Importance of the distinctions
maintaining businesses or 1. It is necessary to determine whether a
government occupations. particular imposition is a tax or a license fee
functions. because some limitations apply only to one
and not to the other, and for the reason that
Generally unlimited Should not exemption from taxes may not include
as to amount unreasonably exemption from license fee.
exceed the 2. The power to regulate as an exercise of
expenses of issuing police power does not include the power to
the license and of impose fees for revenue purposes
supervision. [Progressive Development Corp. v.
Quezon City, G.R. No. L-36081 (1989)].
Amount should be 3. An exaction, however, may be considered
limited to the both a tax and a license fee. This is true in
necessary the case of car registration fees which may
expenses for be regarded as taxes even as they also
inspection and serve as an instrument of regulation. If the
amount of tax that purpose is primarily revenue, or if revenue
may be imposed is, at least, one of the real and substantial
regulation purposes, then the exaction is properly
called a tax [Phil. Airlines, Inc. v. Edu, G.R.
Imposed on persons, Imposed only on No. L- 41383 (1988)].
property and the right the right to exercise 4. But it is possible that a tax may only have a
to exercise a a privilege regulatory purpose. The general rule,
privilege. however, is that the imposition is a tax if its
primary purpose is to generate revenue,
Page 36 of 412
and regulation is merely incidental; but if limited only to the land involved. It is based
regulation is the primary purpose, the fact wholly on benefits (not necessity).
that incidentally revenue is also obtained
does not make the imposition a tax A charge imposed only on property owners
[Progressive Development Corp. v. benefited is a special assessment rather than a
Quezon City, supra]. tax notwithstanding that the statute calls it a
tax. The rule is that an exemption from taxation
Primary purpose test [Progressive does not include exemption from special
Development Corp v. QC, supra]: assessment. But the power to tax carries with
1. Imposition must relate to an occupation or it the power to levy a special assessment.
activity that so engages the public interest
in health, morals, safety and development Note: The term "special levy" is the name used
as to require regulation for the protection in the present LGC. A province, city, or
and promotion of such public interest; municipality, or the National Government, may
2. Imposition must bear a reasonable relation impose a special levy on lands especially
to the probable expenses of regulation, benefited by public works or improvements
taking into account not only the costs of financed by it [Section 240, LGC].
direct regulation but also its incidental
consequences as well. 5. Debt
Taxes Debt
Note: Taxes may also be imposed for
regulatory purposes. It is called regulatory tax. Based on laws Generally based on
contract, express or
4. Special Assessment implied
Taxes Special
Assessment Generally cannot be Assignable
assigned
Levied not only on Levied only on land
land Generally paid in May be paid in kind
money
Imposed regardless Imposed because of
of public an increase in value Cannot be a subject Can be a subject of
improvements of land benefited by of set off or set off or
public improvement compensation compensation
[Article 1279, CC]
Contribution of a Contribution of a
taxpayer for the person for the Imprisonment is a A person cannot be
support of the construction of a sanction for non- imprisoned for non-
government public improvement payment of tax, payment of debt
except poll tax (except when it
It has general Exceptional both as arises from a crime)
application both as to to time and locality
time and place Governed by the Governed by the
special prescriptive ordinary periods of
Not based on Based wholly on periods provided for prescription
benefits received benefits and not in the NIRC
necessity
Does not draw Draws interest when
interest except only it is so stipulated or
Special assessment is an enforced when delinquent where there is
proportional contribution from owners of lands default
especially or peculiarly benefitted by public
improvement Imposed only by Can be imposed by
public authority private individual
A special assessment is not a personal liability
of the person assessed, i.e., his liability is Not subject to set-off May be the subject of
Page 37 of 412
c. Privilege/Excise Tax
or compensation set-off or
Taxes on privilege, occupation or business not
compensation
falling within the classification of poll or
property taxes
A tax is not a debt in the ordinary sense of the
word. An excise tax is a charge imposed upon:
i. The performance of an act,
6. Penalty ii. The enjoyment of a privilege, or
iii. The engagement in an occupation,
Taxes Penalty
profession, or business.
Violation of tax laws Any sanction
The obligation to pay excise tax is based on the
may give rise to imposed as a
voluntary action of the person taxed in
imposition of penalty punishment for
performing the act or engaging in the activity
violation of law or
which is subject to the excise. The term “excise
acts deemed
tax” is synonymous with “privilege tax” and the
injurious
two are often used interchangeably (e.g.,
Primarily intended to Designed to regulate income tax, value added tax, estate tax,
raise revenue conduct donor’s tax).
May be imposed only May be imposed by 2. As to burden or incidence

by the government the government or
private individuals or a. Direct Taxes
entities Taxes which are demanded from persons who
also shoulder them; taxes for which the
Cannot be a subject Can be a subject of taxpayer is directly or primarily liable, or which
of set off or set off or he cannot shift to another. The liability for the
compensation compensation payment of the tax (incidence) and the burden
[Article 1279, CC] (impact) of the tax falls on the same person.
(e.g., income tax, estate tax, donor’s tax,
Penalty — any sanction imposed as a
community tax)
punishment for violation of law or acts deemed
injurious
b. Indirect Taxes
Taxes which are demanded from one person in
F. Kinds of Taxes the expectation and intention that he shall
indemnify himself at the expense of another,
1. As to object falling finally upon the ultimate purchaser or
consumer; taxes levied upon transactions or
a. Personal, Poll or Capitation Tax activities before the articles subject matter
Tax of a fixed amount imposed on persons thereof, reach the consumers who ultimately
residing within a specified territory, whether pay for them not as taxes but as part of the
citizens or not, without regard to their property purchase price.
or the occupation or business in which they
may be engaged (e.g. community (formerly Thus, the person who absorbs or bears the
residence) tax). burden of the tax is other than the one on whom
it is imposed and required by law to pay the tax.
b. Property Tax Practically all business taxes are indirect (e.g.,
Tax imposed on property, real or personal, in VAT, percentage tax, excise taxes on specified
proportion to its value or in accordance with goods, customs duties).
some other reasonable method of
apportionment (e.g., real estate tax). The 3. As to tax rates
obligation to pay the tax is absolute and
unavoidable and is not based upon the a. Specific Tax
voluntary action of the person assessed. A tax of a fixed amount imposed by the head or
number or by some other standard of weight or
measurement.
Page 38 of 412
It requires no assessment (valuation) other administered by the local executive through the
than the listing or classification of the objects to local treasurer (e.g., business taxes that may
be taxed (e.g., taxes on distilled spirits, wines, be imposed under the LGC, professional tax).
and fermented liquors; cigars and cigarettes)
6. As to graduation
b. Ad Valorem Tax
A tax of a fixed proportion of the value of the a. Progressive
property with respect to which the tax is The rate of tax increases as the tax base or
assessed. It requires the intervention of bracket increases, e.g., income tax
assessors or appraisers to estimate the value
of such property before the amount due from b. Regressive
each taxpayer can be determined. The phrase The rate of tax decreases as the tax base or
“ad valorem” means literally, “according to bracket increases. There is no regressive tax in
value.” (e.g., real estate tax, excise tax on the Philippines.
automobiles, non-essential goods such as
jewelry and perfumes, customs duties. c. Proportionate
The rate of tax is based on a fixed percentage
c. Mixed of the amount of the property, receipts or other
A tax that has both the characteristics of basis to be taxed, e.g., real estate tax, donor’s
specific tax and ad valorem tax tax, estate tax, VAT, and other percentage
taxes.
4. As to purpose
d. Digressive
a. General or Fiscal Tax A fixed rate is imposed on a certain amount and
Levied for the general or ordinary purposes of diminishes gradually on sums below it. The tax
the Government, i.e., to raise revenue for rate in this case is arbitrary because the
governmental needs (e.g., income tax, VAT, increase in tax rate is not proportionate to the
and almost all taxes). increase of the tax base.
Regressive/Progressive system of taxation
b. Special/Regulatory/Sumptuary Tax A regressive tax must not be confused with the
Levied for special purposes, i.e., to achieve regressive system of taxation.
some social or economic ends irrespective of
whether revenue is actually raised or not (e.g., In a society where the majority of the people
protective tariffs or customs duties on imported have low incomes, a regressive taxation
goods to enable similar products manufactured system exists when there are more indirect
locally to compete with such imports in the taxes imposed than direct taxes. Since the low-
domestic market). income sector of the population as a whole
buys more consumption goods on which the
Tariff duties intended mainly as a source of indirect taxes are collected, the burden of
revenue are relatively low so as not to indirect taxes rests more on them than on the
discourage imports. more affluent groups.
5. As to scope or authority imposing A progressive tax is, therefore, also different

the tax from a progressive system of taxation.
a. National Regressivity is not a negative standard for

Taxes imposed by the national government, courts to enforce. What Congress is required
through Congress and administered by the by the Constitution to do is to "evolve a
Bureau of Internal Revenue (BIR) or the progressive system of taxation." These
Bureau of Customs (BOC) (e.g., national provisions are put in the Constitution as moral
internal revenue taxes, customs duties, and incentives to legislation, not as judicially
national taxes imposed by laws). enforceable rights [Tolentino v. Secretary of
Finance, G.R. No. 115455 (1994)].
b. Municipal or Local
Taxes imposed by local governments, through
their respective Sanggunians, and
Page 39 of 412
G. Doctrines in Taxation b. Tax Laws
General Rule: Tax laws are construed strictly
against the government and liberally in favor of
1. Lifeblood Theory the taxpayer [Manila Railroad Co. v. Coll. of
Taxes are the lifeblood of the government and Customs, G.R. No. L-30264 (1929)].
so should be collected without unnecessary
hindrance. It is said that taxes are what we pay The imposition of a tax is not presumed, and a
for civilized society. Without taxes, the statute will not be construed as imposing a tax
government would be paralyzed for lack of the unless it does so clearly, expressly, and
motive power to activate and operate it [CIR v. unambiguously
Algue, G.R. No. L-28896 (1988); See also CIR
v. Pineda, G.R. No. L-22734 (1967)]. Exceptions:
i. The rule of strict construction as against
The underlying basis of taxation is the government is not applicable where
governmental necessity, for without taxation, a the language of the statute is plain
government can neither exist nor endure. and there is no doubt as to the
legislative intent [51 Am. Jur. 368].
Effects: ● E.g. The word “individual” was
● Generally, injunction does not lie against changed by the law to “person”.
the collection of taxes This clearly indicates that the tax
● The State is not estopped from collecting applies to both natural and juridical
taxes in cases of mistakes or errors of its persons, unless otherwise
agents expressly provided.
● Exemptions from taxes are strictly
construed against the taxpayer The rule does not apply where the taxpayer
claims exemption from the tax. A tax
2. Construction and interpretation of exemption must be strictly construed and that
tax laws, rules, and regulations the exemption will not be held to be conferred
unless the terms under which it is granted
a. Mandatory vs. Directory Provision clearly and distinctly show that such was the
Mandatory provisions are intended for the intention of the parties [Phil. Acetylene v. CIR,
security of the citizens (e.g. those requiring G.R. No. L-19707 (1967)].
prior notice of public sale of his property for tax
delinquency) or which are designed to insure Tax statutes are to receive a reasonable
inequality of taxation or certainty as to nature construction or interpretation with a view to
and amount of each person’s tax (e.g. those carrying out their purpose and intent [CIR v.
prescribing tax rates) Solidbank Corporation, G.R. No. 148191
(2003)].
Directory provisions are those designed ● No person or property is subject to taxation
merely for information or direction of officers or unless within the terms or plain import of a
to secure methodical and systematic modes of taxing statute [72 Am. Jur. 2d 44]. Taxes,
proceedings being burdens, are not to be presumed
beyond what the statute expressly and
It is a general rule that those provisions of a clearly declares [CIR. v. La Tondena, G.R.
statute relating to the assessment of taxes, No. L-10431 (1962)]. Thus, a tax payable
which are intended for the security of the by “individuals” does not apply to
citizen, or to insure the equality of taxation, or “corporations.”
certainty as to the nature and amount of each ● Tax statutes offering rewards are
person’s tax, are mandatory; but those liberally construed in favor of informers
designed merely for the information or direction [Penid v. Virata, G.R. No. L-44004 (1983)].
of officers or to secure methodical and ● Tax statutes should not be construed as to
systematic modes of proceedings are merely permit the taxpayer easily to evade the
directory [Roxas v. Rafferty, G.R. No. 12182 payment of tax [Carbon Steel Co. v.
(1918)]. Lewellyn, 251 U.S. 201 (1920)]. Thus, the
good faith of the taxpayer is not a sufficient
justification for exemption from the
Page 40 of 412
payment of surcharges imposed by the law d. When the exemption is granted under
for failing to pay tax within the period special circumstances to special classes of
required by law. persons.
e. If there is an express mention or if the
c. Tax Exemption and Exclusion taxpayer falls within the purview of the
Tax exemptions must be shown to exist clearly exemption by clear legislative intent, the
and categorically, and supported by clear rule on strict construction does not apply
legal provisions [NPC v. Albay, G.R. No. 87479 [CIR v. Arnoldus Carpentry Shop, Inc.,
(1990)]. G.R. No. 71122 (1988)].
General Rule: d. Tax Rules and Regulations

In the construction of tax statutes, exemptions General Rule: The Secretary of Finance, upon
are not favored and are construed strictissimi recommendation of the CIR, shall promulgate
juris against the taxpayer [Republic Flour Mills all needful rules and regulations for the
v. Comm. & CTA, G.R. No. L-25602 (1970)]. effective enforcement of the provisions of the
1. Tax exemptions must be shown to exist NIRC [Section 244, NIRC].
clearly and categorically, and supported
by clear legal provisions [NPC v. Albay, It is an elementary rule in administrative law
supra]. that administrative regulations and policies
● Since taxation is the rule and enacted by administrative bodies to interpret
exemption the exception, the the law which they are entrusted to enforce
intention to make an exemption have the force of law and are entitled to great
ought to be expressed in clear and respect. They have in their favor a presumption
unambiguous terms [Quezon City of legality [Gonzales v. Land Bank, G.R. No.
v. ABS-CBN Broadcasting 76759 (1990)].
Corporation, G.R. No. 166408
(2008)]. It is of course axiomatic that a rule or regulation
2. Claims for an exemption must be able to must bear upon, and be consistent with, the
point out some provision of law creating the provisions of the enabling statute if such rule or
right, and cannot be allowed to exist regulation is to be valid. In case of conflict
upon a mere vague implication or between a statute and an administrative order,
inference [Floro Cement v. Gorospe, the former must prevail [Fort Bonifacio
supra]. Development Corp v. CIR, G.R. No. 175707
● It is the taxpayer’s duty to justify the (2014)].
exemption by words too plain to be
mistaken and too categorical to be Requisites for validity and effectivity of
misinterpreted [RCPI v. Provincial regulations
Assessor of South Cotabato, G.R. a. Reasonable;
No. 144486 (2005)]. b. Within the authority conferred;
3. Refunds are in the nature of exemption c. Not contrary to law and the Constitution
and must be construed strictly against the [Article 7, CC]; and
grantee/taxpayer [CIR v. CA, supra]. d. Must be published.
Tax regulations whose purpose is to enforce or
Exceptions: implement existing law must comply with the
a. When the law itself expressly provides for following requisites to be effective [Republic v.
a liberal construction, that is, in case of Pilipinas Shell Petroleum Corp., G.R. No.
doubt, it shall be resolved in favor of 173918 (2008)]:
exemption; a. Be published in a newspaper of general
b. When the exemption is in favor of the circulation [Article 2, CC]; and
government itself or its agencies [Maceda b. Filed with the UP Law Center Office of the
v. Macaraig, G.R. No. 88291 (1991)]; National Administrative Register (ONAR)
c. When the exemption is in favor of religious, [Chapter 2, Book VII, EO 292].
charitable, and educational institutions
because the general rule is that they are Note: Administrative rules and regulations
exempt from tax . must always be in harmony with the provisions
of the law. In cases of conflict between the law
Page 41 of 412
and the rules and regulations implementing the This is also true with respect to decisions of the
law, the law shall always prevail. Should Court of Tax Appeals but by the nature of its
Revenue Regulations deviate from the law they jurisdiction, the decisions of this court are still
seek to implement, they will be struck down appealable to the Supreme Court by a petition
[CIR v. Bicolandia Drug Corporation, G.R. No. for review on certiorari (Rule 45) [Section 11,
148083 (2006)]. As a matter of policy, however, R.A. No. 9282].
courts will declare a regulation or provision
thereof invalid only when the conflict with the e. Penal Provisions of Tax Laws
law is clear and unequivocal. Penal provisions of tax laws must be strictly
construed. It is not legitimate to stretch the
Administrative interpretations and opinions language of a rule, however beneficent its
The power to interpret the provisions of the Tax intention, beyond the fair and ordinary meaning
Code and other tax laws is under the exclusive of its language.
and original jurisdiction of the Commissioner of
Internal Revenue subject to review by the A penal statute should be construed strictly
Secretary of Finance [Section 4(1), NIRC]. against the State and in favor of the
accused. The reason for this principle is the
Revenue regulations are the formal tenderness of the law for the rights of
interpretation of the provisions of the NIRC and individuals and the object is to establish a
other laws by the Secretary of Finance upon certain rule by conformity to which mankind
the recommendation of the Commissioner of would be safe, and the discretion of the court
Internal Revenue [Section 244, NIRC]. limited [People v. Purisima, G.R. No. L-42050-
66 (1978)].
General Rule: The Commissioner has the sole
authority to issue rulings but he also has the 3. Prospectivity of Tax Laws
power to delegate said authority to his
subordinates with the rank equivalent to a General Rule: Tax laws are prospective in
division chief or higher [Section 4(2), NIRC]. operation.
Exceptions: The Commissioner may not Reason: Nature and amount of the tax under
delegate the following powers: tax laws enacted after the transaction could not
a. The power to recommend the promulgation have been foreseen and understood by the
of rules and regulations by the Secretary of taxpayer at the time of the transaction.
Finance;
b. The power to issue rulings of first Note: Similarly, exemption statutes are not
impression or to reverse, revoke, or modify retroactive
any existing ruling of the Bureau; and
c. The power to compromise or abate any tax Exception: Tax laws may be applied
liability as provided by Section 204 and 205 retroactively provided it is expressly declared
of the NIRC. or it is clearly the legislative intent (e.g.,
Exception to the exception: Assessments increase taxes on income already earned)
issued by RDOs involving (a) Php500,000 or except when retroactive application would be
less, and (b) minor criminal violations as so harsh and oppressive [Republic v.
determined by the Secretary of Finance as Fernandez, G.R. No. L-9141 (1956)].
recommended by the Commissioner, may be
compromised by a Regional Evaluation Board Statutes are prospective and not retroactive in
[Section 7, NIRC]. their operation for laws are the formulation of
rules for the future, not the past [Curata v.
Decisions of the Supreme Court applying or Philippine Ports Authority, G.R. Nos. 154211-
interpreting existing tax laws are binding on all 12 (2009)].
subordinate courts and have the force and
effect of law. As provided for in Article 8 of the The language of the statute must clearly
Civil Code, they “form part of the law of the demand or press that it shall have a retroactive
land.” effect [Lorenzo v. Posadas, supra].
Page 42 of 412
Exception to the exception: When such
return was filed earlier than
retroactivity is harsh and oppressive such that
the deadline); OR
it is inequitable and violative of the Constitution
b. The day when the return
was actually filed, if filed
Collection of interest in tax cases is not penal
later than the last day of
in nature; it is but a just compensation to the
filing [Section 203, NIRC],
State. Thus, the constitutional prohibition
whichever comes later.
against ex post facto laws is not applicable to
the collection of interest on back taxes [Central 10 Prescription of assessment in
Azucarera v. CTA, G.R. No. L-23236 (1967)]. YEARS cases of:
a. False or fraudulent return
Non-retroactivity of rulings [Sec. 246, NIRC] with intent to evade tax; OR
General Rule: Rulings do not have retroactive b. Failure or omission to file a
application if the revocation, modification, or return [Section 222, NIRC]
reversal will be prejudicial to the taxpayer.
Counted from the discovery of
Exceptions: the fraud, falsity, or omission.
a. Taxpayer’s deliberate misstatement or
omission of facts 5 YEARS Prescription of collection of tax
b. BIR’s gathered facts is materially different if:
from the facts from which the ruling was a. Assessed within the 3-year
based on and 10-year prescriptive
c. Taxpayer acted in bad faith periods;
b. Assessed within the
Note: The rule on non-retroactivity of rulings extended period agreed
may be applied only if the parties in the ruling upon by the Commissioner
involve the taxpayer himself/itself. The and taxpayer (waiver of the
taxpayer cannot invoke the rulings granted in prescriptive period); and
favor of other taxpayers. c. Collected by distraint, levy,
or by a proceeding in court
4. Imprescriptibility of Taxes [Section 222, NIRC]
Unless otherwise provided by law, taxes are
imprescriptible [CIR v. Ayala Securities
Corporation G.R. No. L-29485 (1980)]. Note: The prescriptive period from final
liquidation is three (3) years, except in cases
The law on prescription, being a remedial of:
measure, should be liberally construed in order 1. Tentative liquidation;
to afford such protection. As a corollary, the 2. Payment under protest;
exceptions to the law on prescription should 3. Fraud; and
perforce be strictly construed [Commissioner v. 4. Compliance audit.
Standard Chartered Bank, G.R. No. 192173
(2015)]. b. Customs Modernization and Tariffs
Act (CMTA)
Prescriptions found in statutes Under Section 430, it provides that “[i]n the
a. National Internal Revenue Code — absence of fraud and when the goods have
statute of limitations in the assessment been finally assessed and released, the
and collection of taxes therein assessment shall be conclusive upon all
imposed. parties three (3) years from the date of final
payment or duties, or upon completion of the
Summary of prescription on assessment post-clearance audit.”
and collection
c. Local Government Code
3 YEARS Prescription of assessment The LGC prescribes the following prescriptive
AND collection from: periods for the assessment and collection of
a. The prescribed last day of local taxes, fees, or charges [Section 194,
filing of returns (even if the LGC]:
Page 43 of 412
1. Taxes, fees, and charges shall be It extends to all cases in which there is a burden
assessed five (5) years from the date they of two or more pecuniary impositions. For
become due; example, a tax upon the same property
2. Taxes, fees, and charges must be collected imposed by two different States.
five (5) years from the date of assessment
by administrative or judicial action; Double taxation, standing alone and not being
3. The prescriptive period for assessment and forbidden by our fundamental law, is not a valid
collection shall be three (3) years if the tax defense against the legality of a tax measure
accrued before the effectivity of the Local [Pepsi Cola v. Mun. of Tanauan, G.R. No. L-
Government Code [Sections 194 & 270, 31156 (1976)].
LGC].
4. In case of fraud or intent to evade the Constitutionality of double taxation
payment of taxes, fees, or charges, the There is no constitutional prohibition against
same may be assessed within ten (10) double taxation in the Philippines. It is
years from the discovery of the fraud or something not favored, but is permissible,
intent to evade payment. provided some other constitutional requirement
is not thereby violated [Villanueva v. City of
The prescriptive period is tolled when: Iloilo, G.R. No. L-26521 (1968)].
1. The treasurer is legally prevented from
making the assessment or collection; If the tax law follows the constitutional rule on
2. The taxpayer requests for a reinvestigation uniformity, there can be no valid objection to
and executes a waiver in writing before taxing the same income, business or property
expiration of the period within which to twice [China Banking Corp. v. CA, G.R. No.
assess or collect; and 146749 (2003)].
3. The taxpayer is out of the country or
otherwise cannot be located. Double taxation in its narrow sense is
undoubtedly unconstitutional but in the broader
5. Double Taxation sense is not necessarily so [De Leon, citing 26
Double taxation means taxing the same R.C.L 264-265]. Where double taxation (in its
property twice when it should be taxed only narrow sense) occurs, the taxpayer may seek
once; that is, “taxing the same person twice by relief under the uniformity rule or the equal
the same jurisdiction for the same thing” protection guarantee [De Leon, citing 84
[Swedish Match Phils., Inc. v. Treasurer, G.R. C.J.S.138].
No. 181277 (2013)].
International Double Taxation
a. Strict sense (Direct double taxation) International double taxation usually takes
The same property must be taxed twice when place when a person is resident of a
it should be taxed once. The requisites are: contracting state and derives income from, or
1. Both taxes must be imposed on the same owns capital in, the other contracting state and
property or subject matter; both states impose tax on that income or
2. For the same purpose; capital. In order to eliminate double taxation, a
3. By the same State, Government, or taxing tax treaty resorts to several methods.
authority;
4. Within the same territory, jurisdiction or The purpose of these international agreements
taxing district; is to reconcile the national fiscal legislations of
5. During the same taxing period; and the contracting parties in order to help the
6. Of the same kind or character of tax taxpayer avoid simultaneous taxation in two
[Swedish Match Phils., Inc. v. Treasurer, different jurisdictions. More precisely, the tax
supra]. conventions are drafted with a view towards the
elimination of international juridical double
b. Broad sense (Indirect double taxation, which is defined as the imposition of
taxation) comparable taxes in two or more states on the
There is double taxation in the broad sense or same taxpayer in respect of the same subject
indirect duplicate taxation if any of the elements matter and for identical periods.
for direct duplicate taxation is absent.
Page 44 of 412
The apparent rationale for doing away with for the state cannot strip itself of the most
double taxation is to encourage the free flow of essential power of taxation by doubtful words;
goods and services and the movement of it cannot, by ambiguous language, be deprived
capital, technology and persons between of this highest attribute of sovereignty [Manila
countries, conditions deemed vital in creating Electric Corporation v. Vera, G.R. No. L-29987
robust and dynamic economies [CIR v. SC (1975)].
Johnson & Sons, Inc., G.R. No. 127105
(1999)]. If there is nothing in a law that points that the
word “exemption” refers to taxes, the
Modes of eliminating double taxation implication would be that the term would be an
a. Allowing reciprocal exemption either by law exemption of something else, such as
or by treaty; regulatory or reporting requirements [Ingles
b. Allowance of tax credit for foreign taxes citing PLDT v. City of Davao, G.R. No. L-29987
paid; (1975)].
c. Allowance of deductions such as for foreign
taxes paid, and vanishing deductions in Grounds for Tax Exemption
estate tax; or a. It may be based on a contract.
d. Reduction of Philippine tax rate b. It may be based on some ground of public
policy.
6. Exemption from Taxation c. It may be created in a treaty on grounds of
The grant of immunity to particular persons or reciprocity or to lessen the rigors of
corporations or to persons or corporations of a international or multiple taxation.
particular class from a tax which persons and
corporations generally within the same state or Equity is NOT a ground for tax exemption.
taxing district are obliged to pay. It is an While equity cannot be used as a basis or
immunity or privilege; it is freedom from a justification for tax exemption, a law may validly
financial charge or burden to which others are authorize the condonation of taxes on equitable
subjected. It is strictly construed against the considerations.
taxpayer.
There is no tax exemption solely on the ground
It is a waiver of the government's right to collect of equity [Davao Gulf Lumber Corp. v. CIR,
the amounts that would have been collectible G.R. No. 117359 (1998)].
under our tax laws. Thus, when the law speaks
of a tax exemption, it should be understood as Nature of tax exemption
freedom from the imposition and payment of a a. Mere personal privilege – Cannot be
particular tax [Secretary of Finance v. Lazatin, assigned or transferred without the consent
G.R. No. 210588 (2016)]. of the legislature. The legislative consent to
the transfer may be given either in the
Taxation is the rule; exemption is the original act granting the exemption or in a
exception subsequent law.
He who claims exemption must be able to b. General Rule: Exemption is revocable by
justify his claim or right thereto, by a grant the government.
expressed in terms “too plain to be mistaken Exception: If founded on a contract which
and too categorical to be misinterpreted.” If not is protected from impairment. But the
expressly mentioned in the law, it must at least contract must contain the essential
be within its purview by clear legislative intent elements of other contracts. An exemption
[Jaka Investments Corp. v. CIR, G.R. No. provided for in a franchise, however, may
147629 (2010)]. be repealed or amended pursuant to the
Constitution [Section 11, Article XII, 1987
He who claims an exemption must be able to Constitution]. A legislative franchise is a
point to some positive provision of law creating mere privilege.
the right; it cannot be allowed to exist upon a c. Implies a waiver on the part of the
mere vague implication or inference. The right government of its right to collect taxes due
of taxation will not be held to have been to it, and, in this sense, is prejudicial
surrendered unless the intention to surrender is thereto. Hence, it exists only by virtue of an
manifested by words too plain to be mistaken,
Page 45 of 412
express grant and must be strictly Rationale of Tax Exemption
construed. Such exemption will benefit the body of the
d. Not necessarily discriminatory, provided people and not particular individuals or private
it has a reasonable foundation or rational interest and that the public benefit is sufficient
basis. Where, however, no valid distinction to offset the monetary loss entailed in the grant
exists, the exemption may be challenged of the exemption.
as violative of the equal protection
guarantee or the uniformity rule. Principles of Tax Exemption
a. As the power of taxation is a high
Kinds of Tax Exemption prerogative of sovereignty, the
a. Express or Affirmative — Either entirely relinquishment is never presumed and any
or in part, may be made by provisions of the reduction or diminution thereof with respect
Constitution, statutes, treaties, ordinances, to its mode or its rate, must be strictly
franchises, or contracts. construed, and the same must be couched
in clear and unmistakable terms in order
b. Implied or Exemption by Omission — that it may be applied [Floro Cement v.
When a tax is levied on certain classes Gorospe, supra].
without mentioning the other classes. b. When granted, they are strictly construed
Every tax statute, in a very real sense, against the taxpayer [Luzon Stevedoring
makes exemptions since all those not Co. v. CTA, G.R. No. L-30232 (1988)]
mentioned are deemed exempted. The c. Tax exemptions are strictly construed
omission may be either accidental or against the taxpayer, they being highly
intentional. disfavored and may almost be said “to be
odious to the law” [Manila Electric
Exemptions are not presumed, but when Company v. Vera, supra].
public property is involved, exemption is
the rule, and taxation is the exception. 7. Escape from Taxation
c. Contractual - The legislature of a State a. Shifting of Tax Burden Shifting
may, in the absence of special restrictions Shifting
in its constitution, make a valid contract The act of transferring the burden of a tax from
with a corporation in respect to taxation, the original payer or the one on whom the tax
and that such contract can be enforced was assessed or imposed to someone else.
against the State at the instance of the What is transferred is not the payment of the
corporation [Casanovas v. Hord, G.R. No. tax but the burden of the tax.
3473 (1907)].
All indirect taxes may be shifted; direct taxes
In the real sense of the term and where the cannot be shifted.
non-impairment clause of the Constitution
can rightly be invoked, this includes those Ways of shifting the tax burden
agreed to by the taxing authority in 1. Forward shifting — When the burden of
contracts, such as those contained in the tax is transferred from a factor of
government bonds or debentures, lawfully production through the factors of
entered into by them under enabling laws distribution until it finally settles on the
in which the government, acting in its ultimate purchaser or consumer.
private capacity, sheds its cloak of authority ● Examples: VAT, percentage tax.
and waives its governmental immunity.
2. Backward shifting — When the burden of
These contractual tax exemptions, the tax is transferred from the consumer or
however, are not to be confused with tax purchaser through the factors of
exemptions granted under franchises. A distribution to the factor of production.
franchise partakes the nature of a grant ● Example: Consumer or purchaser
which is beyond the purview of the non- may shift tax imposed on him to
impairment clause of the Constitution retailer by purchasing only after the
[Manila Electric Company v. Province of price is reduced, and from the latter
Laguna, G.R. No. 131359 (1999)].
Page 46 of 412
to the wholesaler, and finally to the is formally assessed [Ingles]. In so far as the
manufacturer or producer. law is concerned, the taxpayer, the subject of
tax, is the person who must pay the tax to the
3. Onward shifting — When the tax is shifted government.
two or more times either forward or
backward. Incidence of taxation is the point on whom the
tax burden finally rests [Ingles]. It takes place
Factors determining tax shifting when shifting has been effected from the
1. Elasticity of demand and supply — The statutory taxpayer to another.
more the elasticity, the lower the incidence
on the sales and the higher the incidence
Impact Incidence
on supply.
2. Nature of markets — In an oligopolistic Initial burden of tax Ultimate burden of
market (i.e. few sellers and many buyers) the tax
tax shifting to buyers is high since few
sellers can team up to determine the At the point of At the point of
market price. In a situation where there are imposition settlement
many buyers and sellers, a large portion of
tax will be borne by sellers. For a Falls upon the Rests on the person
monopolistic market, the entire tax burden person from whom who pays it
falls on the shoulders of the buyer. the tax is collected eventually
3. Government policy on pricing — In the
case of government price control, the May be shifted Cannot be shifted
supplier cannot increase prices, hence
cannot shift tax burden to buyers and vice Incidence is the end
versa. of the shifting
4. Geographical location — If taxes are process.
imposed on certain regions, it is hard to Sometimes,
shift them to consumers because however, when no
consumers will move to regions with low shifting is possible,
taxes. as in the case of
5. Nature of tax (Direct or Indirect tax) — income tax or such
Direct tax e.g. PAYE (pay-as-you-earn) other direct taxes,
cannot be shifted whatsoever while indirect the impact coincides
taxes can be shifted through increase in with incidence on
prices. the same person.
6. Rate of tax — If the rate is too high, shifting
can occur backwards or forwards; if the
rate is too low, it may be absorbed by the Application
manufacturer. Suppose a tax — excise duty — is imposed on
7. Time available for adjustment — The soap. Its impact is on the producers, in the first
person who can adjust faster (buyer or instance, as they are liable to pay it to the
seller) will be able to shift the tax e.g. if the government. But, the producers may succeed
buyer can shift to substitute goods, the in collecting it from the consumers by raising
seller will bear the tax burden. the price of soap by the amount of tax. In that
8. The tax point case, consumers eventually pay the tax and so
the incidence falls upon them.
Taxes that can be shifted
1. Value-added Tax Relationship between Impact, Shifting, and
2. Percentage Tax Incidence of a Tax
3. Excise Tax Impact Shifting Incidence
Meaning of Impact and Incidence of Initial Intermediate Result

Taxation phenomenon process
Impact of taxation is the point where the tax is
originally imposed or the one on whom the tax
Page 47 of 412
the government of its due taxes [Republic
Impact Shifting Incidence
v. Gonzales, G.R. No. L-17962 (1965)].
Imposition of Transfer of Setting or ● The substantial under declaration of
the tax the tax coming to income in the income tax returns of the
rest of the taxpayer for four (4) consecutive years
tax coupled with his intentional overstatement
of deductions justifies the finding of fraud
[Perez v. CTA and Collector, G.R. No. L-
Example: Impact in VAT is on the producer 10507 (1958)].
who shifts the burden to the customer who
finally bears the incidence of the tax Mere understatement of a tax is not itself proof
b. Tax Avoidance (Tax Minimization) of fraud for the purpose of tax evasion. The
The exploitation by the taxpayer of legally burden of proof is on the prosecution to prove
permissible alternative tax rates or methods of beyond reasonable doubt that the accused
assessing taxable property or income in order willfully failed to supply correct and accurate
to avoid or reduce tax liability. It is politely information [People v. Judy Ann Santos, CTA
called “tax minimization” and is NOT Crim. Case No. 0-012 (2013)].
punishable by law.
The Willful Blindness Doctrine states that a
Example: A person refrains from engaging in taxpayer can no longer raise the defense that
some activity or enjoying some privilege in the errors on their tax returns are not their
order to avoid the incidental taxation or to lower responsibility or that it is the fault of the
his tax bracket for a taxable year. accountants they hired. Intent to defraud need
not be shown for a conviction of tax evasion.
c. Tax Evasion (Tax Dodging) The only thing that needs to be proven is that
The use by the taxpayer of illegal or fraudulent the taxpayer was aware of his obligation to file
means to defeat or lessen the payment of a tax. the tax return but he nevertheless voluntarily,
It is also known as “tax dodging” and is knowingly, and intentionally failed to file the
punishable by law. required returns [Ingles citing People v.
Kintanar, C.T.A. E.B. No. 006 (2010)].
Example: Deliberate failure to report a taxable
income or property; deliberate reduction of Tax Avoidance vs. Tax Evasion
income that has been received; overstatement Tax Tax Evasion
of expenses. Avoidance
Elements of Tax Evasion Also Tax Tax Dodging
a. The end to be achieved. Example: the called as Minimization
payment of less than that known by the
taxpayer to be legally due, or in paying Means Legal Illegal
no tax when such is due;
b. An accompanying state of mind
described as being “evil,” “in bad faith,” Outcome of Outcome of
“willful,” or “deliberate and not tax planning tax fraud
accidental”; and
c. A course of action (or failure of action)
which is unlawful [CIR v. Estate of Punishable No No
Toda, G.R. No. 147188 (2004)]. ?
Since fraud is a state of mind, it need not be Purpose Merely Entirely

proved by direct evidence but may be inferred minimize escape
from the circumstances of the case. Thus: payment of payment of
● The failure of the taxpayer to declare for taxes (tax taxes
taxation purposes his true and actual savings)
income derived from his business for two
consecutive years has been held as an
indication of his fraudulent intent to cheat
Page 48 of 412
d. Transformation extinguished to the concurrent amount
Method of escape in taxation whereby the [Domingo v. Garlitos, G.R. No. L-18994
manufacturer or producer upon whom the tax (1963)]
has been imposed pays the tax and endeavors
to recoup himself by improving his process of
production thereby turning out his units of
products at a lower cost. The taxpayer escapes
by a transformation of the tax into a gain
through the medium of production.
8. Equitable Recoupment
The doctrine of equitable recoupment allows a
taxpayer whose claim for refund has been
barred by prescription to offset such claims
against a current assessment.
The doctrine also allows the government to

offset taxes that have not been collected from
the taxpayer against a current claim for refund,
although the government is time-barred from
collecting the previous taxes.
The doctrine finds NO application in this

jurisdiction.
9. Prohibition on Compensation and

Set-off
General Rule: Taxes cannot be subject to
compensation [South African Airways v. CIR,
G.R. No. 180356 (2010)].
Reasons:
a. This would adversely affect the
government revenue system [Philex Mining
v. CA, G.R. No. 125704 (1998)].
b. The government and the taxpayer are not
creditors and debtors of each other. There
is a material distinction between a tax and
debt. Debts are due to the Government in
its corporate capacity, while taxes are due
to the Government in its sovereign
capacity. We find no cogent reason to
deviate from the aforementioned distinction
[South African Airways v. CIR, supra].
Exception: If the claims against the

government have been recognized and an
amount has already been appropriated for that
purpose. Where both claims have already
become:
a. Due;
b. Demandable, and
c. Fully liquidated, compensation takes
place by operation of law under Article
1200 in relation to Articles 1279 and
1290 of the NCC, and both debts are
Page 49 of 412
III.LEGISLATIVE c. R.A. No. 6735

An Act Providing for a System of Initiative and
DEPARTMENT Referendum and Appropriating Funds Therefor
A. Legislative Power This is valid for (a) laws, (b) ordinances, and (c)
resolutions, but not amendments to the
Constitution [Defensor-Santiago, supra].
1. Scope and limitations
d. The President under Martial Law or
a. Who may exercise legislative power in a Revolutionary Government
SECTION 23(2), ARTICLE VI. In times of war or
Congress other national emergency, the Congress may, by
Legislative power shall be vested in the law, authorize the President, for a limited period and
Congress, which consists of a Senate and a subject to such restrictions as it may prescribe, to
House of Representatives [Section 1, Article exercise powers necessary and proper to carry out
VI, 1987 Constitution]. a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall
cease upon the next adjournment thereof.
The grant of legislative power to Congress is
plenary. Congress may legislate on any subject
matter provided that constitutional limitations Congress may delegate legislative powers to
are observed. the president in times of war or in other national
emergencies [David v. Macapagal-Arroyo,
Regional/Local Legislative Power G.R. No. 171396 (2006)].
Note: A regional assembly exists for the 2. Principle of Non-delegability;

ARMM. Exceptions
Exercise of Legislative Powers by Local a. Principle
Government Delegata potestas non potest delegari –
What has been delegated cannot be further
Requirements of a valid ordinance (CUPPU- delegated.
GC):
a. It must not CONTRAVENE the Constitution b. Rationale
or any statute; Since the powers of the government have been
b. It must not he UNFAIR or oppressive; delegated to them by the people, who possess
c. It must not be PARTIAL or discriminatory; original sovereignty, these powers cannot be
d. It must not PROHIBIT but may regulate further delegated by the different government
trade; departments to some other branch or
e. It must not be UNREASONABLE; instrumentality of the government.
f. It must be GENERAL and CONSISTENT with
public policy [Magtajas v. Pryce Properties,
c. General Rule; Exceptions
G.R. No. 111097 (1994)].
General Rule: Only Congress (as a body) may
b. People’s Initiative on Statutes exercise legislative power.
Legislative power is also vested in the people
by the system of initiative and referendum Exceptions:
[Section 1, Article VI, 1987 Constitution]. The 1. Delegated legislative power to local
power of initiative and referendum is the power governments;
of the people directly to “propose and enact 2. Constitutionally-grafted exceptions
laws or approve or reject any act or law or part i. Emergency power delegated to the
thereof passed by the Congress or local Executive during State of War or
legislative body” [Section 32, Article VI, 1987 National Emergency [Section 23(2),
Constitution]. The provision is not self- Article VI, 1987 Constitution]
executing [Defensor- Santiago v. COMELEC,
G.R. No. 127325 (1997)].
Page 50 of 412
ii. Certain taxing powers of the f. Tests for Valid Delegation
President [Section 28(2), Article VI, Rule: There is a valid delegation of legislative
1987 Constitution] power when it passes the following tests –
iii. The extent reserved to the people by
the provision on initiative and Completeness Test
referendum [Section 1, Article VI, 1987 The law sets forth the policy to be executed,
Constitution] carried out, or implemented by the delegate
[Abakada Guro Partylist v. Purisima, supra],
Note: Subordinate legislation made by such that there is nothing left for the delegate
administrative agencies – The principle of non- to do but to enforce the law [Pelaez v. Auditor
delegability should not be confused with the General, G.R. No. L-23825 (1965)]; and
delegated rule-making authority of
implementing agencies [Belgica v. Ochoa, Sufficient Standard Test
supra]. The standard defines legislative policy, marks
its limits, maps out its boundaries and specifies
Strictly speaking, what is delegated is not the public agency to apply it. It indicates the
“lawmaking” power, but rule-making power, circumstances under which the legislative
limited to (a) filling up the details of the law; or command is to be effected [Edu v. Ericta, G.R.
(b) ascertaining facts to bring the law into No. L-32096 (1970)].
actual operation.
Note: Acts which are purely legislative in
d. Who may exercise legislative power character (e.g. making of laws) cannot be
delegated to an administrative body (in contrast
General Rule: Congress only. to the ascertainment of facts or the filing of
details which can be delegated to
e. Exceptions administrative agencies).
Exceptions (PLATE): B. Houses of Congress;

1. Delegation to the People (by initiative and
Compositions and
referendum) Qualifications
2. Delegation to the Local governments
3. Delegation to the Administrative bodies Senate House of
4. Delegation of Tariff powers to the President Representat
under Constitution ives
5. Delegation of Emergency powers to the
President under Constitution Provision Sections 2- Sections 5-8,
14, Article VI Article VI
The President did not proclaim a national
emergency, only a state of emergency in the Compositio 24 senators Not more
three places in ARMM. And she did not act n elected at than 250
pursuant to any law enacted by Congress that large members,
authorized her to exercise extraordinary unless
powers. The calling out of the armed forces to otherwise
prevent or suppress lawless violence in such provided by
places is a power that the Constitution directly law,
vests in the President. She did not need consisting of:
congressional authority to exercise the same a. District
[Ampatuan v. Puno, G.R. No. 190259 (2011)]. Representati
Under its plenary legislative powers, Congress ves
can delegate to local legislative bodies the b. Party-List
power to create local government units, subject Representati
to reasonable standards and provided no ves
conflict arises with any provision of the
Constitution [Sema v. COMELEC, G.R. No. Qualificatio a. Natural- a. Natural-
177597 (2008)].
Page 51 of 412
ns born citizen born citizen 2. House of Representatives

b. At least 35 b. At least 25
years old on years old on a. District Representatives and
the day of the day of Questions of Apportionment
the election the election
c. Able to c. Able to District Representatives - Elected from
read and read and legislative districts apportioned among the
write write provinces, cities, and Metro Manila area.
d. A d. A
registered registered Rules on Apportionment of Legislative
voter voter in the Districts
e. Resident district he
of the seeks to i. Apportionment of legislative districts
Philippines represent must be by law which could be a:
for at least 2 e. A resident a. General Apportionment Law; or
years of the said b. Special Law (i.e. creation of new
immediately district for at provinces)
preceding least 1 year
the day of immediately Note: The power to apportion legislative
the election preceding districts is textually committed to Congress by
the day of the Constitution. Thus, it cannot be validly
the election delegated to the ARMM Regional Assembly
[Sema v. COMELEC, G.R. No. 177597 (2008)].
Term of 6 years 3 years Under the Constitution and the LGC,
Office apportionment and reapportionment do not
require a plebiscite [Bagabuyo v. COMELEC,
Term of 2 3 G.R. No. 176970 (2008)].
Limits consecutive consecutive
terms terms ii. Proportional representation based on
number of inhabitants:
Note: Citizenship must be Filipino at the time of a. Each city with a population of at least
assumption of office [Frivaldo v. COMELEC, 250,000 shall have at least 1
G.R. No. 120295 (1996)]. representative.
b. Each province, irrespective of the
number of inhabitants, shall have at
1. Senate
least 1 representative.
The Senate of each Congress acts separately
and independently of the Senate of the
iii. Each legislative district shall comprise,
Congress before it. Due to the termination of
as far as practicable, contiguous, compact,
the business of the Senate during the
and adjacent territory (Anti-gerrymandering
expiration of one (1) Congress, all pending
provision).
matters and proceedings, such as unpassed
bills and even legislative investigations, of the
iv. Re-apportionment by Congress within 3
Senate are considered terminated upon the
years after the return of each census.
expiration of that Congress and it is merely
optional on the Senate of the succeeding
Note: “Apportionment” refers to the
Congress to take up such unfinished matters,
determination of the number of representatives
not in the same status, but as if presented for
which a State, county, or other subdivision may
the first time [Balag v. Senate of the
send to a legislative body, while
Philippines, G.R. 234608 (2018)].
“reapportionment” refers to the realignment or
change in legislative districts brought about by
changes in population and mandated by the
constitutional requirement of equality of
representation [Bagabuyo v. COMELEC,
supra].
Page 52 of 412
b. Party-list System 5. The nominees of sectoral parties or orgs, of
either type, must (a) belong to their respective
i. Party-List Representatives sectors, or (b) have a track record of advocacy
They shall constitute 20% of the total number for their respective sectors. Majority of the
of representatives, elected through a party-list members of a sectoral party, of either type,
system of registered national, regional, and must belong to the sector they represent.
sectoral parties or organizations.
6. National, regional, or sectoral parties or orgs
ii. Sectoral Representatives shall not be disqualified if some of their
For 3 consecutive terms from 2 February 1987, nominees are disqualified, provided they have
1⁄2 of the party-list seats shall be allotted to at least 1 nominee who remains qualified
sectoral representatives to be chosen by [Atong Paglaum, supra].
appointment or election, as may be provided by
law. Until a law is passed, they are appointed iv. Disqualifications and Qualifications
by the President from a list of nominees by the See R.A. No. 7941: An Act Providing For The
respective sectors [Section 7, Article XVIII, Election Of Party-List Representatives
1987 Constitution]. Through The Party-List System, And
Appropriating Funds Therefor
Note: The party-list system is not synonymous
with sectoral representation [Atong Paglaum v. Disqualified Parties
COMELEC, G.R. No. 203766 (2013), citing the 1. Religious sects
1986 Constitutional Commission Records]. 2. Foreign organizations
3. Advocating violence or unlawful means
iii. Atong Paglaum Guidelines: 4. Receiving support from any foreign
1. Three different parties or organizations may government, foreign political party, foundation,
participate in the party-list system: organization, whether directly or through any of
a. National; its officers or members or indirectly through
b. Regional; or third parties for partisan election purposes.
c. Sectoral; 5. Violating or failing to comply with laws, rules
or regulations relating to elections;
2. National and regional parties or orgs do not 6. Declaring untruthful statements in its
need to (a) organize along sectoral lines, or (b) petition;
represent any “marginalized or 7. Ceased to exist for at least one (1) year; or
underrepresented” sector; 8. Failing to participate in the last two (2)
preceding elections or fails to obtain at least 2
3. Political parties may participate in the party- per centum of the votes cast under the party-
list system provided: list system in the two (2) preceding elections for
a. they register under the party-list system; the constituency in which it has registered.
b. they do not field candidates in legislative
district elections. Qualified Sectors
i. A party that participates in the Note: This qualification applies only to sectoral
legislative district elections may still parties. Participating national or regional
participate in the party-list through a parties need not fall under any of these sectors
sectoral wing. [Atong Paglaum, supra].
ii. The sectoral wing can be part of the 1. Labor
political party’s coalition, but the former 2. Peasant
must be registered independently in the 3. Fisherfolk
party-list system. 4. Urban Poor
5. Indigenous Cultural Communities
4. Sectoral parties or orgs may either be (a) 6. Elderly
“marginalized or underrepresented” (e.g. labor, 7. Handicapped
peasant, fisherfolk); or (b) “lacking in well- 8. Women
defined political constituencies” (e.g. 9. Youth
professionals, women, elderly, youth) 10. Veterans
11. Overseas Workers
12. Professionals
Page 53 of 412
v. Four parameters of the party-list Step 6: Apply the 3-Seat Cap, if necessary
system [see BANAT v. COMELEC, supra].
1. 20% Allocation - 20% of the total number of
the membership of the House of vii. ARARO v. COMELEC, G.R. No. 192803,
Representatives is the maximum number of December 10, 2013
seats available to party-list organizations. The Supreme Court further modified the
2. 2% Threshold - Garnering 2% of the total formula used and interpreted in BANAT v.
votes cast in the party-list elections guarantees COMELEC. Thus, the formula to determine the
a party- list organization one (1) seat. proportion garnered by the party-list group
3. Additional Seats - The additional seats, that would now henceforth be:
is, the remaining seats after allocation of the
guaranteed seats, shall be distributed to the (Number of votes of party list)/(Total number of
party-list organizations including those that valid votes for party-list candidates =
received less than two percent of the total Proportion or percentage of votes garnered by
votes. This distribution will continue until all the party-list
seats have been filled.
4. 3-Seat Cap - The three-seat cap is viii. Formula for additional seats
constitutional. (Total number of Party-list seats available) -
Note: It is intended by the Legislature to (Number of seats allocated in the first round) x
prevent any party from dominating the party-list (Proportion or Percentage of votes garnered
system. There is no violation of the Constitution by the Party) = Additional seats awarded
because the 1987 Constitution does not require
absolute proportionality for the party-list C. Legislative Privileges,
system [BANAT v. COMELEC, G.R. No.
179271 (2009)].
Inhibitions, and Qualifications
vi. Rules on Computation of Seats: Two- Privileges

Round Allocation
Step 1: Compute total number of seats 1. Salaries
allocated for party-list representatives SECTION 10, ARTICLE VI. The salaries of Senators
and Members of the House of Representatives shall
Step 2: Rank all party-list candidates from be determined by law. No increase in said
compensation shall take effect until after the
highest to lowest based on the number of votes
expiration of the full term of all the Members of the
they garnered. Senate and the House of Representatives approving
such increase.
Step 3: Compute for each party-list candidate’s
percentage of votes garnered in relation to the
total number of votes cast for party-list SECTION 17, ARTICLE XVIII. Until the Congress
candidates. provides otherwise, the President shall receive an
annual salary of three hundred thousand pesos; the
Vice-President, the President of the Senate, the
Step 4: Round 1 – Allocate one (1) seat each Speaker of the House of Representatives, and the
for a party-list that garnered at least 2% of the Chief Justice of the Supreme Court, two hundred
total number of votes. forty thousand pesos each; the Senators, the
Members of the House of Representatives, the
Step 5: Round 2 – Assign additional seats Associate Justices of the Supreme Court, and the
from the balance (i.e. total number of party-list Chairmen of the Constitutional Commissions, two
hundred four thousand pesos each; and the
seats minus Round 1 allocations) by: Members of the Constitutional Commissions, one
a. Allocating one (1) seat for every whole hundred eighty thousand pesos each.
integer (e.g. if a party garners 2.73% of the
vote, assign it two (2) more seats; if 1.80%,
assign it one (1) more seat); then “Expiration of the full term of all Members of the
b. Allocating the remaining seats (i.e. total Senate and the House of Representatives” is
seats minus Round 1 and Round 2a singular and means that the increase may only
allocations) to those next in rank until all seats take effect upon the expiration of the terms
are completely distributed. of both houses who passed the law
increasing said salary. This means that even
Page 54 of 412
if the House of Representatives term has 3. Speech and Debate Clause
already expired but the senate has not, the No Member shall be questioned nor be held
salary increase cannot yet take effect even if liable in any other place for any speech or
the increase is different for each house debate in the Congress or in any committee
[PHILCONSA v. Mathay, G.R. No. L-25554 thereof [Section 11, Article VI, 1987
(1966)]. Constitution].
This prohibition also applies to the benefits a This means the Senator or Member of the
member of congress will attain upon House can still be questioned and held liable in
retirement. Thus, a member of congress may Congress.
not compute his retirement benefits based on
the salary increase which he was not able to To come under the guarantee, the speech or
reach because his term has already expired debate must be one made "in Congress or in
before said increase took effect [Ligot v. any committee thereof." Publication of an
Mathay, G.R. No. L-34676 (1974)]. allegedly libelous letter is not covered by the
privilege [Jimenez v. Cabangbang, G.R. No. L-
2. Freedom from Arrest 15905 (1966)].
A Senator or Member of the House of
Representatives shall, in all offenses What is covered under this provision?
punishable by not more than six years Anything a member of Congress says in line
imprisonment, be privileged from arrest while with his legislative functions [Jimenez v.
the Congress is in session [Section 11, Article Cabangbang, supra]
VI, 1987 Constitution]. a. Speeches
b. Utterances
Regardless of the whereabouts of a Senator or c. Bills signed
Member of the House, freedom from arrest d. Votes passed
holds, so long as Congress is in session.
While the immunity of a Member of Congress
Applicability: Freedom from arrest applies is absolute and thus even the Supreme Court
only to offenses punishable by not more than cannot discipline a lawyer-senator for remarks
six years imprisonment. made against the court, it does not shield said
member from the authority of Congress to
Preventive suspension is not a penalty. Order discipline its own members [Defensor-Santiago
of suspension under R.A. No. 3019 (Anti-Graft v. Pobre, A.C. No. 7399 (2009)].
and Corrupt Practices Act) is distinct from the
power of Congress to discipline its own Inhibitions and Disqualifications
members and did not exclude members of
Congress from its operation [Defensor- 1. May not hold any office or
Santiago v. Sandiganbayan, G.R. No. 128055 employment in the government during
(2001)]. his term without forfeiting his seat
[Section 13, Article VI]
In People v. Jalosjos [G.R. No. 132875 (2000)],
the Court denied the request of Cong. Jalosjos
Incompatible Office — The forfeiture of the
that he be allowed to attend legislative
seat in Congress shall be automatic upon a
sessions. The denial was premised on the
member’s assumption of such office deemed
following: (a) membership in Congress does
incompatible. Thus, when a governor-elect ran
not exempt an accused from statutes and rules
for the Batasang Pambansa and won, he could
which apply to validly incarcerated persons; (b)
not hold both offices [Adaza v. Pacana, G.R.
one rationale behind confinement is public self-
No. L-68159 (1985)].
defense; (c) it would amount to creation of a
privileged class, without justification in reason;
Note: The office of the Philippine National Red
and (d) he was provided with an office in the
Cross (PNRC) Chairman is not a government
New Bilibid Prison.
office or an office in a government-owned or -
controlled corporation for purposes of the
prohibition in Section 13, Article VI [Liban v.
Page 55 of 412
Gordon, G.R. No. 175352 (2009 & 2011)]; but and still unconstitutional [Puyat v. De Guzman
note that the structure of the PNRC is sui Jr., G.R. No. L-51122 (1982)].
generis being neither strictly private nor public
in nature. Duty to Disclose
2. May not be appointed to any office 1. Statements of Assets, Liabilities, and
created or whose emoluments were Net Worth (SALN)
increased during the term for which he SECTION 17, ARTICLE XI. A public officer or
was elected [Section 13, Article VI, 1987 employee shall, upon assumption of office and as
Constitution] often thereafter as may be required by law, submit a
declaration under oath of his assets, liabilities,
and net worth. In the case of the President, the
Forbidden Office — One to which a member
Vice-President, the Members of the Cabinet, the
cannot be appointed even if he is willing to give Congress, the Supreme Court, the Constitutional
up his seat in Congress. The effect of his Commissions and other constitutional offices, and
resignation from the Congress is the loss of his officers of the armed forces with general or flag rank,
seat therein but his disqualification for the the declaration shall be disclosed to the public in the
forbidden office nevertheless remains. manner provided by law.
3. Shall not be financially interested, When to disclose:

directly or indirectly, in any contract 1. Within 30 days after assuming office
with, or franchise or special privilege 2. On or before April 15 after the closing of the
granted by the government during his calendar year
term of office [Section 14, Article VI, 3. Upon expiration of term of office, resignation
1987 Constitution] or separation from office
Who must declare:

4. Shall not intervene in any matter 1. President
before any office of the government 2. Vice President
when it is for his pecuniary benefit or 3. Members of the Cabinet
where he may be called upon to act on 4. Members of Congress
account of his office [Section 14, Article 5. Members of the SC
VI, 1987 Constitution] 6. Members of the Constitutional Commission
and other Constitutional Offices
The Pork Barrel System “runs afoul” of Section 7. Officers of the Armed Forces with general or
14, Article VI, because in “allowing legislators flag rank [Section 17, Article XI, 1987
to intervene in the various phases of project Constitution]
implementation – a matter before another office
of government – [Pork Barrel] renders them 2. Financial and Business Interests;
susceptible to taking undue advantage of their Political Conflicts of Interest
own office”[Belgica v. Ochoa, supra].
SECTION 12, ARTICLE VI. All Members of the
Senate and the House of Representatives shall,
5. Cannot personally appear as counsel upon assumption of office, make a full disclosure of
before any court, electoral tribunal, their financial and business interests. xxx
quasi judicial and administrative bodies
during his term of office [Section 14, 3. Amounts Paid To/Expenses Incurred
Article VI, 1987 Constitution] by Each Member
SECTION 20, ARTICLE VI. The records and books
This prohibition is absolute. Thus, when an of accounts of the Congress shall be preserved and
assemblyman acting as counsel for one group be open to the public in accordance with law, and
in an internal dispute in a company was denied such books shall be audited by the Commission on
leave to intervene, the court held that his action Audit which shall publish annually an itemized list of
of buying 10 stocks in order to be able to amounts paid to and expenses incurred for each
intervene in the company’s dispute as a Member.
stockholder was an indirect violation of this rule
Page 56 of 412
D. Quorum and Voting
Majorities
1. Quorum
SECTION 16(2), ARTICLE VI. A majority of each
House shall constitute a quorum to do business, but
a smaller number may adjourn from day to day and
may compel the attendance of absent Members in
such manner, and under such penalties, as such
House may provide.
In computing a quorum, members who are

outside the country, thus outside of each
House’s coercive jurisdiction, are not included.
“Majority” shall take into consideration the

number of members within the “jurisdiction” of
the Congress (those it can order arrested for
the purpose of questioning). In Avelino v.
Cuenco [G.R. No. L-2821 (1949)], one Senator
was out of the Philippines which is not within
the “jurisdiction” of the Senate, so that the
working majority was 23 Senators. There is a
difference between a majority of "all members
of the House" and a majority of "the House", the
latter requiring less number than the first.
Therefore, an absolute majority (12) of all
members of the Senate less one (23)
constitutes a constitutional majority of the
Senate for the purpose of the quorum.
2. Voting Majorities
a. Doctrine of Shifting Majority

For each House of Congress to pass a bill, only
the votes of the majority of those present in the
session, there being a quorum, is required.
b. Exceptions
Votes where requirement is based on “all
the members of Congress”: Requirement is
based on the entire composition of a House or
Congress (in its entirety), regardless of the
number of Members present or absent.
Page 57 of 412
Action Votes Required House Voting Basis

(All Members)
Senate shall elect its Majority Separately; All Section 16(1), Article VI
President and the respective members
Speaker of the House
Punish for disorderly 2/3 Separately; All Section 16(3), Article VI

behavior and may respective members
SUSPEND or EXPEL
Override Presidential 2/3 Separately (House Section 27(1), Article VI

Veto where the bill
originated votes first)
Grant Tax Exemption Majority Silent Section 28(4), Article VII
Elect President in case Majority Separately Section 4(5), Article VII

of tie
Confirm appointment of Majority Separately Section 9, Article VII

VP
Congress affirming that 2/3 Congress

the President is unable
to discharge powers and
duties
Revoke or extend (a) Majority Jointly Section 18, Article VII

Martial Law or (b) the
suspension of the
privilege of the writ of
Habeas Corpus
Amnesty Grant Majority Silent Section 19(2), Article VII
Submit a question Majority (Silent) Section 3, Article XVII

calling a Const.
Convention to the Prevailing view; by
electorate default, houses vote
separately (because
Call for Constitutional 2/3 Congress is Section 3, Article XVII
Convention bicameral)
Propose amendments as 3/4 Section 1(1), Article XVII

Constitutional Assembly
Page 58 of 412
B. Other Cases (NOT out of all members)
Action Votes Required (All Basis
Members)
Determine President’s ⅔ of both houses, voting Section 11(4), Article VII

disability separately
Declaring a State of War ⅔ of both houses (in joint Section 23(1), Article VI
session) voting separately
Validity of ⅔ members of Senate Section 21, Article VII

Treaty/International
Agreement
Page 59 of 412
E. Discipline of Members One Subject One Title Rule
1. To prevent hodge-podge, "log-rolling", or the
Each House may determine the rules of its smuggling in of "riders", that is, "any act
proceedings, punish its Members for disorderly containing several subjects dealing with
behavior, and, with the concurrence of two- unrelated matters representing diverse
thirds of all its Members, suspend or expel a interests.
Member. A penalty of suspension, when 2. To prevent surprise or fraud upon the
imposed, shall not exceed sixty days [Section legislature
16(3), Article VI, 1987 Constitution]. 3. To fairly apprise the people of the subjects
of legislation that are being considered in order
Each house may punish its members for that they may have the opportunity of being
disorderly behavior, and with the concurrence heard thereon, by petition or otherwise, if they
of 2/3 of ALL its members, with: (SED-FIC) should so desire.
● Suspension 4. But the title need not be a complete
● Expulsion catalogue of a bill. In any case, a title must not
be "so uncertain that the average person
Other measures: reading it would not be informed of the purpose
● Deletion of unparliamentary remarks of the enactment.
from the record 5. The title of the bill is controlling over the text
● Fine [Dela Cruz v. Paras, G.R. No. L-42571-72
● Imprisonment (1983)].
● Censure
b. As to certain laws
The suspension contemplated in the
Constitution is different from the suspension Appropriations Laws – Created to regulate
prescribed in the Anti-Graft and Corrupt spending
Practices Act (R.A. No. 3019). The former is SECTION 22, ARTICLE VII. The President shall
punitive in nature while the latter is preventive submit to the Congress within thirty days from the
[Defensor-Santiago v. Sandiganbayan, G.R. opening of every regular session, as the basis of the
No. 118364 (1995)]. general appropriations bill, a budget of expenditures
and sources of financing, including receipts from
existing and proposed revenue measures.
The determination of Congress when it comes
to disciplining its members is respected by the SECTION 24, ARTICLE VI. All appropriation,
court. As such, the Supreme Court does not revenue or tariff bills, bills authorizing increase of the
have the power to compel congress to reinstate public debt, bills of local application, and private bills
a member who has been expelled by it shall originate exclusively in the House of
Representatives, but the Senate may propose or
[Alejandrino v. Quezon, G.R. No. 22041 concur with amendments.
(1924)].
SECTION 25, ARTICLE VI. (1) The Congress may
The immunity for speech given to a member of not increase the appropriations recommended by
Congress is not a bar to the power of Congress the President for the operation of the Government as
to discipline its members [Osmeña v. specified in the budget. The form, content, and
manner of preparation of the budget shall be
Pendatun, G.R. No. L-17144 (1960)]. prescribed by law.
F. Process of law-making (2) No provision or enactment shall be embraced in

the general appropriations bill unless it relates
specifically to some particular appropriation therein.
1. Requirements as to bills Any such provision or enactment shall be limited in
its operation to the appropriation to which it relates.
a. As to titles of bills
(3) The procedure in approving appropriations for
SECTION 26(1), ARTICLE VI. Every bill passed by the Congress shall strictly follow the procedure for
the Congress shall embrace only one subject which approving appropriations for other departments and
shall be expressed in the title thereof. xxx agencies.
(4) A special appropriations bill shall specify the

purpose for which it is intended, and shall be
Page 60 of 412
supported by funds actually available as certified by where it originated, within 30 days after the
the National Treasurer, or to be raised by a date of receipt
corresponding revenue proposed therein.
House Rules
(5) No law shall be passed authorizing any transfer 1. Preparation of the bill
of appropriations; however, the President, the
● The Member or the Bill Drafting Division of
President of the Senate, the Speaker of the House
of Representatives, the Chief Justice of the the Reference and Research Bureau
Supreme Court, and the heads of Constitutional prepares and drafts the bill upon the
Commissions may, by law, be authorized to Member's request.
augment any item in the general appropriations law
for their respective offices from savings in other 2. First reading
items of their respective appropriations.
● The bill is filed with the Bills and Index
(6) Discretionary funds appropriated for particular Service and the same is numbered and
officials shall be disbursed only for public purposes reproduced.
to be supported by appropriate vouchers and subject ● Three days after its filing, the same is
to such guidelines as may be prescribed by law. included in the Order of Business for First
Reading.
(7) If, by the end of any fiscal year, the Congress
● On First Reading, the Secretary General
shall have failed to pass the general appropriations
bill for the ensuing fiscal year, the general reads the title and number of the bill. The
appropriations law for the preceding fiscal year Speaker refers the bill to the appropriate
shall be deemed reenacted and shall remain in Committee/s.
force and effect until the general appropriations bill
is passed by the Congress. 3. Committee consideration / action
● The Committee where the bill was referred
SECTION 29(1), ARTICLE VI. No money shall be
paid out of the Treasury except in pursuance of an to evaluates it to determine the necessity of
appropriation made by law. conducting public hearings. If the
Committee finds it necessary to conduct
public hearings, it schedules the time
2. Procedure for Passage of Bills thereof, issues public notice and invites
SECTION 27(1), ARTICLE VI. Every bill passed by resource persons. If the Committee finds
the Congress shall, before it becomes a law, be that no public hearing is needed, it
presented to the President. If he approves the same, schedules the bill for Committee
he shall sign it; otherwise, he shall veto it and return
the same with his objections to the House where it
discussion/s.
originated, which shall enter the objections at large ● Based on the result of the public hearings
in its Journal and proceed to reconsider it. If, after or Committee discussions, the Committee
such reconsideration, two-thirds of all the Members may introduce amendments, consolidate
of such House shall agree to pass the bill, it shall be bills on the same subject matter, or
sent, together with the objections, to the other House propose a substitute bill. It then prepares
by which it shall likewise be reconsidered, and if
approved by two-thirds of all the Members of that
the corresponding committee report.
House, it shall become a law. In all such cases, the ● The Committee approves the Committee
votes of each House shall be determined by yeas or Report and formally transmits the same to
nays, and the names of the Members voting for or the Plenary Affairs Bureau.
against shall be entered in its Journal. The President
shall communicate his veto of any bill to the House 4. Second reading
where it originated within thirty days after the date of
receipt thereof; otherwise, it shall become a law as
● The Committee Report is registered and
if he had signed it. numbered by the Bills and Index Service. It
is included in the Order of Business and
referred to the Committee on Rules.
Generally, there are 3 ways for the bill to ● The Committee on Rules schedules the bill
become a law: for consideration on Second Reading.
a. When it is approved by the President; ● On Second Reading, the Secretary
b. When the vote of the President is overridden General reads the number, title and text of
by a two-thirds vote of all the members of both the bill and the following takes place:
houses; ○ Period of Sponsorship and Debate
c. Upon failure of the President to veto the bill ○ Period of Amendments
and to return it with his objections, to the House ○ Voting which may be done by:
Page 61 of 412
■ viva voce Secretary of the Senate and the Secretary
■ count by tellers General of the House, are transmitted to
■ division of the House; or the President.
■ nominal voting
10. Presidential action on the bill
5. Third reading ● If the bill is approved by the President, the
● The amendments, if any, are engrossed same is assigned an RA number and
and printed copies of the bill are transmitted to the House where it
reproduced for Third Reading. originated.
● The engrossed bill is included in the ● If the bill is vetoed, the same, together with
Calendar of Bills for Third Reading and a message citing the reason for the veto, is
copies of the same are distributed to all the transmitted to the House where the bill
Members three days before its Third originated.
Reading.
● On Third Reading, the Secretary General 11. Action on approved bill
reads only the number and title of the bill. ● The bill is reproduced and copies are sent
● A roll call or nominal voting is called and a to the Official Gazette Office for publication
Member, if he desires, is given three and distribution to the implementing
minutes to explain his vote. No agencies. It is then included in the annual
amendment on the bill is allowed at this compilation of Acts and Resolutions.
stage.
○ The bill is approved by an 12. Action on vetoed bill
affirmative vote of a majority of the ● The message is included in the Order of
Members present. Business. If the Congress decides to
○ If the bill is disapproved, the same override the veto, the House and the
is transmitted to the Archives. Senate shall proceed separately to
reconsider the bill or the vetoed items of the
6. Transmittal of the approved bill to the Senate bill. If the bill or its vetoed items is passed
● The approved bill is transmitted to the by a vote of two-thirds of the Members of
Senate for its concurrence. each House, such bill or items shall
7. Senate action on approved bill of the House become a law.
● The bill undergoes the same legislative
process in the Senate. A joint resolution is not a bill, and its passage
does not enact the joint resolution into a law
8. Conference committee (Bicameral) even if it follows the requirements expressly
● A Conference Committee is constituted prescribed in the Constitution for enacting a bill
and is composed of Members from each into law. However, a joint resolution can be part
House of Congress to settle, reconcile or of the implementation of a law as provided in
thresh out differences or disagreements on the law itself. A joint resolution can also be
any provision of the bill. treated as a recommendation to the Executive
● The conferees are not limited to reconciling on how the law can be implemented. Further,
the differences in the bill but may introduce neither the Rules of the Senate nor the Rules
new provisions germane to the subject of the House of Representatives can amend
matter or may report out an entirely new bill the Constitution which recognizes only a bill
on the subject. can become law [Ang Nars Party-List v.
● The Conference Committee prepares a Executive Secretary, G.R. No. 215746 (2019)].
report to be signed by all the conferees and
the Chairman. SECTION 26(2), ARTICLE VI. No bill passed by
● The Conference Committee Report is either House shall become a law unless it has
submitted for consideration/approval of passed three readings on separate days, and
both Houses. No amendment is allowed. printed copies thereof in its final form have been
distributed to its Members three days before its
passage, except when the President certifies to the
9. Transmittal of the bill to the President
necessity of its immediate enactment to meet a
● Copies of the bill, signed by the Senate public calamity or emergency. Upon the last reading
President and the Speaker of the House of of a bill, no amendment thereto shall be allowed, and
Representatives and certified by both the the vote thereon shall be taken immediately
Page 62 of 412
thereafter, and the yeas and nays entered in the 6. Limitations on Legislative Power
Journal.
Formal/Procedural Limitations
1. Prescribes the manner of passing bills and
3. The President’s Veto Power the form they should take.
Section 27, Article VI defines the only way for
the President to veto a bill. Rider clause: Every bill passed by the
Congress shall embrace only one subject,
When the President vetoes a measure, he which shall be expressed in the title [Section
should return the measure to the House of 26(1), Article VI, 1987 Constitution].
origin, indicating his objections thereto in what
is commonly known as a veto message so that 2. The title is not required to be an index of the
the same may be studied by the members for contents of the bill. It is sufficient compliance if
possible overriding of his veto. the title expresses: (a) the general subject; and
(b) all the provisions of the statute are germane
General Rule: The President must approve a to that subject [Tio v. Videogram Regulatory
bill in its entirety or disapprove it in toto. Commission, G.R. No. L-75697 (1987)].
Exception: The exception applies to 3. No bill passed by either house shall become
appropriation, revenue and tariff bills, any law unless it has passed three (3) readings on
particular item or items of which may be separate days [Section 26(2), Article VI, 1987
disapproved without affecting the item or items Constitution].
to which he does not object.
4. Printed copies in its final form must have
To override the President’s veto, at least ⅔ of been distributed.
ALL members of each house must agree to
pass the bill. In such case, the veto is Exception: When the President certifies to the
overridden and the bill becomes law without necessity of its immediate enactment to meet a
need of presidential approval. public calamity or emergency.
4. Doctrine of Inappropriate Provision Presidential certification dispenses with (1) the
A provision that is constitutionally inappropriate printing requirement; and (2) the requirement
for an appropriation bill may be singled out for for readings on separate days [Kida v. Senate,
veto even if it is not an appropriation or revenue G.R. No. 196271 (2011), citing Tolentino v.
item. Secretary of Finance, supra].
5. Effectivity of Laws Substantive Limitations

Civil Code, Article 2. Laws shall take effect after Circumscribe both the exercise of the power
fifteen days following the completion of their itself and the allowable subject of legislation
publication in the Official Gazette, unless it is (i.e. non-delegation).
otherwise provided. This Code shall take effect one
year after such publication.
G. Appropriation and Re-
Even when the law provides its own date of
Alignment
effectivity, the publication requirement is Exec. Ord. No. 292 (1987), Book VI,
mandatory, in order that a law may become Chapter 1
effective. The object of the publication
requirement is to give the general public SECTION 1. Constitutional Policies on the Budget.
adequate notice of the various laws which are — (1) All appropriations, revenue or tariff bills, bills
authorizing increase of the public debt, bills of local
to regulate their actions and conduct—without
application, and private bills shall originate
publication, there would be no basis for the exclusively in the House of Representatives but the
application of the maxim, “ignorantia legis non Senate may propose or concur with amendments.
excusat.” The publication requirement is a
requirement of due process [Tanada v. Tuvera, (2) The Congress may not increase the
G.R. No. L-63915 (1985)]. appropriations recommended by the President for
the operation of the Government as specified in the
Page 63 of 412
budget. The form, content and manner of 2. Legislative Inquiries vs. Question
preparation of the budget shall be prescribed by law. Hour
[See also Senate v. Ermita, G.R. No. 169777
(3) No provision or enactment shall be embraced in
(2006)]
the general appropriations bill unless it relates
specifically to some particular appropriation to which
it relates. Legislative Question
(4) The procedures in approving appropriations for
Inquiries Hour
the Congress shall strictly follow the procedure for
approving appropriations for other departments and Constitution Section 21, Section 22,
agencies. al Provision Article VI Article VI
(5) A special appropriations bill shall specify the Topic In aid of On any
purpose for which it is intended, and shall be legislation matter
supported by funds actually available as certified by
pertaining to
the National Treasurer or to be raised by a
corresponding revenue proposal therein. the subject’s
department
(6) No law shall be passed authorizing any transfer
of appropriations. However, the President, the Persons Any person Heads of
President of the Senate, the Speaker of the House Subjected upon departments
of Representatives, the Chief Justice of the subpoena only
Supreme Court and the heads of Constitutional
Commissions may, by law, be authorized to
augment any item in the general appropriations laws Appearance Appearance Appearance
for their respective offices from savings in other of Executive of executive of executive
items of their respective appropriations. Officials officials officials
generally 1. Via
(7) Discretionary funds appropriated for particular mandatory request
official shall be disbursed only for public purposes to 2. Upon
be supported by appropriate vouchers and subject
to such guidelines as may be prescribed by law. executive
official’s
(8) If, by the end of any fiscal year, the Congress volition with
shall have failed to pass the general appropriations the consent
bill for the ensuing fiscal year, the general of the
appropriations law for the preceding fiscal year shall
President
be deemed reenacted and shall remain in force and
effect until the general appropriations bill is passed
by the Congress. The mere filing of a criminal or an
(9) Fiscal autonomy shall be enjoyed by the
administrative complaint before a court or
Judiciary, Constitutional Commissions, Office of the quasi-judicial body should not automatically
Ombudsman, Local Government and Commission bar the conduct of a legislative inquiry
on Human Rights. [Standard Chartered Bank v. Senate
Committee on Banks, G.R. No. 167173
(2007)].
H. Legislative Inquiries and
Oversight Functions The requirement of securing prior consent of
the President prior to appearing before either
1. Requisites of Legislative Inquiries House of Congress applies only to Cabinet
a. Must be in aid of legislation; Members and not to other public officials and
b. Is in accordance with duly published only when either House of Congress conducts
rules of procedure; a Question Hour and not in cases of inquiries
c. Right of persons appearing in or in aid of legislation as the latter should be
affected by such inquiries shall be untrammeled because it is co-extensive with
respected [Bengson v. Senate Blue the power to legislate [Senate of the Philippines
Ribbon Committee, G.R. No. 89914 v. Ermita, G.R. No. 169777 (2006)].
(1991)]
However, in Gudani v. Senga [G.R. No. 170165
(2006)], the Court en banc clarified the above
Page 64 of 412
ruling and upheld the President’s constitutional that it is so. If the President and Congress
authority over the military. It held that cannot agree on whether the matter is
obedience and deference to the military chain privileged or not, then the Court must come in
of command and the President as commander- to determine the validity of the claim of privilege
in-chief are the cornerstones of a professional [Senate of the Philippines v. Ermita, supra].
military in the firm cusp of civilian control. In the
same case, the Supreme Court also ruled that 4. Elements of Presidential
any chamber of Congress which seeks the Communications Privilege
appearance before it of a military officer against In Neri v. Senate Committees [G.R. No.
the consent of the President has adequate 180643 (2008)], the Court ruled that the claim
remedies under the law to compel such of executive privilege was properly invoked by
attendance. Final judicial orders have the force Secretary Neri, specifically under what is called
of the law of the land which the President has “presidential communication privilege.” The
the duty to faithfully execute. If the courts so elements of presidential communications
rule, the duty falls on the shoulder of the privilege are:
President, as Commander in Chief, to a. The protected communication must
authorize the appearance of military officials relate to a “quintessential and non-
before Congress. delegable presidential power.”
b. The communication must be authored
3. Additional Limitation: Executive or “solicited and received” by a close
Privilege advisor of the President or by the
Executive privilege is the right of the President President himself. The judicial test is
and high level officials authorized by her to that an advisor must be in “operational
withhold information from Congress, from the proximity” with the President.
courts, and ultimately from the public. Among c. The presidential communications
the types of information which have been privilege remains a qualified privilege
judicially recognized as privileged are state that may be overcome by a showing of
secrets regarding military, diplomatic and other adequate need, such that information
national security matters. Certain information in sought “likely contains important
the possession of the executive may validly be evidence” and by the unavailability of
claimed as privileged even against Congress, the information elsewhere by an
such as Presidential conversations, appropriate investigating authority.
correspondences, or discussions during
closed-door Cabinet meetings [Chavez v. PEA, 5. Contempt Power
G.R. No. 133250 (2003)]. As long as there is legitimate inquiry, then the
inherent power of contempt by the Senate may
Who may invoke: Only the President can be properly exercised. Conversely, once the
invoke it. She may also authorize the Executive legislative inquiry concludes, the exercise of
Secretary to invoke the privilege on her behalf, the inherent power of contempt ceases and
in which case, the Executive Secretary must there is no more genuine necessity to penalize
state that the Act is “By order of the President,” the detained witness [Balag v. Senate of the
which means that he personally consulted with Philippines, G.R. No. 234608 (2018)].
the President on such matters of concern
[Senate of the Philippines v. Ermita, supra]. 6. Concept of Congressional
Oversight
The claim of privilege must be specific, e.g., Broadly defined, the power of oversight
whether the information sought to be withheld embraces all activities undertaken by
involves military or diplomatic secrets, closed- Congress to enhance its understanding of and
door Cabinet meetings, etc. A claim of influence over the implementation of legislation
privilege, being a claim of exemption from an it has enacted. Clearly, oversight concerns
obligation to disclose information must be post-enactment measures undertaken by
clearly asserted. Congress has the right to Congress: (a) to monitor bureaucratic
know why the executive considers the compliance with program objectives, (b) to
requested information privileged. It does not determine whether agencies are properly
suffice to merely declare that the President, or administered, (c) to eliminate executive waste
an authorized head of office, has determined
Page 65 of 412
and dishonesty, (d) to prevent executive v. Purisima, supra; See also discussion under
usurpation of legislative authority, and (e) to Checks and Balances, supra].
assess executive conformity with the
congressional perception of public interest. I. Power of impeachment
7. Categories of Congressional The House of Representatives shall have the
Oversight Functions exclusive power to initiate all cases of
The acts done by Congress purportedly in the impeachment [Section 3(1), Article XI, 1987
exercise of its oversight powers may be divided Constitution].
into three categories, namely: scrutiny,
investigation and supervision. 1. Initiation: Regular Procedure
[Section 3(2) & (3), Article XI, 1987
a. Scrutiny Constitution]
● Passive inquiry, the primary purpose of
which is to determine economy and FILING by (a) any member of the HOR or (b)
efficiency of the operation of government any citizen upon endorsement by a member
activities. of the HOR; followed by REFERRAL to the
● In the exercise of legislative scrutiny, proper HOR Committee (i.e. HOR
Congress may request information and Committee on Justice)
report from the other branches of
government. It can give recommendations ↓
or pass resolutions for consideration of the COMMITTEE REPORT by proper
agency involved. committee, which either favorably or
● Legislative scrutiny is based primarily on unfavorably resolves the complaint
the power of appropriation of Congress.
Under the Constitution, the "power of the ↓
purse" belongs to Congress.
● Legislative scrutiny does not end in budget Above resolution is AFFIRMED (if favorable)
hearings. Congress can ask the heads of or OVERRIDDEN (if unfavorable) by vote of
departments to appear before and be ⅓ of ALL the members of the HOR
heard by either House of Congress on any
matter pertaining to their departments, Verified complaint or resolution [Section 3(4),
pursuant to Section 22, Article VI of the Article XI, 1987 Constitution] FILED by 1/3 of
1987 Constitution. all the members of the HOR; trial by Senate
forthwith proceeds.
b. Congressional Investigation
● More intense digging of facts, compared to 2. Notes on Initiation [Gutierrez v.
scrutiny. Power of investigation recognized
HOR Committee on Justice, G.R. No.
by Section 21, Article VI, 1987 Constitution.
193459 (2011)]
● No impeachment proceeding shall be
c. Legislative supervision (legislative
initiated against the same official more than
veto) once within a period of one (1) year
● Connotes a continuing and informed [Section 2(5), Article XI, 1987 Constitution].
awareness on the part of a congressional ● Initiation means filing coupled with referral
committee regarding executive operations to the Committee on Justice
in a given administrative area. ● The Court cannot make a determination of
● Allows Congress to scrutinize the exercise what constitutes an impeachable offense; it
of delegated law-making authority, and is a purely political question [Francisco v.
permits Congress to retain part of that House of Representatives, G.R. No.
delegated authority. Through this, 160261(2003)].
Congress exercises supervision over the ● On motion to inhibit: Impeachment is a
executive agencies. political exercise. The Court cannot apply
(to Congressmen) the stringent standards
Note: Legislative supervision is NOT allowed it asks of justices and judges when it comes
under the Constitution [Abakada Guro Partylist to inhibition from hearing cases.
Page 66 of 412
● Constitutional requirement that HOR shall proportional representation from the political parties
promulgate its rules on impeachment [Sec. and the parties or organizations registered under the
3(8), Art. XI, 1987 Constitution] is different party-list system represented therein. The senior
from the publication requirement in Tañada Justice in the Electoral Tribunal shall be its
v. Tuvera, supra. Chairman.
3. Trial (1) Two Types

The Senate shall have the sole power to try and 1. Senate Electoral Tribunal (SET)
decide all cases of impeachment [Section 3(6), 2. House Electoral Tribunal (HRET)
Article XI, 1987 Constitution].
Note: There is a Presidential Electoral Tribunal
By virtue of the expanded judicial review (PET), but it is governed by different provisions.
[Section 1(2), Article VIII, 1987 Constitution],
the Court’s power of judicial review extends The tribunals which have jurisdiction over the
over justiciable issues arising in impeachment question of the qualifications of the President,
proceedings [Francisco v. House of the Vice-President, Senators and the Members
Representatives, supra]. But the question of of the House of Representatives was made
whether or not Senate Impeachment Rules clear by the Constitution [Poe-Llamanzares v.
were followed is a political question [Corona v. COMELEC, G.R. No. 221697 (2016)].
Senate, G.R. No. 200242 (2012)].
(2) Composition
4. 10-3-60-10 Rule 1. 3 Supreme Court justices, designated by
● 10 days: a verified complaint for Chief Justice; Senior Justice in the Electoral
impeachment must be included in the Tribunal shall be its Chairman
Order of Business within 10 session days; 2. 6 members of the Senate or House, as the
● 3 days: after the lapse of the 10 days, the case may be, chosen on the basis of
complaint must be referred to a Committee proportional representation from parties
within 3 session days;
● 60 days: The Committee, after hearing, Composition Rules
and by a majority vote of all its Members, 1. The ET shall be constituted within 30 days
shall submit its report to the House within after the Senate and the House shall have
sixty session days from such referral; been organized with the election of the
● 10 days: The resolution shall be President and the Speaker [Section 19, Article
calendared for consideration by the House VI, 1987 Constitution].
within ten session days from receipt 2. Members chosen enjoy security of tenure
thereof. and cannot be removed by mere temporary
change of party affiliation [Bondoc v. Pineda,
J. Electoral Tribunals and the G.R. No. 97710 (1991)].
Commission on (3) Valid grounds/just cause for
Appointments termination of membership to the
tribunal:
1. Powers and Jurisdiction
1. Expiration of Congressional term of office;
2. Death or permanent disability;
a. Electoral Tribunals
3. Resignation from political party which one
SECTION 17, ARTICLE VI. The Senate and the represents in the tribunal;
House of Representatives shall each have an 4. Removal from office for other valid reasons.
Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns, and
qualifications of their respective Members. Each Note: Disloyalty to party and breach of party
Electoral Tribunal shall be composed of nine discipline are not valid grounds for the
Members, three of whom shall be Justices of the expulsion of a member of the tribunal [Bondoc
Supreme Court to be designated by the Chief v. Pineda, supra].
Justice, and the remaining six shall be Members of
the Senate or the House of Representatives, as the
case may be, who shall be chosen on the basis of
Page 67 of 412
(4) Nature (5) Powers
Jurisdiction: Sole judge of all contests relating The power granted to HRET by the Constitution
to the election, returns, and qualifications of is intended to be as complete and unimpaired
their respective members. as if it had remained originally in the legislature
[Co v. HRET, G.R. Nos. 92191-92 (1991),
When ET acquires jurisdiction: citing Angara v. Electoral Commission, supra].
a. When there is an election contest, and
b. Only after the proclamation of a The Constitution mandates that the HRET
candidate [Lazatin v. HRET, G.R. No. “shall be the sole judge of all contests relating
84297(1988)]. to the election, returns and qualifications” of its
members. By employing the word “sole,” the
In the absence of an election contest, and Constitution is emphatic that the jurisdiction of
before proclamation, jurisdiction remains with the HRET in the adjudication of election
COMELEC [Lazatin v. HRET, supra]. But the contests involving its members is exclusive and
proclamation of a congressional candidate exhaustive. Its exercise of power is intended to
following the election divests the COMELEC of be its own — full, complete and unimpaired
jurisdiction over the proclaimed representative [Duenas, Jr. v. HRET, G.R. No. 185401
in favor of the HRET [Tañada v. COMELEC, (2009)].
G.R. No. 207199 (2013)].
b. Commission on Appointments
But see Ongsiako-Reyes v. COMELEC [G.R. SECTION 18, ARTICLE VI. There shall be a
No. 207264 (2013)] where the Court held that Commission on Appointments consisting of the
an Electoral Tribunal acquires jurisdiction only President of the Senate, as ex officio Chairman,
after (1) a petition is filed before it, and (2) a twelve Senators, and twelve Members of the House
candidate is already considered a member of of Representatives, elected by each House on the
the House. basis of proportional representation from the political
parties and parties or organizations registered under
the party-list system represented therein. The
To be considered a member, in turn, there must chairman of the Commission shall not vote, except
be a concurrence of the following: (1) a valid in case of a tie. The Commission shall act on all
proclamation; (2) a proper oath (a) before the appointments submitted to it within thirty session
Speaker and (b) in open session; and (3) days of the Congress from their submission. The
assumption of office. Commission shall rule by a majority vote of all the
Members.
The Court in Ongsiako-Reyes clarified the
doctrine that once a proclamation has been (1) Composition
made, COMELEC’s jurisdiction is already lost a. Senate President as ex-officio chairman
and the HRET’s own jurisdiction begins only (shall not vote except in case of a tie)
applies in the context of a candidate who has b. 12 Senators
not only been proclaimed and sworn in, but has c. 12 Members of the HOR
also assumed office.
(2) Rule on Proportional
Election Contest Representation
One where a defeated candidate challenges The 12 Senators and 12 Representatives are
the qualification and claims for himself the seat elected on the basis of proportional
of a proclaimed winner. representation from the political parties and
party-list organizations.
Independence of the Electoral Tribunals
Since the ET’s are independent constitutional The HOR has authority to change its
bodies, independent even of the respective representation in the Commission on
House, neither Congress nor the Courts may Appointments to reflect at any time the
interfere with procedural matters relating to the changes that may transpire in the political
functions of the ET’s [Macalintal v. Presidential alignments of its membership. It is understood
Electoral Tribunal, G.R. No. 191618 (2010)]. that such changes in membership must be
permanent [Daza v. Singson, G.R. No. 86344
(1989)].
Page 68 of 412
By requiring proportional representation in the Congress cannot require that the appointment
Commission on Appointments, Sec. 18 in effect of a person to an office created by law shall be
works as a check on the majority party in the subject to CA confirmation [Calderon v. Carale,
Senate and helps to maintain the balance of G.R. No. 91636 (1992)].
power. No party can claim more than what it is
entitled to under such rule [Guingona, Jr. v. Appointments extended by the President to the
Gonzales, G.R. No. 106971 (1993)]. above-mentioned positions while Congress is
not in session (ad-interim appointments) shall
(3) Nature only be effective:
The Commission on Appointments shall be a. Until disapproval by the Commission on
constituted within 30 days after the Senate and Appointments; or
the House of Representatives shall have been b. Until the next adjournment of Congress.
organized with the election of the President and
the Speaker [Section 19, Article VI, 1987 K. Initiative and referendum
Constitution].
It is NOT mandatory to elect 12 Senators to the 1. Initiative

Commission before it can discharge its
functions. What the Constitution requires is at a. Local Initiative; Voter Requirements
least a majority of the membership [Guingona Region Not less than x
v. Gonzales, G.R. No. 106971 (1992)]. registered voters
It shall act on all appointments within 30 Autonomous 2000
session days from their submission to regions
Congress and shall rule by a majority vote of all
its members. Provinces 1000
The power to approve or disapprove

appointments is conferred on the CA as a body Municipalities 100
and not on the individual members [Pacete v.
Secretary of the Commission on Appointments, Barangays 50
G.R. No. L-25895 (1971)].
(4) Jurisdiction
The Commission shall confirm the b. Where to File
appointments by the President with respect to Regional Assembly or local legislative body, as
the following positions: the case may be [Section 13, R.A. No. 6735].
● Heads of Executive departments
(except if it is the Vice-President who is c. Limitations on local initiative
appointed to a cabinet position, as this Cannot be exercised more than once a year;
does not need confirmation); extends only to subjects or matters which are
● Ambassadors, other public ministers or within the legal powers of the local legislative
consuls; bodies to enact; and if at any time before the
● Officers of the AFP from the rank of initiative is held, the local legislative body
Colonel or Naval Captain; should adopt in toto the proposition presented,
● Other officers whose appointments are the initiative shall be canceled [Section 15, R.A.
vested in him by the Constitution (e.g. No. 6735].
Regular Members of the Judicial and
Bar Council; Chairman and 2. Referendum
Commissioners of the Civil Service This refers to the power of the electorate to
Commission, Commission on approve or reject legislation through an election
Elections, and the Commission on called for that purpose [Section 3(c), R.A. No.
Audit; Members of the Regional and 6735].
Consultative Commissions);
[Sarmiento v. Mison, G.R. No. 79974
(1987)].
Page 69 of 412
a. Classes of Referendum
(1) Referendum on statutes: Petition
to approve or reject an act or law, or
part thereof, passed by Congress;
(2) Referendum on local laws: Legal
process whereby the registered voters
of the LGUs may approve, amend, or
reject any ordinance enacted by the
Sanggunian [Section 126, LGC].
b. Is the power to hold a referendum

plenary? NO.
Limitations:
1. No petition embracing more than one
subject shall be submitted to the
electorate; and
2. Statutes involving emergency
measures, the enactment of which is
specifically vested in Congress by the
Constitution, cannot be subject to
referendum until 90 days after their
effectivity [Section 10, R.A. No. 6735].
Page 70 of 412
IV. EXECUTIVE rendered functus officio [Pimentel, Jr. v. Joint

Committee of Congress, G.R. No. 163783
DEPARTMENT (2004)].
A. Qualifications, Election, and 4. The Supreme Court as Presidential

Electoral Tribunal
Term of the President and The Supreme Court, sitting en banc, shall be
Vice-President the sole judge of all contests relating to the
election, returns and qualifications of the
1. Qualifications President or Vice-President, and may
a. Natural-born citizen of the Philippines; promulgate its rules for the purpose.
b. A registered voter;
c. Able to read and write; 5. Term of Office
d. At least 40 years of age on the day of the 6 years, which shall begin at noon on the 30th
election; and day of June next following the day of the
e. A resident of the Philippines for at least 10 election and shall end at noon of the same day
years immediately preceding such election 6 years thereafter [Section 4, Article VII, 1987
[Section 2, Article VII, 1987 Constitution]. Constitution].
2. Election Note:
a. Regular Election: Second Monday of May ● The President is not eligible for any
b. National Board of Canvassers reelection.
(President and Vice-President): ● No person who has succeeded as
Congress President and has served as such for
i. Returns shall be transmitted to more than four years shall be qualified
Congress, directed to the Senate for election to the same office at any
President time [Section 4, Article VII, 1987
ii. Joint public session: not later than 30 Constitution].
days after election date; returns to be ○ “Succeeded as President” —
opened in the presence of the refers to Vice President as
Senate and HOR in joint session automatic successor or elected
c. Congress, upon determination of the President by virtue of special
authenticity and due execution, shall election, and serves the
canvass the votes unexpired term; ineligible to run
d. Person having the highest number of votes for President if he has served
shall be proclaimed elected for more than four years
e. In case of tie, one will be chosen by the
vote of majority of all the Members of both The Acting President is not included. So even
Houses of Congress, voting separately if he served for more than 4 years, he can be
elected as the President.
3. Jurisprudence on Canvassing
Congress may validly delegate the initial B. Privileges, Inhibitions, and
determination of the authenticity and due Disqualifications
execution of the certificates of canvass to a
Joint Congressional Committee, composed of
members of both houses [Lopez v. Senate,
1. Official residence
The president shall have an official residence
G.R. No. 163556 (2004)].
[Section 6, Article VII, 1987 Constitution].
Even after Congress has adjourned its regular
session, it may continue to perform this 2. Salary
constitutional duty of canvassing the This shall be determined by law. It shall not be
presidential and vice-presidential election decreased during tenure. No increase shall
results without need of any call for a special take effect until after the expiration of the term
session by the President. Only when the board of the incumbent during which such increase
of canvassers has completed its functions is it was approved [Section 6, Article VII, 1987
Constitution].
Page 71 of 412
3. Presidential Immunity 5. The Vice-President
The President as such cannot be sued, Qualifications, election and term of office and
enjoying as he does immunity from suit. But the removal are the same as the President, except
validity of his acts can be tested by an action that no Vice-President shall serve for more
against other executive officials [Carillo v. than 2 successive terms.
Marcos, G.R. No. L-21015 (1981)].
The Vice-President may be appointed as a
a. May be invoked only by the President member of the Cabinet; such requires no
Immunity from suit pertains to the President by confirmation by the Commission of
virtue of the office and may be invoked only by Appointments.
the holder of the office; not by any other person
in the President's behalf. The President may 6. Prohibitions on the Executive
waive the protection afforded by the privilege Department
and submit to the court's jurisdiction [Soliven v. The following prohibitions apply to:
Makasiar, G.R. No. 82585 (1988); Beltran v. a. President
Makasiar, G.R. No. 82827(1988)]. b. Vice-President,
c. The members of the Cabinet, and their
But presidential decisions may be questioned deputies or assistants
before the courts where there is grave abuse of
discretion or that the President acted without or 7. Prohibited Acts
in excess of jurisdiction [Gloria v. CA, G.R. No. a. Shall not receive any other emoluments
119903 (2000)]. from the government or any other source
[For President and Vice-President, Section
b. Limitations 6, Article VII, 1987 Constitution].
Immunity coextensive with tenure and covers b. Unless otherwise provided in the
only official duties. After tenure, the Chief Constitution, shall not hold any other office
Executive cannot invoke immunity from suit for or employment [Section 13, Article VII,
civil damages arising out of acts done by him 1987 Constitution].
while he was President which were not
performed in the exercise of official duties Exceptions
[Estrada v. Desierto, G.R. Nos. 146710-15 i. The prohibition does not include posts
(2001)]. occupied by executive officials without
additional compensation in an ex officio
This presidential privilege of immunity cannot capacity, as provided by law or as required
be invoked by a non-sitting president even for by the primary functions of the said official’s
acts committed during his or her tenure [Saez office [National Amnesty Commission v.
v. Macapagal-Arroyo, G.R. No. 183533 COA, G.R. No. 156982 (2004)].
(2012)]. ii. The Vice-President being appointed as a
member of the cabinet.
Exception: The president may be sued if the iii. The Vice-President acting as president
act is one not arising from official conduct [See when one has not yet been chosen or
Estrada v. Desierto, supra]. qualified [Section 7(2) & (3), Article VII, 1987
Constitution].
4. Presidential Privilege iv. The Secretary of Justice sitting as ex
It is "the right of the President and high-level officio member of the Judicial and Bar
executive branch officers to withhold Council [Section 8(1), Article VIII, 1987
information from Congress, the courts, and Constitution; Civil Liberties Union v.
ultimately the public" [Rozell]. Executive Secretary, supra].
Note: Case law uses the term presidential c. Shall not directly or indirectly:
privilege to refer to either (a) immunity from suit 1. Practice any other profession;
(i.e. immunity from judicial processes, see Neri 2. Participate in any business; or
v. Senate, infra, and Saez v. Macapagal- 3. Be financially interested in any contract
Arroyo, supra); or (b) executive privilege with, or in any franchise or special
[Akbayan v. Aquino, infra]. privilege granted by the government or
any subdivision, agency, or
Page 72 of 412
instrumentality thereof, including c. Exceptions to the rule prohibiting
government-owned or controlled executive officials from holding
corporations or their subsidiaries additional positions
[Section 13, Article VII, 1987
Constitution]. 1. President
d. Strictly avoid conflict of interest in the The President can assume any or all Cabinet
conduct of their office [Section 13, Article posts because the departments are mere
VII, 1987 Constitution]. extensions of his personality, according to the
e. May not appoint (a) spouse; or (b) relatives Doctrine of Qualified Political Agency. Hence,
by consanguinity or affinity within the fourth no objection can be validly raised based on
civil degree as members of Constitutional Section 13, Article VII.
Commissions, or the Office of the
Ombudsman, or as Secretaries, The President can assume ex officio positions
Undersecretaries, chairmen or heads of (e.g. The President is the Chairman of NEDA)
bureaus or offices, including government [Section 9, Article XII, 1987 Constitution].
owned or controlled corporation and their
subsidiaries. 2. Vice-President: The Vice-President
may be appointed as a member of the
a. Prohibitions Cabinet. Such appointment requires no
OEPBCF - "Only Eccentric People Believe confirmation [Section 3, Article VII,
Cockatoos Find Soulmates" 1987 Constitution].
a. Hold any other office or employment 3. Cabinet

b. Practice any other profession The Constitution allows a Cabinet member to
c. Participate in any business hold another office provided:
d. Be financially interested in any contract with, i. It is in an ex-officio capacity and
or in any franchise, or special privilege granted without additional compensation;
by the Government or any of its subdivision, ii. Such is necessitated by the
agency, or instrumentality primary functions of his position
(e.g. Secretary of Trade and
b. President’s spouse and relatives Industry as Chairman of NDC;
President's spouse and relatives by Secretary of Agrarian Reform as
consanguinity or affinity within the fourth civil Chairman of the Land Bank); and
degree cannot be appointed during his tenure iii. Such is allowed by law [Civil
as: (COSUCH) Liberties Union v. Executive
a. Members of the Constitutional Commissions Secretary, supra].
b. Members of the Office of the Ombudsman
c. Secretaries, Undersecretaries, Chairmen or Note: Section 7, Article IX-B is the general rule
Heads of bureaus or offices (including GOCCs for appointed officials. It is not an exception to
and subsidiaries) Section 13, Article VII, which is a specific rule
for members of the Cabinet, their deputies and
The stricter prohibition applied to the President assistants inter alia [See Civil Liberties Union
and his official family under Article VII, Section v. Executive Secretary, supra].
13, as compared to the prohibition applicable
to appointive officials in general under Article De facto officer doctrine: In cases where
IX-B, Section 7, par. 2, is proof of the intent of there is no de jure officer, a de facto officer,
the 1987 Constitution to treat them as a class who in good faith has had possession of the
by itself and to impose upon said class stricter office and has discharged the duties pertaining
prohibitions [Civil Liberties Union v. Executive thereto, is legally entitled to the emoluments of
Secretary, G.R. No. 83896 (1991)]. the office, and may in an appropriate action to
recover the salary, fees and other
compensations attached to the office [Funa v.
Agra, G.R. No. 191644 (2013)].
A de facto officer’s acts enjoy the presumption

of regularity and are valid as far as the public
Page 73 of 412
or 3rd parties are concerned [Espiritu v. del b. Suspension of the privilege of
Rosario, G.R. No. 204964 (2014)]. the Writ of Habeas Corpus: Only
(i) in times of rebellion or invasion;
C. Powers of the President and (ii) when required by public
safety
c. Martial law: Does not suspend the
General Executive and Administrative
Constitution
Powers 6. Power of Legislation
a. Veto Power
a. Executive Power b. Power to Declare Emergency:
This refers to the President’s power to enforce, The President only has the power
implement, and administer laws. The President to declare a state of emergency.
shall ensure that the laws be faithfully executed The exercise of emergency power
[Section 17, Article VII, 1987 Constitution]. is vested in Congress, but may be
delegated by it to the President.
The President’s power to conduct c. Integrative Power: Powers shared
investigations to aid him in ensuring the faithful with legislative (e.g. appointments
execution of laws is inherent in the President’s requiring confirmation, rule-
powers as the Chief Executive. The purpose of making); legislation during times of
allowing ad hoc investigating bodies to exist is emergency
to allow an inquiry into matters which the 7. Diplomatic Powers: Includes the
President is entitled to know so that he can be power to enter into treaties
properly advised and guided in the 8. Residual Power: To protect the
performance of his duties relative to the general welfare of people; founded on
execution and enforcement of the laws of the duty of President as steward of the
land [Biraogo v. Philippine Truth Commission, people; includes powers unrelated to
G.R. Nos. 192935-36 (2010)]. execution of any provision of law [See
Marcos v. Manglapus, G.R. No. 88211
b. Summary of Presidential Powers (1989)]
9. Other Powers
1. Executive Power: This is the power to i. Power to Pardon: Reprieve,
enforce and administer laws. commute, pardon, remit fines and
2. Power of Appointment: The forfeitures after final judgment
Legislative can create office, but only [Section 19(1), Article VII, 1987
the Executive can fill it; Congress Constitution]
cannot circumvent this by setting very ii. Power to Grant Amnesty: With
narrow qualifications, such that only concurrence of majority of all
one person is qualified to hold office members of Congress
[Flores v. Drilon, G.R. No. 104732 iii. Borrowing Power: Contract or
(1993)]. guarantee foreign loans with
3. Power of Control: The President may concurrence of Monetary Board
(a) nullify, modify judgments of [Section 20, Article VII, 1987
subordinates [See Section 17, Article Constitution]
VII, 1987 Constitution]; (b) undo or redo iv. Budgetary Power: Submit to
actions of subordinates; and (c) lay Congress budget of bills and
down rules for the performance of expenditures [Section 22, Article
subordinates’ duties. VII, 1987 Constitution]
4. Power of Supervision: This refers to 10. Informing Power: Address Congress
the oversight function. The Executive during opening of session, or at any
must see to it that rules, which it did not other time [Section 23, Article VII, 1987
make, are followed. Constitution]
5. Commander-in-Chief Powers
[Section 18, Article VII, 1987 Note: The presidential power of control over the
Constitution]: Executive Branch of Government is a self-
a. Call Out Power: Armed forces to executing provision of the Constitution and
suppress lawless violence does not require statutory implementation, nor
Page 74 of 412
may its exercise be limited, much less President, G.R. No. 203372
withdrawn, by the Legislature [Ocampo v. (2015)].
Enriquez, G.R. No. 225973 (2016)]. 5. Four Groups of Officers whom the
President may appoint:
1. Power of Appointment i. With Consent of the
Commission on Appointments:
a. In General ● Heads of the executive
departments
SECTION 16, ARTICLE VII. The President shall
nominate and, with the consent of the Commission
● Ambassadors, other public
on Appointments, appoint the heads of the executive ministers and consuls
departments, ambassadors, other public ministers ● Officers of the armed
and consuls, or officers of the armed forces from the forces from the rank of
rank of colonel or naval captain, and other officers colonel or naval captain
whose appointments are vested in him in this ● Other officers whose
Constitution. He shall also appoint all other officers
of the Government whose appointments are not
appointments are vested in
otherwise provided for by law, and those whom he him by the Constitution:
may be authorized by law to appoint. The Congress ● Regular Members of the
may, by law, vest the appointment of other officers JBC (ex-officio members
lower in rank in the President alone, in the courts, or do not need the
in the heads of departments, agencies, confirmation of the CA)
commissions, or boards.
● Chairman and
Commissioners of the
1. Appointment: Selection by the proper CSC, COMELEC, and
authority of an individual who is to COA.
exercise the powers and functions of a ● Members of the Regional
given office. Appointee has a right to and Consultative
claim compensation as stated in the Commissions
appointment. ii. All other officers of the
2. Designation: Imposition of additional government whose
duties, usually by law, upon a person appointments are not
already in the public service by virtue of otherwise provided by law;
an earlier appointment. Does not entail iii. Those whom the President
payment of additional benefits or grants may be authorized by law to
upon the person so designated appoint (e.g. Chairman and
[National Amnesty Commission v. Members of the Commission
COA, G.R. No. 156982 (2004)] on Human Rights [Bautista v.
3. Commission: Written evidence of the Salonga, G.R. No. 86439
appointment (1989)]); and
4. Elements of a valid appointment: iv. Officers lower in rank whose
i. Authority to appoint and appointments Congress may
evidence of the exercise of by law vest in the President
authority; alone [Sarmiento III v. Mison,
ii. Transmittal of the appointment G.R. No. 79974 (1987)]
paper and evidence of the
transmittal (preferably through Consent of the Commission on Appointments
the Malacañang Records is not required for 2, 3, and 4 as these are not
Office); positions whose appointments are granted by
iii. Vacant position at the time of the Constitution
appointment;
iv. Receipt of the appointment Note: Appointments to the Philippine Coast
papers and acceptance of the Guard, which is no longer under the AFP, need
appointment by the appointee not undergo confirmation [Soriano v. Lista,
who possesses all G.R. No. 153881 (2003)].
qualifications and none of the
disqualifications [Velicaria- The Philippine National Police (PNP) [Section
Garafil v. Office of the 6, Article XVI, 1987 Constitution] is separate
Page 75 of 412
and distinct from the Armed Forces of the military) [Section 9, Article XI,
Philippines (AFP) [Section 4, Article XVI, 1987 1987 Constitution]
Constitution]. The police force is different from 8. Clustering
and independent of the armed forces and that In Aguinaldo v. Aquino [G.R. No. 224302
the ranks in the military are not similar to those (2017)], the Court ruled that clustering
in the PNP. Thus, directors and chief impinged upon the President’s appointment
superintendents of the PNO do not fall under power in appointing the Associate Justices in
the first category of presidential appointees the Sandiganbayan.
requiring confirmation by the COA [Manalo v.
Sistoza, G.R. No. 107369 (1999)]. The President’s option for every vacancy was
limited to the 5 to 7 nominees in each cluster.
Note: “Congress may by law vest in the Once the President chose an appointee from
appointment of other officers lower in rank in one cluster, he was proscribed from
the President alone.” considering other nominees in the same cluster
● The inclusion of the word “alone” was for the other vacancies. All the nominees
an oversight. The Constitution should applied for and were qualified for appointment
read: “The Congress may, by law, vest to any of the vacant Associate Justice positions
the appointment of other officers lower in the Sandiganbayan, however, the JBC did
in rank in the President” [Sarmiento v. not explain why one nominee should be
Mison, supra] considered for appointment to the position
6. Other cases where confirmation is assigned to one specific cluster only.
not required:
i. When Congress creates The nominees' chance for appointment was
inferior officers but omits to restricted to the consideration of the one cluster
provide for appointment in which they were included, even though they
thereto, or provides in an applied for and were qualified for all vacancies.
unconstitutional manner for
such appointments Clustering is valid only when:
ii. Appointment of the Vice- a. There are multiple vacancies;
President as member of the b. Vacancies refer to the same position;
Cabinet [Section 3, Article VII, c. Vacancies occur at the same time.
1987 Constitution]
iii. Appointments upon 9. Steps in the appointing process:
recommendation of the Judicial
Bar Council
Nomination by the President
iv. Appointments solely by the
President. ↓
7. Appointments upon
recommendation of the Judicial and Confirmation by the Commission on
Bar Council (does not require Appointments
confirmation by the Commission on
Appointments) ↓
i. Members of the Supreme Court Issuance of the Commission
and all other courts [Section 9,
Article VIII, 1987 Constitution] ↓
Note: The appointment must be made 90 days Acceptance by the Appointee

from when the vacancy occurs [Section 4(1),
Article VIII, 1987 Constitution] Note: In the case of ad interim appointments,
steps 1, 3 and 4 precede step 2.
For lower courts, appointments shall be issued
within 90 days from submission of the list. An appointment is deemed complete only upon
acceptance [Lacson v. Romero, G.R. No. L-
ii. Ombudsman and his 5 3081 (1949)].
deputies (for Luzon, Visayas,
Mindanao, general and
Page 76 of 412
Appointment is essentially a discretionary appointments to the Constitutional
power, the only condition being that the Commissions (e.g. COMELEC) are
appointee, if issued a permanent appointment, permanent as these take effect
should possess the minimum qualification immediately and can no longer be
requirements, including the Civil Service withdrawn by the President once the
eligibility prescribed by law for the position. appointee has qualified into office. The
Discretion also includes the determination of fact that it is subject to the confirmation
the nature or character of the appointment. of the CA does not alter its permanent
character [Matibag v. Benipayo, G.R.
b. Confirmation and By-Passed No. 149036 (2002)].
Appointments
Acting/Temporary Appointment
Types of Appointment Can be withdrawn or revoked at the pleasure
● Regular of the appointing power. The appointee does
● Recess (Ad Interim) not enjoy security of tenure.
Two Kinds of Appointments Requiring Note: The President cannot designate an

Confirmation: acting chair in a Constitutional Commission (in
1. Regular: If the CA (Congress) is in order to preserve the latter’s independence).
session; and However, he may designate an ad interim
2. Ad Interim: during the recess of appointee as chair in the Constitutional
Congress (because the CA shall meet Commission [See Brillantes v. Yorac, G.R. No.
only while Congress is in session) 93867 (1990)].
[Section 19, Article VI, 1987
Constitution] Appointments in Ad Interim
Acting Capacities Appointments
Regular Appointment
1. Made by the President while Congress Valid upon acceptance
is in session
2. Takes effect only after confirmation by
the Commission on Appointments (CA) Temporary (cannot Permanent
3. Once approved, continues until the end exceed one year)
of the term.
Made any time there Made when
Note: The mere filing of a motion for is a vacancy Congress is not in
reconsideration of the confirmation of an session
appointment cannot have the effect of recalling
or setting aside said appointment The Does not required Requires CA
Constitution is clear — there must be a CA confirmation confirmation
rejection by the Commission on Appointments
or non-action on its part for the confirmation to 2. Temporary Designations
be recalled. The President may designate an officer already
in the gov’t service or any other competent
c. Midnight and Ad Interim person to perform the functions of any office in
Appointments the executive branch, appointment to which is
vested in him by law, when:
1. Ad Interim Appointment a. The officer regularly appointed to the
a. Made by the President while Congress office is unable to perform his duties by
is not in session reason of illness, absence or any other
b. Takes effect immediately, BUT ceases cause; or
to be valid (1) if disapproved by the CA b. There exists a vacancy.
or (2) upon the next adjournment of
Congress [Section 16(2), Article VII, In no case shall a temporary designation
1987 Constitution]. exceed 1 year [Section 17, Book III, Admin
c. Ad Interim appointments are Code of 1987].
permanent appointments. Ad Interim
Page 77 of 412
Congress cannot impose on the President the new president being elected], doubly
obligation to appoint an Undersecretary as [the careful and prudent in making the
President’s] Acting Secretary. The President selection, so as not to defeat the
shall have the freedom to choose who shall be policies of the incoming administration.
his temporary alter ego [Pimentel v. Ermita, Hence, the issuance of 350
G.R. No. 164978 (2005)]. appointments in one night and planned
induction of almost all of them a few
Limitations on the Exercise hours before the inauguration of the
a. Section 13(2), Article VII, 1987 new President may be regarded as
Constitution: The spouse and abuse of presidential prerogatives
relatives by consanguinity or affinity [Aytona v. Castillo, G.R. No. L-19313
within the 4th civil degree of the (1962)]. It must be shown that there is
President shall not, during his “tenure”, regard for the fitness of appointees and
be appointed as: the filling up must be few and so
i. Members of the Constitutional spaced which indicates there was a
Commissions; deliberate action taken by the
ii. Member of the Office of the appointing power.
Ombudsman; e. Applies only to the President: Ban
iii. Secretaries; does not extend to appointments made
iv. Undersecretaries; by local elective officials. There is no
v. Chairman or heads of bureaus law that prohibits local elective officials
or offices, including GOCCs from making appointments during the
and their subsidiaries. last day of his/her tenure [De Rama v.
b. Recess (Ad Interim) appointments: CA, G.R. No. 131136 (2001)].
The President shall have the power to f. Appointing power of the Acting
make appointments during the recess President
of the Congress, whether voluntary or i. Appointments extended by an
compulsory, but such appointments Acting President shall remain
shall be effective only until disapproval effective unless revoked by the
by the Commission on Appointments or elected President within 90
until the next adjournment of the days from his assumption or re-
Congress [Section 16(2), Article VII, assumption of office [Section
1987 Constitution]. 14, Article VII, 1987
Constitution].
3. Rule on Midnight Appointments Ban ii. Midnight appointments ban
a. General Rule: 2 months immediately applies to the acting President.
before the next presidential elections
(2nd Monday of March), and up to the 2. Power of removal
end of his “term” (June 30), a President
(or Acting President) shall not make General Rule: The power of removal may be
appointments [Section 15, Article VII, implied from the power of appointment.
1987 Constitution].
b. Exception: Temporary appointments Exception: The President cannot remove
to executive positions, when continued officials appointed by him where the
vacancies will: (1) Prejudice public Constitution prescribes certain methods for
service; or (2) endanger public safety. separation of such officers from public service,
c. Limited to Executive Departments: e.g. Chairman and Commissioners of
The prohibition against midnight Constitutional Commissions who can be
appointment applies only to positions in removed only by impeachment, or judges who
the executive department [De Castro v. are subject to the disciplinary authority of the
JBC, G.R. No. 91002 (2010)]. Supreme Court.
d. Limited to Caretaker Capacity: While
“midnight appointments” (i.e. made by Career Civil Service: Members of the career
outgoing President near the end of his civil service who are appointed by the
term) are not illegal, they should be President may be directly disciplined by him
made in the capacity of a “caretaker” [a [Villaluz v. Zaldivar, G.R. No. L-22754 (1964)].
Page 78 of 412
Serve at the pleasure of the President: Note: The President's power of control only
Cabinet members and such officers whose extends to administrative functions. If it is
continuity in office depends upon the pleasure performing quasi-judicial functions, the Office
of the president may be replaced at any time, of the President has no jurisdiction [See Cruz
but legally speaking, their separation is v. Sec of Environment & Natural Resources,
effected not by removal but by expiration of G.R. No. 135385 (2000)].
their term of the appointee.
1. Doctrine of Qualified Political
D. Power of Control and Agency
Supervision
All the different executive and administrative
SECTION 17, ARTICLE VII. The President shall organizations are mere adjuncts of the
have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws
Executive Department. This is an adjunct of the
be faithfully executed. Doctrine of One Executive.
The heads of the various executive

Control is essentially the power to (1) alter or departments are assistants and agents of the
modify or nullify or set aside what a subordinate Chief Executive [Villena v. Secretary of Interior,
officer had done in the performance of his G.R. No. L-45670 (1939)]. In the regular course
duties; and to (2) substitute the judgment of the of business, acts of executive departments,
former with that of the latter [Biraogo v. unless disapproved or reprobated by the Chief
Philippine Truth Commission, G.R. No. 192935 Executive, are presumptively acts of the Chief
(2010)]. Executive [Free Telephone Workers Union v.
Minister of Labor and Employment, G.R. No. L-
The power of control includes: 581184 (1981)].
• Acting directly whenever a specific
function is entrusted by law or There is a special class of powers which the
regulation to a subordinate President cannot delegate (e.g. declaration of
• Directing the performance of a duty martial law, suspension of the privilege of the
• Restraining the commission of certain writ of habeas corpus, executive clemency,
acts among others). However, the power of review
• Reviewing, approving, reversing, does not fall under these exceptional
modifying acts and decisions of circumstances. Thus, the President can
subordinate officials or units choose not to review the decision of the DOJ
• Determining priorities in the execution and delegate such power to the Secretary by
of plans and programs virtue of the Qualified Agency Doctrine
• Prescribing guidelines, plans and [Angeles v. Gaite, G.R. 165276 (2009)].
programs
• Reorganization (transfer of unit, 2. Executive Departments and
transfer of functions, abolish, Offices
consolidate, or merge units)
General Rule
Supervision is the overseeing or the power of The multifarious executive and administrative
the officer to see that subordinate officers functions of the Chief Executive are performed
perform their duties, and if the latter fail or by and through the executive departments.
neglect to fulfill them, then the former may take
such action or steps as prescribed by law to Exceptions
make them perform these duties. This does not a. Cases where the Chief Executive is
include the power to overrule their acts, if these required by the Constitution or by law
acts are within their discretion. In relation to to act in person; or
local government units (LGUs), supervision b. The exigencies of the situation demand
includes the authority to ensure that LGUs are that he acts personally.
operating and acting in accordance with law
and not ultra vires. The President may, by executive or
administrative order, direct the reorganization
of government entities under the Executive
Page 79 of 412
Department. This is also sanctioned under the The President shall exercise general
Constitution, as well as the Admin Code. This supervision over autonomous regions to
recognizes the recurring need of every ensure that laws are faithfully executed
President to reorganize his or her office "to [Section 16, Article X, 1987 Constitution].
achieve simplicity, economy and efficiency," in
the manner the Chief Executive deems fit to The President may suspend or remove local
carry out presidential directives and policies officials by virtue of the power delegated to him
[Tondo Medical Employees v. CA, G.R. No. by Congress through the Local Government
167324 (2007)]. Code. The Constitution also places local
governments under the general supervision of
Power to Abolish Offices the President, and also allows Congress to
Generally, the power to abolish a public office include in the local government code provisions
is legislative. However, as far as bureaus, for removal of local officials [Section 3, Article
offices or agencies of the executive department X, 1987 Constitution; See also Ganzon v. CA,
are concerned, power of control may justify him G.R. No. 93252 (1991)].
to inactive functions of a particular office
[Buklod ng Kawaning EIIB v. Zamora, G.R. No. E. Emergency Powers
142801-802 (2001)].
1. Emergency Powers
In establishing an executive department, Delegated by the Congress. It covers such
bureau, or office, the legislature necessarily power necessary to carry out a declared
ordains an executive agency's position in the national policy of Congress.
scheme of administrative structure. Such
determination is primary, but subject to the 2. Nature of Grant
President's continuing authority to reorganize Generally, Congress is the repository of
the administrative structure [Anak Mindanao v. emergency powers. This is evident in the tenor
Executive Secretary, G.R. No. 166052 (2007)]. of Section 23 (2), Article VI authorizing it to
delegate such powers to the President.
Note: A distinction is made between the Office Certainly, a body cannot delegate a power not
of the President Proper and the Office of the reposed upon it.
President.
a. Limited period — Ceases upon
Office of the Office of the withdrawal by Congress through a
President Proper President resolution, or failing to adopt it upon
next voluntary adjournment.
The President has Power of the b. Subject to restrictions from Congress.
the power to abolish, President to [See Rodriguez v. Gella, G.R. No. L-6266
consolidate, merge reorganize is limited (1953) on the Nature of Emergency Power]
units of the Office of to merely
the President transferring 3. Requisites of Grant of Emergency
Proper. functions. This refers Powers
to outside the Office a. There must be a war or other
of the President emergency;
Proper but still within b. The delegation must be for a limited
the Office of the period only;
President. c. The delegation must be subject to such
restrictions as the Congress may
[Pichay v. Office of the Deputy Executive prescribe; and
Secretary, G.R. No. 196425 (2012)]. d. The emergency powers must be
exercised to carry out a national policy
3. Local Government Units declared by Congress.
The President shall exercise general 4. Concept of Emergency
supervision over local governments [Section 4, Emergency, as a generic term, connotes the
Article X, 1987 Constitution]. existence of conditions suddenly intensifying
the degree of existing danger to life or
Page 80 of 412
wellbeing beyond that which is accepted as
normal. Implicit in these definitions are the The Congress, if not in session, shall, within twenty-
elements of intensity, variety, and perception. four hours following such proclamation or
Emergencies, as perceived by legislature or suspension, convene in accordance with its rules
executive in the United States have been without any need of a call.
occasioned by a wide range of situations,
The Supreme Court may review, in an appropriate
classifiable under three principal heads: (a) proceeding filed by any citizen, the sufficiency of the
economic, (b) natural disaster, and (c) national factual basis of the proclamation of martial law or the
security. Emergency as contemplated in the suspension of the privilege of the writ or the
1987 Constitution, is of the same breadth. It extension thereof, and must promulgate its decision
may include rebellion, economic crisis, thereon within thirty days from its filing.
pestilence or epidemic, typhoon, flood, or other
A state of martial law does not suspend the
similar catastrophe of nationwide proportions operation of the Constitution, nor supplant the
or effect. functioning of the civil courts or legislative
assemblies, nor authorize the conferment of
In David v. Macapagal-Arroyo [G.R. No. jurisdiction on military courts and agencies over
171396 (2006)], the Court made it clear that civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
Presidential Proclamation 1017 (Declaring a
State of National Emergency) was woven out The suspension of the privilege of the writ shall apply
of the “calling out” and “take care” powers of only to persons judicially charged for rebellion or
the President joined with the “temporary offenses inherent in or directly connected with the
takeover” provision under Section 17, Article invasion.
XII. PP1017 purports to grant the President,
During the suspension of the privilege of the writ, any
without delegation from Congress, to take over
person thus arrested or detained shall be judicially
or direct operation of any privately-owned charged within three days, otherwise he shall be
public utility or business affected with public released.
interest.
The President may declare the existence of a Commander-in-Chief Powers

state of national emergency without The President is the commander-in-chief of all
Congressional enactment however the armed forces of the Philippines. The ability of
exercise of emergency powers requires a the President to require a military official to
delegation from Congress which is the secure prior consent before appearing before
repository of emergency powers. Congress pertains to a wholly different and
independent species of presidential authority
— the commander-in-chief powers of the
F. Military powers President. By tradition and jurisprudence, the
SECTION 18, ARTICLE VII. The President shall be commander-in-chief powers of the President
the Commander-in-Chief of all armed forces of the are not encumbered by the same degree of
Philippines and whenever it becomes necessary, he restriction as that which may attach to
may call out such armed forces to prevent or
executive privilege or executive control.
suppress lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty Graduated Powers (From most to least
days, suspend the privilege of the writ of habeas benign)
corpus or place the Philippines or any part thereof a. Calling out power: He may call out
under martial law. Within forty-eight hours from the such armed forces to prevent or
proclamation of martial law or the suspension of the
suppress lawless violence, invasion, or
privilege of the writ of habeas corpus, the President
shall submit a report in person or in writing to the rebellion.
Congress. The Congress, voting jointly, by a vote of b. Power to suspend PWHC: He may
at least a majority of all its Members in regular or suspend the privilege of the writ of
special session, may revoke such proclamation or habeas corpus.
suspension, which revocation shall not be set aside c. Power to declare ML: He may
by the President. Upon the initiative of the President,
proclaim martial law over the entire
the Congress may, in the same manner, extend
such proclamation or suspension for a period to be Philippines or any part thereof
determined by the Congress, if the invasion or [Sanlakas v. Executive Secretary, G.R.
rebellion shall persist and public safety requires it. No. 159085 (2004)].
Page 81 of 412
Two conditions for exercise of the latter two court commanding a detaining officer to inform
powers:, the court:
1. An actual invasion or rebellion, AND 1. If he has the person in custody; and
2. Public safety requires the exercise of 2. His basis for detaining that person
such power.
Effects of the Suspension of the Privilege:
These conditions are not required in the a. The suspension of the privilege of the
exercise of the calling out power. The only writ applies only to persons “judicially
criterion is that ‘whenever it becomes charged” (should be read as one who
necessary,’ the President may call the armed is suspected of complicity in) for
forces ‘to prevent or suppress lawless violence, rebellion or offenses inherent in or
invasion or rebellion.’ [Sanlakas v. Executive directly connected with invasion
Secretary, supra] [Section 18, par. 5, Article VII, 1987
Constitution].
Outside explicit constitutional limitations, the i. Such persons suspected of the
commander-in-chief clause vests in the above can be arrested and
President, as commander-in-chief, absolute detained without warrant of
authority over the persons and actions of the arrest.
members of the armed forces. Such authority ii. The suspension of the privilege
includes the ability of the President to restrict does not make the arrest
the travel, movement and speech of military without warrant legal. But the
officers, activities which may otherwise be military is, in effect, enabled to
sanctioned under civilian law [Gudani v. Senga, make the arrest anyway since,
G.R. No. 170165 (2006)]. with the suspension of the
privilege, there is no remedy
1. Calling Out Powers available against such unlawful
This is merely a police measure meant to quell arrest (arbitrary detention).
disorder. As such, the Constitution does not iii. The arrest without warrant is
regulate its exercise radically. justified by the emergency
situation and the difficulty in
a. State of Rebellion applying for a warrant
Since the Constitution did not define the term considering the time and the
"rebellion," it must be understood to have the number of persons to be
same meaning as the crime of "rebellion" in the arrested.
Revised Penal Code (RPC). iv. The crime for which he is
In determining the existence of rebellion, the arrested must be one related to
President only needs to convince himself that rebellion or invasion. As to
there is probable cause or evidence showing others, the suspension of the
that more likely than not a rebellion was privilege does not apply.
committed or is being committed. To require b. During the suspension of the privilege
him to satisfy a higher standard of proof would of the writ, any person thus arrested or
restrict the exercise of his emergency powers detained shall be judicially charged
[Lagman v. Medialdea, G.R. No. 231658 within 3 days, or otherwise he shall be
(2017)]. released [Section 18(6), Article VII,
1987 Constitution].
b. Suspension of the Privilege of the i. The effect therefore is only to
Writ of Habeas Corpus extend the periods during
which he can be detained
Requisites for suspension of the privilege without a warrant. When the
of the writ of habeas corpus: privilege is suspended, the
1. There must be an actual invasion or period is extended to 72 hours.
rebellion; and ii. What happens if he is not
2. Public safety requires it. judicially charged nor released
after 72 hours? The public
Note that the privilege of the writ is suspended, officer becomes liable under
not the writ itself. The writ is an order from the RPC Article 125 for "delay in
Page 82 of 412
the delivery of detained restore order and enforce the law [Lagman v.
persons." Medialdea, supra].
iii. The right to bail shall not be
impaired even when the b. The following cannot be done by a
privilege of the writ of habeas proclamation of Martial Law [Section 18,
corpus is suspended. Article VII, 1987 Constitution]:
Excessive bail shall not be 1. Suspend the operation of the Constitution;
required [Section 13, Article III, 2. Supplant the functioning of the civil courts
1987 Constitution]. and legislative assemblies
3. Confer jurisdiction upon military courts and
The suspension of the privilege does not agencies over civilians, where civil courts are
destroy petitioners' right and cause of action for able to function
damages for illegal arrest and detention and Open Court Doctrine: Civilians cannot be tried
other violations of their constitutional rights by military courts if the civil courts are open and
[Aberca v. Ver, G.R. No. L-69866 (1988)]. functioning. Martial law usually contemplates a
case where the courts are already closed and
The President may exercise the power to call the civil institutions have already crumbled, i.e.
out the Armed Forces independently of the a "theater of war." [Olaguer v. Military
power to suspend the privilege of the writ of Commission No. 34, G.R. No. L-54558 (1987)].
habeas corpus and to declare martial law,
although, of course, it may also be a prelude to 4. Automatically suspend the privilege of the
a possible future exercise of the latter powers, writ of habeas corpus. The President must
as in this case [Lagman v. Medialdea, supra]. expressly suspend the privilege.
Four (4) ways for the Proclamation of c. The Role of Congress [See Section
Martial Law or the Suspension of the
18, par. 1 & 2, Article VII, 1987
Privilege of the Writ of Habeas Corpus to be
Lifted:
Constitution]
1. Lifting by the President himself 1. Congress may revoke the proclamation of
2. Revocation by Congress martial law or suspension of the privilege of the
3. Nullification by the Supreme Court writ of habeas corpus before the lapse of 60
4. Operation of law after 60 days days from the date of suspension or
proclamation.
2. Upon such proclamation or suspension,
2. Declaration of Martial Law and Congress shall convene at once. If it is not in
Suspension of the Privilege of the Writ session, it shall convene in accordance with its
of Habeas Corpus; Extension rules without need of a call within 24 hours
following the proclamation or suspension.
a. Requisites of Proclaiming Martial Law 3. Within 48 hours from the proclamation or the
1. There must be an in invasion or rebellion suspension, the President shall submit a
2. Public safety requires the proclamation of report, in person or in writing, to the Congress
martial law all over the Philippines or in any part (meeting in joint session of the action he has
thereof taken).
4. The Congress shall then vote jointly, by a
The power to declare martial law and to majority of all its members. It has two options:
suspend the privilege of the writ of habeas a. To revoke such proclamation or
corpus involve curtailment and suppression of suspension. When it is so revoked, the
civil rights and individual freedom. Thus, the President cannot set aside (or veto) the
declaration of martial law serves as a warning revocation as he normally would do in
to citizens that the Executive Department has the case of bills.
called upon the military assist in the b. To extend it beyond the 60-day
maintenance of law and order, and while the period of its validity.
emergency remains, the citizens must, under
pain of arrest and punishment, not act in a Congress can only so extend the proclamation
manner that will render it more difficult to or suspension upon the initiative of the
President. The period need not be 60 days; it
Page 83 of 412
could be more, as Congress would determine, ii. Before the SC can decide on the
based on the persistence of the emergency. legality of his detention, it must first
pass upon the validity of the
Note: If Congress fails to act before the proclamation or suspension.
measure expires, it can no longer extend it until
the President again re-declares the measure. e. Cf. R.A. No. 7055 (1991)
If Congress extends the measure, but before An Act Strengthening Civilian Supremacy
the period of extension lapses the over the Military by Returning to the Civil
requirements for the proclamation or Courts the Jurisdiction over Certain
suspension no longer exist, Congress can lift Offenses involving Members of the Armed
the extension, since the power to confer implies Forces of the Philippines, other Persons
the power to take back. Subject to Military Law, and the Members of
the Philippine National Police, Repealing for
d. The Role of the Supreme Court [See the Purpose Certain Presidential Decrees
Section 18, par. 3, Article VII, 1987
Constitution] R.A. No. 7055 provides that when these
1. The Supreme Court may review, in an individuals commit crimes or offenses
appropriate proceeding filed by any citizen, the penalized under the RPC, other special penal
sufficiency of the factual basis of: laws, or local government ordinances,
i. The proclamation of martial law or the regardless of whether civilians are co-accused,
suspension of the privilege of the writ, victims, or offended parties which may be
or natural or juridical persons, they shall be tried
ii. The extension thereof. It must by the proper civil court, except when the
promulgate its decision thereon within offense, as determined before arraignment by
30 days from its filing. the civil court, is service-connected in which
case it shall be tried by court-martial.
In reviewing the sufficiency of the factual basis
of the proclamation or suspension, the Court The assertion of military authority over civilians
considers only the information and data cannot rest on the President's power as
available to the President prior to or at the time Commander in Chief or on any theory of martial
of the declaration; it is not allowed to law. As long as civil courts remain open and are
"undertake an independent investigation regularly functioning, military tribunals cannot
beyond the pleadings." On the other hand, try and exercise jurisdiction over civilians for
Congress may take into consideration not only offenses committed by them and which are
data available prior to, but likewise events properly cognizable by civil courts [Olaguer v.
supervening the declaration. Military Commission No. 34, supra].
Thus, the power to review by the Court and the f. Letters of Instruction (LOI) and
power to revoke by Congress are not only Presidential Decrees issued by the
totally different but likewise independent from President under the 1973 Constitution
each other although concededly, they have the during Martial Law
same trajectory, which is, the nullification of the LOIs are presumed to be mere administrative
presidential proclamation. Needless to say, the issuances except when the conditions set out
power of the Court to review can be exercised in Garcia-Padilla v. Enrile exist.
independently from the power of revocation of
Congress [Lagman v. Medialdea, supra]. To form part of the law of the land, the decree,
order or LOI must be:
2. Petition for Habeas Corpus 1. Issued by the President in the exercise of his
i. When a person is arrested without a extraordinary power of legislation as
warrant for complicity in the rebellion or contemplated in Section 6 of the 1976
invasion, he or someone else on his Amendments to the Constitution
behalf has the standing to question the 2. Whenever either
validity of the proclamation or i. In his judgment there exists a grave
suspension. emergency or a threat or imminent
thereof,
Page 84 of 412
ii. The interim Batasang Pambansa or return to obedience and duty within a
the regular National Assembly fails or prescribed time [Black’s Law Dictionary;
is unable to act adequately on any Brown v. Walker, 161 US 591 (1896)].
matter for any reason that in his 1. Requires concurrence of majority of
judgment requires immediate action all members of Congress [Sec. 19, Art.
[PASEI v. Torres, G.R. No. 101279 VII, 1987 Constitution]
(1993)]. 2. Remit fines and forfeitures after
conviction by final judgment
G. Executive clemency ● Pardons: Permanent cancellation of
sentence [Black’s Law Dictionary]. It is
an act of grace proceeding from the
1. Forms and Limitations
power entrusted with the execution of
SECTION 19, ARTICLE VII. Except in cases of the laws, which exempts the individual
impeachment, or as otherwise provided in this on whom it is bestowed, from the
Constitution, the President may grant reprieves,
commutations and pardons, and remit fines and
punishment the law inflicts for the crime
forfeitures, after conviction by final judgment. he has committed. It is a remission of
guilt, a forgiveness of the offense
[People v. Vera, supra].
a. General Exceptions to Executive ● Parole: The suspension of the
Clemencies sentence of a convict granted by a
1. In case of impeachment; and Parole Board after serving the
2. As otherwise provided in this Constitution, minimum term of the indeterminate
e.g. for election offenses: No pardon, amnesty, sentence penalty, without granting a
parole, or suspension of sentence for violation pardon, prescribing the terms upon
of election laws, rules, and regulations shall be which the sentence shall be
granted by the President without the favorable suspended.
recommendation by the Commission on
Election [Section 5, Article IX, 1987 1. Pardon
Constitution]. Plenary or Partial
3. In cases of legislative and civil contempt Plenary: Extinguishes all the penalties
4. Before conviction by final judgment (except imposed upon the offender, including
amnesty) accessory disabilities.
5. Without concurrence of a majority of all Partial: Does not extinguish all penalties
members of Congress (in case of amnesty) imposed
[Section 5, Article IX, 1987 Constitution]
Conditional or Absolute
b. Forms of Executive Clemency Conditional: The offender has the right to
● Reprieves: A temporary relief from or reject the same since he may feel that the
postponement of execution of criminal condition imposed is more onerous than the
penalty or sentence or a stay of execution penalty sought to be remitted.
[Black’s Law Dictionary]. It is the
withholding of a sentence for an interval of The determination of whether the conditions
time, a postponement of execution, a had been breached rests exclusively in the
temporary suspension of execution sound judgment of the Chief Executive [Torres
[People v. Vera, G.R. No. L-45685 (1937)]. v. Gonzales, G.R. No. 76872 (1987)].
● Commutations: Reduction of sentence
[Black’s Law Dictionary]. It is a remission of Absolute: The pardonee has no option at all
a part of the punishment; a substitution of a and must accept it whether he likes it or not. In
lesser penalty for the one originally this sense, an absolute pardon is similar to
imposed [People v. Vera, supra]. commutation, which is also not subject to
● Amnesty: A sovereign act of oblivion for acceptance by the offender.
past acts, granted by government generally
to a class of persons who have been guilty Limitations on Pardon
usually of political offenses and who are a. Cannot be granted for impeachment [Section
subject to trial but have not yet been 19, Article VII, 1987 Constitution]
convicted, and often conditioned upon their
Page 85 of 412
b. Cannot be granted in cases of violation of
Private act which Public act which the
election laws without the favorable
must be pleaded courts could take
recommendation of the COMELEC [Section 5,
and proved judicial notice
Article IX-C, 1987 Constitution]
c. Can be granted only after conviction by final Looks forward and Looks backward and
judgment [People v. Salle, G.R. No. 103567 relieves the puts into oblivion the
(1995)]. pardonee of the offense itself
consequences of
Section 19, Article VII prohibits the grant of the offense
pardon whether full or conditional, to an
accused during the pendency of his appeal Extended after trial May be extended at
from his conviction by the trial court. Any judgment any stage
application therefore should not be acted upon
or the process toward its grant should not be
begun unless the appeal is withdrawn [People 3. Differentiated from
v. Bacang, G.R. No. 116512 (1996)]. a. Probation: Disposition where a defendant
after conviction and sentence is released
d. Cannot absolve the convict of civil liability subject to (1) conditions imposed by the court
[People v. Nacional, G.R. Nos. 111294-95 and (2) supervision of a probation officer
(1995)] [Section 3(a), PD No. 968].
e. Cannot be granted to cases of legislative b. Parole: Suspension of the sentence of a
contempt or civil contempt convict granted by a Parole Board after serving
f. Cannot restore public offices forfeited, even the minimum term of the indeterminate
if pardon restores the eligibility for said offices sentence penalty, without granting a pardon,
[Monsanto v. Factoran, G.R. No. 78239 prescribing the terms upon which the sentence
(1989)]. shall be suspended [Reyes].
However, if a pardon is given because he did 4. Application of Pardoning Powers to

not commit the crime, reinstatement and back Administrative Cases
wages would be due [Garcia v. COA, G.R. No. a. If the President can grant reprieves,
L-75025 (1993)]. commutations and pardons, and remit fines
and forfeitures in criminal cases, with much
The right to seek public elective office is more reason can she grant executive clemency
unequivocally considered as a political right. in administrative cases, which are clearly less
Hence, upon acceptance of the pardon, the serious than criminal offenses.
pardonee regained his full civil and political b. However, this is limited only to administrative
rights – including the right to seek elective cases in the Executive branch [Llamas v.
office, even though that right is not expressly Executive Secretary, G.R. No. 99031 (1991)].
mentioned as provided under Article 36 of the
Revised Penal Code [Risos-Vidal v. 5. Denial of Commission of Offenses
COMELEC, G.R. No. 206666 (2015)]. Persons invoking the benefit of amnesty must
first admit to their complicity in the crimes
2. Pardon v. Amnesty charged. Amnesty presupposes the
Pardon Amnesty commission of a crime, and when the accused
maintains that he has not committed the crime,
Infractions of peace Addressed to he cannot have any use for amnesty [Vera v.
of the state political offenses People, G.R. No. L-1814 (1963)].
Granted to To classes of 6. Amnesty

individuals persons
Who May Avail
Exercised solely by Requires Generally: Individuals who form part of the
the executive concurrence of class of persons covered by an amnesty
Congress proclamation whose acts constitute the political
offenses covered by the same.
Page 86 of 412
Jurisprudence the President cannot be compelled to submit a
Amnesty Proclamation No. 76 applies even to treaty to the Senate for concurrence; he has
Hukbalahaps already undergoing sentence the sole power to submit it to the Senate and/or
upon the date of its promulgation. The majority to ratify it [Bayan Muna v. Romulo, G.R. No.
of the Court believes that by its context and 159618 (2011)].
pervading spirit the proclamation extends to all
members of the Hukbalahap [Tolentino v. 3. Military Bases Treaty
Catoy, G.R. No. L-2503 (1948)].
SECTION 25, ARTICLE XVIII. After the expiration in
1991 of the Agreement between the Philippines and
The SC agreed with the Sandiganbayan that in the United States of America concerning Military
fact the petitioners were expressly disqualified Bases, foreign military bases, troops, or facilities
from amnesty. The acts for which they were shall not be allowed in the Philippines except under
convicted were ordinary crimes without any a treaty duly concurred in by the Senate and, when
the Congress so requires, ratified by a majority of the
political complexion and consisting only of
votes cast by the people in a national referendum
diversion of public funds to private profit. The held for that purpose, and recognized as a treaty by
amnesty proclamation covered only acts in the the other contracting State.
furtherance of resistance to duly constituted
authorities of the Republic and applies only to
members of the MNLF, or other anti- The President, however, may enter into an
government groups [Macagaan v. People, G.R. executive agreement on foreign military bases,
No. 77317-50 (1987)]. troops, or facilities, if:
a. It is not the instrument that allows the
presence of foreign military bases, troops, or
H. Diplomatic Power facilities; or
b. It merely aims to implement an existing law
1. Scope of Diplomatic Power or treaty.
The President, being the head of state, is
regarded as the sole organ and authority in Section 25 refers solely to the initial entry of the
external relations and is the country’s sole foreign military bases, troops, or facilities.
representative with foreign nations. As the chief
architect of foreign policy, the President acts as To determine whether a military base or facility
the country’s mouthpiece with respect to in the Philippines, which houses or is accessed
international affairs. by foreign military troops, is foreign or remains
The President is vested with the authority to: a Philippine military base or facility, the legal
standards are:
a. Deal with foreign states and governments; a. Independence from foreign control;
b. Extend or withhold recognition; b. Sovereignty and applicable law; and
c. Maintain diplomatic relations; c. National security and territorial integrity
d. Enter into treaties; and [Saguisag v. Executive Secretary, G.R. No.
e. Transact the business of foreign relations 212426 (2016)].
[Pimentel v. Executive Secretary, G.R. No.
158088 (2005)]. 4. Visiting Forces Agreement (VFA)
The VFA, which is the instrument agreed upon
2. Treaty-Making Power to provide for the joint RP-US military
Treaty: As defined by the Vienna Convention exercises, is simply an implementing
on the Law of Treaties, “an international agreement to the main RP-US Military Defense
instrument concluded between States in Treaty. The VFA is therefore valid for it is a
written form and governed by international law, presence “allowed under” the RP-US Mutual
whether embodied in a single instrument or in Defense Treaty. Since the RP-US Mutual
two or more related instruments, and whatever Defense Treaty itself has been ratified and
its particular designation” [Bayan v. Executive concurred in by both the Philippine Senate and
Secretary, G.R. No. 138570 (2000)]. the US Senate, there is no violation of the
Constitutional provision resulting from such
Note: It is the President who ratifies a treaty presence [Nicolas v. Romulo, G.R. No. 175888
(not the Senate), the Senate merely concurs (2009)].
[Bayan v. Executive Secretary, supra]. Thus,
Page 87 of 412
5. Executive Agreements 7. Deportation of Undesirable Aliens
a. Entered into by the President The President may deport only according to
b. May be entered into without the concurrence grounds enumerated by law, otherwise it would
of the Senate. be unreasonable and undemocratic [Qua Chee
c. Distinguished from treaties — Gan v. Deportation Board, G.R. No. L-10280
International agreements involving political (1963)].
issues or changes in national policy and those
involving international agreements of 8. Two (2) Ways of Deporting an
permanent character usually take the form of Undesirable Alien
treaties. But the international agreements a. By order of the President after due
involving adjustments in detail carrying out investigation [Chapter 3, Book III, Admin. Code
well-established national policies and traditions of 1987];
and those involving a more or less temporary b. By the Commissioner of Immigration under
character usually take the form of executive Section 37 of the Immigration Law [Qua Chee
agreements [Commissioner of Customs v. Gan v. Deportation Board, supra]
Eastern Sea Trading, G.R. No. L-14279
(1961)]. 9. Scope of the Power
a. The President’s power to deport aliens and
However, from the point of view of international to investigate them subject to deportation are
law, there is no difference between treaties and provided in Chapter 3, Book III, of the Admin.
executive agreements in their binding effect Code of 1987.
upon states concerned as long as the b. There is no legal or constitutional provision
negotiating functionaries have remained within defining the power to deport aliens because the
their powers [USAFFE Veterans Assn. v. intention of the law is to grant the Chief
Treasurer, G.R. No. L-10500 (1959)]. Executive the full discretion to determine
whether an alien’s residence in the country is
Note: An executive agreement that does not so undesirable as to affect the security, welfare
require the concurrence of the Senate for its or interest of the state.
ratification may not be used to amend a treaty c. The Chief Executive is the sole and
that, under the Constitution, is the product of exclusive judge of the existence of facts which
the ratifying acts of the Executive and the would warrant the deportation of aliens [Go
Senate [Bayan Muna v. Romulo, supra]. Tek v. Deportation Board, G.R. No. L-23846
(1977)].
6. Two (2) Classes of Executive
Agreements I. Powers Relative to
1. Agreements made purely as executive acts
affecting external relations and independent of Appropriation Measures
or without legislative authorization, which may
be termed as presidential agreements; and 1. Contracting and Guaranteeing
2. Agreements entered into in pursuance of Foreign Loans; Requisites
acts of Congress, or congressional-executive a. With the concurrence of the monetary board
agreements. [Section 20, Article VIII, 1987 Constitution]
b. Subject to limitations as may be provided by
Although the President may, under the law [Section 2, Article XII, 1987 Constitution]
American constitutional system, enter into c. Information on foreign loans obtained or
executive agreements without previous guaranteed shall be made available to the
legislative authority, he may not, by executive public [Section 2, Article XII, 1987 Constitution]
agreement, enter into a transaction which is
prohibited by statutes enacted prior thereto. He Cf. R.A. No. 4860
may not defeat legislative enactments that Congress may provide guidelines for
have acquired the status of law by indirectly contracting or guaranteeing foreign loans, and
repealing the same through an executive have these rules enforced through the
agreement providing for the performance of the Monetary Board. But for Congress to grant
very act prohibited by said laws [Gonzales v. prior approval is a totally different issue. At any
Hechanova, G.R. No. L-21897 (1963)]. rate, the present power, which was first
introduced in the 1973 Constitution, was based
Page 88 of 412
on R.A. No. 4860 or the Foreign Loan Act. d. Other duties or imposts within the framework
What used to be a statutory grant of power is of the national development program of the
now a constitutional grant which Congress government
cannot take away, but only regulate.
6. Rationale for Delegation
2. Role of Congress in such Foreign Highly technical nature of international
Loans commerce, and the need to constantly and with
The President does not need prior approval by relative ease adapt the rates to prevailing
Congress: commercial standards.
a. Because the Constitution places the power
to check the President’s power on the J. Delegated Powers
Monetary Board;
b. BUT Congress may provide guidelines and 1. Principle
have them enforced through the Monetary The President, under martial rule or in a
Board revolutionary government, may exercise
delegated legislative powers [See Section
3. Preparing and Submitting the 23(2), Article VI, 1987 Constitution]. Congress
Budget may delegate legislative powers to the
SECTION 22, ARTICLE VII. The President shall president in times of war or in other national
submit to the Congress within thirty (30) days from emergencies [Bernas].
the opening of every regular session, as the basis of 2. Emergency Powers [Section 23,
the general appropriations bill, a budget of
expenditures and sources of financing, including
Article VI, 1987 Constitution]
receipts from existing and proposed revenue a. In times of war or other national emergency,
measures. the Congress, may, by law, authorize the
President, for a limited period, and subject to
such restrictions as it may prescribe, to
The budget is the plan indicating: exercise powers necessary and proper to carry
a. Expenditures of the government; out a declared national policy
b. Sources of financing; and b. Unless sooner withdrawn by resolution of the
c. Receipts from revenue-raising measures Congress, such powers shall cease upon the
The budget is the upper limit of the next adjournment thereof.
appropriations bill to be passed by Congress.
Through the budget, therefore, the President
reveals the priorities of the government.
3. Commander-in-Chief powers vs.
Emergency Powers
4. Program of Expenditure Commander-in- Emergency Powers
Even upon the enactment of the General Chief powers
Appropriations Act, the release of funds from
the Treasury is still subject to a Program of When the President When the President
Expenditure, proposed by the Secretary of acts under the acts under the
Budget, to be approved by the President, and Commander-in-Chief emergency power,
such approved program of expenditure is to be clause, he acts he acts under a
the basis for the release of funds [TESDA v. under a Congressional
COA, G.R. No. 204869 (2014); Section 34, constitutional grant delegation of law-
Chapter 5, Book VI, Administrative Code]. of military power, making power.
which may include
5. Fixing of Tariff Rates [Section 28, the lawmaking
Article VI, 1987 Constitution] power.
The Congress may, by law, authorize the
President to fix (1) within specified limits, and 4. Power to Issue Rules and
(2) subject to such limitations and restrictions
Regulations
as it may impose:
This power is:
a. Tariff rates;
a. For a limited period; and
b. Import and export quotas;
b. Subject to such restrictions as Congress
c. Tonnage and wharfage dues;
may provide.
Page 89 of 412
5. When Emergency Powers Cease In Marcos v. Manglapus, the Court held that
a. According to the text of the Constitution, the then-President Corazon Aquino had the power
power ceases: to prevent the Marcoses from returning to the
i. Upon being withdrawn by resolution Philippines on account of the volatile national
of the Congress; or security situation (Note: The decision was pro
ii. If Congress fails to adopt such hac vice).
resolution, upon the next (voluntary)
adjournment of Congress. In MEWAP v. Romulo [G.R. No. 160093
b. According to jurisprudence: (2007)], the Court upheld the reorganization of
i. The fact that Congress is able to meet the DOH through EOs 102 and 1165, as it was
in session uninterruptedly and adjourn within the President’s residual power to
of its own will prove that the emergency restructure the executive departments since he
no longer exists to justify the delegation has the power of control over executive
[See Araneta v. Dinglasan, G.R. No. L- departments granted by the Constitution.
2044 (1949)]
ii. The specific power to continue in The power to create ad hoc bodies is a residual
force laws and appropriations which power vested in the President in accordance
would lapse or otherwise become with faithful execution clause [Biraogo v. Phil.
inoperative is a limitation on the Truth Commission of 2010, G.R. Nos. 192935,
general power to exercise such other 193036 (2010)].
powers as the executive may deem
necessary to enable the government to L. Veto Powers
fulfill its responsibilities and to maintain
and enforce its authority [Rodriguez v. General Rule
Gella, G.R. No. L- 6266 (1953)]. All bills must be approved by the President
before they become law.
6. Inconsistency between the Constitution Exceptions
and the cases [Barlongay]: a. When the veto of the President is overridden
a. The Constitution states that the emergency by 2/3 vote of all the Members of Congress, the
powers shall cease upon the next adjournment President returns the bill with his veto message
of Congress unless sooner withdrawn by to the House where the bill originated, which
resolution of Congress. shall then enter the objections at large in its
b. Cases tell us that the emergency powers Journal and proceed to reconsider it. If, after
shall cease upon resumption of session. such reconsideration, two-thirds of all the
c. Reconciling the two: it would not be enough Members of such House shall agree to pass
for Congress to just resume session in order the bill, it shall be sent, together with the
that the emergency powers shall cease. It has objections, to the other House by which it shall
to pass a resolution withdrawing such likewise be reconsidered, and if approved by
emergency powers, otherwise such powers two-thirds of all the Members of that House, it
shall cease. If no resolution withdrawing such shall become a law.;
emergency powers is passed, such powers b. The bill lapsed into law because of the
shall cease upon the next adjournment of President’s failure to act on the bill within thirty
Congress. (30) days [Section 27, Article VI, 1987
Constitution]; and
K. Residual Powers c. The bill passed is the special law to elect the
President and Vice-President.
Residual powers are unstated powers
possessed by the President which are (1) not Limitations to the Veto Power:
enumerated in the Constitution, (2) implied with The President may only veto bills as a whole.
the grant of executive power, and (3) not (See Legislative Power of Congress)
possessed by the legislative and judiciary. It
includes powers unrelated to the execution of
any provision of law [Marcos v. Manglapus,
G.R. No. 88211 (1988)].
Page 90 of 412
M. Executive Privilege 4. Requisites for invoking
Presidential Privilege
1. Two (2) Kinds of Executive Privilege a. Formal claim of privilege: For the privilege
in Neri v. Senate Committee [G.R. No. to apply there must be a formal claim of the
privilege. Only the President or the Executive
180643 (2008)]
Secretary (by authority of the President) can
a. Presidential Communications Privilege
invoke the privilege; and
(President): communications are
b. Specificity requirement: A formal and
presumptively privileged; the president must be
proper claim of executive privilege requires a
given freedom to explore alternatives in policy-
specific designation and description of the
making.
documents within its scope as well as precise
b. Deliberative Process Privilege (Executive
and certain reasons for preserving
Officials): refer to materials that comprise part
confidentiality. Without this specificity, it is
of a process by which governmental decisions
impossible for a court to analyze the claim short
and policies are formulated. This includes
of disclosure of the very thing sought to be
diplomatic processes [Akbayan v. Aquino, G.R.
protected [Senate v. Ermita, supra].
No. 170516 (2008)].
Effect of invocation of privilege:
2. Varieties of Executive Privilege Presumption of privilege arises.
(US)
a. State secrets privilege: Invoked by U.S. If what is involved is the presumptive privilege
Presidents, beginning with Washington, on the of presidential communications when invoked
ground that the information is of such nature by the President on a matter clearly within the
that its disclosure would subvert crucial military domain of the Executive, the said presumption
or diplomatic objectives. dictates that the same be recognized and be
b. Informer’s privilege: The privilege of the given preference or priority, in the absence of
Government not to disclose the identity of proof of a compelling or critical need for
persons who furnish information of violations of disclosure by the one assailing such
law to officers charged with the enforcement of presumption [Neri v. Senate, supra].
that law.
c. Generic privilege for internal 5. Requisites for Validity of Claim of
deliberations: Has been said to attach to
Privilege
intragovernmental documents reflecting
a. Quintessential and non-delegable
advisory opinions, recommendations and
presidential power: Power subject of the
deliberations comprising part of a process by
legislative inquiry must be expressly granted by
which governmental decisions and policies are
the Constitution to the President, e.g.
formulated [Senate v. Ermita, G.R. No. 163783
commander-in-chief, appointing, pardoning,
(2004)].
and diplomatic powers;
b. Operational Proximity Test: It must be
3. Scope authored, solicited, and received by a close
This jurisdiction recognizes the common law advisor of the President or the President
holding that there is a "governmental privilege himself. The judicial test is that an advisor must
against public disclosure with respect to state be in “operational proximity” with the President
secrets regarding military, diplomatic and other (i.e. officials who stand proximate to the
national security matters." Closed-door President, not only by reason of their function,
Cabinet meetings are also a recognized but also by reason of their positions in the
limitation on the right to information. Executive’s organizational structure)
c. No adequate need to limit privilege: The
Note: Executive privilege is properly invoked in privilege may be overcome by a showing of
relation to specific categories of information adequate need, such that the information
and not to categories of persons—it attaches to sought “likely contains important evidence,”
the information and not the person. Only the and by the unavailability of the information
President (and the Executive Secretary, by elsewhere by an appropriate investigating
order of the President) can invoke the privilege authority [Neri v. Senate, supra; See Akbayan
[Senate v. Ermita, supra]. v. Aquino, supra, for application of this
principle].
Page 91 of 412
6. Diplomatic Negotiations Privilege permanently chosen and
While the final text of the Japan-Philippines disabled qualified)
Economic Partnership Agreement (JPEPA)
may not be kept perpetually confidential, the During the term
offers exchanged by the parties during the
negotiations continue to be privileged even
after the JPEPA is published. The Japanese Death, permanent Vice-President to
representatives submitted their offers with the disability, removal serve the unexpired
understanding that “historic confidentiality” from office, or term
would govern the same. Disclosing these offers resignation of the
could impair the ability of the Philippines to deal President
not only with Japan but with other foreign
governments in future negotiations. The Death, permanent Senate President or,
objective of the privilege is to enhance the disability, removal in case of his
quality of agency decisions. In assessing from office, or inability, the Speaker
claims of privilege for diplomatic negotiations, resignation of both of the House shall
the test is whether the privilege being claimed the President and act as President
is indeed supported by public policy. This Vice-President (until a President or
privilege may be overcome upon “sufficient a Vice-President
showing of need” [Akbayan v. Aquino, supra]. shall have been
chosen and
N. Rules on Succession qualified)
Temporary disability resulting to

1. Who shall act as President vacancy
Situation Who shall act as
Voluntary written Vice-President as
President
declaration of the Acting President
President
Before the/at the beginning of the term
First written Vice-President as
President-elect fails Vice-President-elect declaration by Acting President
to qualify (until the President- majority of the
elect shall have Cabinet
qualified)
Determination by ⅔ vote: Vice-
President shall not Vice-President-elect Congress by ⅔ vote President as Acting
have been chosen (until a President of all members, President
shall have been voting separately, Otherwise: President
chosen and acting on the second continues exercising
qualified) written declaration his powers and
by majority of the duties
Beginning of the Vice-President-elect Cabinet
term: President-elect shall become
died or became President
permanently 2. What if the Senate President and
disabled Speaker are also not capable to act as
President?
No President and Senate President or, Vacancy before the term: Congress shall, by
Vice-President have in case of his law, provide the manner of selecting the one
been chosen or shall inability, the Speaker who will act as President until President or Vice
have qualified of the House shall President have either been chosen and
act as President qualified pursuant to special elections.
Both President and (until a President or
Vice-President died a Vice-President Vacancy during the term: Congress shall, by
or became shall have been law, provide who will be acting President until
President or Vice President have either been
Page 92 of 412
elected and qualified pursuant to special If a President shall not have been chosen, the Vice-
elections. President-elect shall act as President until a
president shall have been chosen and qualified.
3. Vacancy in the Office of the
If at the beginning of the term of the President, the
President President-elect shall have died or shall have
become permanently disabled, the Vice-President-
a. At the Beginning of Term elect shall become President.
SECTION 7, ARTICLE VII. The President-elect and Where no President and Vice-President shall have
the Vice-President-elect shall assume office at the been chosen or shall have qualified, or where both
beginning of their terms. shall have died or become permanently disabled,
the President of the Senate or, in case of his inability,
the Speaker of the House of Representatives shall
Order of succession:
act as President until a President or a Vice-President
1. President; shall have been chosen and qualified.
2. Vice-President;
3. Senate President; The Congress shall, by law, provide for the manner
4. Speaker of the House; in which one who is to act as President shall be
5. Congress, by law, shall provide the selected until a President or a Vice-President shall
have qualified, in case of death, permanent
manner in which one who is to act as
disability, or inability of the officials mentioned in the
President shall be selected [Section 7, next preceding paragraph.
Article VII, 1987 Constitution]
SECTION 10, ARTICLE VII. The Congress shall, at
(1) Temporary or Permanent ten o’clock in the morning of the third day after the
Vacancy in the Presidency before vacancy in the offices of the President and Vice-
President occurs, convene in accordance with its
the Term
rules without need of a call and within seven days
enact a law calling for a special election to elect a
Permanent vacancy occurs when: President and a Vice-President to be held not earlier
1. The President dies; or than forty-five days nor later than sixty days from the
2. The President is permanently time of such call. The bill calling such special
incapacitated. election shall be deemed certified under paragraph
2, Section 26, Article VI of this Constitution and shall
become law upon its approval on third reading by the
Effect of permanent incapacity: Order of Congress. Appropriations for the special election
succession in Section 7, Article VII is followed. shall be charged against any current appropriations
and shall be exempt from the requirements of
No hold-over capacity for the President. paragraph 4, Section 25, Article VI of this
Constitution. The convening of the Congress cannot
be suspended nor the special election postponed.
(2) Hold-over capacity - official
No special election shall be called if the vacancy
remains in office until a successor shall occurs within eighteen months before the date of the
have been elected and qualified to next presidential election.
preserve continuity in the transaction of
official business and prevent a hiatus in
government pending the assumption of b. During Term
a successor into office.
(1) Permanent Vacancy in the
Note: Where there is a constitutional limit to the Presidency during the Term
term of office in question, hold-over is not SECTION 8, ARTICLE VII. In case of death,
allowed. But where there is no limit to the term permanent disability, removal from office, or
of office expressly provided in the Constitution, resignation of the President, the Vice-President shall
become the President to serve the unexpired term.
such hold-over is permitted [Abas Kida v.
In case of death, permanent disability, removal from
Senate, G.R. No. 196271 (2011)]. office, or resignation of both the President and Vice-
President, the President of the Senate or, in case of
SECTION 7 (2)-(6), ARTICLE VII. If the President- his inability, the Speaker of the House of
elect fails to qualify, the Vice-President-elect shall Representatives, shall then act as President until the
act as President until the President-elect shall have President or Vice-President shall have been elected
qualified. and qualified.
Page 93 of 412
The Congress shall, by law, provide who shall serve second written declaration by majority of the
as President in case of death, permanent disability, Cabinet
or resignation of the Acting President. He shall serve
until the President or the Vice-President shall have Thereafter, when the President transmits to the
been elected and qualified, and be subject to the President of the Senate and to the Speaker of
same restrictions of powers and disqualifications as
the House of Representatives his written
the Acting President.
declaration that no inability exists, he shall
reassume the powers and duties of his office.
Four possibilities for permanent vacancy Meanwhile, should a majority of all the
during term of office Members of the Cabinet transmit within five
1. Death; days to the President of the Senate and to the
2. Removal (by impeachment); Speaker of the House of Representatives their
3. Resignation; written declaration that the President is unable
4. Permanent Disability. to discharge the powers and duties of his office,
the Congress shall decide the issue. For that
c. In case of Temporary Disability purpose, the Congress shall convene, if it is not
in session, within forty-eight hours, in
(1) Temporary Vacancy in the accordance with its rules and without need of
Presidency during the Term call.
A temporary vacancy in the Presidency arising
from his disability can occur in any of the If the Congress, within ten days after receipt of
following ways: the last written declaration, or, if not in session,
● Voluntary written declaration of the within twelve days after it is required to
President assemble, determines by a two-thirds vote of
● First written declaration by majority of both Houses, voting separately, that the
the Cabinet President is unable to discharge the powers
● Determination by Congress by 2/3 vote and duties of his office, the Vice-President shall
of all members, voting separately, act as the President; otherwise, the President
acting on the second written shall continue exercising the powers and duties
declaration by majority of the Cabinet of his office.
In all these cases, the Vice-President assumes (3) Constitutional Duty of Congress
the powers and duties of the office as Acting in Case of Vacancy in the Offices of
President. the President and the Vice-
President
(2) Section 11, Article VII SECTION 10, ARTICLE VII. The Congress shall, at
a. Voluntary written declaration of the President 10AM of the 3rd day after the vacancy in the offices
Whenever the President transmits to the of the President and Vice-President occurs:
President of the Senate and the Speaker of the 1. Convene in accordance with its rules without need
House of Representatives his written of a call; and
2. Within seven days, enact a law calling for a
declaration that he is unable to discharge the
special election to elect a President and a Vice-
powers and duties of his office President to be held not earlier than forty-five days
nor later than sixty days from the time of such call.
b. First written declaration by majority of the
Cabinet The bill calling such special election shall be
deemed certified under paragraph 2, Section 26,
Article VI of this Constitution and shall become law
Whenever a majority of all the Members of the
upon its approval on third reading by the Congress.
Cabinet transmit to the President of the Senate Appropriations for the special election shall be
and to the Speaker of the House of charged against any current appropriations and shall
Representatives their written declaration that be exempt from the requirements of paragraph 4,
the President is unable to discharge the powers Section 25, Article VI of this Constitution. The
and duties of his office. convening of the Congress cannot be suspended
nor the special election postponed. No special
election shall be called if the vacancy occurs within
c. Determination by Congress by 2/3 vote of all eighteen months before the date of the next
members, voting separately, acting on the presidential election.
Page 94 of 412
(4) Vacancy timetable:
a. 0 days – vacancy occurs
b. 3 days – Congress convenes
c. 10 days – Law providing for special elections
should be enacted
d. 55 – 70 days – Elections should be held
within this period
e. 85 – 100 days – Canvassing by Congress
should be done within this period
4. Vacancy in the Office of the Vice-

President
SECTION 9, ARTICLE VII. Whenever there is a
vacancy in the Office of the Vice-President during
the term for which he was elected, the President
shall nominate a Vice-President from among the
Members of the Senate and the House of
Representatives who shall assume office upon
confirmation by a majority vote of all the Members of
both Houses of the Congress, voting separately.
Page 95 of 412
V. JUDICIAL DEPARTMENT Judicial Power Judicial Review
Where vested
A. Judicial Power
On whom vested: The judicial power shall be Supreme Court & lower courts
vested in:
a. One Supreme Court; and
Definition
b. In such lower courts as may be
established by law.
Duty to settle actual Power to determine
What: Judicial power includes the duty of the controversies the constitutionality
courts of justice to: involving rights of acts of the
a. Settle actual controversies involving which are legally executive or the
rights which are legally demandable demandable & legislative branch
and enforceable; and enforceable, and to
b. To determine whether or not there has determine whether
been a grave abuse of discretion or not there has
amounting to lack or excess of been grave abuse
jurisdiction of discretion
amounting to lack or
Where applicable: On the part of any branch excess of jurisdiction
or instrumentality of the Government [Section on the part of any
1, Article VIII, 1987 Constitution] branch or
instrumentality of the
The Supreme Court is entrusted exclusively government
with the judicial power to adjudicate with finality [Article VIII, Section
all justiciable disputes, public and private. No 1 (2), Constitution].
other department or agency may pass upon its
judgments or declare them unjust [In Re Where applicable
Laureta and Maravilla, G.R. No. 68635 (1987)].
Any branch or instrumentality of the
Absent a showing of a violation of the
government
Constitution or grave abuse of discretion, the
Court cannot use its judicial power to inquire Requisites for exercise
into allegations that, in enacting a law, a House
of Congress failed to comply with its own rules
[Arroyo v. De Venecia, G.R. No. 127255 Jurisdiction, or the Actual case or
(1997)]. power to decide and controversy; locus
hear a case and standi; earliest
B. Judicial Review execute a decision opportunity; and lis
thereof mota
The Court’s exercise of its traditional
jurisdiction is rooted in its power of judicial Where the legislature or executive branch acts
review which gives the Court the authority to beyond the scope of its constitutional power, it
strike down acts of the legislative and/or becomes the duty of the judiciary to declare
executive, constitutional bodies or what the other branches of the government
administrative agencies contrary to the had assumed to do so as void [Demetria v.
Constitution. The power of judicial review is Alba, G.R. No. 71977 (1987)]
part and parcel of the Court’s judicial power
and is a power inherent in all courts [Villanueva 1. Requisites
v. Judicial and Bar Council, G.R. No. 211833
(2015)]. Requisites of Judicial Review
1. There must be an actual case or
Judicial Power vs. Judicial Review [Miranda controversy;
v. Aguirre, G.R. No. 133064 (1999)]
Page 96 of 412
2. There is locus standi, i.e., person vindicate the constitutional right of some third
challenging the act must have and unrelated party [Joya v. PCGG, G.R. No.
“standing” to challenge; 96541 (1993)].
3. Constitutional question must be raised
at the earliest possible opportunity; Direct injury test - The person who impugns
and the validity of a statute must have a personal
4. Constitutionality must be the very lis and substantial interest in the case such that
mota of the case. he has sustained, or will sustain direct injury as
a result [People v. Vera, G.R. No. 45685
Generally, a party will be allowed to litigate only (1937)].
when these conditions sine qua non are
present, especially when the constitutionality of This may be brushed aside by the court as a
an act by a co-equal branch of government is mere procedural technicality in view of public
put in issue [Chavez v. Judicial and Bar interest or transcendental importance of the
Council, G.R. No. 202242 (2012)]. issues involved [Kilosbayan v. Guingona, G.R.
No. 113375 (1994)].
a. Actual case or controversy
An actual case or controversy exists when a Forms of locus standi
case involves a clash of legal rights or an
assertion of opposite legal claims that the 1. Associational or third-party standing
courts can resolve through applying law and The association may assert the concerns of its
jurisprudence. An actual case is ripe for constituents as long as the interest sought to
adjudication when the act being challenged has be protected is germane to the association’s
a direct adverse effect on the individual purpose [Kilusang Mayo Uno Labor Center v.
challenging it [De Castro v. Judicial and Bar Garcia, G.R. No. 115381 (1994)].
Council, G.R. No. 191002 (2010)].
Due to the nature of one party’s relation to
For a case to be considered ripe for another party, the former is allowed standing to
adjudication, the following prerequisites must invoke fundamental due process or equal
concur: protection claims of the latter injured by state
1. An act had been accomplished or action [GMA Network Inc. v. Commission on
performed by either government Elections, G.R. No. 205357 (2014)].
branch before a court may interfere;
and 2. Citizen standing
2. Petitioner must allege that an A plaintiff in a citizen standing is a mere
immediate or threatened injury to instrument of the public concern. Plaintiff
himself exists as a result of the invokes at least the right, if not the duty, of
challenged action [Phil. Constitution every citizen to interfere and see that a public
Association v. Phil. Government, G.R. offense be properly pursued and punished, and
No. 218406 (2016)]. that a public grievance be remedied [David v.
Macapagal-Arroyo, G.R. No. 171396 (2006)].
b. Locus standi
Legal standing or locus standi refers to a 3. Environmental standing
party’s personal and substantial interest in a Citizens are allowed to bring a suit to enforce
case, arising from the direct injury it has environmental laws on the principle that
sustained or will sustain as a result of the humans are stewards of nature and as part of
challenged government action. The term their right to a balanced and healthful ecology
“interest” means material interest, an interest [Resident Marine Mammals v. Sec. Reyes,
in issue affected by governmental action, as G.R. No. 180771 (2015)].
distinguished from mere interest in the question
involved, or a mere incidental interest [CREBA 4. Governmental standing
v. Energy Regulatory Commission, G.R. No. The government is the proper party to question
174696 (2010)]. the statute because it is always interested in
the integrity of its Constitution or the statutes
The interest of the party plaintiff must be involved and can set aside a law that violated
personal and not one based on a desire to the Constitution [People v. Vera, supra].
Page 97 of 412
5. Legislative standing
interest.
There must be a claim from the legislators that
[White Light Corp. v. City
the official action complained of infringes upon
of Manila, supra]
their legislative prerogatives [David v.
Macapagal-Arroyo, supra]. Obvious interest in the
validity of election law in
6. Taxpayer’s standing Voter
question [David v.
In a taxpayer’s suit, the plaintiff is affected by Macapagal-Arroyo, supra]
the expenditure of public funds. There must be
a claim of illegal disbursement of public funds
or that the tax measure is unconstitutional c. Earliest Possible Opportunity
[David v. Macapagal-Arroyo, supra]. General Rule: An act or law’s constitutionality
cannot be raised for the first time at the
7. Voter’s standing appellate level, unless that court has original
There must be a showing of obvious interest in jurisdiction over the case. The earliest
the validity of the election law in question opportunity to raise a constitutional issue is
[David v. Macapagal-Arroyo, supra]. during the pleadings before a competent court
that can resolve the same [Sta. Rosa Realty
Special Rules on Standing (Requisites) Development Corp. v. Amante, G.R. No.
112526 (2005)].
Standing Requisites
Issues must be of Exceptions:

transcendental 1. In criminal cases, at the court’s
Citizen importance which must discretion;
be settled early [David v. 2. In civil cases, if necessary to determine
Macapagal-Arroyo, supra] the case itself; and
3. When issue on court jurisdiction is
1. Any Filipino involved
citizen;
2. In representation Note: The reckoning point is the first competent
of others, court. The question must be raised at the first
including minors court empowered with judicial review. Thus,
Environmental failure to raise the constitutional question
or unborn
generations before the NLRC is not fatal to the case
[Resident Marine [Serrano v. Gallant Maritime Services, G.R. No.
Mammals v. Sec. 167614 (2009)].
Reyes, supra].
d. Lis Mota
1. Authorized; Lis mota pertains to the determinative issue of
2. Affects legislative the case, the resolution of which cannot be
Legislative done without deciding whether an act or law is
prerogatives (i.e.,
derivative suit) unconstitutional.
Issue must be of 2. Political Question Doctrine

misappropriation or illegal
Taxpayer
disbursement [David v. A “political question” connotes a question of
Macapagal-Arroyo, supra] policy and refers to: (a) matters to be exercised
by the people in their primary political capacity;
Litigants must show: or (b) those specifically delegated to some
1. Injury-in-fact; other department or particular office of the
2. Close relation to government with discretionary power to act.
Third-party or third-party; and
associational 3. Third-party’s It is concerned with issues dependent upon the
inability or wisdom, not legality, of a particular measure
hindrance to [Tañada v. Cuenco, G.R. No. L-10520 (1957)].
protect its own
Page 98 of 412
A “judicial question” or purely justiciable issue policy which the President decided upon based
implies a given right, legally demandable and on his wisdom that it shall promote national
enforceable, an act or omission violative of healing and forgiveness. There being no taint
such right, and a remedy granted and of grave abuse in the exercise of such
sanctioned by law, for said breach of right discretion, his decision on that political
[Casibang v. Aquino, G.R. No. L-38025 question is outside the ambit of judicial review
(1979)]. [Ocampo v. Enriquez, G.R. No. 225973
(2016)].
Examples:
Justiciable a. Guidelines to determine whether a
Political Question question is political or not
Question
1. There is a textually demonstrable
The legislature’s constitutional commitment of the issue
exercise of Election of Senate to a political department;
disciplinary power President without 2. Lack of judicially discoverable and
over its members is the required quorum manageable standards for resolving it;
not to be interfered is a justiciable 3. The impossibility of deciding without an
with by the Court question [Avelino v. initial policy determination of a kind
[Alejandrino v. Cuenco, G.R. No. L- clearly or non-judicial discretion;
Quezon, G.R. No. 2821 (1949)]. 4. Impossibility of a court’s undertaking
22041 (1924)]. independent resolution without
expressing lack of the respect due
The legislature has The selection of the coordinate branches of government;
the inherent right to Senate Electoral 5. An unusual need for unquestioning
determine who shall Tribunal members is adherence to a political decision
be admitted to its subject to already made;
membership [Vera v. constitutional 6. Potential embarrassment from
Avelino, G.R. No. L- limitations [Tañada multifarious pronouncements by
543 (1946)]. v. Cuenco, supra]. various departments on one question
[Estrada v. Desierto, G.R. Nos.
Mandamus and 146710-15 (2001), citing Baker v. Carr,
injunction cannot lie The Commission on 369 US 186 (1962)].
to enforce or restrain Appointments is a
a duty which is constitutional 3. Moot Questions
discretionary, e.g., creation and does
calling a special not derive its power General Rule: A case becomes moot and
local election from Congress academic when there is no more actual
[Severino v. [Cunanan v. Tan, controversy between the parties or no useful
Governor General, G.R. No. L-19721 purpose can be served in passing upon the
G.R. No. L-6520 (1962)]. merits [Quino v. COMELEC, G.R. No. 197466
(1910)]. (2012)]
The President’s Suspending the Exceptions: The Court may decide cases
appointing power is privilege of the writ otherwise moot and academic when:
not to be interfered of habeas corpus is 1. There is a grave constitutional
with by the Court not a political violation;
[Manalang v. question [Lansang v. 2. The situation is of exceptional
Quitoriano, G.R. No. Garcia, G.R. No. L- character and paramount public
L-6898 (1954)]. 33964 (1971)]. interest is involved;
3. Constitutional issue requires a
Note: In 2016, the SC ruled that President formulation of controlling principles to
Duterte's decision to have the remains of guide the bench, the bar, and the
Marcos interred at the Libingan Ng Mga Bayani public; and
(LNMB) was not a justiciable controversy but a 4. The case is capable of repetition yet
political question. The issue was a question of evading review [Islamic Da’wah v.
Page 99 of 412
Executive Secretary, G.R. No. 216870 solely based on facts and applicable
(2020)]. law, free from political or popular
influence
4. Operative Fact Doctrine 2. Institutional independence - refers to
the collective independence of the
The operative fact doctrine recognizes the judiciary or freedom from outside
existence and validity of a legal provision prior control, e.g., fiscal autonomy
to its being declared as unconstitutional and
hence, legitimizes otherwise invalid acts done 2. Safeguards of Judicial
pursuant thereto because of considerations of Independence
practicality and fairness. In this regard, certain
acts done pursuant to a legal provision which Provision Safeguards
was just recently declared as unconstitutional
The SC cannot be abolished
by the Court cannot be anymore undone Article
nor may its membership or the
because not only would it be highly impractical VIII,
manner of its meetings be
to do so, but more so, unfair to those who have Section 4
changed by mere legislation.
relied on the said legal provision prior to the
time it was struck down [Film Development
The members of the judiciary
Council of the Phils. V. Colon Heritage Realty
are not subject to confirmation
Corp., G.R. 203754 (2019)].
by the Commission on
Appointments.
The doctrine is applicable when a declaration
of unconstitutionality will impose an undue The members of the SC may
burden on those who have relied on the invalid Article XI,
not be removed from office
law, but it can never be invoked to validate an Section 2
except by impeachment.
unconstitutional act as constitutional
[Municipality of Malabang v. Benito, G.R. No. The SC may not be deprived
L-28113 (1969)]. Article of its minimum original and
VIII, appellate jurisdiction as
Applicability: The doctrine "applies only to Section 2 prescribed in Article X,
cases where extraordinary circumstances Section 5 of the Constitution.
exist, and only when the extraordinary
circumstances have met the stringent The appellate jurisdiction of
conditions that will permit its application." Article VI, the SC may not be increased
[Mandanas v. Ochoa, Jr., citing Araullo v. Section 30 by law without its advice and
Aquino III, G.R. Nos. 199802 and 208488)] concurrence.
General Rule: The interpretation or Article The SC has administrative

declaration of unconstitutionality is retroactive VIII, supervision over all lower
in that it applies from the law’s effectivity. Section 6 courts and their personnel.
Exception: Subsequent declaration of Article The SC has exclusive power

unconstitutionality does not nullify the acts VIII, to discipline judges of lower
exercised in line with the law. The past cannot Section 11 courts.
always be erased by a new judicial declaration
[Municipality of Malabang v. Benito, supra] The members of the SC and
Article all lower courts have security
C. Judicial Independence and VIII, of tenure, which cannot be
Section 2 undermined by a law
Fiscal Autonomy reorganizing the judiciary.
1. Concepts They shall not be designated

The 2 distinct concepts of judicial Article VII, to any agency performing
independence are: Section 12 quasi-judicial or administrative
1. Decisional independence - refers to a functions.
judge’s ability to render decisions
Page 100 of 412
The “practice of law” is not confined to litigation.
Article The salaries of judges may
It means any activity in and out of the court,
VIII, not be reduced during their
which requires the application of law, legal
Section 10 continuance in office.
procedure, knowledge, training, and
Article VI, The judiciary shall enjoy fiscal experience [Cayetano v. Monsod, G.R. No.
Section 3 autonomy. 100113 (1991)].
Constitutional Requirements
D. Appointments to the Supreme Court
Judiciary 1. Natural born citizens
2. At least 40 years of age
1. Qualifications 3. Engaged in the practice of law or a
judge of 15 years or more
SC and MTC/MCTC 4. Must be of proven competence,
RTC Judge
Collegiate Judge integrity, probity and independence.
(B.P. 129,
Court (B.P. 129,
Section 15)
Justices Section 26) Lower Collegiate Courts
1. Natural born citizen
Citizenship 2. Member of the Philippine Bar
3. Must be of proven competence,
integrity, probity and independence
Natural-born citizen 4. Such additional requirements provided
by law.
Age
Lower Courts
At least 40 At least 35 At least 30 1. Filipino citizens (Rules of the Judicial
years of age years of age years of age and Bar Council, Nov. 2000, Rule 2.
Note the conflict between the Rules
and B.P. 129; the Rules cite the
Experience Constitutional requirement, but
disregarded the first clause of Article
15 years or VIII, Section 7(2), i.e. “The Congress
more as a shall prescribe the qualifications of
judge of a At least 5 years in the judges of lower courts […]”)
lower court practice of law OR has held 2. Member of the Philippine Bar
OR has been public office in the PH 3. Must be of proven competence,
engaged in requiring admission to the integrity, probity and independence.
the practice practice of law as an 4. Such additional requirements provided
of law in the indispensable requisite by law.
PH for the
same period Note: In the case of judges of the lower courts,
the Congress may prescribe other
Tenure qualifications [Section 7(2), Article VIII, 1987
Constitution].
Hold office in good behavior until the age of
70 OR become incapacitated to discharge Disqualification from Other Position or
their duties Offices
The Members of the Supreme Court and of
other courts established by law shall not be
Character designated to any agency performing quasi
judicial or administrative functions [Section 12,
Person of proven competence, integrity, Article VIII, 1987 Constitution].
probity, and independence
The SC and its members should not and
cannot be required to exercise any power or to
Page 101 of 412
perform any trust or to assume any duty not the House and Senate Committees on Justice
pertaining to or connected with the is invalid. Any member of Congress, whether
administering of judicial functions [Meralco v. from the upper or lower house, is
Pasay Transportation Co. G.R. No. L-37838 constitutionally empowered to represent the
(1932)]. entire Congress.
A judge in the CFI shall not be detailed
with the Department of Justice to perform The framers intended the JBC to be composed
administrative functions as this contravenes of 7 members only. Intent is for each co-equal
the doctrine of separation of powers [Garcia v. branch of gov’t to have one representative.
Macaraig, A.M. No. 198-J (1972)]. There is no dichotomy between Senate and
HOR when Congress interacts with other
2. Judicial and Bar Council branches. But the SC is not in a position to say
(composition and powers) who should sit. The lone representative from
Congress is entitled to one full vote [Chavez v.
a. Composition JBC, G.R. No. 202242 (2012)].
1. Ex-officio members [Section 8(1),
Article VIII, 1987 Constitution] Regular Members [Section 8(2), Article VIII,
a. Chief Justice as ex-officio 1987 Constitution]
Chairman The regular members shall be appointed by
b. Secretary of Justice the President with the consent of the
c. One representative of Congress Commission on Appointments. The term of the
regular members is 4 years.
2. Regular members [Section 8(1), Article
VIII, 1987 Constitution] But the term of those initially appointed shall be
a. Representative of the Integrated staggered in the following way so as to create
Bar continuity in the council:
b. Professor of law 1. IBP representative: 4 years
c. Retired member of the SC 2. Law professor: 3 years
d. Representative of private sector 3. Retired justice: 2 years
4. Private sector: 1 year
3. Secretary ex-officio [Section 8 (3),
Article VIII, 1987 Constitution] b. Powers
Clerk of Court of the Supreme Court, who shall
keep a record of its proceedings; not a member 1. Primary function
of the JBC. Recommend appointees to the judiciary; may
exercise such other functions and duties as the
In the absence of the Chief Justice because of SC may assign to it [Section 8(5), Article VIII,
his impeachment, the most Senior Justice of 1987 Constitution].
the Supreme Court, who is not an applicant for
Chief Justice, should participate in the Note: Judges may not be appointed in any
deliberations for the selection of nominees for acting or temporary capacity as this would
the said vacant post and preside over the undermine the independence of the judiciary.
proceedings, pursuant to Section 12 of
Republic Act No. 296, or the Judiciary Act of 2. Supervisory authority of SC over
1948 [Famela Dulay v. Judicial and Bar JBC
Council, G.R. No. 202143 (2012)] Section 8, Article VIII of the Constitution
provides “A Judicial and Bar Council is hereby
4. Appointment, tenure, and salary created under the supervision of the Supreme
Court.” The supervisory authority of the Court
Ex-officio members over the JBC covers the overseeing of
The position in the Council is good only while compliance with its rule [Jardeleza v. Judicial
the person is the occupant of the office. and Bar Council, G.R. No. 213181 (2014)].
Only ONE representative from Congress: Supervisory power, when contrasted with
Former practices of giving ½ vote or (more control, is the power of mere oversight over an
recently) 1 full vote each for the Chairmen of inferior body; it does not include any restraining
Page 102 of 412
authority over such body [Aguinaldo v. Aquino, dismissal [Section 11, Article VIII,
G.R. No. 224302 (2016)]. 1987 Constitution]
3. Discipline of judges can be done by a
3. Appointment procedure division, BUT cases for dismissal,
The JBC shall submit a list of three (3) disbarment, suspension for more than
nominees for every vacancy to the President 1 year, or fine of more than P10,000
[Section 9, Article VIII, 1987 Constitution]. are decided en banc
4. Cases or matters heard by a Division
Afterwards, any vacancy in the Supreme Court where the required number of votes
shall be filed within ninety (90) days from the to decide or resolve (the majority of
occurrence thereof [Section 4(1), Article VIII, those who took part in the deliberations
1987 Constitution]. on the issues in the case and voted
thereon, and in no case less than 3
For lower courts, the President shall issue the members) is not met [Section 4(3),
appointment within ninety (90) days from the Article VIII, 1987 Constitution]
submission by the JBC of such list [Section 9, 5. Modifying or reversing a doctrine or
Article VIII, 1987 Constitution]. principle of law laid down by the court
in a decision rendered en banc or in
The prohibition against midnight appointments division [Section 4(3), Article VIII, 1987
does not apply to the judiciary [De Castro v. Constitution]
JBC, G.R. No. 191002 (2010)]. 6. Actions instituted by citizens to test the
validity of a proclamation of Martial law
E. The Supreme Court or suspension of the privilege of the writ
[Section 18, Article VII, 1987
(Composition, Powers, and Constitution]
Functions) 7. When sitting as Presidential Electoral
Tribunal [Section 4, par. 7, Article VII,
1. Composition 1987 Constitution]
● Chief Justice and 14 Associate 8. All other cases which under the Rules
Justices of Court are required to be heard by
● May sit en banc or in divisions of three, the SC en banc [Section 4 (2), Article
five, or seven Members VIII, 1987 Constitution].
● Vacancy shall be filled within 90 days
from the occurrence thereof c. Requirements and procedures in
divisions
a. En banc and division cases 1. Cases decided with the concurrence of
En banc: Cases decided with the concurrence a majority of the Members who actually
of a majority of the Members who actually took took part in the deliberations and voted
part in the deliberations and voted. 2. In no case without the concurrence of
at least three (3) of such Members
b. En banc instances 3. When the required number is not
1. Those involving the constitutionality, obtained, the case shall be decided en
application, or operation of: banc on:
a. Treaty a. Cases v. Matters. Only cases
b. Orders are referred to en banc for
c. International or executive decision when required votes
agreement are not obtained;
d. Law b. Cases are of first instance;
e. Presidential decrees matters are those after the first
f. Instructions instance, e.g. MRs and post-
g. Proclamations decision motions.
h. Ordinances c. Failure to resolve a motion
i. Other regulations because of a tie does not leave
2. Exercise of the power to discipline the case undecided. MR is
judges of lower courts, or order their merely lost [Fortrich v. Corona,
G.R. No. 131457 (1999)].
Page 103 of 412
The SC en banc is not an appellate court vis- c. Administrative supervision over
à-vis its Divisions. The only constraint is that lower courts
any doctrine or principle of law laid down by the
Court, either rendered en banc or in division, Administrative Powers of the Supreme
may be overturned or reversed only by the Court:
Court sitting en banc [PUP v. Firestone 1. Assign temporarily judges of lower
Ceramics, G.R. No. 143513 (2001)]. courts to other stations as public
interest may require;
There is but one Supreme Court of the 2. Shall not exceed 6 months without the
Philippine Islands. The Supreme Court consent of the judge concerned;
remains a unit notwithstanding it works in 3. Order a change of venue or place of
divisions. Although it may have two divisions, it trial to avoid a miscarriage of justice;
is but a single court. Actions considered in any 4. Appoint all officials and employees of
one of these divisions and decisions rendered the Judiciary in accordance with the
therein are, in effect, by the same Tribunal. The Civil Service Law;
two divisions of this court are not to be 5. Supervise over all courts and the
considered as two separate and distinct courts personnel thereof;
but as divisions of one and the same court 6. Discipline judges of lower courts, or
[U.S. v. Limsiongco, G. R. No. 16217 (1920)]. order their dismissal.
5. Powers and Functions Note: The qualifications of judges of lower

courts as stated by the Constitution are
a. Procedural rule-making minimum requirements. The JBC may
The Supreme Court shall have the following determine or add more qualifications when
powers: (5) Promulgate rules concerning the such policies are necessary and incidental to
protection and enforcement of constitutional the function conferred in the Constitution
rights, pleading, practice, and procedure in all [Villanueva v. JBC, G.R. No. 211833 (2015)].
courts, the admission to the practice of law, the
integrated bar, and legal assistance to the d. Period for deciding cases
under-privileged [Section 5 (5), Article VIII, [Section 5(1), Article VIII, 1987 Constitution]
1987 Constitution].
Lower
Supreme Other Lower
Collegiate
The 1987 Constitution took away the power of Court Courts
Courts
Congress to repeal, alter, or supplement rules
concerning pleading, practice and procedure.
12 months, 3 months,
The power to promulgate rules of pleading,
unless unless
practice and procedure is no longer shared by 24 months
reduced by reduced by
the Court with Congress, more so with the
the SC the SC
Executive [Echegaray v. Secretary of Justice,
G.R. No. 132601 (1991)].
Notes:
Because of Article VIII, Section 5, Congress a. Period counted from date of
may no longer grant legislative exemptions submission.
from payment of court fees [Baguio Market b. Case deemed submitted upon filing of
Vendors Multi-Purpose Cooperative v. Cabato- the last pleading, brief or memorandum
Cortes, G.R. No. 165922 (2010)]. required by the Rules or the court
[Section 15(2), Article VIII, 1987
b. Limitations Constitution].
a. Shall provide a simplified and
inexpensive procedure for speedy Upon expiration of the period, the Chief Justice
disposition of cases or presiding judge shall issue a certification
b. Uniform for all courts in the same grade stating why the decision or resolution has not
c. Shall not diminish, increase or modify been rendered within the period [Section 15(3),
substantive rights Article VIII, 1987 Constitution].
Page 104 of 412

This provision is merely directory and failure to g. Appellate jurisdiction [Section 5(2),
decide on time would not deprive the Article VIII, 1987 Constitution]
corresponding courts of jurisdiction or render On appeal or certiorari (as the Rules of Court
their decisions invalid [De Roma v. CA, G.R. provide), the SC may review, revise, reverse,
No. L-46903 (1987)]. modify, or affirm final judgments and orders of
lower courts in:
The failure to decide cases within the 90-day a. Cases involving the constitutionality or
period required by law constitutes a ground for validity of any treaty, international or
administrative liability against the defaulting executive agreement, law, presidential
judge. But it does not make the judgment a decree, proclamation, order,
nullity. The judgment is valid [People v. instruction, ordinance, or regulation,
Mendoza, G.R. No. 143702 (2001)]. except in circumstances where the
Court believes that resolving the issue
Even when there is delay and no decision or of constitutionality of a law or regulation
resolution is made within the prescribed period, at the first instance is of paramount
there is no automatic affirmance of the importance and immediately affects the
appealed decision [Sesbreño v. CA, G.R. No. social, economic and moral well-being
161390 (2008)]. of the people [Moldex Realty v.
HLURB, G.R. No. 149719 (2007)];
The Sandiganbayan, while of the same level as b. Cases involving the legality of any tax,
the Court of Appeals, functions as a trial court. impost, assessment, or toll, or any
Therefore, the period for deciding cases which penalty imposed in relation thereto;
applies to the Sandiganbayan is the three (3) c. Cases in which the jurisdiction of any
month period, not the twelve (12) month period lower court is in issue;
[In Re Problems of Delays in Cases before the d. Criminal cases where the penalty
Sandiganbayan, A. M. No. 00-8-05- SC imposed is reclusion perpetua or
(2001)]. higher;
e. Cases where only a question of law is
e. Original and appellate jurisdiction involved;
Jurisdiction is the authority to hear and
determine a case [U.S. v. Limsiongco, supra]. Note: A party who has not appealed from a
decision may not obtain any affirmative relief
f. Original jurisdiction [Section 5(1), from the appellate court other than what he had
Article VIII, 1987 Constitution] obtained from the lower court, if any, whose
a. Cases affecting ambassadors, other decision is brought up on appeal [Daabay v.
public ministers and consuls Coca-Cola Bottlers, G.R. No. 199890 (2013)].
b. Petition for certiorari
c. Petition for prohibition h. Doctrine of judicial stability or non-
d. Petition for mandamus interference
e. Petition for quo warranto No court can interfere by injunction with the
f. Petition for habeas corpus judgments or orders of another court of
concurrent jurisdiction having the power to
Note: Original jurisdiction also extends to writs grant the relief sought by injunction. The
of amparo, habeas data, and the environmental rationale for the rule is founded on the concept
writ of kalikasan. of jurisdiction: a court that acquires jurisdiction
over case and renders judgment therein has
The Supreme Court’s original jurisdiction to jurisdiction over its judgment, to the exclusion
issue writs of certiorari (as well as prohibition, of all other coordinate courts, for its execution
mandamus, quo warranto, habeas corpus and and over all its incidents, and to control, in
injunction) is not exclusive. Its jurisdiction is furtherance of justice, the conduct of ministerial
concurrent with the CA, and with the RTC in officers acting in connection with this judgment
proper cases [Cruz v. Judge Gingoyon, G.R. [United Alloy Philippines v. UCPB, G.R. No.
No. 170404 (2011)] 179257 (2015)].
Page 105 of 412

i. Finality of judgments
A decision that has acquired finality becomes
immutable and unalterable and may no longer
be modified in any respect even if the
modification is meant to correct erroneous
conclusions of fact or law and whether it was
made by the court that rendered it or by the
highest court of the land [Genato v. Viola, G.R.
No. 169706 (2010)].
j. Requirements for decisions and

resolutions
The conclusions of the Supreme Court in any
case submitted to it for decision en banc or in
division shall be reached in consultation before
the case is assigned to a Member for the
writing of the opinion of the Court. A
certification to this effect signed by the Chief
Justice shall be issued and copy thereof
attached to the record of the case and served
upon the parties. Any Members who took no
part, or dissented, or abstained from a decision
or resolution, must state the reason therefor.
The same requirements shall be observed by
all lower collegiate courts [Section 13, Article
VIII, 1987 Constitution].
No decision shall be rendered by any court

without expressing therein clearly and distinctly
the facts and the law on which it is based.
No petition for review or motion for

reconsideration of a decision of the court shall
be refused due course or denied without tating
the legal basis therefore [Section 14, Article
VIII, 1987 Constitution].
A "Resolution" is not a "Decision" within the
meaning of Section 14 of Article VIII. This
mandate applies only in cases "submitted for
decision," i.e., given due course and after the
filing of Briefs or Memoranda and/or other
pleadings, as the case may be. It does not
apply to an Order or Resolution refusing due
course to a Petition for certiorari [Nunal v.
Commission on Audit, G.R. No. 78648 (1989)].
Page 106 of 412

VI. CONSTITUTIONAL 2. Promotional Appointment of

Commissioner to Chairman
COMMISSIONS Section 1(2), Article IX-D of the Constitution
does not prohibit a promotional appointment
A. Common Provisions from commissioner to chairman as long as:
a. The commissioner has not served the
1. The Commission on Elections, full term of 7 years; and
2. Commission on Audit, and b. The appointment to any vacancy shall
3. Civil Service Commission be only for the unexpired portion of
the term of the predecessor [Section
The grant of a constitutional commission’s 1(2), Article IX-D, 1987 Constitution].
rulemaking power is untouchable by Congress, c. The promotional appointment must
absent a constitutional amendment or revision. conform to the rotational plan or the
staggering of terms in the commission
The laws that the Commission interprets and membership [Funa v. Commission on
enforces fall within the prerogative of Audit, G.R. No. 192791 (2012)].
Congress. As an administrative agency, its
quasi-legislative power is subject to the same 3. Jurisprudence on Section 1(2),
limitations applicable to other administrative Article IX-D
bodies [Trade and Investment Development The appointment of members of any of the
Corporation of the Philippines v. Civil Service three constitutional commissions, after the
Commission, G.R. No. 182249 (2013)]. expiration of the uneven terms of office of the
first set of commissioners, shall always be for a
1. Constitutional Safeguards to fixed term of seven (7) years; an appointment
Ensure Independence of for a lesser period is void and
Commissions unconstitutional. The appointing authority
cannot validly shorten the full term of seven
a. They are constitutionally created,
(7) years in case of the expiration of the term
hence may not be abolished by statute.
as this will result in the distortion of the
b. Each commission is vested with
rotational system prescribed by the
powers and functions which cannot be
Constitution.
reduced by statute.
c. Independent constitutional bodies.
Appointments to vacancies resulting from
d. The Chairmen and members may
certain causes (death, resignation, disability
not be removed except by
or impeachment) shall only be for the
impeachment.
unexpired portion of the term of the
e. Fixed term of office of 7 years.
predecessor; such appointments cannot be
f. The Chairmen and members may
less than the unexpired portion [as it will disrupt
not be appointed in an acting capacity.
the staggering].
g. The salaries of the Chairmen and
members may not be decreased during
Members of the Commission who were
their tenure.
appointed for a full term of seven years and
h. The Commissions enjoy fiscal
who served the entire period, are barred
autonomy.
from reappointment to any position in the
i. Each Commission may promulgate
Commission. The first appointees in the
its own procedural rules, provided they
Commission under the Constitution are also
do not diminish, increase or modify
covered by the prohibition against
substantive rights (though subject to
reappointment.
disapproval by the Supreme Court).
j. The Commission may appoint their
A commissioner who resigns after serving in
own officials and employees in
the Commission for less than seven years is
accordance with Civil Service Law.
eligible for an appointment as Chairman for
the unexpired portion of the term of the
departing chairman. Such appointment is not
covered by the ban on reappointment,
provided that the aggregate period of the
Page 107 of 412
length of service will not exceed seven (7) a. Functions
years and provided further that the vacancy in 1. In the exercise of its powers to
the position of Chairman resulted from death, implement R.A. No. 6850 (granting
resignation, disability or removal by civil service eligibility to employees
impeachment. This is not a reappointment, but under provisional or temporary status
effectively a new appointment. who have rendered seven years of
efficient service), the CSC enjoys a
Any member of the Commission cannot be wide latitude of discretion, and may
appointed or designated in a temporary or not be compelled by mandamus
acting capacity. [Torregoza v. Civil Service
Commission, G.R. No. 101526 (1992)].
4. Term of Office of Commission
Members 2. Under the Administrative Code of 1987,
The terms of the first Chairmen and the Civil Service Commission has the
Commissioners of the Constitutional power to hear and decide
Commissions under the 1987 Constitution administrative cases instituted before
must start on a common date, irrespective it directly or on appeal, including
of the variations in the dates of appointments contested appointments.
and qualifications of the appointees, in order
that the expiration of the first terms of seven, 3. The Commission has original
five and three years should lead to the jurisdiction to hear and decide a
regular recurrence of the two-year interval complaint for cheating in the Civil
between the expiration of the terms. This Service examinations committed by
common appropriate starting point must be on government employees [Cruz v. CSC,
February 02, 1987, the date of the adoption of G.R. No. 144464 (2001)].
the 1987 Constitution [Gaminde v. Commission
on Audit, G. R. No. 140335 (2000)]. 4. It is the intent of the Civil Service
Law, in requiring the establishment of
Term – The time during which the officer may a grievance procedure, that decisions
claim to hold office as of right, and fixes the of lower level officials (in cases
interval after which the several incumbents involving personnel actions) be
shall succeed one another appealed to the agency head, then
to the Civil Service Commission
Tenure – Term during which the incumbent [Olanda v. Bugayong, G.R. No.
actually holds the office The term of office is not 140917 (2003)].
affected by the hold-over. The tenure may be
shorter than the term for reasons within or As the central personnel agency of the
beyond the power of the incumbent. government, the CSC has broad authority to
pass upon all civil service matters. The
mandate of the CSC should therefore be read
B. Powers, Functions, and as the comprehensive authority to perform all
Jurisdiction functions necessary to ensure the efficient
administration of the entire civil service,
1. Civil Service Commission including the Central Executive Service (CES).
SECTION 3, ARTICLE IX-B. The Civil Service Further, the specific powers of the CESB must
Commission, as the central personnel agency of be narrowly interpreted as exceptions to the
the Government, shall establish a career service and comprehensive authority granted to the CSC
adopt measures to promote morale, efficiency, by the Constitution and relevant statutes
integrity, responsiveness, progressiveness, and [Career Executive Service Board v. Civil
courtesy in the civil service. It shall strengthen the
Service Commission, G.R. No. 197762 (2017)].
merit and rewards system, integrate all human
resources development programs for all levels and
ranks, and institutionalize a management climate b. Scope of Civil Service
conducive to public accountability. It shall submit to Embraces all branches, subdivisions,
the President and the Congress an annual report on instrumentalities and agencies of the
its personnel programs. Government, including GOCCs with original
Page 108 of 412

charters [Section 2(1), Article IX-B, 1987 involves the enforcement of labor laws and
Constitution]. penal statutes, PNRC can be treated as a
GOCC. Thus, the CSC has jurisdiction.
The Civil Service does not include Moreover, the CSC has appellate jurisdiction
government-owned or controlled corporations on administrative disciplinary cases involving
which are organized as subsidiaries of the imposition of a penalty of suspension
government-owned or controlled corporations of more than 30 days or fine in an amount
under the general corporation law [National exceeding 30 days’ salary [Torres v. De Leon,
Service Corp. v. NLRC, G.R. No. L-69870 G.R. No. 199440 (2016)].
(1988)].
2. Commission on Elections
Note: The University of the Philippines,
having an original charter, is clearly part of the a. Powers and functions
CSC [University of the Philippines v. Regino, 1. Enforce all laws relating to the conduct
G.R. No. 88167 (1993)]. of election, plebiscite, initiative,
referendum and recall;
c. Jurisdiction
The CSC has been granted by the Constitution Initiative: The power of the people to
and the Administrative Code jurisdiction over propose amendments to the Constitution or to
all civil service positions in the government propose and enact legislation through an
service, whether career or non-career [Civil election called for that purpose. There are 3
Service Commission v. Sojor, G.R. No. 168766 systems of initiative: Initiative on the
(2008); See CSC Resolution No. 991936 Constitution, initiative on statutes, and initiative
detailing the disciplinary and non-disciplinary on local legislation [Section 3(a), R.A. No.
jurisdiction]. 6735].
The Board of Regents (BOR) of a state Referendum: The power of the electorate to
university has the sole power of administration approve or reject legislation through an election
over the university. But…there is no showing called for that purpose. There are 2 classes:
that such power is exclusive. The CSC has Referendum on statutes or referendum on local
concurrent jurisdiction over a president of a laws [Section 3(c), R.A. No. 6735].
State university [CSC v. Sojor, supra].
Recall: The termination of official relationship
d. Appellate Jurisdiction of a local elective official for loss of confidence
The appellate power of the CSC will only apply prior to the expiration of his term through the
when the subject of the administrative cases will of the electorate.
filed against erring employees is in connection
with the duties and functions of their office, and Plebiscite: The submission of constitutional
not in cases where the acts of the complainant amendments or important legislative
arose from cheating in the civil service measures to the people for ratification.
examinations [Cruz v. CSC, G.R. No. 144464
(2001)]. 2. Recommend to the Congress effective
measures to minimize election
In administrative disciplinary cases decided by spending, and to prevent and penalize
the COA, the proper remedy in case of an all forms of election frauds, offenses,
adverse decision is an appeal to the Civil malpractices, and nuisance
Service Commission and not a petition for candidacies;
certiorari before SC under Rule 64 [Galindo v. 3. Submit to the President and the
Commission on Audit, G.R. No. 210788 Congress, a comprehensive report on
(2017)]. the conduct of each election,
plebiscite, initiative, referendum, or
The Philippine National Red Cross, although recall;
not a GOCC, is sui generis in character. The 4. Decide administrative questions
sui generis character of PNRC requires the pertaining to election except the right
court to approach controversies involving the to vote (the jurisdiction of which is with
PNRC on a case-to-case basis. Since the issue the judiciary);
Page 109 of 412
Power to declare failure of election: The for its principal object the endorsement of a
COMELEC may exercise such power motu candidate only.
proprio or upon a verified petition, and the
hearing of the case shall be summary in nature The regulation (a) should be provided by
[Sison v. COMELEC, G.R. No. 134096 (1998)]. law; (b) reasonable; (c) narrowly tailored to
meet the objective of enhancing the
5. File petitions in court for inclusion or opportunity of all candidates to be heard and
exclusion of voters; considering the primacy of the guarantee of
6. Investigate and prosecute cases of free expression, and (d) demonstrably the least
violations of election laws; restrictive means to achieve that objective. The
regulation must only be with respect to the
Note: Section 43, R.A. No. 9369 or the time, place and manner of the rendition of the
Automated Election System Law of January message. In no situation may the speech be
2007 grants to the Department of Justice prohibited or censored on the basis of its
concurrent jurisdiction to investigate and content [The Diocese of Bacolod v. COMELEC,
prosecute violations of election law. G.R. No. 205728 (2015)].
However, the COMELEC may validly delegate Note: This power may be exercised only over
this power to the Provincial Fiscal [People v. the media, not over practitioners of media.
Judge Basilia, G.R. No. 83938-40 (1989)]. Thus, a COMELEC resolution prohibiting radio
and TV commentators and newspaper
7. Recommend pardon, amnesty, parole columnists from commenting on the issues
or suspension of sentence of election involved in the forthcoming plebiscite for the
law violators; ratification of the organic law establishing the
8. Deputize law enforcement agencies CAR was held invalid [Sanidad v. COMELEC,
and instrumentalities of the G.R. No. L-44640 (1976)].
Government for the exclusive purpose
of ensuring free, orderly, honest, 12. Decide on election cases
peaceful, and credible elections;
9. Recommend to the President the The Commission on Elections may sit en banc
removal of any officer or employee it or in two divisions and shall promulgate its
has deputized for violation or rules of procedure in order to expedite
disregard of, or disobedience to its disposition of election cases [Section 3, Article
directive; IX-C, 1987 Constitution].
10. Registration of political parties,
organizations and coalitions and b. Cases which must be heard by
accreditation of citizens’ arms; Division
11. Regulation of public utilities and media The Constitution vested upon the COMELEC
of information; judicial powers to decide all contests relating to
elective local officials as therein provided
While respondent COMELEC cited the [Garcia v. De Jesus, G.R. No. 97108-09
Constitution, laws and jurisprudence to support (1992)].
their position that they had the power to
regulate the tarpaulin, however, all these c. Exclusive jurisdiction
provisions pertain to candidates and political All contests relating to the elections, returns
parties. COMELEC does not have the and qualifications of all elective regional,
authority to regulate the enjoyment of the provincial, and city officials.
preferred right to freedom of expression
exercised by a non-candidate. Regulation of d. Jurisdiction over intra-party disputes
election paraphernalia will still be The COMELEC’s powers and functions under
constitutionally valid if it reaches into speech of the Constitution, "include the ascertainment of
persons who are not candidates or who do not the identity of the political party and its
speak as members of a political party if they legitimate officers responsible for its acts." The
are not candidates, only if what is regulated is power to register political parties necessarily
declarative speech that, taken as a whole, has involves the determination of the persons who
must act on its behalf. Thus, the COMELEC
Page 110 of 412
may resolve an intra-party leadership dispute, granting institution to submit such audit
in a proper case brought before it, as an as a condition of subsidy or equity.
incident of its power to register political parties
[Lokin v. COMELEC, G.R. No. 193808 (2012)]. Complementing the constitutional power of the
COA to audit accounts of “non–governmental
e. Appellate jurisdiction entities receiving subsidy or equity, directly or
All contests involving elected municipal officials indirectly, from or through the government” is
decided by trial courts of general jurisdiction or Section 11(1), Book V of the Administrative
involving elective barangay officials decided by Code, which authorizes the COA to audit
a court of limited jurisdiction [Garcia v. De accounts of non–governmental entities
Jesus, supra]. “required to pay…or have government share”
but only with respect to “funds…coming from
f. Jurisdiction to issue writs of certiorari or through the government.”
Interpreting the phrase "in aid of its appellate
jurisdiction,” if a case may be appealed to COA does not have the exclusive power to
a particular court or judicial tribunal or body, examine and audit government agencies. The
then said court or judicial tribunal or body framers of the Constitution were fully aware of
has jurisdiction to issue the extraordinary the need to allow independent private audit of
writ of certiorari, in aid of its appellate certain government agencies in addition to the
jurisdiction [Bulilis v. Nuez, G.R. No. 195953 COA audit [DBP v. COA, G.R. No. 88435
(2011)]. (2002)].
3. Commission on Audit c. Exclusive authority

● Define the scope of its audit and
a. Powers and functions examination;
Examine, audit, and settle accounts pertaining ● Establish techniques and methods
to government funds or property: its revenue, required;
receipts, expenditures, and uses ● Promulgate accounting and auditing
rules and regulations.
LGUs, though granted local fiscal autonomy, This includes giving the COA Assistant
are still within the audit jurisdiction of the COA Commissioner and General Counsel the
[Veloso v. COA, G.R. No. 193677 (2011)]. authority to deputize a special audit team [The
The Boy Scouts of the Philippines (BSP) is a Special Audit Team, Commission on Audit v.
public corporation and its funds are subject to Court of Appeals, G.R. No. 174788 (2013)].
the COA’s audit jurisdiction [Boy Scouts of the
Philippines v. COA, G.R. No. 177131 (2011)]. Note: No law shall be passed exempting any
entity of the Government or its subsidiaries in
The Constitution formally embodies the long- any guise whatsoever, or any investment of
established rule that private entities who public funds, from the jurisdiction of the
handle government funds or subsidies in trust Commission on Audit [Section 3, Article IX-
may be examined or audited in their handling D, 1987 Constitution].
of said funds by government auditors [Blue Bar
Coconut Philippines, Inc. v. Tantuico, G.R. No. Congress cannot exempt foreign grants from
L-47051 (1988)]. the jurisdiction of the Commission on Audit. Its
jurisdiction extends to all government-owned or
b. Post-audit basis controlled corporations, including those funded
● Constitutional bodies, commissions, by donations through the Government
and offices; [Petitioner Corporations v. Executive
● Autonomous state colleges and Secretary, G.R. Nos. 147036-37 (2012)].
universities;
● GOCCs with no original charters and d. Primary jurisdiction over money
their subsidiaries; claims
● Non-governmental entities receiving Limited to liquidated claims: The COA
subsidy or equity, directly or indirectly, has primary jurisdiction to pass upon a
from or through the Government, private entity’s money claims against a
which are required by law or the provincial gov’t. However, the scope of the
Page 111 of 412
COA’s authority to take cognizance of claims 4. Career Officers: Other than those
is circumscribed by cases holding statutes belonging to the Career Executive
of similar import to mean only liquidated claims, Service who are appointed by the
or those determined or readily determinable President, e.g. those in the foreign
from vouchers, invoices, and such other service
papers within reach of accounting officers 5. Positions in the AFP, although governed
[Euro-Med Laboratories, Phil. Inc. v. Province by a different merit system
of Batangas, G.R. No. 148106 (2006)]. 6. Personnel of GOCCs with original
charters
No jurisdiction over their validity or 7. Permanent laborers, whether skilled,
constitutionality: The jurisdiction of the COA semi-skilled, or unskilled
over money claims against the government
does not include the power to rule on the Non-career Service: Characterized by
constitutionality or validity. entrance on bases other than those of the
usual tests utilized for the career service;
C. Composition and tenure limited to a period specified by law, or
which is co-terminus with that of the
Qualifications of Members appointing authority or subject to his
pleasure, or which is limited to the duration
1. Civil Service Commission 1. Elective officials, and their personal and
confidential staff;
a. Composition 2. Department heads and officials of
A Chairman and two (2) Commissioners. Cabinet rank who hold office at the
pleasure of the President, and their
b. Qualifications [Section 1(1), Article personal and confidential staff;
IX-B, 1987 Constitution] 3. Chairmen and members of commissions
a. Natural-born citizens of the Philippines; and bureaus with fixed terms;
b. At the time of their appointment, at least 35 4. Contractual personnel;
years of age; 5. Emergency and seasonal personnel.
c. With proven capacity for public
administration; and Note: Except as otherwise provided by the
d. Must not have been candidates for any Constitution or by law, the Civil Service
elective position in the election Commission shall have the final authority to
immediately preceding their appointment. pass upon the removal, separation and
suspension of all officers and employees in the
c. Term of office civil service and upon all matters relating to the
Seven (7) years (except those first appointed) conduct, discipline and efficiency of such
officers and employees [CSC v. Sojor, supra].
d. Classes of service [CSC v. Sojor,
G.R. No. 168766 (2008)] e. Appointments in the Civil Service
Career Service: Characterized by entrance The role of the CSC in the appointing process
(a) based on merit and fitness to be is limited to the determination of qualifications
determined, as far as practicable, by of the candidates for appointments and plays
competitive examinations, OR (b) based on no role in the choice of the person to be
highly technical qualifications; with opportunity appointed [Bernas].
for advancement to higher career positions
and security of tenure. General Rule: Appointments are made only
according to merit and fitness to be
1. Open career positions: Where prior determined, as far as practicable, by
qualification in an appropriate competitive examination
examination is required.
2. Closed career positions: e.g. scientific or Exceptions:
highly technical in nature; 1. Policy determining: Where the officer lays
3. Career Executive Service: e.g. down principal or fundamental guidelines
undersecretaries, bureau directors or rules; or formulates a method of action
Page 112 of 412

for government or any of its subdivisions; b. Qualifications
e.g. department head. 1. Must be natural-born citizens;
2. Primarily confidential: Denoting not only 2. At least 35 years of age;
confidence in the aptitude of the appointee 3. Holders of a college degree;
for the duties of the office but primarily 4. Have not been candidates in the
close intimacy which ensures freedom of immediately preceding election;
intercourse without embarrassment or 5. Majority, including the Chairman, must be
freedom from misgivings or betrayals on members of the Philippine Bar who have
confidential matters of state [De los Santos been engaged in the practice of law for at
v. Mallare, G.R. No. L-3881 (1950)]; OR least ten (10) years. [Section 1, Article
one declared to be so by the President of IX-C, 1987 Constitution]
the Philippines upon the recommendation
of the CSC, subject to judicial review 3. Commission on Audit
[Salazar v. Mathay, G.R. No. L-44061
(1976)]. a. Composition
3. Highly technical: Requires possession of A Chairman and two (2) Commissioners
technical skill or training in supreme
degree [De los Santos v. Mallare, supra]. b. Qualifications
f. Disqualifications 1. Natural born Filipino citizens;
1. No candidate who has lost in any election 2. At least thirty-five (35) years of age;
shall within one (1) year after such election, 3. CPAs with not less than ten (10) years of
be appointed to any office in the auditing experience OR members of the
Government or any GOCC or in any of its Philippine bar with at least ten (10) years
subsidiaries [Section 6, Article IX-B, 1987 practice of law
Constitution].
2. No elective official shall be eligible for Note: At no time shall all members belong to
appointment or designation in any the same profession.
capacity to any public office or position
during his tenure [Section 7(1), Article IX-
B, 1987 Constitution]. D. Prohibited Offices and
3. Unless otherwise allowed by law OR by the Interests
primary functions of his position, no
appointive official shall hold any other No member of the Constitutional Commissions
office or employment in the Government or shall, during their tenure:
any subdivision, agency or instrumentality 1. Hold any other office or employment. This
thereof including GOCCs or their is similar to the prohibition against
subsidiaries [Section 7(2), Article IX-B, executive officers. It applies to both public
1987 Constitution]. and private offices and employment;
4. No officer or employee in the civil service 2. Engage in the practice of any profession;
shall engage directly or indirectly, in any 3. Engage in the active management or
electioneering or partisan political activity control of any business which in any way
[Section 2(4), Article IX-B, 1987 may be affected by the functions of his
Constitution]. office; or
4. Be financially interested, directly or
g. Removal or suspension only for indirectly, in any contract with, or in any
cause franchise or privilege granted by, the
No officer or employee of the civil service shall Government, its subdivisions, agencies or
be removed or suspended except for cause instrumentalities, including GOCCs or their
provided by law [Section 2 (2), Article IX-B, subsidiaries [Section 2, Article IX-A, 1987
1987 Constitution]. Constitution].
2. Commission on Elections The CSC Chairman cannot be a member of a

government entity that is under the control of
the President without impairing the
a. Composition
independence vested in the CSC by the 1987
A Chairman and six (6) Commissioners.
Page 113 of 412

Constitution [Funa v. Civil Service quasi-judicial functions may be
Commission, G.R. No. 191672 (2014)]. reviewed by the Supreme Court.
b. The mode of review is a petition for
E. Judicial Review of Final certiorari under Rule 64 (not Rule 65).
c. Exception: The Rules of Civil
Orders, Resolutions, and Procedure, however, provides for a
Decisions of Constitutional different legal route in the case of the
Commissions Civil Service Commission. In the case
of CSC, Rule 43 will be applied, and the
Rendered in Exercise of Quasi-Judicial case will be brought to the Court of
Functions Appeals.
Rendered in Exercise of Administrative

1. Decisions
Functions
Each Commission shall decide by a majority
vote of all its members (NOT only those who SECTION 4, ARTICLE IX-A. The Constitutional
participated in the deliberations) any case Commissions shall appoint its own officials in
accordance with law.
or matter brought before it within 60 days from
the date of its submission for decision or SECTION 6, ARTICLE IX-A. Each Commission may
resolution [Section 7, Article IX-A, 1987 promulgate its own rules concerning pleadings and
Constitution]. practice before it or before any of its offices. Such
rules however shall not diminish, increase, or modify
Any decision, order or ruling of each substantive rights.
Commission may be brought to the SC on SECTION 8, ARTICLE IX-A. Each Commission
certiorari by the aggrieved party within thirty shall perform such other functions as may be
(30) days from receipt of the copy thereof. provided by law.
In resolving cases brought before it on appeal,

respondent COA is not required to limit its
review only to the grounds relied upon by
a government agency’s auditor with respect
to disallowing certain disbursements of public
funds. Such would render COA’s vital
constitutional power unduly limited and thereby
useless and effective [Yap v. COA, G.R. No.
158562 (2010)].
2. Certiorari Jurisdiction of the

Supreme Court
Limited to decisions rendered in actions or
proceedings taken cognizance of by the
Commissions in the exercise of their quasi-
judicial powers.
The Court exercises extraordinary jurisdiction,

thus, the proceeding is limited only to issues
involving grave abuse of discretion resulting in
lack or excess of jurisdiction, and does not
ordinarily empower the Court to review the
factual findings of the Commission [Aratuc v.
COMELEC, G.R. No. L-49705-09 (1999)].
3. Synthesis on the Rules of Modes of

Review
a. Decisions, order or ruling of the
Commissions in the exercise of their
Page 114 of 412
VII. BILL OF RIGHTS (1) Political Rights

Who must be natural-born?
1. President [Section 2, Article VII, 1987
See discussion in Constitutional Law 2
Constitution]
2. Vice-President [Section 3, Article VII,
VIII. CITIZENSHIP 1987 Constitution]
3. Members of Congress [Section 3 and
6, Article VI, 1987 Constitution]
A. Who are Filipino citizens 4. Justices of SC and lower collegiate
The following are citizens of the Philippines: courts [Section 7(1), Article VIII, 1987
1. Those who are citizens of the Constitution]
Philippines at the time of the adoption 5. Ombudsman and his deputies
of the Constitution; [Section 8, Article XI, 1987
2. Those whose fathers or mothers are Constitution]
citizens of the Philippines; 6. Members of Constitutional
3. Those born before January 17, 1973, of Commissions
Filipino mothers, who elect Philippine a. CSC [Section 1(1), Article IX-
citizenship upon reaching the age of B, 1987 Constitution]
majority; and b. COMELEC [Section 1, Article
4. Those who are naturalized in IX-C, 1987 Constitution]
accordance with law [Section 1, Article c. COA [Section 1(1), Article IX-
IV, 1987 Constitution]. D, 1987 Constitution]
7. Members of the central monetary
1. Classification of Citizens authority [Section 20, Article XII, 1987
Constitution]
a. Natural-born Citizens 8. Members of the Commission on
Human Rights [Section 17(2), Article
SECTION 2, ARTICLE IV. Natural-born citizens are XIII, 1987 Constitution]
those who are citizens of the Philippines from birth
without having to perform any act to acquire or The Constitutional provision (i.e. “whose
perfect their Philippine citizenship. Those who elect fathers are citizens”) does not distinguish
Philippine citizenship in accordance with paragraph
between “legitimate” or “illegitimate” paternity.
(3), Section 1 hereof shall be deemed natural-born
citizens. Thus, the Civil Code provisions on illegitimacy
govern.
Who are natural-born citizens (2) Economic Benefits of Citizens
1. Citizens of the Philippines from birth
SECTION 8, ARTICLE XII. A natural-born citizen of
without having to perform any act to
the Philippines who has lost his Philippine
acquire or perfect their Philippine citizenship may still be a transferee of private lands,
citizenship [Section 1(1) & Section 1(2), subject to limitations provided by law.
Article IV, 1987 Constitution]; and
2. Those who elect Philippine citizenship
in accordance with Section 1(3), Article b. Naturalized Citizens
IV Those who are naturalized in accordance with
the law [Section 1(4), Article IV, 1987
A person who renounces all foreign citizenship Constitution].
under Section 5(2) of R.A. No. 9225 recants
this renunciation by using his foreign passport (1) Naturalization [CA 473]
afterwards [Maquiling v. COMELEC, G.R. No. Process by which a foreigner is adopted by the
195649 (2013)]. country and clothed with the privileges of a
native-born citizen. The applicant must prove
Having the status of a natural-born citizen is that he has all of the qualifications and none of
important for the purpose of certain political the disqualifications for citizenship.
and economic rights open only to such citizens.
Page 115 of 412

(2) Qualifications [Section 2, C.A. who uphold and teach doctrines
473] opposing all organized governments;
a. Not less than twenty-one years of age b. Persons defending or teaching the
on the day of the hearing of the petition; necessity or propriety of violence,
b. Resided in the Philippines for a personal assault, or assassination for
continuous period of 10 years or more; the success of their ideas;
c. Of good moral character; believes in c. Polygamists or believers in polygamy;
the principles underlying the Philippine d. Persons convicted of crimes involving
Constitution; conducted himself in a moral turpitude;
proper and irreproachable manner e. Persons suffering from mental
during the entire period of his residence alienation or incurable contagious
towards the government and diseases;
community f. Persons who during the period of their
d. Must own real estate in the Philippines stay, have not mingled socially with the
worth P5,000 or more OR must have Filipinos, or who have not evinced a
lucrative trade, profession, or lawful sincere desire to learn and embrace
occupation; the customs, traditions, and ideals of
e. Able to speak or write English or the Filipinos;
Spanish or anyone of the principal g. Citizens or subjects of nations with
languages; and whom the Philippines is at war; or
f. Enrolled his minor children of school h. Citizens or subjects of a foreign country
age in any of the recognized schools other than the United States, whose
where Philippine history, government laws do not grant Filipinos the right to
and civics are taught or prescribed as become naturalized citizens or subject
part of the school curriculum, during the thereof.
entire period of the residence in the
Philippines required of him. (5) Burden of Proof
The applicant must comply with the
(3) Special Qualifications [Section 3, jurisdictional requirements, establish his or her
C.A. 473] – ANY will result to possession of the qualifications and none of the
reduction of the 10-year period to 5 disqualifications enumerated under the law,
years and present at least two (2) character
a. Having honorably held office under the witnesses to support his allegations [Go v.
Government of the Philippines or under Republic of the Philippines, G.R. No. 202809
that of any of the provinces, cities, (2014)].
municipalities, or political subdivisions
thereof; (6) Petition for Judicial Declaration
b. Established a new industry or of Philippine Citizenship
introduced a useful invention in the The petitioner believes he is a Filipino citizen
Philippines; and asks a court to declare or confirm his
c. Married to a Filipino woman; status as a Philippine citizen.
d. Engaged as a teacher in the
Philippines in a public or recognized (7) Petition for Judicial
private school not established for the Naturalization under CA 473
exclusive instruction of children of The petitioner acknowledges he is an alien,
persons of a particular nationality or and seeks judicial approval to acquire the
race, in any of the branches of privilege of becoming a Philippine citizen based
education or industry for a period of 2 on requirements required under CA 473
years or more; or [Republic v. Batuigas, supra].
e. Born in the Philippines.
(8) Denaturalization
(4) Disqualifications [Section 4, C.A. Process by which grant of citizenship is
473] revoked.
a. Persons opposed to organized
government or affiliated with groups
Page 116 of 412

(9) Grounds 2. Citizens of the Philippines [Section
Upon the proper motion of the Sol. Gen. or the 1, Article IV, 1987 Constitution]
provincial fiscal, naturalization may be a. Citizens of the Philippines at the time of
canceled when: the adoption of this Constitution;
a. Naturalization certificate was b. Those whose fathers OR mothers are
fraudulently or illegally obtained [Po citizens of the Philippines;
Soon Tek v. Republic, G.R. No. L- c. Those who elected to be citizens. This
32408 (1974)]; is available only to:
b. If, within the five years next following a. Those born before Jan 17, 1973;
the issuance, he shall return to his b. To Filipino mothers; AND
native country or to some foreign c. Elect Philippine citizenship upon
country and establish his permanent reaching the age of majority
residence there; d. Those naturalized in accordance with
c. Remaining for more than one year in law.
his native country or the country of his
former nationality, or two years in any Section 1 (3), Article IV is also applicable to
other foreign country, shall be those who are born to Filipino mothers and
considered as prima facie evidence of elected Philippine citizenship before February
his intention of taking up his permanent 2, 1987. This is to correct the anomalous
residence in the same; situation where one born of a Filipino father and
d. Petition was made on an invalid an alien mother was automatically granted the
declaration of intention; status of a natural-born citizen, while one born
e. Minor children of the person of a Filipino mother and an alien father would
naturalized failed to graduate from the still have to elect Philippine citizenship [Co v.
schools mentioned in Section 2, House Electoral Tribunal, G.R. Nos. 92191-92
through the fault of their parents, either (1991)].
by neglecting to support them or by
transferring them to another school or 3. Citizens of the Philippines at the
schools; or
f. If he has allowed himself to be used as
time of the adoption of the 1987
a dummy in violation of the Constitution
Constitutional or legal provision a. Citizens under the 1973 Constitution
requiring Philippine citizenship as a 1. Those who are citizens of the
requisite for the exercise, use or Philippines at the time of the adoption
enjoyment of a right, franchise or of this Constitution;
privilege. 2. Those whose fathers or mothers are
citizens of the Philippines;
Naturalization is never final and may be 3. Those who elect Philippine citizenship
revoked if one commits acts of moral turpitude pursuant to the provisions of the
[In Re: Republic v. Guy, G.R. No. L-41399 Constitution of 1935; and
(1982)]. 4. Those who are naturalized in
accordance with law [Section 1, Article
Judgment directing the issuance of a certificate III, 1987 Constitution].
of naturalization is a mere grant of a political
privilege and that neither estoppel nor res b. Citizens under the 1935 Constitution
judicata may be invoked to bar the State from 1. Those who are citizens at the time of
initiating an action for the cancellation or the adoption of this Constitution;
nullification of the certificate of naturalization 2. Those born in the Philippine Islands of
thus issued [In Re: Yao MunTek v. Republic, foreign parents who, before the
G.R. No. L-23383 (1971)]. adoption of this Constitution, had been
elected to public office in the Philippine
Islands; This is known as the Caram
Rule, and is only applicable to elective
positions, not appointive ones
[Chiongbian v. de Leon, G.R. No. L-
2007 (1949)];
Page 117 of 412

3. Those whose mothers are citizens of 5. Foundlings
the Philippines and, upon reaching the Are foundlings natural-born citizens?
age of majority, elect Philippine Yes. As a matter of law, foundlings are, as a
citizenship; class, natural-born citizens. The presumption
4. Those who are naturalized in of natural-born citizenship of foundlings stems
accordance with law [Section 1, Article from the presumption that their parents are
IV, 1987 Constitution]. nationals of the Philippines. While the 1935
Constitution’s enumeration is silent as to
4. Citizens of the Philippines on May foundlings, there is no restrictive language
14, 1935 which would definitely exclude foundlings
a. Persons born in the Philippine Islands either. No such intent or language permits
who resided therein on April 11, 1899 discrimination against foundlings. On the
and were Spanish subjects on that contrary, all three Constitutions (1935, 1973,
date, unless they had lost their 1987) guarantee the basic right to equal
Philippine citizenship on or before May protection of the laws. All exhort the State to
14, 1935; render social justice [Poe-Llamanzares v.
b. Natives of the Spanish Peninsula who COMELEC, G.R. No. 221697 (2016)].
resided in the Philippines on April 11,
1899, and who did not declare their 6. Application
intention of preserving their Spanish To illustrate, If X was born and elected before
nationality between that date and 17 January 1973, his status under the 1973
October 11, 1900, unless they had lost and 1987 Constitutions is that of a natural-born
their Philippine citizenship on or before citizen, because although he had to perform an
May 14, 1935; act to perfect his citizenship, he could not
c. Naturalized citizens of Spain who otherwise be classified since there was no
resided in the Philippines on April 11, definition of natural-born citizens in the 1935
1899, and did not declare their intention Constitution.
to preserve their Spanish nationality
within the prescribed period (up to If X was born before and elected after 17
October 11, 1900); January 1973, whether before or after 2
d. Children born of (1), (2) and (3) February 1987, he was not a natural-born
subsequent to April 11, 1899, unless citizen under the 1973 Constitution, because
they lost their Philippine citizenship on he had to perform an act to be a citizen. If not
or before May 14, 1935; and for the provision in the 1987 Constitution, he
e. Persons who became naturalized would not have been deemed a natural-born
citizens of the Philippines in citizen either.
accordance with naturalization law
since its enactment on March 26, 1920. Case A: A Filipino woman married B, an
American in 1961. The marriage made A an
Any conclusion on the Filipino citizenship of American citizen (which under C.A. 63,
Lorenzo Poe could only be drawn from the stripped her of her Philippine citizenship, the
presumption that having died in 1954 at 84 marriage having been celebrated before 17
years old, Lorenzo would have been born January 1973). A and B lived in the US since
sometime in the year 1870, when the then and in 1962, begot C, who was
Philippines was under Spanish rule, and that automatically an American citizen by jus soli
San Carlos, Pangasinan, his place of residence and jus sanguinis. In 1983, when C turns 21,
upon his death in 1954, in the absence of any can he elect Philippine citizenship?
other evidence, could have well been his place
of residence before death, such that Lorenzo Yes, according to obiters in Cu v. Republic and
Poe would have benefited from the “en masse Villahermosa v. CID, in order to elect Philippine
Filipinization” that the Philippine Bill had citizenship, at least for election purposes, it is
effected in 1902 [Tecson v. COMELEC, G.R. enough that (1) the person's mother was a
No. 161434 (2004)]. Filipino at the time of her marriage to the alien
father, even if she subsequently lose her
citizenship by virtue of the marriage and (2) the
Page 118 of 412

person be a child of that marriage, for him to the grant of Philippine citizenship to the minor
elect Philippine citizenship. children of those naturalized thereunder.
If C wants to run for Congress, is he considered The following are requisites should be applied
a natural born Filipino? Under the 1973 to the minor children in order to be entitled to
Constitution, no. But under the 1987 Philippine citizenship:
Constitution, yes. 1. They are legitimate children of
petitioner
Note: If he were born after 17 January 1973, 2. They were born in the Philippines, and
the child would not even be a Filipino. You can 3. They were still minors when the
only be a Filipino if you are born to a Filipino petitioner was naturalized as a Filipino
mother or father [Section 2 par. 2]. citizen [Tan Co v. Civil Register of
Manila, G.R. No. 138496 (2004)].
B. Modes of Acquiring
Citizenship 4. Election of Filipino Citizenship
The constitutional and statutory requirements
of electing Filipino citizenship apply only to
1. By Birth legitimate children and not to one who was
a. Jus Soli — “Right of soil;” a person’s concededly an illegitimate child, as her
nationality is based on place of birth; formerly Chinese father and Filipino mother were never
effective in the Philippines [Roa v. Collector of married. Being an illegitimate child of a Filipino
Customs, G.R. No. L-7011 (1912)]. mother, respondent is a Filipino since birth,
b. Jus Sanguinis — “Right of blood;” a without having to elect Filipino citizenship when
person's nationality follows that of his natural she reaches the age of majority [Republic v.
parents. The Philippines currently adheres to Lim, G.R. No. 153883 (2004)].
this principle.
5. Reglementary Period
2. By Naturalization Under Article IV, Section 1(3) of the 1935
Naturalization signifies the act of formally Constitution, the citizenship of a legitimate child
adopting a foreigner into the political body of a born of a Filipino mother and an alien father
nation by clothing him or her with the privileges followed the citizenship of the father, unless,
of a citizen. upon reaching the age of majority, the child
elected Philippine citizenship. The 1935
Three modes by which an alien may Charter only provides that the election should
become a Filipino citizen by naturalization: be made “upon reaching the age of majority.”
1. Administrative naturalization pursuant to The age of majority then commenced upon
R.A. No. 9139; reaching 21 years. In the opinions of the
2. Judicial naturalization pursuant to C.A. Secretary of Justice on cases involving the
437; and validity of election of Philippine citizenship, this
3. Legislative naturalization in the form of a dilemma is resolved by basing the time period
law enacted by Congress granting on the decisions of this Court prior to the
Philippine citizenship to an alien [So v. effectivity of the 1935 Constitution.
Republic, G.R. No. 170603 (2007)].
In these decisions, the proper period for
3. Derivative Naturalization electing Philippine citizenship, should be made
Under this provision, foreign women who are within “reasonable time” after attaining the age
married to Philippine citizens may be deemed of majority. This phrase “reasonable time” has
ipso facto Philippine citizens and it is neither been interpreted to mean the election should
necessary for them to prove that they possess be made within three years from reaching the
other qualifications for naturalization at the time age of majority [Re: Application for Admission
of their marriage nor do they have to submit to the Philippine Bar, Vicente D. Ching, Bar
themselves to judicial naturalization [Republic Matter No. 914, October 1, 1999].
v. Batuigas, G.R. No. 183110 (2013)].
Pursuant to the principle of derivative

naturalization, Section 15 of CA 437, extends
Page 119 of 412
6. Eligibility under the Administrative C. Loss and Re-Acquisition of
Naturalization Law; Rationale Philippine Citizenship
R.A. No. 9139 is an act providing for the
acquisition of Philippine citizenship for 1) aliens
1. Grounds for Loss of Philippine
born in the Philippines and 2) residing therein
since birth by administrative naturalization Citizenship
subject to certain requirements dictated by a. Naturalization in a foreign country
national security and interest. R.A. No. 9139 [Section 1(1), C.A. 63];
was enacted as a remedial measure intended b. Express renunciation or expatriation
to make the process of acquiring Philippine [Section 1(2), CA 63];
citizenship less tedious, less technical and c. Taking an oath of allegiance to another
more encouraging. It also addresses the country upon reaching the age of
concerns of degree holders who, by reason of majority;
lack of citizenship requirement, cannot practice d. Marriage by a Filipino woman to an
their profession, thus promoting "brain drain for alien, if by the laws of her husband’s
the Philippines [So v. Republic, supra]. country, she becomes a citizen thereof.
(Now qualified by Section 4, Article IV.
Citizens of the Philippines who marry
7. Qualifications prescribed under Act
aliens shall retain their citizenship,
473 NOT applicable to R.A. No. 9139 unless by their act or omission they are
The qualifications and disqualifications of an deemed, under the law, to have
applicant for naturalization by judicial act are renounced it)
set forth in Sections 2 and 4 of C.A. 473. On e. Accepting a commission and serving in
the other hand, Sections 3 and 4 of R.A. No. the armed forces of another country,
9139 provide for the qualifications and unless there is an offensive/defensive
disqualifications of an applicant for pact with the country, or it maintains
naturalization by administrative act. armed forces in RP with RP’s consent;
f. Denaturalization (The court, upon its
Rationale: discretion, may cancel certificate of
1. C.A. 473 and R.A. No. 9139 are separate naturalization subsequent to the
and distinct laws - the former covers all requirements provided. This is
aliens regardless of class while the latter because naturalization is not a natural
covers native-born aliens who lived here in right but a political privilege);
the Philippines all their lives, who never g. Being found by final judgment to be a
saw any other country and all along thought deserter of the AFP.
that they were Filipinos; who have
demonstrated love and loyalty to the
2. General Rule
Philippines and affinity to customs and
Expatriation is a constitutional right. No one
traditions.
can be compelled to remain a Filipino if he does
2. If the qualifications prescribed in R.A. No.
not want to [Go Julian v. Government, G.R. No.
9139 would be made applicable even to
20809 (1923)].
judicial naturalization, the coverage of the
law would be broadened since it would then
apply even to aliens who are not native- 3. Exception
born. A Filipino may not divest himself of Philippine
citizenship in any manner while the Republic of
Applying the provisions of R.A. No. 9139 to the Philippines is at war with any country
judicial naturalization is contrary to the intention [Section 1(3), C.A. 63].
of the legislature to liberalize the naturalization
procedure in the country. Loss of Philippine citizenship cannot be
presumed. Considering the fact that
admittedly, Osmeña was both a Filipino and an
American, the mere fact that he has a
certificate stating that he is an American does
not mean that he is not still a Filipino, since
there has been no express renunciation of his
Page 120 of 412

Philippine citizenship [Aznar v. COMELEC, 5. R.A. No. 9225 (CITIZENSHIP
G.R. No. 83820 (1995)]. RETENTION AND REACQUISITION
ACT OF 2003)
4. Reacquisition
Reacquisition
a. Naturalization [C.A. 63 and C.A. 473] Natural-born citizens of the Philippines who
Now an abbreviated process, no need to wait have lost their Philippine citizenship by reason
for 3 years (1 year for declaration of intent, and of their naturalization as citizens of a foreign
2 years for the judgment to become executory) country are deemed to have reacquired
Philippine citizenship upon taking the oath of
Requirements: allegiance to the Republic [Section 3, R.A.
1. Must be 21 years of age 9225].
2. Must be a resident for 6 months
3. Must have good moral character Retention
4. Must have no disqualification Natural-born citizens of the Philippines who,
after the effectivity of R.A. 9225, become
b. Repatriation citizens of a foreign country shall retain their
Repatriation results in the recovery of the Philippine citizenship upon taking the aforesaid
original nationality. Therefore, if he is a natural- oath [Section 3, R.A. No. 9225].
born citizen before he lost his citizenship, he
will be restored to his former status as a Derivative Citizenship
natural-born Filipino [Bengson III v. HRET, The unmarried child, whether legitimate,
G.R. No. 142840 (2001)]. illegitimate or adopted, below eighteen (18)
years of age, of those who re-acquire
Mere filing of certificate of candidacy is not a Philippine citizenship upon effectivity of R.A.
sufficient act of repatriation. Repatriation No. 9225 shall be deemed citizens of the
requires an express and equivocal act [Frivaldo Philippines [Section 4, R.A. No. 9225].
v. COMELEC, G.R. No. 120295 (1989)].
Effect of retention or reacquisition: Those
In the absence of any official action or approval who retain or re-acquire Philippine citizenship
by proper authorities, a mere application for under this Act shall enjoy full civil and political
repatriation does not, and cannot, amount to an rights and be subject to all attendant liabilities
automatic reacquisition of the applicant’s and responsibilities under existing laws of the
Philippine citizenship [Labo v. COMELEC, Philippines.
G.R. No. 86564 (1989)].
Conditions for enjoyment of full civil and
c. Legislative Act political rights
Citizenship can be acquired by an alien thru
Right Condition
legislative naturalization in the form of a law
enacted by Congress bestowing Philippine Suffrage Meet requirements under
citizenship to an alien [So v. Republic, GR Section 1, Article V of the
No.170603 (2007)]. 1987 Constitution, R.A.
No. 9189 (Overseas
Citizenship can be reacquired by natural-born Absentee Voting Act of
citizens of the Philippines who have lost their 2003), other existing
Philippine citizenship by reason of their laws.
naturalization as citizens of a foreign country
upon taking the oath of allegiance to the Seeking Meet the qualifications
Republic [Section 3, R.A. 9225]. elective public for holding such public
office office as required by the
Constitution and existing
laws and, at the time of
the filing of the certificate
of candidacy, make a
personal and sworn
Page 121 of 412

Repatriation as a mode of reacquiring
renunciation of any and
Philippine citizenship does not require the filing
all foreign citizenship
of a petition in court. All that an applicant had
before any public officer
to do is to take an oath of allegiance to the
authorized to administer
Republic of the Philippines and register said
an oath
oath in the Local Civil Registry of the place
Appointment Subscribe and swear to where the person concerned resides or last
to public office an oath of allegiance to resided [Angat, supra]. In addition thereto,
the Republic of the registration of the Certificate of Repatriation in
Philippines and its duly the Bureau of Immigration is a prerequisite in
constituted authorities effecting the repatriation of a citizen [Altarejos
prior to their assumption v. COMELEC, G.R. No. 163256 (2004)]. But in
of office: provided, that Tabasa, supra, the Supreme Court ruled that a
they renounce their oath petition for repatriation shall be filed with the
of allegiance to the Special Committee on Naturalization (SCN)
country where they took which was designated to process petitions for
that oath repatriation pursuant to AO 285 dated August
22, 2006.
Practice Apply with the proper
profession in authority for a license or 7. Repatriation under R.A. No. 9225
the Philippines permit to engage in such It allows former natural-born Filipino citizens
practice who have lost their Philippine citizenship by
reason of their naturalization as citizens of a
[Section 5, R.A. No. 9225] foreign country to reacquire Filipino citizenship.
It also allows Filipino citizens to retain their
The right to vote or be elected or appointed to Filipino citizenship even if they acquire another
any public office in the Philippines cannot be citizenship in a foreign country. Retention or
exercised by, or extended to, those who: reacquisition is accomplished by simply taking
1. Are candidates for or are occupying any the oath of allegiance as prescribed by R.A.
public office in the country of which they are No. 9225. The required oath of allegiance does
naturalized citizens; and/or not contain the usual renunciation of allegiance
2. Are in active service as commissioned or to any and all other states, thereby impliedly
noncommissioned officers in the armed allowing continued allegiance to the adopted
forces of the country in which they are state. The usual absolute renunciation is,
naturalized citizens. however, required from those seeking public
elective office or appointed to public office in
6. Repatriation under R.A. No. 8171 the Philippines. Likewise, under the principle of
R.A. No. 8171, which lapsed into law on derivative citizenship, the unmarried child,
October 23, 1995, is an act providing for the whether legitimate, illegitimate or adopted,
repatriation (a) of Filipino women who have lost below 18 years of age, of those who re-acquire
their Philippine citizenship by marriage to Philippine citizenship upon the effectivity of
aliens and (b) of natural-born Filipinos who R.A. No. 9225, shall be deemed citizens of the
have lost their Philippine citizenship on account Philippines.
of political or economic necessity, including
their minor children [Angat v. Republic, GR No. 8. R.A. No. 9225 is NOT violative of
132244 (1999)]. Included in the second group
Section 5 of Article IV of the
are minor children at the time of repatriation
and does not include one who is no longer Constitution prohibiting dual
minor at the time of his repatriation or one who allegiance
lost his Philippine citizenship by operation of Section 5 of Article IV of the Constitution is a
law. The loss of Philippine citizenship must be mere declaration of policy and it is not a self-
on account of political or economic necessity executing provision. The legislature still has to
and not by operation of law such as derivative enact the law on dual allegiance. In Sections 2
naturalization, or for the purpose of avoiding and 3 of R.A. No. 9225, the framers were not
deportation and prosecution in the US [Tabasa concerned with dual citizenship, per se, but
v. CA, G.R. No. 125793 (2006)]. with the status of naturalized citizens who
Page 122 of 412

maintain their allegiance to their countries of application of different laws of two or more
origin even after their naturalization. Congress states to a dual citizen.
was given a mandate to draft a law that would
set specific parameters as to what really 2. Dual Allegiance
constitutes dual allegiance. Until this is done, it a. Aliens who are naturalized as Filipinos but
would be premature for the judicial department remain loyal to their country of origin;
to rule on the issues pertaining to dual b. Public officers who, while serving the
allegiance [Calilung v. Datumanong, GR government, seek citizenship in another
160869 (2007)]. country.
9. Citizenship Reacquired by 3. Dual citizenship vs. dual allegiance

Repatriation under Repatriation Laws Dual citizenship arises when, as a result of the
Repatriation results in the recovery of the concurrent application of the different laws of
original nationality. This means that a two or more states, a person is simultaneously
naturalized Filipino who lost his citizenship will considered a national by the said states. For
be restored to his prior status as a naturalized instance, such a situation may arise when a
Filipino citizen. On the other hand, if he was person whose parents are citizens of a state
originally a natural-born citizen before he lost which adheres to the principle of jus sanguinis
his Philippine citizenship, he will be restored to is born in a state which follows the doctrine of
his former status as a natural-born Filipino jus soli. Such person, ipso facto and without
[Bengson III v. HRET, et. al. GR No. 142840 any voluntary act on his part, is concurrently
(2001)]. considered a citizen of both states.
Note: The issue of citizenship may be threshed Dual allegiance on the other hand, refers to a
out as the occasion demands. Res judicata situation in which a person simultaneously
only applies once a finding of citizenship is owes, by some positive acts, loyalty to two or
affirmed by the Court in a proceeding in which: more states. While dual citizenship is voluntary,
(a) the person whose citizenship is questioned dual allegiance is the result of an individual’s
is a party; (b) the person's citizenship is raised volition [Mercado v. Manzano, 307 SCRA 630
as a material issue; and (c) the Solicitor (1999)].
General or an authorized representative is able
to take an active part. “Dual citizens” are disqualified from running for
any elective local position [Section 40(d), Local
When a person has already been declared Government Code]; this should be read as
and recognized as a Philippine Citizen, by the referring to “dual allegiance.
BI and the DOJ, he must be protected from
summary deportation proceedings. A citizen is Once a candidate files his candidacy, he is
entitled to live in peace, without molestation deemed to have renounced his foreign
from any official or authority, and if he is citizenship in case of dual citizenship [Mercado
disturbed by a deportation proceeding, he has v. Manzano, G.R. No. 135083 (1999)].
the unquestionable right to resort to the courts
for his protection, either by a writ of habeas Clearly, in including Section 5 in Article IV on
corpus or of prohibition on the ground that the citizenship, the concern of the Constitutional
BI lacks jurisdiction [Republic v. Harp, G.R. Commission was not with dual citizens per se
No. 188829 (2016)]. but with naturalized citizens who maintain their
allegiance to their countries of origin even after
D. Dual Citizenship and Dual their naturalization. Hence, the phrase “dual
citizenship” in Section 40(d), R.A. No. 7160 and
Allegiance in Section 20, R.A. No. 7854 must be
understood as referring to “dual allegiance.”
1. Dual Citizenship
Allows a person who acquires foreign Consequently, persons with mere dual
citizenship to simultaneously enjoy the rights citizenship do not fall under this
he previously held as a Filipino citizen. This is disqualification. For candidates with dual
completely voluntary, and results in the citizenship, it should suffice if, upon the filing of
their certificates of candidacy, they elect
Page 123 of 412
Philippine citizenship to terminate their status
as persons with dual citizenship considering
that their condition is the unavoidable
consequence of conflicting laws of different
States.
Page 124 of 412

IX. NATIONAL ECONOMY lands [Section

[Section 3, 4(2), Article
AND PATRIMONY Article XII] XIV]
(1) Citizens Congress

A. Goals [Section 1, Article XII, may lease may
1987 Constitution] only < 500 increase
1. More equitable distribution of ha. Filipino
opportunities, income, and wealth, (2) Citizens equity
2. Sustained increase in amount of goods may acquire participation.
and services produced by the nation for by purchase,
the benefit of the people; and homestead
3. Expanding production as the key to or grant only
raising the quality of life for all, < 12 ha.
especially the underprivileged. Practice of Areas of
professions, Investment
B. Regalian Doctrine save in as Congress
SECTION 2, ARTICLE XII. All lands of the public cases may
domain, waters, minerals, coal, petroleum, and provided by prescribe
other mineral oils, all forces of potential energy, law (Congress
fisheries, forests or timber, wildlife, flora and fauna, [Section may
and other natural resources are owned by the
State. With the exception of agricultural lands, all
14(2), Article prescribe a
other natural resources shall not be alienated. XII] higher
percentage)
1. Nationality and Citizenship [Section 10,
Article XII]
Requirement Provisions
Small-scale Operation of
Filipino Filipino Filipino
utilization of public
Citizens, or Citizens, or Citizens, or
natural utilities
100% 60-40 70-30
resources, [Section 11,
Filipino Filipino Filipino
as may be Article XII]
Corporation Corporation Corporation
provided by
s s s
law Cannot be
Use and Coproductio Engagement [Section for longer
enjoyment of n, in 2(3), Article period than
marine Joint advertising XII] 50 years
wealth, venture, and industry Executive
exclusive to Production [Section 11, and
Filipino sharing Article managing
citizens agreements XVI] officers must
[Section 2, over natural be Filipino
par. 2, resources
Article XII] [Section Note: To
2(1), Article stimulate
XII] investment,
the
Agreements government
shall not recently
exceed a passed R.A.
period of 25 No. 11659,
years approved by
renewable the President
for another on March 21,
25 years 2022 and
Rules on Educational effective on
agricultural Institutions April 9, 2022.
Page 125 of 412
(See more investment power over the "specific stock", or
below). both, then such Filipino is the "beneficial
owner" of that "specific stock."
General Rule: The Constitution holds that
private corporations or associations may not Being considered Filipino, that "specific stock"
hold alienable lands of the public domain. is then to be counted as part of the 60% Filipino
ownership requirement under the Constitution.
Exception: Unless through lease, for a period
not exceeding 25 years, renewable for not The right to the dividends, jus fruendi - a right
more than 25 years, and not to exceed 1000 emanating from ownership of that "specific
ha. in area [Section 3, Article XII, 1987 stock" necessarily accrues to its Filipino
Constitution]. "beneficial owner" [Roy III v. Herbosa, G.R. No.
● However, the Constitution does not 207246 (2016)].
specify the capital requirements for
such corporations. 3. Filipino First
SECTION 10, PARA. 2-3, ARTICLE XII. In the grant
A joint venture falls within the purview of an of rights, privileges, and concessions covering the
“association” pursuant to Section 11, Article national economy and patrimony, the State shall
give preference to qualified Filipinos.
XII. It must comply with the 60-40% Filipino
foreign capitalization requirement [JG Summit The State shall regulate and exercise authority over
Holdings v. CA, G.R. No. 124293 (2000)]. foreign investments within its national jurisdiction
and in accordance with its national goals and
What “capital” is covered – The 60% priorities
requirement applies to both the voting control
and the beneficial ownership of the public Such provision is per se enforceable and
utility. Therefore, it shall apply uniformly, requires no further guidelines or implementing
separately, and across the board to all classes rules or laws for its operation [Manila Prince
of shares, regardless of nomenclature or Hotel v. GSIS, G.R. No. 122156 (1997)].
category, comprising the capital of the
corporation (e.g., 60% of common stock, 60% The Constitution does not impose a policy of
of preferred voting stock, and 60% of preferred Filipino monopoly of the economic
non-voting stock) [Gamboa v. Teves, G.R. No. environment. It does not rule out the entry of
176579 (2012)]. foreign investments, goods, and services.
While it does not encourage their unlimited
2. Two Tests to Determine Whether or entry into the country, it does not prohibit them
Not Nationality Requirement Was Met either.
In fact, it allows an exchange on the basis of

a. Control Test equality and reciprocity, frowning only on
Filipinos must own at least 60% of the
foreign competition that is unfair [Tañada v.
corporation’s capital.
Angara, G.R. No. 118295 (1997)].
This test is generally used. However, when SECTION 12, ARTICLE XII. The State shall
there is doubt as to the “beneficial ownership” promote the preferential use of Filipino labor,
and “control” of the corporation, it must be domestic materials and locally produced goods, and
subject to the Grandfather Test. adopt measures that help make them competitive.
b. Grandfather Test 4. R.A. No. 11659

Where percentage of Filipino equity in a R.A. No. 11659 amended the 86-year-old
corporation is computed by attributing the Public Service Act (C.A. No. 146).
nationality of the second or even subsequent
tier of ownership to determine the nationality of
the corporate shareholder [Narra Nickel Mining
Dev’t Corp. v. Redmont Consolidated Mines
Corp., G.R. No. 195580 (2015)].
Note: If the Filipino has the voting power of the
"specific stock", or the Filipino has the
Page 126 of 412
a. Public Utility Definition [Section 3. Information security clauses ensure that
13(d), C.A. No. 146, as amended by R.A. entities engaged in the
No. 11659] telecommunications business meet
Public utility refers to a public service that relevant ISO standards;
operates, manages, or controls, for public use, 4. The reciprocity clause prevents foreign
any of the following: nationals from owning more than 50% of
1. Distribution of Electricity; capital in the operation and management of
2. Transmission of Electricity; critical infrastructure unless the foreign
3. Petroleum and Petroleum Products nationals’ home countries accord
Pipeline Transmission Systems; reciprocity to Philippine nationals; and
4. Water Pipeline Distribution Systems and 5. The performance audit provision mandates
Wastewater Pipeline Systems, including an independent evaluation to monitor the
sewerage pipeline systems; cost, the quality of services provided to the
5. Seaports; and public, and the ability of the public service
6. Public Utility Vehicles. provider to immediately and adequately
respond to emergency cases.
All concessionaires, joint ventures, and similar
entities that wholly operate, manage, or control, C. Exploration, Development,
for public use, the sectors above are public and Utilization of Natural
utilities.
Resources
The 60-40 restriction is now limited to entities
classified as a public utility under R.A. No. 1. La Bugal-B’Laan Tribal Assn. v.
11659 in accordance with Section 11, Article Ramos [G.R. No. 127882 (2004)]
XII of the 1987 Constitution. The State, being the owner of the natural
resources, is accorded the primary power and
These key sectors are considered natural responsibility in the exploration, development
monopolies where a single firm can effectively and utilization thereof.
serve the market at a lower cost than two or
more firms. As such it may undertake these activities
through four modes:
b. Foreign-Ownership of Public a. Directly. The State may directly undertake
Services such activities
Key industries such as telecommunications, b. Co-Production/JV/Production-Sharing.
expressways, airports, and shipping have been The State may enter co-production, joint
removed from the category of public utility. venture or production-sharing agreements
Under the new law, these industries may now with Filipino citizens or qualified
be 100% foreign-owned. corporations
c. By Law. Congress may, by law, allow
c. Safeguards small-scale utilization of natural resources
While the newly amended law may attract by Filipino citizens; or
critically-needed investment, some may d. Presidential Agreements. For the large-
consider the law’s liberality as going against scale exploration, development and
the conservation of national patrimony. utilization of minerals, petroleum and other
Therefore, to ensure a Filipino-controlled mineral oils, the President may enter into
national economy, below are 5 safeguards: agreements with foreign-owned
1. The President has the power to suspend or corporations involving technical or financial
prohibit any investment in public services in assistance subject to the following
the interest of national security upon the limitations:
review, evaluation, and recommendation of 1. As to Parties. Only the President, on
the relevant government agencies; behalf of the State, may enter into
2. Restrictions are imposed on foreign state- these agreements, and only with
owned enterprises (SOEs) owning capital corporations.
in a public service classified as public utility 2. As to Size of the Activities. Only
or critical infrastructure; large-scale exploration, development
Page 127 of 412

and utilization is allowed, i.e., very
development services and
capital-intensive activities
and technology
3. As to intent. The natural resources
utilization and the
subject of the activities is restricted to
requisite
minerals, petroleum and other mineral
financing,
oils, the intent being to limit service
performs the
contracts to those areas where Filipino
exploration
capital may not be sufficient.
work
4. FTAA Requirements
obligations,
i. Consistency with the Provisions of
and
Statute is necessary. The FTAA
assumes all
must be in accordance with the
exploration
terms and conditions provided by
risks
law.
ii. The FTAA must be based on real Natural Minerals, Virtually the
contributions to economic growth Sources petroleum, entire
and general welfare of the country. Covered and other range of the
iii. The FTAA must contain mineral country’s
rudimentary stipulations for the oils natural
promotions of the development and resources
use of local scientific and technical
resources. Scope of Involving Contractor
5. As to the Notification Requirement. Agreement either provides
The President shall notify Congress of s financial or financial or
every FTAA entered within 30 days technical technical
from its execution. assistance resources,
6. Scope of the FTAA. Only for undertakes
agreements involving either financial or the
technical assistance and does not exploitation
include “service contracts” and or
“management or other forms of production of
assistance” [La Bugal-B’Laan Tribal a given
Assn. v. Ramos, G.R. No. 127882 resource, or
(2004)]. directly
manages the
2. FTAA vs. Service Contract productive
FTAA (1987 Service enterprise,
Constitution Contract operations of
) (1973 the
Constitution exploration
) and
exploitation
Parties Only the A Filipino of the
President citizen, resources or
(in behalf of corporation the
the or disposition of
State), and association marketing or
only with with a resources
corporations “foreign
person or 3. Service Contracts not Prohibited
entity”
The following are valid:
Size of Only large- Contractor
a. Financial and Technical Assistance
Activities scale provides
Agreements (FTAA): even supposing they
exploration, all necessary
are service contracts, these are not
Page 128 of 412
prohibited agreements in the c. Shall NOT be for a period of more than 50
contemplation of the Constitution years
b. Philippine Mining Law (R.A. No. 7942) d. Shall be subject to amendment, alteration
c. Its Implementing Rules and Regulations, or repeal by Congress [Section 1, Article
insofar as they relate to financial and XII, 1987 Constitution].
technical agreements
The power to authorize and control the
The Constitution should be construed to grant operation of a public utility is a prerogative of
the President and Congress sufficient the legislature. The franchise is a legislative
discretion and reasonable leeway to enable grant, whether made by the legislature itself, or
them to attract foreign investments and by any one of its properly constituted
expertise, as well as to secure for our people instrumentalities [Aquino].
and our posterity the blessings of prosperity
and peace. Administrative bodies (i.e. LTFRB, Energy
Regulatory Board) may be empowered by law
It is not unconstitutional to allow a wide degree to issue franchises [Albano v. Reyes, G.R. No.
of discretion to the Chief Executive, given the 83551 (1989)].
nature and complexity of such agreements, the
humongous amounts of capital and financing What constitutes a public utility is not the
required for large-scale mining operations, the ownership but the use to the public. The
complicated technology needed, and the Constitution requires a franchise for the
intricacies of international trade, coupled with operation of public utilities.
the State’s need to maintain flexibility in its
dealings, to preserve and enhance our However, it does not require a franchise before
country’s competitiveness in world markets [La one can own the facilities needed to operate a
Bugal-B’laan Tribal Assn. v. Ramos, supra]. public utility so long as it does not operate them
to serve the public [Tatad v. Garcia, G.R. No.
4. Requisites for a Valid Service 114222 (1995)].
Contract Under the Constitution
a. A general law that will set standards or Example: X Company may own an airline
uniform terms, conditions, and without the need of a franchise. But in
requirements operating an air transport business, franchise
b. The president shall be the signatory for the is required.
government
c. Within thirty (30) days of the executed A franchise partakes the nature of a grant
agreement, the President shall report it to which is beyond the purview of the non-
Congress impairment clause of the Constitution. Under
Section 11, Article XII of the Constitution,
PAGCOR’s franchise is subject to amendment,
D. Franchises, Authority and alteration or repeal by Congress [PAGCOR v.
Certificates for Public Utilities BIR, G.R. No. 172087 (2011)].
No franchise, certificate, or any other form of

Franchise CPC
authorization for the operation of a public utility
shall be granted except to:
It is a grant or It is a form of
1. Citizens of the Philippines; or
privilege from regulation through
2. Corporations or associations organized
sovereign power administrative
under the laws of the Philippines at least sixty
agencies
per centum of whose capital is owned by such
citizens [Section 11, Article XII, 1987
Constitution]. Authority and Certificates for Public
Utilities
Franchise No public service as herein defined shall
Nature of a Franchise: operate in the Philippines without having first
a. It is a privilege not a right secured from the Commission a certificate,
b. Shall NOT be exclusive which shall be known as Certificate of Public
Page 129 of 412
Convenience (CPC) or as Certificate of Public To prove that the land subject of an application
Convenience and Necessity (CPCN) [Section for registration is alienable, an applicant must
15, Public Service Act]. conclusively establish the existence of a
positive act of the government such as a
Requisites for issuance of CPC presidential proclamation or an executive order
1. The applicant must be a citizen of the or a legislative act or statute [Republic v.
Philippines, or a corporation or co- partnership, Candymaker, Inc., G.R. No. 163766 (2006)].
association or joint stock company constituted
and organized under the laws of the Foreshore land is that part of the land which is
Philippines, 60 per centum at least of the stock between the high and low water, and left dry by
or paid-up capital of which belong entirely to the flux and reflux of the tides. It is part of the
citizens of the Philippines; alienable land of the public domain and may be
2. The applicant must prove that the operation disposed of only by lease and not otherwise
of the public service proposed and the [Republic v. Imperial, supra].
authorization to do business will promote the
public interest in a proper and suitable manner; Citizens of the Philippines may lease not more
3. The applicant must be financially capable of than 500 ha. or acquire not more than 12
undertaking the proposed service and meeting hectares thereof by purchase, homestead, or
the responsibilities incident to its operations grant [Section 3, Article XII, 1987 Constitution].
[Vda. De Lat v. Public Service Commission,
G.R. No. L-34978 (1988)]. 2. Private Lands
Nobody has the exclusive right to secure a General Rule: No private lands shall be
franchise or a CPC. The paramount transferred or conveyed except to individuals,
consideration should always be the public corporations, or associations qualified to
interest and public convenience [Vda. De Lat v. acquire or hold lands of the public domain
Public Service Commission, supra]. [Section 7, Article XII, 1987 Constitution].
E. Acquisition, Ownership and Exceptions:

1. Hereditary succession [Section 7, Article XII,
Transfer of Public and Private 1987 Constitution]
Lands 2. A natural-born citizen of the Philippines who
has lost his Philippine citizenship may be a
1. Lands of Public Domain transferee of private lands, subject to
limitations provided by law [Section 8, Article
Lands of the Public Domain are classified XII, 1987 Constitution].
into:
1. Agricultural Lands The primary purpose of the constitutional
2. Forest or Timber Lands prohibition disqualifying aliens from acquiring
3. Mineral Lands lands of the public domain and private lands is
4. National Park [Section 3, Article XII, 1987 the conservation of the national economy and
Constitution] patrimony [Muller v. Muller, G.R. 149615
(2006)].
Note: The classification of public lands is a
function of the executive branch, specifically Consequence of sale to non-citizens
the Director of the Land Management Bureau Any sale or transfer in violation of the
(formerly Director of Lands). The decision of prohibition is null and void [Ong Ching Po v.
the Director, when approved by the Secretary CA, G.R. Nos. 113472-73 (1994)].
of the DENR, as to questions of fact, is
conclusive upon the courts [Republic v. When a disqualified foreigner later sells it to a
Imperial, G.R. No. 130906 (1999)]. qualified owner (e.g. Filipino citizen), the defect
is cured. The qualified buyer owns the land
Alienable lands of the public domain shall be [Godinez v. Pak Luen, G.R. No L-36731
limited to agricultural lands [Section 3, Article (1983)].
XII, 1987 Constitution].
Page 130 of 412

Can a former owner file an action to recover professions or trades, even to the point of
the property? revoking such right altogether [Imbong v.
Yes. The Court in Philippine Banking Corp. v. Ochoa, supra].
Lui She [G.R. No. L-17587 (1967)] provided an
exception to the application of the principle of The Philippines allows Japanese nationals to
in pari delicto. Thus, the action will lie. practice the medical profession, provided he
has taken and passed the medical board
However, land sold to an alien which was later examination and upon submission of a proof of
transferred to a Filipino citizen OR when the reciprocity between Japan and the Philippines
alien later becomes a Filipino citizen can no in admitting foreigners into the practice of
longer be recovered by the vendor, because medicine. It is enough that the laws in the
there is no longer any public policy involved foreign country permit a Filipino to get license
[Sarsosa vda. de Barsobia v. Cuenco, G.R. No. and practice therein.
L-33048 (1982); Republic v. IAC, G.R. No.
74170 (1989)]. However, the power to regulate the exercise
of a profession or pursuit of an occupation
Foreigners are allowed to own condominium cannot be exercised by the State or its agents
units and shares in condominium corporations in an arbitrary, despotic or oppressive manner
up to not more than 40% of the total and [Board of Medicine v. Ota, G.R. No. 166097
outstanding capital stock of a Filipino-owned or (2008)].
controlled corporation. Under this set up, the
ownership of the land is legally separated from G. Organization and Regulation
the unit itself.
of Corporations, Private and
The land is owned by a Condominium Public
Corporation and the unit owner is simply a SECTION 6, ARTICLE XII. The use of property
member in this Condominium Corporation. bears a social function, and all economic agents
Provided that 60% of the members of this shall contribute to the common good. Individuals
and private groups, including corporations,
Condominium Corporation are Filipinos, the cooperatives, and similar collective organizations,
remaining members can be foreigners [Hulst v. shall have the right to own, establish, and operate
PR Builders, G.R. No. 156364 (2008)]. economic enterprises, subject to the duty of the
State to promote distributive justice and to intervene
In Matthews v. Taylor [G.R. No. 164584 when the common good so demands.
(2009)], the Court upheld the validity of an
SECTION 18, ARTICLE XII. The State may, in the
Agreement of Lease of a parcel of land a interest of national welfare or defense, establish and
Filipino wife entered, without the consent of her operate vital industries and, upon payment of just
British husband. Being an alien, the husband is compensation, transfer to public ownership utilities
absolutely prohibited from acquiring private and other private enterprises to be operated by the
and public lands in the Philippines even if he Government.
claims that he provided funds for such
acquisition H. Monopolies, Restraint of
Trade and Unfair Competition
F. Practice of Profession SECTION 19, ARTICLE XII. The State shall
SECTION 14, ARTICLE XII. The practice of all regulate or prohibit monopolies when the public
professions in the Philippines shall be limited to interest so requires. No combinations in restraint of
Filipino citizens, save in the case prescribed by law. trade or unfair competition shall be allowed.
Like the legal profession, the practice of The Constitution does not totally prohibit the
medicine is not a right, but a privilege burdened operation of monopolies. It mandates the State
with conditions as it directly involves the very to regulate them when public interest so
lives of the people. A fortiori, this power requires [Eastern Assurance & Surety
includes the power of Congress to prescribe Corporation v. LTFRB, G.R. No. 149717
the qualifications for the practice of professions (2003)].
or trades which affect the public welfare, the
public health, the public morals, and the public Monopolies are not per se prohibited by the
safety; and to regulate or control such Constitution. Instead, they may be permitted to
Page 131 of 412
exist to aid the government in carrying on an
enterprise or to aid in the performance of
various services and functions in the interest of
the public.
Nonetheless, a determination must first be

made as to whether public interest requires a
monopoly [Agan, Jr. v. PIATCO, G.R. No.
155001 (2003)].
Even though the present Constitution

enshrines free enterprise as a policy,
nonetheless, the Government reserves the
power to intervene to promote the general
welfare.
Free enterprise does not call for removal of

protective regulations. It must be clearly
explained and proven by competent evidence
just exactly how such protective regulation
would result in the restraint of trade [Pest
Management Association of the Philippines v.
Fertilizer and Pesticide Authority cited in
Pharmaceutical and Health Care Association
of the Philippines v. Duque, G.R. 173034
(2007)].
Page 132 of 412

SECTION 3, ARTICLE XIII. The State shall afford
X. SOCIAL JUSTICE AND full protection to labor, local and overseas,
HUMAN RIGHTS organized and unorganized, and promote full
employment and equality of employment
opportunities for all.
A. Concept of Social Justice It shall guarantee the rights of all workers to self-
SECTION 10, ARTICLE II. The State shall promote
organization, collective bargaining and negotiations,
social justice in all phases of national development.
and peaceful concerted activities, including the right
to strike in accordance with law. They shall be
SECTION 1. ARTICLE XIII. The Congress shall give entitled to security of tenure, humane conditions of
highest priority to the enactment of measures that work, and a living wage. They shall also participate
protect and enhance the right of all the people to in policy and decision-making processes affecting
human dignity, reduce social, economic, and their rights and benefits as may be provided by law.
political inequalities, and remove cultural inequities
by equitably diffusing wealth and political power for
the common good. To this end, the State shall The State shall promote the principle of shared
regulate the acquisition, ownership, use, and responsibility between workers and employers and
disposition of property and its increments. the preferential use of voluntary modes in settling
disputes, including conciliation, and shall enforce
SECTION 2, ARTICLE XIII. The promotion of social their mutual compliance therewith to foster industrial
justice shall include the commitment to create peace.
economic opportunities based on freedom of
initiative and self-reliance. The State shall regulate the relations between
workers and employers, recognizing the right of
Social justice refers to the promotion of the labor to its just share in the fruits of production and
the right of enterprises to reasonable returns to
welfare of all the people, the adoption by the
investments, and to expansion and growth.
Government of measures calculated to insure
economic stability of all the competent
elements of society, through the maintenance 2. Agrarian and Natural Resources
of a proper economic and social equilibrium in Reforms
the interrelations of the members of the SECTION 4, ARTICLE XIII. The State shall, by law,
undertake an agrarian reform program founded on
community, constitutionally, through the the right of farmers and regular farmworkers who
adoption of measures legally justifiable, or are landless, to own directly or collectively the lands
extra constitutionally, through the exercise of they till or, in the case of other farmworkers, to
powers underlying the existence of all receive a just share of the fruits thereof. To this end,
governments on the time-honored principle of the State shall encourage and undertake the just
salus populi est suprema lex. distribution of all agricultural lands, subject to such
priorities and reasonable retention limits as the
Congress may prescribe, taking into account
It must be founded on the recognition of the ecological, developmental, or equity considerations,
necessity of interdependence among divers and subject to the payment of just compensation. In
and diverse units of a society and of the determining retention limits, the State shall respect
protection that should be equally and evenly the right of small landowners. The State shall further
extended to all groups as a combined force in provide incentives for voluntary land-sharing.
our social and economic life, consistent with
SECTION 5, ARTICLE XIII. The State shall
the fundamental and paramount objective of recognize the right of farmers, farmworkers, and
the state of promoting the health, comfort, and landowners, as well as cooperatives, and other
quiet of all persons, and of bringing about "the independent farmers’ organizations to participate in
greatest good to the greatest number" the planning, organization, and management of the
[Calalang v. Williams, G.R. 47800 (1940)]. program, and shall provide support to agriculture
through appropriate technology and research, and
adequate financial, production, marketing, and other
B. Economic, Social, and support services.
Cultural Rights SECTION 7, ARTICLE XIII. The State shall protect
the rights of subsistence fishermen, especially of
1. Economic and Social local communities, to the preferential use of the
SECTION 18, ARTICLE II. The State affirms labor communal marine and fishing resources, both
as a primary social economic force. It shall protect inland and offshore. It shall provide support to such
the rights of workers and promote their welfare. fishermen through appropriate technology and
research, adequate financial, production, and
marketing assistance, and other services. The State
Page 133 of 412
shall also protect, develop, and conserve such prescribed procedure in executing eviction
resources. The protection shall extend to offshore and/or demolition orders:
fishing grounds of subsistence fishermen against a. Notice upon the affected persons or entities
foreign intrusion. Fishworkers shall receive a just
share from their labor in the utilization of marine and at least thirty (30) days prior to the date of
fishing resources. eviction or demolition;
b. Adequate consultations on the matter of
3. Urban Land Reform and Housing settlement with the duly designated
SECTION 9, ARTICLE XIII. The State shall, by law, representatives of the families to be
and for the common good, undertake, in resettled and the affected communities in
cooperation with the private sector, a continuing the areas where they are to be relocated;
program of urban land reform and housing which will c. Presence of local government officials or
make available at affordable cost, decent housing their representatives during eviction or
and basic services to underprivileged and homeless
demolition;
citizens in urban centers and resettlement areas. It
shall also promote adequate employment d. Proper identification of all persons taking
opportunities to such citizens. In the implementation part in the demolition;
of such program the State shall respect the rights of e. Execution of eviction or demolition only
small property owners. during regular office hours from Mondays
to Fridays and during good weather, unless
SECTION 10, ARTICLE XIII. Urban or rural poor
dwellers shall not be evicted nor their dwelling
the affected families consent otherwise;
demolished, except in accordance with law and in a f. No use of heavy equipment for demolition
just and humane manner. except for structures that are permanent
and of concrete materials;
No resettlement of urban or rural dwellers shall be g. Proper uniforms for members of the
undertaken without adequate consultation with them Philippine National Police who shall occupy
and the communities where they are to be relocated.
the first line of law enforcement and
observe proper disturbance control
The constitutional requirement (under Section procedures; and
10, Article XIII) that the eviction and demolition h. Adequate relocation, whether temporary or
be in accordance with law and conducted in a permanent: Provided, however, That in
just and humane manner does not mean that cases of eviction and demolition pursuant
the validity or legality of the demolition or to a court order involving underprivileged
eviction is hinged on the existence of a and homeless citizens, relocation shall be
resettlement area designated or earmarked by undertaken by the local government unit
the government. What is meant by "in concerned and the National Housing
accordance with law" and "just and humane Authority with the assistance of other
manner" is that the person to be evicted be government agencies within forty-five (45)
accorded due process or an opportunity to days from service of notice of final
controvert the allegation that his or her judgment by the court, after which period
occupation or possession of the property the said order shall be executed: Provided,
involved is unlawful or against the will of the further, That should relocation not be
landowner; that should the illegal or unlawful possible within the said period, financial
occupation be proven, the occupant be assistance in the amount equivalent to the
sufficiently notified before actual eviction or prevailing minimum daily wage multiplied
demolition is done; and that there be no loss of by sixty (60) days shall be extended to the
lives, physical injuries or unnecessary loss of affected families by the local government
or damage to properties. Precisely, the unit concerned [Kalipunan ng Damayang
enactment of an anti-squatting law affords the Mahihirap v. Robredo, G.R. No. 200903
alleged "squatters" the opportunity to present (2014)].
their case before a competent court where their
rights will be amply protected and due process
strictly observed [People v. Leachon, G.R. Nos.
4. Health
SECTION 9, ARTICLE XIII. The State shall adopt
108725-26 (1998)]. an integrated and comprehensive approach to
health development which shall endeavor to make
To ensure that evictions and demolitions are essential goods, health and other social services
conducted in a just and human manner, available to all the people at affordable cost. There
Section 28, Para. 2 of R.A. No. 7279 shall be priority for the needs of the underprivileged,
sick, elderly, disabled, women, and children. The
commands officials to comply with the
Page 134 of 412
State shall endeavor to provide free medical care to ancestral lands to ensure their economic, social, and
paupers. cultural well-being.
5. Women 1987 Constitution

SECTION 14, ARTICLE XIII. The State shall protect
SECTION 15, ARTICLE XIV. Arts and letters shall
working women by providing safe and healthful
enjoy the patronage of the State. The State shall
working conditions, taking into account their
conserve, promote, and popularize the nation’s
maternal functions, and such facilities and
historical and cultural heritage and resources, as
opportunities that will enhance their welfare and
well as artistic creations.
enable them to realize their full potential in the
service of the nation.
SECTION 17, ARTICLE XIV. The State shall
recognize, respect, and protect the rights of
In Saudia v. Rebesencio [G.R. No. 198587 indigenous cultural communities to preserve and
(2015)], Rebesencio et. al. were not granted develop their cultures, traditions, and institutions. It
with their maternity leaves and were shall consider these rights in the formulation of
subsequently terminated by Saudia due to their national plans and policies.
pregnancy.
C. Commission on Human
The Court ruled that Saudia's policy is Rights
discriminatory. There is the glaringly
discriminatory nature of Saudia's policy since it SECTION 17(1) & (3), ARTICLE XIII.
entails the termination of employment of flight (1) There is hereby created an independent office
attendants who become pregnant. At the risk of called the Commission on Human Rights.
stating the obvious, pregnancy is an
occurrence that pertains specifically to women. (3) Until this Commission is constituted, the existing
Presidential Committee on Human Rights shall
continue to exercise its present functions and
Saudia's policy excludes from and restricts powers.
employment based on no other consideration
but sex. It would be the height of iniquity to view
1. Powers
pregnancy as a disability so permanent and
a. Investigate, on its own or on complaint by
immutable that it must entail the termination of
any party, all forms of human rights
one's employment. The respondents were
violations involving civil and political rights;
illegally terminated.
b. Adopt its operational guidelines and rules
of procedure, and cite for contempt for
6. Role and Rights of Peoples violations thereof in accordance with the
Organizations Rules of Court;
SECTION 15, ARTICLE XIII. The State shall c. Provide appropriate legal measures for the
respect the role of independent people’s
protection of human rights of all persons
organizations to enable the people to pursue and
protect, within the democratic framework, their within the Philippines, as well as Filipinos
legitimate and collective interests and aspirations residing abroad, and provide for preventive
through peaceful and lawful means. measures and legal aid services to the
underprivileged whose human rights have
People’s organizations are bona fide associations been violated or need protection;
of citizens with demonstrated capacity to promote
d. Exercise visitorial powers over jails,
the public interest and with identifiable leadership,
membership, and structure. prisons, or detention facilities;
e. Establish a continuing program of
research, education, and information to
7. Cultural
SECTION 22, ARTICLE II. The State recognizes
enhance respect for the primacy of human
and promotes the rights of indigenous cultural rights;
communities within the framework of national unity f. Recommend to Congress effective
and development measures to promote human rights and to
provide for compensation to victims of
1987 Constitution violations of human rights, or their families;
g. Monitor the Philippine Government's
SECTION 5, ARTICLE XII. The State, subject to the
provisions of this Constitution and national compliance with international treaty
development policies and programs, shall protect the obligations on human rights;
rights of indigenous cultural communities to their
Page 135 of 412
h. Grant immunity from prosecution to any
person whose testimony or whose
possession of documents or other
evidence is necessary or convenient to
determine the truth in any investigation
conducted by it or under its authority;
i. Request the assistance of any department,
bureau, office, or agency in the
performance of its functions;
j. Appoint its officers and employees in
accordance with law; and
k. Perform such other duties and functions as
may be provided by law [Section 18, Article
XIII, 1987 Constitution].
The Constitution clearly and categorically

grants to the Commission the power to
investigate all forms of human rights violations
involving civil and political rights. But it cannot
try and decide cases (or hear and determine
causes) as courts of justice, or even quasi-
judicial bodies do.
To investigate is not to adjudicate or adjudge

[Cariño v. CHR, G.R.No. 96681 (1991)].
The Commission is not a court of justice or a

quasi-judicial body. The Commission cannot
try and resolve cases on merits as it is not
within its power to investigate. Its power to
investigate is only fact-finding. When providing
preventive measures, it can file a case before
a court to represent victims [EPZA v. CHR,
G.R. No. 101476 (1992)].
2. Composition and Qualification of

Members
SECTION 17(2), ARTICLE XIII. The Commission
shall be composed of a Chairman and four Members
who must be natural-born citizens of the Philippines
and a majority of whom shall be members of the Bar.
The term of office and other qualifications and
disabilities of the Members of the Commission shall
be provided by law.
Page 136 of 412

XI. AMENDMENTS OR 2. Revisions

A change that alters a basic principle in the
REVISIONS OF THE constitution, like altering the principle of
separation of powers or the system of checks-
CONSTITUTION and- balances; alters the substantial entirety of
the constitution, as when the change affects
SECTION 1, ARTICLE XVII. Any amendment to, or
revision of, this Constitution may be proposed by: substantial provisions of the constitution
(1) The Congress, upon a vote of three-fourths of all [Lambino v. COMELEC, supra].
its Members; or
(2) A constitutional convention. A. Difference
SECTION 2, ARTICLE XVII. Amendments to this
Constitution may likewise be directly proposed by Revision generally affects several provisions of
the people through initiative upon a petition of at the constitution, while amendment generally
least twelve per centum of the total number of affects only the specific provision being
registered voters, of which every legislative district amended. This distinction is significant
must be represented by at least three per centum of
because the 1987 Constitution allows people’s
the registered voters therein. No amendment under
this section shall be authorized within five years initiative only for the purpose of amending, not
following the ratification of this Constitution nor revising, the Constitution [Lambino v.
oftener than once every five years thereafter. COMELEC, supra].
The Congress shall provide for the implementation
of the exercise of this right. B. Procedure to amend or revise
the Constitution
SECTION 3, ARTICLE XVII. The Congress may, by
a vote of two-thirds of all its Members, call a
constitutional convention, or by a majority vote of all 1. Proposal
its Members, submit to the electorate the question This refers to the adoption of the suggested
of calling such a convention. change in the Constitution.
a. Congress (as a Constituent
SECTION 4, ARTICLE XVII. Any amendment to, or Assembly) – a vote of 3/4 of ALL its
revision of, this Constitution under Section 1 hereof members.
shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier b. Constitutional Convention – Called
than sixty days nor later than ninety days after the into existence by (i) 2/3 of all members
approval of such amendment or revision. of Congress OR (ii) the electorate, in a
referendum called for by a majority of
Any amendment under Section 2 hereof shall be all members of Congress [Section 3,
valid when ratified by a majority of the votes cast in Article XVII]
a plebiscite which shall be held not earlier than sixty
days nor later than ninety days after the certification c. People (through a People’s
by the Commission on Elections of the sufficiency of Initiative) – Petition of at least 12% of
the petition. the total number of registered voters;
every legislative district must be
represented by at least 3% of the
A. Definitions registered voters therein
i. Limitation on Initiative: No
1. Amendments amendment in this manner
An addition or change within the lines of the shall be authorized (1) within 5
original constitution as will effect an years following the ratification
improvement, or better carry out the purpose of the 1987 Const. nor (2) more
for which it was framed; a change that adds, often than once every 5 years
reduces or deletes without altering the basic thereafter.
principles involved; affects only the specific ii. Enabling Law: Constitutional
provision being amended [Lambino v. provision on amendments via
COMELEC, supra]. People’s Initiative are not self-
executory [Defensor- Santiago
v. COMELEC, 270 SCRA 170
(1997)]
Page 137 of 412

2. Ratification
The Proposed Amendments shall be submitted
to the people and shall be deemed ratified by
the majority of the votes cast in a plebiscite,
held not earlier than 60 days nor later than 90
days:
a. After approval of the proposal by
Congress or ConCon;
b. After certification by the COMELEC of
sufficiency of petition of the people.
3. Doctrine of Proper Submission

A plebiscite may be held on the same day as a
regular election [Gonzales v. COMELEC, G.R.
No. L-28196 (1967)]. The entire Constitution
must be submitted for ratification at one
plebiscite only. The people must have a proper
“frame of reference” [J. Barredo’s Dissent in
Tolentino v. COMELEC, G.R. No. L-34150
(1971)].
No “piecemeal submission” is allowed; e.g.

submission of age amendment ahead of other
proposed amendments [Lambino v.
COMELEC, supra].
Note: The process of revision is the same in all

respects except that it cannot be proposed via
a People’s Initiative [Lambino v. COMELEC,
supra].
4. Judicial Review of Amendments

The validity of the process of amendment is
not a political question because the Court
must review if constitutional processes were
followed [Lambino v. COMELEC, supra].
Page 138 of 412

5. Two Stages of Amendatory/Revision Process

By Proposal Ratification
Amendments Congress (as By a vote of ¾ of all its Via Plebiscite, 60-90 days
Constituent members after submission of the
Assembly) amendments
Constitutional Per internal rules, limited by

Convention the Doctrine of Proper
Submission
People's Initiative Upon COMELEC’s

certification of the sufficiency
of the petition
Revision Congress (as By a vote of ¾ of all its

Constituent members
Assembly)
Constitutional Per internal rules, limited by Via Plebiscite, 60-90 days

Convention the Doctrine of Proper after submission of the
Submission revision
Page 139 of 412

TABLE OF CASES RE: CONSTITUTIONAL AMENDMENTS AND CHANGES IN GOVERNMENT
Title Facts Holding/Ratio
Mabanag v. Lopez Resolution of Congress proposing the Dismissed. Proposal of amendments

Vito (Congressional Parity Amendment was assailed on to the Constitution is a political
Resolution the grounds that it did not comply with question. The enrolled copy of the
proposing the the ¾ rule prescribed by the resolution in which it was certified that
Parity Amendment) Constitution the proposal had been approved by
Note: Expressly the required vote was conclusive upon
overturned in the Courts
Gonzales v.
COMELEC
Gonzales v. RBH No. 1 called for an increase in DENIED; (1) Proposal of amendments
COMELEC membership of the HOR; RBH No 2 is not a political question and it is
Resolutions of both called for a Constitutional Convention subject to judicial review. (2) Congress
Houses calling for RBH No. 3 called for the amendment may propose amendments and at the
the 1971 of Section 16, Article VI to allow same time call for a Constituent
Constitutional members of the Congress to be Assembly. (3) Ratification may be
Convention and delegates to the ConCon without done simultaneously with a general
amendments to the losing their seats. Petitioners sought election or in a special election called
1935 Constitution to restrain respondents from enforcing specially for that purpose. There was
the law passed by Congress proper submission.
submitting RBH Nos. 1 and 2 for
ratification during the general
elections of 1967.
Tolentino v. The validity of the ConCon Resolution GRANTED. All amendments proposed
COMELEC ( 1973 (submitting, for ratification the by the ConCon shall be submitted to
Constitutional proposal to lower the voting age to the people in a single election.
Convention 18) was assailed. Issue: W/N
convened) piecemeal amendments to the
Constitution could be submitted to the
people for ratification or rejection.
Planas v. Comelec Petitioners sought to enjoin DISMISSED. The validity of calling for
(Plebiscite cases) respondents from implementing PD a plebiscite is justiciable BUT, the
73 which called for a plebiscite (to be issue became moot
held on Jan. 15, 1973) for the
Constitution to be approved by the
ConCon on 1972, on the theory that
(a) The power to submit is lodged
exclusively in Congress and (b) there
is no proper submission to the people
Javellana v. Petitioners sought to enjoy Although the question of whether

Executive implementation of any of the Constitution was validly ratified is a
Secretary provisions of the “new constitution” justiciable question, the question of
(Ratification cases) which are not found in the 1935 whether a Constitution has come into
Constitution, on the theory that it was force and effect is a political question
not validly ratified in accordance with beyond the Court’s competence.
Article 1, Section XV.
Sanidad v. Petitioners question the authority of The amending process, both as to

COMELEC (1976 the President in issuing several PDs proposal and ratification is
Amendments) proposing amendments to the New justiciable. In a crisis government, the
Constitution and President shall have the power to
calling for a national referendum assume the constituent power to
Page 140 of 412

plebiscite for the said amendments. propose amendments lodged in the

Legislative body.
Mitra v. COMELEC Petitioners argue that the 1973 Even without valid ratification, a new
(1973 Constitution) Constitution never validly took effect, Constitution could come into force and
on the theory that the 1973 effect by the acquiescence of the
Constitution was still and is still at the people. Popular acquiescence to a
stage of proposal. They ask the Court new Constitution gives the document
to order a plebiscite for the ratification the force and effect of the
of the 1973 Constitution. Fundamental Law of the Land
regardless of the method of ratification.
If it is accepted by the people (as
shown in their
participation in several elections and
referenda since then), in whom
sovereignty resides according to the
Constitution, the Courts cannot refuse
to yield assent to such political
question.
Lawyer’s League v. Petitioners question the legitimacy of The question of legitimacy of a new
Aquino the Aquino Government government arising from a
(EDSA Revolution) successful revolution is a political
question beyond review by the
Courts.
De Leon v. Petitioners question the appointment Date of effectivity of the 1987

Esguerra (1987 of respondents as barangay officials Constitution retroacts to the date of the
Constitution and maintain that with the ratification plebiscite (Feb 2, 1987).
ratified) of the 1987 Constitution, the OIC did Provisional Constitution deemed to
not have authority to simply appoint have been superseded by 1987
their replacements. Constitution on said date of
effectivity
Defensor Santiago Petitioners seek to enjoin respondent COMELEC was permanently

v. COMELEC from acting on the petition enjoined from entertaining or taking
COMELEC (PIRMA by the PIRMA group asking for an cognizance of any petition for initiative
case) order fixing details on how to collect until a sufficient law shall have been
signatures for the people’s validly enacted to provide for the
initiative to amend the Constitution. implementation of the system. The
system of initiative under Section 2,
Article XVII is not self-executory and
needs an enabling law before the right
of the people could be exercised.
However, an examination of its
provisions reveals that R.A. No. 6735
is incomplete, inadequate or wanting
in essential terms and conditions
insofar as initiative on amendments
to the Constitution is concerned.
Estrada v. Desierto Estrada questions legitimacy of The Government arising from EDSA I
(EDSA II) Arroyo government and claims that he was extra-constitutional while EDSA II
did not resign from position and that was a constitutional exercise of the
Arroyo is merely an acting president right to free speech freedom of
assembly, and to petition freedom of
Page 141 of 412

assembly, and to petition the

government for redress
Lambino v. Petitioners seek review of The constituent power reserved to

COMELEC (Labino COMELEC decision denying due people under Article XVII Section 2 is
Group People’s course to a people’s initiative to limited to the power to propose
Initiative) amend the 1987 Constitution amendments to, not revision of, the
Constitution.
Moreover, “direct proposal by the
people” means that the petition signed
by the people should contain
full text of the proposed amendments
to the Constitution.
Page 142 of 412

XII. EDUCATION, SCIENCE, B. Constitutional Tax

TECHNOLOGY, ARTS, Exemptions for Certain
CULTURE AND SPORTS Educational Institutions
SECTION 4(3) & (4), ARTICLE XIV.
(3) All revenues and assets of non-stock, non-profit
educational institutions used actually, directly, and
A. Academic Freedom exclusively for educational purposes shall be
SECTION 5, ARTICLE XIV. (1) the State shall take exempt from taxes and duties. Upon the dissolution
into account regional and sectoral needs and or cessation of the corporate existence of such
conditions and shall encourage local planning in the institutions, their assets shall be disposed of in the
development of educational policies and programs. manner provided by law.
(2) Academic freedom shall be enjoyed in all Proprietary educational institutions, including those
institutions of higher learning. cooperatively owned, may likewise be entitled to
such exemptions, subject to the limitations provided
(3) Every citizen has a right to select a profession or by law, including restrictions on dividends and
course of study, subject to fair, reasonable, and provisions for reinvestment.
equitable admission and academic requirements.
(4) Subject to conditions prescribed by law, all
grants, endowments, donations, or contributions
(4) The State shall enhance the right of teachers to used actually, directly, and exclusively for
professional advancement. Non-teaching academic
educational purposes shall be exempt from tax.
and non-academic personnel shall enjoy the
protection of the State.
There is a marked distinction between the
(5) The State shall assign the highest budgetary treatment of non-stock, non-profit educational
priority to education and ensure that teaching will institutions and proprietary educational
attract and retain its rightful share of the best institutions. The tax exemption granted to non-
available talents through adequate remuneration stock, non-profit educational institutions is
and other means of job satisfaction and fulfillment. conditioned only on the actual, direct and
exclusive use of their revenues and assets for
SECTION 17, ARTICLE II. The State shall give educational purposes. While tax exemptions
priority to education, science and technology, arts,
culture, and sports to foster patriotism and
may also be granted to proprietary educational
nationalism, accelerate social progress, and institutions, these exemptions may be subject
promote total human liberation and development. to limitations imposed by Congress [CIR v.
DLSU, G.R. No. 196596 (2016)]
Article XIV of the 1987 Constitution
guarantees all institutions of higher A simple reading of the Constitution would
learning academic freedom. show that Article XIV, Section 4 (3) does not
This institutional academic freedom includes require that the revenues and income must
the right of the school or college to decide for have also been earned from educational
itself, its aims, and objectives, and how best to activities or activities related to the purposes of
attain them free from outside coercion or an educational institution. The phrase "all
interference save possibly when the overriding revenues" is unqualified by any reference to
public welfare calls for some restraint. Indeed, the source of revenues. Thus, so long as the
the Constitution allows merely the State's revenues and income are used actually,
regulation and supervision of educational directly and exclusively for educational
institutions, and not the deprivation of their purposes, then said revenues and income shall
rights [Son v. UST, G.R. No. 211273 (2018)]. be exempt from taxes and duties [La Sallian
Educational Innovators Foundation v. CIR,
The essential freedoms subsumed in the term G.R. No. 202792 (2019)].
academic freedom encompasses the freedom
to determine for itself on academic grounds:
1. Who may teach
2. What may be taught
3. How it shall be taught, and
4. Who may be admitted to study [Pena v.
NLRC, G.R. No. 100629 (1996)]
Page 143 of 412

CONSTITUTIONAL
LAW 2
POLITICAL LAW
CONSTITUTIONAL LAW 2 POLITICAL LAW
I. BILL OF RIGHTS decision made by decision of the

the State. corporation or
company, if the
A. Due Process dismissal is found
1987 Constitution, SECTION 1, ARTICLE III. No to have been made
person shall be deprived of life, liberty, or property with just cause. It
without due process of law, nor shall any person be would only give rise
denied the equal protection of the laws.
to claims for nominal
damages.
1987 Constitution, SECTION 1, ARTICLE XIII. The [Agabon v. NLRC, G.R. No. 158693 (2004)]
Congress shall give highest priority to the enactment
of measures that protect and enhance the right of all Scope
the people to human dignity, reduce social,
economic, and political inequalities, and remove Universal in application to all persons without
cultural inequities by equitably diffusing wealth and regard to any difference in race, color or
political power for the common good. nationality. Artificial persons are covered by the
protection but only insofar as their property is
concerned [Smith Bell and Co. v. Natividad,
Definition
G.R. No. 15574 (1919)].
Due process furnishes a standard to which the
governmental action should conform in order
Due process extends to aliens and, such
that deprivation of life, liberty or property, in
guarantee includes the means of livelihood
each appropriate case, be valid [Ermita-Malate
[Villegas v. Hiu Chiong, G.R. No. L-29646
Hotel and Motel Operators Association v. City
(1978)].
of Manila, G.R. No. L-24693 (1967)].
Due process is a guaranty against any 1. Procedural and substantive

arbitrariness on the part of the government, Substantive Due Procedural Due
whether committed by the legislature, the Process Process
executive or the judiciary [Cruz].
Nature
The test or standard, as always, is reason. The
police power legislation must be firmly
grounded on public interest and welfare, and a Requires that the Refers to the
reasonable relation must exist between law must be fair, method or manner
purposes and means [Ichong v. Hernandez, reasonable, and just. by which a law is
supra]. enforced.
Essence
Constitutional Due Statutory Due
Process Process
Fairness and justice Notice and hearing
Protects the Found in the
Who should comply
individual from the statutes (e.g. Labor
government and Code and
assures him of his Implementing Rules) Lawmakers The adjudicating
rights in criminal, and protects body or officer
civil, or employees from
administrative being unjustly
proceedings. terminated without a. Substantive Due Process
just cause after Substantive due process “requires that the
notice and hearing law itself, not merely the procedures by which
the law would be enforced, is fair, reasonable,
Lack or deficiency in Lack or deficiency in and just.” It requires the intrinsic validity of the
constitutional statutory procedural law in interfering with life, liberty and property
procedural due due process does and a guarantee against exercise of arbitrary
process voids the NOT void the
Page 145 of 412
power [Rama v. Moises, G.R. No. 197146 Publication of laws
(2016)]. Before a person may be bound by law, he must
be officially and specifically informed of its
Substantive due process inquires whether the contents. For the publication requirement,
government has sufficient justification for “laws” refer to all statutes, including those of
depriving a person of life, liberty, or property local application and private laws. In other
[White Light Corporation v. City of Manila, G.R. words, the publication of laws “of a public
No. 122846 (2009)]. nature” or “of general applicability is mandated
by law [Tañada v. Tuvera, G.R. No. L-63915
Requisites of Substantive Due Process: (1986)].
Due process of law simply means that:
1. That there shall be a law prescribed in This does not cover internal regulations issued
harmony with the general powers of the by administrative agencies, which are
legislative department of the Government; governed by the Local Government Code.
2. That this law shall be reasonable in its Publication must be full, or there is none at all
operation; [Tañada v. Tuvera, supra].
3. That it shall be enforced according to the
regular methods of procedure prescribed; b. Procedural Due Process
4. That it shall be applicable alike to all the Procedural due process refers to the
citizens of the state or to all of a class [Rubi procedures that the government must follow
v. Provincial Board of Mindoro, supra] before it deprives a person of life, liberty, or
property. It concerns itself with government
Substantive due process requires that the action adhering to the established process
means employed in depriving persons of when it makes an intrusion into the private
property must not be unduly oppressive [SJS v. sphere [White Light Corporation v. City of
Atienza Jr., G.R. No. 156051 (2007)]. Manila, supra].
Expanded test of substantive due Procedural due process is that aspect of due
process process which serves as a restriction on
1. Is there public interest, public purpose, actions of judicial and quasi-judicial agencies of
public welfare involved? the government. It refers to the method of
2. Is the act reasonably necessary for the manner by which a law is enforced [Bernas].
accomplishment of the legislature‘s
purpose? General Rule: The minimum requirements of
3. Is it not unreasonable, arbitrary, or due process are notice and hearing.
oppressive?
4. Is there sufficient foundation or reason in Exceptions: However, notice and hearing are
connection with the manner involved or has not required in every case, for there are an
there been capricious use of legislative admitted number of exceptions in view of the
power? nature of the property involved or the urgency
5. Can the aims conceived be achieved by the of the need to protect the general welfare from
means used, or is it not merely and a clear and present danger.
unjustified interference? [Ichong v.
Hernandez, supra] Instances when the need for expeditious
action will justify omission of these
Lawful subject requisites, (e.g. summary abatement of a
The interests of the public in general (as nuisance per se like a mad dog on the loose,
distinguished from those of a particular class) which may be killed on sight) because of the
require the intervention of the State, and immediate danger it poses to the safety and
lives of the people.
Lawful means
The means employed are reasonably 2. Void-for-Vagueness
necessary for the accomplishment of the
purpose and not unduly oppressive on Void-for-Vagueness Doctrine
individuals. An act is vague when it lacks comprehensible
standards that men of common intelligence
Page 146 of 412
must necessarily guess at its common meaning
it, fair notice of what
and differ as to its application. A statute or act
conduct to avoid
may be said to be vague when it lacks
[Southern
comprehensible standards that men of
Hemisphere v. Anti-
common intelligence must necessarily guess at
Terrorism Council,
its meaning and differ in its application.
supra]
This doctrine can only be invoked against that Vague laws violate Overbroad laws
species of legislation that is utterly vague on its due process invade protected
face, i.e., that which cannot be clarified either freedoms.
by a saving clause or by construction. The test
in determining whether a criminal statute is void
for uncertainty is whether the language Both the void for vagueness doctrine and the
conveys a sufficiently definite warning as to the overbreadth doctrine are subject to the same
proscribed conduct. It must be stressed, principles. For one, it is also an analytical tool
however, that the vagueness doctrine merely for a “facial” challenge of statutes in free
requires a reasonable degree of certainty for speech cases. Like overbreadth, it is said that
the statute to be upheld – not absolute a litigant may challenge a statute on its face
precision or mathematical exactitude [Estrada only if it is vague in all its possible applications.
v. Sandiganbayan, G.R. No. 148560 (2001)].
Facial invalidity test
Overbreadth Doctrine Whether the language conveys a sufficiently
The overbreadth doctrine decrees that “a definite warning as to the proscribed conduct
governmental purpose may not be achieved by when measured by common understanding
means which sweep unnecessarily broadly and and practice [Estrada v. Sandiganbayan,
thereby invade the area of protected freedoms” supra].
[Southern Hemisphere v. Anti-Terrorism
Council, G.R. No. 178552 (2010)]. Applicability to Penal Statutes
Facial challenge is allowed because of the General Rule: Void for vagueness and
possible chilling effect upon protected speech. overbreadth are inapplicable to penal statutes.
Rationale: Statutes have a general in
terrorem effect, which is to discourage citizens
Overbreadth Void for from committing the prohibited acts.
Vagueness
Exceptions:
Both are unconstitutional 1. The statute is challenged as applied; or
2. The statute involve free speech
A government The law fails to
purpose may not be accord persons fair Rationale: Statute may be facially challenged
achieved by means notice of the conduct in order to counter the “chilling effect” of the
which sweep to avoid. Law same [Disini v. Sec. of Justice, G.R. No.
unnecessarily enforcers have 203335 (2014), on the constitutionality of the
broadly and thereby unbridled discretion Cybercrime Law].
invade the area of in carrying out its
protected freedoms provisions. As-Applied vs. Facial Challenges
A facial invalidation is an examination of the
An overbroad law A vague law must entire law, pinpointing its flaws and defects, not
need not lack clarity lack clarity and only on the basis of its actual operation to the
and precision. precision. parties, but also on the assumption or
prediction that its very existence may cause
Basis for overbroad It violates due others not before the court to refrain from
law is the means process for failure to constitutionally protected speech or activities.
sweep unnecessarily accord persons, On the other hand, an as-applied challenge
broadly especially the considers only extant facts affecting real
parties targeted by litigants [Disini v. Sec. of Justice, supra].
Page 147 of 412
3. Judicial and Administrative Due until rendition of judgment [Atty. Labay v.
Process Sandiganbayan, G.R. Nos. 235937-40 (2018)].
a. Due Process in Judicial Proceedings Requisites of criminal due process

[Section 14(2), Article III, 1987 Constitution]
Requisites of due process in civil 1. Accused is heard by a court of competent
proceedings [Banco Español v. Palanca, G.R. jurisdiction;
No. L-11390 (1918)]: 2. Accused is proceeded against under the
1. There must be a court or tribunal clothed orderly process of law;
with judicial power to hear and determine 3. Accused is given notice and opportunity to
the matter before it be heard;
2. Jurisdiction must be lawfully acquired over 4. Judgment rendered is within the authority
the person of the defendant or over of a constitutional law [Mejia v. Pamaran,
property which is the subject of proceeding. G.R. No. L-56741-42 (1988)].
Service of summons is not only required to b. Due Process in Administrative

give the court jurisdiction over the person Proceedings
of the defendant but also to afford the latter
the opportunity to be heard on the claim Seven Cardinal Rights in Administrative
made against him. Thus, compliance with Proceedings [Ang Tibay v. CIR, G.R. No.
the rules regarding the service of summons 46496 (1940)]:
is as much an issue of due process as of 1. The right to a hearing, which includes the
jurisdiction [Sarmiento v. Raon, G.R. No. right of the party interested or affected to
131482 (2002)]. present his own case and submit evidence
3. The defendant must be given an in support thereof.
opportunity to be heard; and 2. Not only must the party be given an
4. Judgment must be rendered upon lawful opportunity to present his case and to
hearing. adduce evidence tending to establish the
5. No decision shall be rendered by any court rights which he asserts, but the tribunal
without expressing therein clearly and MUST consider the evidence presented.
distinctly the facts and the law on which it 3. The decision of the tribunal should be
is based. No petition for review or motion supported by something. Must be based on
for reconsideration of a decision of the evidence. A decision with absolutely
court shall be refused due course or denied nothing to support it is a nullity [...].
without stating the legal basis therefor 4. The evidence supporting a finding or
[Section 14, Article VIII, 1987 Constitution]. conclusion must be “substantial” (such
relevant evidence as a reasonable mind
Note: The SC reiterated that the right to appeal might accept as adequate to support a
is not a natural right nor part of due process conclusion). This does not include
[Alba v. Nitorreda, G.R. No. 120223 (1996)]. uncorroborated hearsay or rumors.
5. The decision must be rendered on the
In Criminal Proceedings evidence presented at the hearing, or at
least contained in the record and disclosed
1987 Constitution, SECTION 14, ARTICLE III. (1)
No person shall be held to answer for a criminal
to the parties affected. Only by confining
offense without due process of law. xxx the administrative tribunal to the evidence
disclosed to the parties can the latter be
protected in their right to know and meet
Criminal due process requires that the the case against them.
procedure established by law or the rules be 6. The body must act on its or his own
followed to assure that the State makes no independent consideration of the law and
mistake in taking the life or liberty except that facts of the controversy, and not simply
of the guilty. All the necessary measures must accept the views of a subordinate in
be taken to guarantee procedural due process arriving at a decision.
throughout all stages of a criminal prosecution- 7. The body must render its decision in such
from the inception of custodial investigation manner that the parties to the proceeding
Page 148 of 412

can know the various issues involved, and
the reasons for the decisions rendered.
Note: The constitutional requirement that the

judgment be in writing and promulgated is NOT
APPLICABLE to administrative decisions.
Ang Tibay is used as a basis for stating that

quasi-judicial tribunals should render its
decision in such a manner that parties to the
proceeding know the various issues involved
and reasons for the decision [Serrano v. PSC,
G.R. No. 24165 (1968)].
Quantum of Evidence: Substantial evidence.

Involves more than a mere scintilla of evidence.
Such amount of relevant evidence which a
reasonable mind might accept as adequate to
justify a conclusion [Section 6, Rule 133, Rules
of Court].
Essence of Due Process in Administrative

Proceedings: Opportunity to be heard.
The essence of due process in an

administrative proceeding is the opportunity to
explain one’s side, whether written or verbal.
This presupposes that one has been previously
apprised of the accusation against him or her
[Anonymous v. Radam, AM P-07-2333 (2007)].
As a general rule, notice and hearing are not

essential to the validity of administrative action
where the administrative body acts in the
exercise of execution, administrative, or
legislative functions; but where a public
administrative body acts in a judicial or quasi-
judicial matter, and its acts are particular and
immediate rather than general and
prospective, the person whose rights or
property may be affected by the action is
entitled to notice and hearing [Philippine
Communications Satellite v. Alcuaz, G.R. No.
84818 (1989)].
Administrative issuances which implement or

enforce existing laws pursuant to a valid
delegation of legislative power must be
published to be effective [Republic v. Pilipinas
Shell, G.R. No. 173918 (2008)].
Page 149 of 412

Labor Cases Academic Disciplinary Proceedings
Twin requirements which constitute the essential 1. The students must be informed in
elements of due process: notice and hearing writing of the nature and cause of any
[Perez v. Philippine Telegraph and Telephone accusation against them;
Company, G.R. No. 152048 (2009)] 2. They shall have the right to answer the
charges against them, with the
Notice assistance of counsel, if desired;
The employer must furnish the employee with 3. They shall be informed of the evidence
two written notices before the termination of against them;
employment can be effected: 4. They shall have the right to adduce
The first is to apprise the employee of the evidence in their own behalf;
particular acts or omissions for which his 5. The evidence must be duly considered
dismissal is sought; and by the investigating committee or official
The second informs the employee of the designated by the school authorities to
employer's decision to dismiss him. hear and decide the case [Non v.
Dames, G.R. No. 89317 (1990)]
Hearing
Due process of law simply means giving [The] proceedings may be summary. [C]ross-
opportunity to be heard before judgment is examination is not an essential part of the
rendered. investigation or hearing. The required proof in a
student disciplinary action is substantial
This “procedural due process” requirement is not evidence. What is crucial is that official action
constitutional but merely statutory, hence, a must meet minimum standards of fairness to the
violation of such requirement does not render the individual, which generally encompass the right
dismissal void. the employer must be sanctioned of adequate notice and a meaningful opportunity
for non-compliance with the requirements of, or to be heard [Non v. Dames, supra].
for failure to observe, due process [Serrano v.
NLRC, G.R. No. 117040 (2000)].
Page 150 of 412

B. Equal Protection 2. Tests to Determine the
Reasonableness of a
Concept Classification [Serrano v. Gallant
All persons or things similarly situated must be Maritime, supra]
similarly treated both as to rights conferred and
responsibilities imposed [Ichong v. Hernandez, a. Rational Basis Test
supra]. The classification should bear a reasonable
relation to the government’s purpose or
The equal protection clause is directed legitimate state interest.
principally against undue favor and individual
or class privilege. It does not require absolute b. Intermediate Scrutiny Test
equality, but merely that all persons be treated Under the Intermediate Scrutiny Test, the
alike under like conditions both as to privileges government must show that the challenged
conferred and liabilities imposed. One class classification serves “important governmental
may be treated differently from another where objectives and must be substantially related to
the groupings are based on reasonable and the achievement of those objectives” [Central
real distinctions [Zomer Development Bank Employees Association, Inc. v. BSP, G.R.
Corporation v. CA, G.R. No. 194461 (2020)]. No. 148208 (2004)].
Scope This is applicable to certain sensitive but not

Natural and juridical persons. However, the suspect classes (e.g. sex, illegitimacy); certain
equal protection clause extends to artificial important but not fundamental interests.
persons only insofar as their property is
concerned. c. Strict Scrutiny Test
Applies to legislative classifications which
1. Requisites for valid classification impermissibly interfere with the exercise of a
a. It must rest on substantial distinctions fundamental right, or operates to the peculiar
which must make for real differences; disadvantage of a suspect class. Such
b. It must be germane to the purpose of the classifications are presumed unconstitutional,
law; and the government has the burden to prove
c. It must not be limited to existing conditions that the classification is necessary to achieve a
only; compelling state interest, and that it is the
d. It must apply equally to all members of the least restrictive means to protect such
same class. interest [Serrano v. Gallant Maritime, supra].
Presumption of Validity This test is usually applied to cases involving

All classifications made by law are generally classifications based on race, national origin,
presumed to be valid unless shown otherwise religion, alienage, denial of the right to vote,
by petitioner [Lacson v. Executive Secretary, migration, access to courts, and other rights
G.R. No. 128096 (1999)]. recognized as fundamental.
Exception: A legislative classification which Examples:

impermissibly interferes with the exercise of a In Central Bank Employees Association, Inc. v.
fundamental right, or operates to the peculiar BSP, supra, the challenged proviso operates
disadvantage of a suspect class is presumed on the basis of the salary grade or officer-
unconstitutional, and the burden is upon the employee status. It is akin to a distinction
government to prove that the classification is based on economic class and status, with the
necessary to achieve a compelling state higher grades as recipients of a benefit
interest and that it is the least restrictive means specifically withheld from the lower grades.
to protect such interest [Serrano v. Gallant Officers of the BSP now receive higher
Maritime, G.R. No. 167614 (2009)]. compensation packages that are competitive
with the industry, while the poorer, low-salaried
employees are limited to the rates prescribed
by the SSL.
Page 151 of 412

Considering that majority, if not all, the rank- jurisdiction are public officials who, through
and-file employees consist of people whose official pressure and influence, can quash,
status and rank in life are less and limited, delay or dismiss investigations against them
especially in terms of job marketability, it is [Almonte v. Vasquez, G.R. No. 95367 (1995)].
they—and not the officers—who have the real
economic and financial need for the adjustment C. Arrests, Searches and
[Central Bank Employees Association v. BSP,
supra]. Seizures
The Supreme Court upheld the constitutionality The constitutional right against unreasonable
of an ordinance which imposed a curfew upon searches and seizures is a personal right
minors in Quezon City. In evaluating the invocable only by those whose rights have
ordinance, the Court resorted to the strict been infringed or threatened to be infringed.
scrutiny test and ruled that under our legal
system’s own recognition of a minor’s inherent What constitutes a reasonable or
lack of full rational capacity, and balancing the unreasonable search and seizure in any
same against the State’s compelling interest to particular case is purely a judicial question,
promote juvenile safety and prevent juvenile determinable from a consideration of the
crime, it finds that the curfew imposed is circumstances involved [Valmonte v. General
reasonably justified with its narrowly drawn De Villa, G.R. No. 83988 (1989)].
exceptions and hence, not constitutionally
infirm [SPARK v. Quezon City, G.R. No. 1. Requisites of a Valid Warrant
225442 (2017)]. a. Existence of Probable Cause
b. Probable cause must be personally
Suspect Classes determined by the Judge
Refers to classification that violates a c. After personal examination under oath or
fundamental right, or prejudices a person affirmation of the complainant and the
accorded special protection by the Constitution witnesses he may produce
[Serrano v. Gallant, supra]. Suspect classes d. On the basis of their personal knowledge of
may therefore include an income-based the facts they are testifying to
classification. e. There must be particularity in the
description of the places to searched and
Examples of Valid Classification the persons or things to be seized
f. The warrant must refer to one specific
1. Filipino Female Domestics Working offense (Requisite added by jurisprudence)
Abroad
They are a class by themselves because of the a. Existence of probable cause
special risks to which their class was exposed
[Phil. Association of Service Exporters v. Probable Cause for Search Warrant
Drilon, G.R. No. 81958 (1988)]. Such facts and circumstances which would
lead a reasonably discreet and prudent man to
2. Land-Based v. Sea-Based Filipino believe that an offense has been committed
Overseas Workers AND the objects sought in connection with the
There is dissimilarity as to work environment, offense are in the place sought to be searched
safety, danger to life and limb, and accessibility [Burgos v. Chief of Staff, G.R. No. L-64261
to social, civil and spiritual activities (1984)].
[Conference of Maritime Manning Agencies v.
POEA, G.R. No. 114714 (1995)]. Probable Cause for Warrant of Arrest
Such facts and circumstances which would
3. Office of the Ombudsman lead a reasonably discreet and prudent man to
Allowing the Ombudsman to start an believe that the person to be arrested is
investigation based on an anonymous letter probably guilty thereof [Allado v. Diokno, G.R.
does not violate the equal protection clause. No. 113630 (1994)].
The Office of the Ombudsman is different from
other investigatory and prosecutory agencies
of government because those subject to its
Page 152 of 412
b. Probable Cause Must be Personally ● The thing is not required of a very technical
Determined by the Judge description [Alvarez v. CFI, supra]
The judge must make an exhaustive and The search warrant issued to search
probing examination of witnesses and the petitioner’s compound for unlicensed firearms
applicant, and not merely routine or pro forma was held invalid for failing to describe the place
examination [Nala v. Barroso, Jr., G.R. No. with particularity, considering that the
153087 (2003)]. compound was made up of 200 buildings, 15
The determination of probable cause calls for plants, 84 staff houses, one airstrip etc. spread
an exercise of judgment after a judicial out over 155 hectares [PICOP v. Asuncion,
appraisal of the facts and should not be allowed G.R. No. 122092 (1999)].
to be delegated in the absence of any rule to
the contrary. The description of the property to be seized
need not be technically accurate or precise. Its
The examining magistrate must not simply nature will vary according to whether the
rehash the contents of the affidavit but must identity of the property is a matter of concern.
make his own inquiry on the intent and The description is required to be specific only
justification of the application [Roan v. insofar as the circumstances will allow [Kho v.
Gonzales, G.R. No. 71410 (1984)]. Judge Makalintal, G.R. Nos. 94902-06 (1999)].
Such written deposition is necessary in order Description of Persons

that the Judge may be able to properly An error in the name of the person in the search
determine the existence or non-existence of warrant does not invalidate the warrant, as long
the probable cause, to hold liable for perjury the as it contains a description personae (including
person giving it if it will be found later that his additional descriptions) that will enable the
declarations are false [Mata v. Bayona, G.R. officer to identify the accused without difficulty
No. 50720 (1984)]. [Nala v. Barroso, Jr., supra].
c. After Personal Examination under A John Doe search warrant is valid. There is
Oath or Affirmation of the Complainant nothing to prevent issue and service of warrant
and the Witnesses He May Produce against a party whose name is unknown
[People v. Veloso, G.R. No. L-23051 (1925)].
d. On the basis of their personal
f. The Warrant Must Refer to One
knowledge of the facts they are
Specific Offense.
testifying to [Nala v. Barroso, Jr., However, the rule is not violated if the offenses
supra]. are closely related or under the same category.
The testimony must be based on the own
personal knowledge of the complainant and of For example, in People v. Dichoso [G.R. Nos.
the witnesses, not mere hearsay or information 10126-18 (1993)] which involves the violation
from a “reliable source” [Alvarez v. CFI, G.R. of the Dangerous Drugs Act, the defense
No. L-45358 (1937)]. theorized that 3 separate search warrants
should have been issued instead of one (the
e. There Must be Particularity in the first for illegal possession of shabu, the second
Description of the Places to be for the illegal possession of marijuana and the
Searched and the Persons or Things to third for illegal possession of paraphernalia).
be Seized
The Court ruled that the Dangerous Drugs Act
General Rule: The warrant must indicate the of 1972 is a special law that deals specifically
particular place to be searched and person or with dangerous drugs which are subsumed into
thing to be seized. "prohibited" and "regulated" drugs and defines
and penalizes categories of offenses which are
Exception: If the nature of the goods to be closely related or which belong to the same
seized cannot be particularly determined: class or species. Accordingly, one (1) search
● The nature of the thing is general in warrant may thus be validly issued for the said
description violations of the Dangerous Drugs Act.
Page 153 of 412

What may be Searched Effect of a Void Arrest Warrant
A search warrant may be issued for the search A void arrest warrant would render the arrest
and seizure of personal property: invalid and illegal.
a. Subject of the offense
b. Stolen or embezzled and other The illegality of an arrest does not bar the state
proceeds, or fruits of the offense; or from the prosecution of the accused. Despite
c. Used or intended to be used as the illegality of both search and arrest thus
means of committing an offense inadmissibility of evidence acquired, guilt may
[Section 3, Rule 126, Rules of Court]. still be established through eyewitness
testimony [People v. Manlulu, G.R. No. 102140
The officers of the law are to seize only those (1994)].
things particularly described in the search
warrant. A search warrant is not a sweeping 2. Warrantless Arrests and Detention
authority empowering a raiding party to
undertake a fishing expedition to seize and Valid Warrantless Arrests [Section 5, Rule
confiscate any and all kinds of evidence or 113, Rules on Criminal Procedure]
articles relating to a crime. The search is limited
in scope so as not to be general or explanatory. a. In Flagrante Delicto
When in his presence, the person to be
Nothing is left to the discretion of the officer arrested has committed, is actually committing,
executing the warrant [UNILAB v. Isip, G.R. No. or is attempting to commit an offense. The
163858 (2005)]. person must be arrested after the offense has
been committed and in the presence of a police
It is not necessary that the property to be officer [People v. Mengote, G.R. No. 87059
searched or seized should be owned by the (1992)].
person against whom the warrant is issued; it
is sufficient that the property is within his Since rebellion is a continuing offense, a rebel
control or possession [Burgos v. Chief of Staff, may be arrested without a warrant at any time
supra]. of the day or the night as he is deemed to be in
the act of committing rebellion [Umil v. Ramos,
General Warrant G.R. No. 81567 (1991)].
Refers to a warrant that:
1. Does not describe with particularity the Though kidnapping with serious illegal
things subject of the search and detention is deemed a continuing crime, it can
seizure; or be considered as such only when the
2. Where probable cause has not been deprivation of liberty is persistent and
properly established. continuing from one place to another [Parulan
v. Dir. of Prisons, G.R. No. L-28519 (1968)].
Effects of a General Warrant
It is a void warrant [Nolasco v. Paño, G.R. No. Buy-bust; When not proper
L-69803 (1985)]. A buy-bust operation is a valid in flagrante
arrest. The subsequent search of the person
Any evidence obtained in violation [of this or arrested and the premises within his immediate
the preceding section] shall be inadmissible for control is valid as an incident to a lawful arrest
any purpose in any proceeding [Section 3(2), [People v. Hindoy, G.R. No. 132662 (2001)].
Article III, 1987 Constitution]. The
unconstitutionality of the search and the Instead of arresting the suspect after the sale
seizure or the use of a void search warrant, in a buy-bust operation, the officer returned to
renders the items seized inadmissible in the police headquarters and filed his report. It
evidence. was only in the evening that he, without
warrant, arrested the suspect at his house
Exception: General descriptions will not where dried marijuana leaves were found
invalidate the entire warrant if other items have and seized. This is unlawful arrest [People v.
been particularly described [Uy v. BIR, G.R. Rodriguez, G.R. No. 138987 (1992)].
No. 129651 (2000)].
Page 154 of 412

b. Hot Pursuit Failure to raise the question of admissibility
When an offense has just been committed and during the trial is waiver of the right to assert
he has probable cause to believe based on inadmissibility on appeal [Manalili v. CA,
personal knowledge of facts or circumstances supra].
that the person to be arrested has committed it.
Waiver is limited to the illegal arrest. It does not
Requisites extend to the search made as an incident
1. Offense had just been committed; The thereto, or the subsequent seizure of evidence
person must be immediately arrested after allegedly found during the search [People v.
the commission of the offense [People v. Peralta, G.R. No. L-19069 (2004)].
Manlulu, supra]
2. Person making the arrest has probable Drug, Alcohol, and Blood Tests
cause to believe that the person to be Randomized Drug Testing (RDT) for students
arrested has committed it based on and employees does not violate the right to
personal knowledge of the facts and privacy in the Constitution. Students do not
circumstances. have a rational expectation of privacy since
they are minors and the school is in loco
Note: There must be a large measure of parentis. Employees and students in
immediacy between the time the offense is universities, on the other hand, voluntarily
committed and the time of arrest. If there was subject themselves to the intrusion because of
an appreciable lapse of time between the their contractual relation to the company or
arrest and commission of the crime, warrant of university.
arrest must be secured [Nachura].
But it is unconstitutional to subject criminals to
The warrantless arrest of accused for selling RDT. Subjecting criminals to RDT would violate
marijuana two days after he escaped is invalid their right against self-incrimination.
[People v. Kimura, G.R. No. 130805 (2004)].
It is also unconstitutional to subject public
There is no personal knowledge when the officials whose qualifications are provided for in
commission of a crime and identity of the the Constitution (e.g. members of Congress) to
accused were merely furnished by an RDT because it is tantamount to imposing an
informant, or when the location of the firearm additional qualification not provided for in the
was given by the wife of the accused. It is not Constitution [SJS v. Dangerous Drugs Board,
enough that there is reasonable ground to G.R. No. 157870 (2008)].
believe that the person to be arrested has
committed a crime. That a crime has actually 3. Warrantless Searches
been committed is an essential precondition
[People v. Burgos, G.R. No. L-68955 (1986)]. Probable cause for warrantless searches must
be “based on reasonable ground of suspicion
c. Escaped Prisoners or belief that a crime has been committed or is
When the person to be arrested is a prisoner about to be committed” [People v. Aruta, G.R.
who has escaped from a penal establishment No. 120915 (1998)].
or place where he is serving final judgment or
is temporarily confined while his case is Valid Warrantless Searches
pending, or has escaped while being a. Warrantless Search is Incidental to a
transferred from one confinement to another. Lawful Arrest
A person lawfully arrested may be searched for
d. Additional Exceptions dangerous weapons or anything which may be
When the right is voluntarily waived used as proof of the commission of an offense,
(estoppel) without a search warrant [Section 12, Rule 126,
Appellant is estopped from questioning the Rules of Court].
illegality of the arrest when he voluntarily
submitted himself to the jurisdiction of the court Absent a valid search warrant, the search is
by entering a plea of not guilty and by confined to the person being lawfully arrested.
participating in the trial [People v. Salvatierra,
G.R. No. 104663 (1997)].
Page 155 of 412
It is also a general rule that, as an incident of legally present in the pursuit of their official
an arrest, the place or premises where the duties
arrest was made can also be searched without 2. Evidence was inadvertently discovered by
a search warrant. In this case, the extent and the police who had the right to be where
reasonableness of the search must be decided they are
on its own facts and circumstances. 3. Evidence must be immediately apparent
4. “Plain view” justified mere seizure of
What must be considered is the balancing of evidence without further search [People v.
the individual’s right to privacy and the public’s Aruta, supra; N.B. substantially the same
interest in the prevention of crime and the as Nala v. Barroso requirements]
apprehension of criminals [Nolasco v. Paño,
supra]. An object is in “plain view” if the object itself is
plainly exposed to sight. Where the seized
Test for Validity object is inside a closed package, the object is
a. Item to be searched was within the not in plain view and, therefore, cannot be
arrester’s custody; seized without a warrant. However, if the
b. Search was contemporaneous with the package proclaims its contents, whether by its
arrest. distinctive configuration, its transparency, or if
its contents are obvious to an observer, then
An “arrest being incipiently illegal, it logically the contents are in plain view, and may be
follows that the subsequent search was seized [Caballes v. CA, G.R. No. 136292
similarly illegal” [People v. Aruta, supra]. (2002)].
Arresting officer may search: It must be immediately apparent to the police

● The arrestee’s person: that the items that they observe may be
○ to discover and remove weapons and evidence of a crime, contraband or otherwise
○ to seize evidence to concealment or subject to seizure [People v. Nuevas, G.R. No.
destruction; and 170233 (2007)].
● The area within the immediate control of
the arrestee, i.e. area from which he might c. Search of a Moving Vehicle
gain possession of a weapon or “Stop and search” without a warrant at military
destructible evidence [Chimel v. California, or police checkpoints has been declared not to
395 U.S. 752 (1969)]. be illegal per se so long as it is required by
exigencies of public order and conducted in a
Immediate Control way least intrusive to motorists [Valmonte v. de
Immediate area to the defendant’s person Villa, G.R. No. 83988 (1989)].
where there are nearby weapons he could grab
to attack the officer or what he has in his These are permissible if limited to the
pocket. following:
● Where the officer merely draws aside the
Purpose of this Exception curtain of a vacant vehicle which is parked
The purpose of the exception is to protect the on the public fair grounds;
arresting officer from being harmed by the ● Simply looks into a vehicle;
person arrested, who might be armed with a ● Flashes a light therein without opening the
concealed weapon, and to prevent the latter car's doors;
from destroying evidence within reach ● Where the occupants are not subjected to
[Valeroso v. CA, G.R. No. 164815 (2009)]. a physical or body search;
● Where the inspection of the vehicles is
b. Plain View Doctrine limited to a visual search or visual
Things seized are within plain view of a inspection; and
searching party. ● Where the routine check is conducted in a
fixed area.
Requisites
1. Prior valid intrusion based on valid It is well to clarify, however, that routine
warrantless arrest in which the police are inspections do not give police officers carte
blanche discretion to conduct warrantless
Page 156 of 412
searches in the absence of probable cause. Purpose of customs search
When a vehicle is stopped and subjected to an To verify whether or not custom duties and
extensive search - as opposed to a mere taxes were paid for their importation.
routine inspection - such a warrantless search
has been held to be valid only as long as the f. Routine Security Checks
officers conducting the search have The Court held that the search and seizure of
reasonable or probable cause to believe before an illegal drug during a routine airport
the search that they will find the instrumentality inspection made pursuant to the aviation
or evidence pertaining to a crime, in the vehicle security procedures as a constitutionally
to be searched [People v. Manago, G.R. No. reasonable administrative search.
212340 (2016)].
While the right of the people to be secure in
d. Consented Warrantless Search their persons, houses, papers, and effects
against unreasonable searches and seizures is
Requisites guaranteed by Section 2, Article III of the 1987
1. Must appear that right exists; Constitution, a routine security check being
2. Person involved had actual or constructive conducted in air and sea ports has been a
knowledge of the existence of such right; recognized exception [People v. O’Cochlain,
3. Said person had an actual intent to G.R. No. 229071 (2018)].
relinquish the right [People v. Aruta, supra].
The mere failure to object to the search and g. Stop and Frisk
seizure does not constitute a waiver. For a valid stop and frisk search, the arresting
officer must have had personal knowledge of
The waiver may be express or implied. When facts, which would engender a reasonable
one voluntarily submits to a search or consents degree of suspicion of an illicit act [Manibog v.
to have it made of his person/premises, he is People, G.R. No. 211214 (2019)].
precluded from later complaining [People v.
Kagui Malasugui, G.R. No. L-44335 (1936)]. Test
Whether or not a reasonably prudent man in
There is presumption against waiver by the the circumstances would be warranted in the
courts. It is the State that has the burden of belief that his safety or that of others was in
proving, by clear and convincing evidence, that danger [Terry v. Ohio, 392 U.S. 1 (1968)].
the necessary consent was obtained and that it
was voluntarily and freely given [Caballes v. Test for validity of a stop-and-frisk search
CA, supra]. as established by jurisprudence:
● There must be specific and articulable facts
e. Customs Search (Enforcement of which, taken together with rational
Fishing, Customs, and Immigration inferences, reasonably warrant the
Law) intrusion.
The police are allowed to conduct warrantless ● The officer must identify himself and make
searches on behalf of the Department of reasonable inquiries.
Customs. ● The “frisk” is permitted to search for
weapons for the protection of the police
They are authorized to open and examine any officer, where he has reason to believe that
box, trunk, or other containers where he has he is dealing with an armed and dangerous
reasonable cause to believe that such items individual, regardless of probable cause for
were hidden from customs search [Papa v. a crime.
Mago, supra]. ● The scope of the search is limited to the
outer surface of the subject’s clothing.
Section 219 of the Customs Modernization and
Tariff Act states that no warrant is required for Accordingly, to sustain the validity of a stop and
police or authorized persons to pass, enter, frisk search, the arresting officer should have
search any land, enclosure, building, personally observed two (2) or more suspicious
warehouse, vessels, aircrafts, vehicles but not circumstances, the totality of which would then
dwelling. create a reasonable inference of criminal
Page 157 of 412

activity to compel the arresting officer to D. Privacy of Communications
investigate further [Manibog v. People, supra].
and Correspondence
h. Exigent and Emergency 1987 Constitution SECTION 3, ARTICLE III. (1)
The privacy of communication and correspondence
Circumstances shall be inviolable except upon lawful order of the
The raid and seizure of firearms and court, or when public safety or order requires
ammunition at the height of the 1989 coup otherwise as prescribed by law.
d’état, was held valid, considering the exigent
and emergency situation. The military (2) Any evidence obtained in violation of this or the
operatives had reasonable ground to believe preceding section shall be inadmissible for any
purpose in any proceeding.
that a crime was being committed, and they
had no opportunity to apply for a search
warrant from the courts because the latter were 1. Private and Public
closed. Under such urgency and exigency, a
Communications
search warrant could be validly dispensed with
[People v. de Gracia, G.R. Nos. 102009-10
The Constitution does not have a specific
(1994)].
provision protecting the right to privacy. It is a
penumbral right formed from the shadows
4. Exclusionary Rule created by several constitutional provisions.
That is to say, the right to privacy is located
All evidence obtained in violation of Section 2, within the zones created by various provisions
Article III shall be inadmissible for any purpose of the Constitution and various statutes which
in any proceeding [Stonehill v. Diokno, G.R. protect aspects of privacy [Ople v. Torres,
No. L- 19550 (1967)]. supra].
The exclusionary rule extends to evidence In Ople v. Torres, different provisions in the
obtained through uncounseled confession 1987 Constitution also constitute zones of
[People v. Alicando, G.R. No. 117487 (1995)]. privacy:
The Fruit of the Poisonous Tree a. Section 3 – Privacy of communication
The Exclusionary Rule is also extended to b. Section 1 – Life, liberty, and property
exclude evidence which is derived or directly c. Section 2 – Unreasonable searches and
obtained from that which was illegally seized seizures
[Bautista]. d. Section 6 – Liberty of abode
e. Section 8 – Right to form associations
Once the primary source (tree) is shown to f. Section 17 – Right against self-
have been unlawfully obtained, any secondary incrimination
or derivative evidence (fruit) derived from it is
also inadmissible. a. Three Strands of the Right to Privacy
1. Decisional Privacy - Liberty in the
Effects of Unreasonable Searches and constitutional sense must mean more than
Seizures freedom from unlawful governmental
An unlawful search will result in the exclusion restraint; it must include privacy as well, if
from admission as evidence of that which was it is to be a repository of freedom. The right
obtained from such unlawful search and to be let alone is indeed the beginning of all
seizure. freedom...The concept of liberty would be
emasculated if it does not likewise compel
Further, an unlawful search and seizure may respect for his personality as a unique
justify: individual whose claim to privacy and
● The use of self-help in the form of interference demands respect [Morfe v.
resistance to such unlawful search and Mutuc, supra].
seizure; 2. Informational Privacy - Right of an
● The criminal prosecution of the searching individual not to have private information
officer; about himself disclosed; and the right of an
● Civil damages against such officer; and individual to live freely without surveillance
disciplinary action against the officer by his
administrative officers [Bautista].
Page 158 of 412
and intrusion [Whalen v. Roe, 429 US 589 When allowed: [Section 3, Article III, 1987
(1977)] Constitution]
3. Locational or Situational Privacy -
privacy that is felt in physical space, such a. Lawful Order of the Court [Section 2,
as that which may be violated by trespass Article III, 1987 Constitution]
or unwarranted searches and seizure
[Vivares v. St. Therese College, G.R. No. b. When public safety or public order
202666 (2014)] required otherwise as may be provided
by law
b. Requisites of the Existence of the E.O. No. 424 (s. 2005), adopting a unified
Right to Privacy: multi-purpose ID system for government, does
● Subjective: A person has exhibited an not violate the right to privacy because it (1)
actual expectation of privacy; and narrowly limits the data that can be collected,
● Objective: The expectation be one that recorded, and released compared to existing
society is prepared to recognize as ID systems, and (2) provides safeguards to
reasonable [Pollo v. Constantino-David, protect the confidentiality of the data collected
G.R. No. 181881 (2011)]. [KMU v. Director-General, G.R. No. 167798
(2006)].
Forms of correspondence and
communication covered: An intrusion into the privacy of workplaces is
1. Letters valid if it conforms to the standard of
2. Messages reasonableness. It is justified at inception if
3. Telephone calls there are reasonable grounds for suspecting
4. Telegrams that it will turn up evidence that the employee
5. Others analogous to the foregoing [Bernas] is guilty of work- related misconduct [Pollo v.
Constantino-David, supra].
c. Right of Privacy vs. Freedom of
Speech and Communication Right may be invoked against the wife who
went to the clinic of her husband and there took
documents consisting of private
Right of Freedom of Speech and
communications between her husband and his
Privacy Communication
alleged paramour [Zulueta v. CA, G.R. No.
It is not a Because of the preferred 107383 (1996)].
preferred right, character of the
thus there is no constitutional c. Public Figure
presumption of rights of the freedom of A limited intrusion to a person’s privacy has
invalidity on speech and of long been regarded as permissible where that
encroachments expression, a weighty person is a public figure and the information
of right to presumption of invalidity sought to be elicited from him or to be
privacy. vitiates measures of prior published about him constitute matters of
restraint upon the public character. The interest sought to be
exercise of such protected by the right to privacy is the right to
freedoms [Ayer be free from unwarranted publicity, from the
Productions Pty. Ltd. v. wrongful publicizing of the private affairs and
Capulong, G.R. No. activities of an individual which are outside the
82380 (1988)] realm of legitimate public concern [Ayer
Productions Pty. Ltd. v. Capulong, G.R. No.
82380 (1988)]
2. Intrusion, when allowed
But as held in Lagunzad v. Soto [G.R. No. L-
General Rule: An encroachment on the right 32066 (1979)], being a public figure does not
to privacy is invalid when: There is a automatically destroy in toto a person’s right to
reasonable expectation of privacy; and if there privacy.
is no compelling state interest.
Page 159 of 412

d. Online Privacy them for any telltale evidence of marital
It is first necessary that said user, manifest the infidelity. A person, by contracting marriage,
intention to keep certain posts private, through does not shed his/her integrity or his right to
the employment of measures to prevent access privacy as an individual and the constitutional
thereto or to limit its visibility (This case; OSN protection is ever available to him or her.
Privacy Tools). Therefore, a Facebook user
who opts to make use of a privacy tool to grant
or deny access to his or her post or profile detail
should not be denied the informational privacy
right which necessarily accompanies said
choice [Vivares v. St. Theresa’s College, G.R.
No. 202666 (2014)].
3. Exclusionary Rule
Any evidence obtained in violation of Sections

2 or 3, Article III shall be inadmissible for any
purpose in any proceeding [Section 3(2),
Article III, 1987 Constitution].
This applies not only to testimonial evidence

but also to documentary and object evidence.
The Anti-Wire Tapping Act (R.A. No. 4200),

clearly and unequivocally makes it illegal for
any person, not authorized by all the parties to
any private communication, to secretly record
such communications by means of a tape
recorder. The law does not make any
distinction [Ramirez v. CA, G.R. No. 93833
(1995)].
Effect of violation: The communication shall

not be admissible in evidence in any judicial,
quasi- judicial, legislative, or administrative
hearing or investigation [Section 4, R.A. No.
4200].
Generally, the provisions in the Bill of Rights

are protections against the government.
However, in the case of Zulueta v. CA the Court
has recognized an instance where it may also
be applied as against a private individual.
Note: While Zulueta seems to be an exception

to the State Action Requirement, Zulueta’s
application of the exclusionary rule has only
been cited once but to a state action.
In that case, the wife took her husband‘s

private documents and papers to be used as
evidence in the case, without the husband’s
knowledge and consent, the Court held that the
intimacies between husband and wife do not
justify any one of them in breaking the drawers
and cabinets of the other and in ransacking
Page 160 of 412
D. Freedom of Speech and restrains speech is hobbled by the presumption
of invalidity and should be greeted with
Expression furrowed brows”).
1987 Constitution, SECTION 4, ARTICLE III. No Every man shall have a right to speak, write,
law shall be passed abridging the freedom of and print his opinions upon any subject
speech, of expression, or of the press, or the right of whatsoever, without any prior restraint, so
the people peaceably to assemble and petition the
always that he does not injure any other person
government for redress of grievances.
in his rights, person, property, or reputation,
and so always that he does not thereby disturb
The scope of freedom of expression is so broad the public peace or attempt to subvert the
that it extends protection to nearly all forms of government [Near v. Minnesota, 283 U.S. 697
communication. It protects speech, print and (1931)].
assembly regarding secular as well as political
causes, and is not confined to any particular Examples:
field of human interest [Chavez v. Gonzales, ● Censorship - Censorship conditions the
G.R. No. 16338 (2008)]. exercise of freedom of expression upon the
prior approval of the government. The
The right is not limited to vocal communication. censor serves therefore as the political,
Conduct is also included. moral, social and artistic arbiter for the
people, usually applying only their own
While the right has a widespread scope, it is not subjective standards in determining what is
absolute. Examples of unprotected speech good and what is not.
are obscenity, child pornography, and libel. ● Permits
● Business closure
Freedom of Expression and the Right to
Privacy General Rule
Freedom of speech and expression includes 1. Any system of prior restraints of
freedom to film and produce motion pictures expressions comes to the Court bearing a
and to exhibit them. The fact that such film heavy presumption against its
production is a commercial activity is not a constitutionality, giving the government a
disqualification for availing of freedom of heavy burden to show justification for the
speech and expression. imposition of such restraint [New York
Times Co. v. US, 403 U.S. 713 (1971)].
The right to privacy cannot be invoked to resist 2. There need not be total suppression. Even
publication and dissemination of matters of restriction of circulation constitutes
public interest. The intrusion is no more than censorship [Grosjean v. American Press
necessary to keep the film a truthful historical Co., Inc., 297 US 233 (1936)].
account. Enrile is a public figure because of his
participation as a principal actor in the Examples of Unconstitutional Prior
culminating events of the EDSA revolution Restraint
[Ayer Prod. PTY. LTD. v. Judge Capulong, ● COMELEC prohibition against radio
supra]. commentators and newspaper columnists
from commenting on the issues involved in
1. Prior Restraint and Subsequent a scheduled plebiscite [Sanidad v.
Punishment COMELEC, G.R. No. 90878 (1990)]
● Arbitrary closure of a radio station [Eastern
a. Prior restraint Broadcasting v. Dans, Jr., G.R. No. L-
Refers to official governmental restrictions on 59329 (1985)]; or even when there is legal
the press or other forms of expression in justification, such as lack of mayor’s permit
advance of actual publication or dissemination [Newsounds Broadcasting Network v. Dy,
[Newsounds Broadcasting Network v. Dy, supra]
supra]. ● COMELEC resolution prohibiting the
posting of decals and stickers in mobile
Not all prior restraint is invalid. But all prior units such as cars and other vehicles
restraints are presumed invalid (“any act that
Page 161 of 412
[Adiong v. COMELEC, G.R. No. 103956 ● Private communication in the performance
(1992)]. of any legal, moral, or social duty
● Searching, padlocking, and sealing of the ● Fair and true report of any judicial,
offices of newspaper publishers by military legislative, or other official proceedings
authorities [Burgos v. Chief of Staff, G.R. ● Obscenity - Determination of what is
No. L-64261 (1984)]. obscene is a judicial function [Pita v. CA,
● An announcement by a public official G.R. No. 80806 (1989)]
prohibiting the media from airing or ● Contempt for criticism or publications
broadcasting the Garci tapes [Chavez v. tending to impede, obstruct, embarrass, or
Gonzales, supra] influence the courts in administering justice
in a pending suit or proceeding (subjudice)
Examples of Constitutional Prior [People v. Alarcon, G.R. No. 46551 (1939)]
Restraint ● Right of students to free speech on school
● A law which prohibits, except during the premises must not infringe on the school’s
prescribed election period, making right to discipline its students [Miriam
speeches, announcements, or College Foundation v. CA, G.R. No.
commentaries for or against the election of 127930 (2000)].
any candidate for office [Gonzales v.
COMELEC, G.R. No. L-27833 (1969)]. Exceptions
● Prohibiting any person making use of the ● Fair comment on matters of public
media from selling or giving print space or interest: Fair comment is that which is true
air time free of charge for campaign or or, if false, expresses the real opinion of the
other political purposes. author based upon reasonable degree of
care and on reasonable grounds
Ratio: Police power of the State to regulate
media for the purpose of ensuring equal If the comment is an expression of opinion
opportunity, time, and space for political based on established facts, then it is
campaigns, which COMELEC is authorized immaterial that the opinion happens to be
to carry out [National Press Club v. mistaken, as long as it might reasonably be
COMELEC, G.R. No. 102653 (1992); inferred from the facts [Borjal v. CA, 361
Osmeña v. COMELEC, G.R. No. 132231 Phil. 1 (1999)].
(1998)].
● Criticism of official conduct: Given the
● Film censorship: The power of the widest latitude [US v. Bustos, G.R. No. L-
MTRCB can be exercised only for 12592 (1918)]
purposes of reasonable classification, not
censorship [Nachura, citing Gonzales v. 2. Content-based and content-
Katigbak, G.R. No. L-69500 (1985) and neutral regulations
Ayer Prod. PTY. LTD. v. Judge Capulong,
G.R. No. No. 82380 (1988)] a. Content-Based Regulations
A governmental action that restricts freedom of
b. Subsequent Punishment speech or of the press based on content is
Freedom of speech includes freedom after given the strictest scrutiny in light of its inherent
speech. Without this assurance, citizens would and invasive impact [Chavez v. Gonzales,
hesitate to speak for fear that they might be supra].
provoking the vengeance of the officials they Subject to the clear and present danger
criticized (chilling effect). test: There is to be then no previous restraint
on the communication of views or subsequent
Example of Valid Subsequent [...] unless there be a clear and present
Punishment danger of a substantive evil that the State
● Libel: Every defamatory imputation is has right to prevent [Reyes v. Bagatsing,
presumed to be malicious, even if it be true G.R. No. L-65366 (1983)].
[Alonzo v. CA, G.R. No. 110088 (1995)].
Exceptions to the Presumption [Article

354, Revised Penal Code]
Page 162 of 412
Freedom of Expression and the 4. The incident restriction is no greater than
Administration of Justice essential to the furtherance of that interest
The administration of justice and the freedom [US v. O’Brien, 391 U.S. 367 (1968)].
of the press, though separate and distinct, are
equally sacred, and neither should be violated Content-Based Content-
by the other. The press and the courts have Neutral
correlative rights and duties and should
cooperate to uphold the principles of the Object of restraint
Constitution and laws, from which the former
receives its prerogative and the latter its The content: The Incidents of
jurisdiction [In Re: Macasaet, A.M. No. 07-09- message or idea of speech: The time,
13-SC (2008)]. the expression. manner, place of the
expression in public
In People v. Godoy [G.R. Nos. 115908-09 places, not the
(1995)], the SC held that obstructing, by means content.
of spoken or written word, the administration of
justice by the courts is an abuse of the liberty Test
of speech or press such as will subject the
abuser to punishment for contempt of court. a. Clear and Only a substantial
present danger governmental
What criticisms are allowed by the court? test: There must be interest is required
Criticisms shall be bona fide and shall not spill a clear and present for its validity.
over the walls of decency and propriety. A wide danger of a
chasm exists between fair criticism, on the one substantive evil that Intermediate
hand, and abuse and slander of courts and the the State has a right Approach:
judges thereof, on the other [In Re: Almacen, to prevent [Reyes v. Somewhere
G.R. No. 27654 (1970)]. Bagatsing, supra] between the mere
b. Balancing of rationality that is
b. Content Neutral Regulations interests required of any other
Regulations on the incidents of speech — time, c. Dangerous law and the
place, and manner — under well-defined Tendency compelling interest
standards [Newsounds Broadcasting Network d. Direct incitement standard applied to
v. Dy, supra]. content- based
restrictions [Chavez
When the speech restraints take the form of a v. Gonzales, supra].
content-neutral regulation, only a substantial
governmental interest is required for its
3. Facial Challenges and
validity. Because regulations of this type are
not designed to suppress any particular Overbreadth Doctrine
message, they are not subject to the strictest
form of judicial scrutiny but an intermediate a. General Rule: As Applied
approach — somewhere between the mere A party can question the validity of a statute
rationality that is required of any other law and only if, as applied to him, it is unconstitutional
the compelling interest standard applied to [Southern Hemisphere v. Anti-Terrorism
content- based restrictions [Chavez v. Council, G.R. No. 178552 (2010)].
Gonzales, supra].
b. Exception: Facial Challenge
A government regulation is sufficiently A facial challenge may be directed against a
justified if: vague statute or to one which is overbroad
1. It is within the constitutional power; because of the possible “chilling effect” the
2. It furthers an important or substantial statute will have on protected speech. The
government interest; theory is that “[w]hen statutes regulate or
3. The government interest is unrelated to the proscribe speech and no readily apparent
suppression of free expression; construction suggests itself as a vehicle for
rehabilitating the statutes in a single
prosecution, the transcendent value to all
Page 163 of 412
society of constitutionally protected expression This rule also requires that “the danger created
is deemed to justify allowing attacks on overly must not only be clear and present but also
broad statutes with no requirement that the traceable to the ideas expressed”
person making the attack demonstrate that his
own conduct could not be regulated by a Concept of “Clear”
statute drawn with narrow specificity” [Gooding There must be a connection with the danger of
v. Wilson, 405 U.S. 518 (1972)]. the substantive evil arising from the utterance
questioned.
This rationale does not apply to penal statutes
without a free speech aspect. Criminal statutes Concept of “Present”
have general in terrorem effect resulting from Involves the time element, identified with
their very existence and, if facial challenges imminent and immediate danger. The danger
were allowed for this reason alone, the State must not only be probable but very likely
may well be prevented from enacting laws inevitable [Gonzales v. COMELEC, supra].
against socially harmful conduct. In the area of
criminal law, the law cannot take chances as in The evil consequence of the comment or
the area of free speech [Southern Hemisphere utterance must be “extremely serious and the
v. Anti- Terrorism Council, supra]. degree of imminence extremely high” before
the utterance can be punished. The danger to
However, said doctrine applies to penal be guarded against is the “substantive evil”
statutes when: sought to be prevented. And this evil is
a. The statute is challenged as applied; or “disorderly and unfair administration of justice.”
b. The statute involves free speech [Disini v. [...] Under this rule, the advocacy of ideas
Sec. of Justice, supra]. cannot constitutionally be abridged unless
there is a clear and present danger that such
c. Overbreadth Doctrine advocacy will harm the administration of justice
The statute must be carefully drawn or be [Cabansag v. Fernandez, supra].
authoritatively construed to punish only
unprotected speech and not be susceptible of Note: This test has been adopted by SC and is
application to protected expression [Gooding v. the test most applied to cases re: freedom of
Wilson, supra]. expression.
A law may be invalidated as overbroad if a b. Balancing of Interests Test

substantial number of its applications are When a particular conduct is regulated in the
unconstitutional, judged in relation to the interest of public order, and the regulation
statute’s plainly legitimate sweep [US v. results in an indirect, conditional and partial
Stevens, 559 U.S. 460 (2010)]. abridgement of speech, the duty of the courts
is to determine which of the two conflicting
A governmental purpose may not be achieved interests demands greater protection
through means which sweep too broadly and [American Communications v. Douds, 339 U.S.
thereby invade the area of protected freedoms. 282 (1950)].
4. Tests to Determine the Validity of The test is applied when two legitimate values
Governmental Regulation not involving national security crimes compete
[Gonzales v. COMELEC, supra].
a. Clear and Present Danger Test
The question in every case is whether the Factors to consider: [Soriano v. Laguardia,
words used are used in such circumstances supra]
and are of such nature as to create a clear and 1. Social value of the freedom restricted
present danger that they will bring about the 2. Specific thrust of the restriction, i.e. direct
substantive evils that Congress has a right to or indirect, affects many or few
prevent. It is a question of proximity and degree 3. Value of the public interest sought to be
[Schenck v. US, supra]. secured by the regulation
4. Whether the restriction is reasonably
Burden of proof: With the government. appropriate and necessary for the
protection of the public interest
Page 164 of 412
5. Whether the necessary safeguarding of the Print vs. Broadcast Media
public interest may be achieved by a While all forms of communication are entitled to
measure the broad protection of freedom of expression
clause, the freedom of film, television, and
c. Dangerous Tendency Test radio broadcasting is somewhat lesser than the
In each case, courts must ask whether the freedom accorded to newspapers and other
gravity of the “evil”, discounted by its print media [Chavez v. Gonzales, supra].
improbability, justifies such invasion of free
speech as is necessary to avoid the danger Radio and television are accorded less
[Dennis v. US, 341 U.S. 494 (1951)]. protection because of:
a. The scarcity of the frequencies by which
Under this test, the question is whether the the medium operates, i.e., airwaves are
words will create a dangerous tendency that physically limited while print medium may
the state has a right to prevent. It looks at the be limitless;
probability that a substantive evil will result, and b. Its pervasiveness as a medium; and
it is not necessary that some definite or c. Its unique accessibility to children [FCC v.
immediate acts of force, violence, or Pacifica Foundation, 438 U.S. 726 (1978)].
unlawfulness be advocated [Cabansag v.
Fernandez, supra]. But all forms of media, whether print or
broadcast, are entitled to the broad protection
It is sufficient if the natural tendency and the of the freedom of expression clause. The test
probable effect of the utterance were to bring for limitations on freedom of expression
about the substantive evil that the legislative continues to be the clear and present danger
body seeks to prevent [People v. Perez, supra]. test [Eastern Broadcasting v. Dans, Jr., supra].
d. O’Brien Test Movie Censorship

A government regulation is sufficiently justified Censorship is allowable only under the clearest
if: proof of a clear and present danger of a
1. It is within the constitutional power; substantive evil to public safety, morals,
2. It furthers an important or substantial health, or any other legitimate public
government interest; interest:
3. The government interest is unrelated to the a. There should be no doubt that what is
suppression of free expression; feared may be traced to the expression
4. The incident restriction is no greater than complained of;
essential to the furtherance of that interest b. Also, there must be reasonable
[US v. O’Brien, supra] apprehension about its imminence. It does
not suffice that the danger is only probable
5. State Regulation of Different [Gonzales v. Katigbak, supra].
Types of Mass Media
Television Censorship
1987 Constitution, SECTION 11(1), ARTICLE XVI. P.D. No. 1986 gave the MTRCB the power to
xxx The advertising industry is impressed with public
screen, review, and examine all television
interest, and shall be regulated by law for the
protection of consumers and the promotion of the programs.
general welfare. xxx
By the clear terms of the law, the Board has the
power to “approve, delete, or prohibit the
Four Aspects of Freedom of the Press exhibition and/or television broadcasts of
1. Freedom from prior restraint; television programs.” The law also directs the
2. Freedom from punishment subsequent to Board to apply contemporary Filipino culture
publication; values as the standard to determine those
3. Freedom of access to information; and which are objectionable for being immoral,
4. Freedom of circulation [Chavez v. indecent, contrary to law and/or good customs,
Gonzales, supra] injurious to the prestige of the Republic of the
Philippines and its people, or with a dangerous
tendency to encourage the commission of a
violence or of a wrong or a crime.
Page 165 of 412
The law gives the Board the power to screen, expression is not absolute [and that] some
review and examine all “television programs”, forms of speech are still subject to some
whether religious, public affairs, news restrictions.
documentary, etc. [Iglesia ni Cristo v. CA,
supra]. b. Defamation and Libel
Notwithstanding the fact that freedom of Libel

religion has been accorded a preferred status, Libel is not constitutionally protected speech.
the television program of Iglesia ni Cristo is still The government has an obligation to protect
not exempt from the MTRCB’s power to review. individuals from defamation [Disini v. Sec. of
If the Court [...] did not exempt religious Justice, G.R. No. 203335 (2014)].
programs from the jurisdiction and review
power of the MTRCB, with more reason, there The onus of proving malice shifts to the plaintiff,
is no justification to exempt ABS-CBN’s “The who must prove that the defendants were
Inside Story” which [...] is protected by the actuated by ill will in what they caused to be
constitutional provision on freedom of published, with a design to injure the plaintiff.
expression and of the press, a freedom bearing
no preferred status [MTRCB v. ABS-CBN, G.R. In US v. Bustos, supra, a criminal action was
No. 155282 (2005)]. instituted against defendants for allegedly
publishing writings which were libelous against
Regardless of the regulatory schemes that a justice of the peace. The SC held that the said
broadcast media is subjected to, the SC has writings constitute qualifiedly privileged matter
consistently held that the clear and present as public opinion, therefore, they cannot be
danger test applies to content-based presumed malicious.
restrictions on media, without making a In In Re: Jurado, supra, the SC held that false
distinction as to traditional print or broadcast reports about a public official or other person
media [Chavez v. Gonzales, supra]. are not shielded from sanction by the right to
Radio Censorship free speech. Free speech has never
In Santiago v. Far Eastern Broadcasting [G.R. countenanced the publication of falsehoods,
No. L- 48683 (1941)], the SC did not uphold the especially the persistent and unmitigated
claim that Far Eastern Broadcasting had no dissemination of patent lies.
right to require the submission of the
manuscript. It is the duty of Far Eastern Group Libel
Broadcasting to require the submission of a Where the defamation is alleged to have been
manuscript as a requirement in broadcasting directed at a group or class, it is essential that
speeches. the statement must be so sweeping or all-
embracing as to apply to every individual in that
Strict rules have also been allowed for radio group or class, or sufficiently specific so that
because of its pervasive quality and because each individual in the class or group can prove
of the interest in the protection of children [FCC that the defamatory statement specifically
v. Pacifica Foundation, supra]. pointed to him, so that he can bring the action
separately, if need be [Newsweek Inc. v. IAC,
6. Unprotected Speech G.R. No. L-63559 (1986)].
a. Hate Speech As the size of these groups increases, the

chances for members of such groups to
Hate Speech recover damages for tortious libel become
Speech designed to promote hatred on the elusive. This principle is said to embrace two
basis of race, religion, ethnicity or national important public policies:
origin [Rosenfield, Hate Speech in 1. Where the group referred to is large, the
Constitutional Jurisprudence]. courts presume that no reasonable reader
. would take the statements as so literally
In Philippine jurisdiction, it is arguable that applying to each individual member; and
“hate speech” is not protected speech. In 2. The limitation on liability would
Diocese of Bacolod v. COMELEC, the Court satisfactorily safeguard freedom of speech
recognized that [t]he right to freedom of and expression, as well as of the press,
Page 166 of 412
effecting a sound compromise between the Tests to Determine Obscenity
conflicting fundamental interests involved ● Roth v. US [354 U.S. 476 (1957)]:
in libel cases [MVRS v. Islamic Da’wah Whether, to the average person, applying
Council of the Philippines, G.R. No. 135306 contemporary community standards, the
(2003)]. dominant theme of the material, taken as a
whole, appeals to prurient interest.
c. Sedition and Speech in Relation to ● Miller v. California [413 U.S. 15 (1973)]:
Rebellion A work is considered obscene if:
1. Whether the average person, applying
Heckler’s Veto contemporary community standards,
Heckler’s veto is an attempt to limit unpopular would find that the work, taken as a
speech. This occurs when an acting party’s whole, appeals to the prurient interest;
right to freedom of speech is curtailed or 2. Whether the work depicts or describes,
restricted by the government in order to prevent in an offensive way, sexual conduct or
a reacting party’s behavior. excretory functions, specifically defined
by applicable state law; and
Under the free speech clause, the government 3. Whether the work, taken as a whole,
may not silence speech based on the lacks serious literary, artistic, political,
anticipated reaction of a hostile audience, or scientific value.
unless there is a clear and present danger
of grave and imminent harm, which is not Community Standard
easy to prove. Pictures depicting inhabitants of the country in
their native dress as they appear and can be
Incitement and Advocacy seen in the regions in which they live are not
Criticism of the government, no matter how obscene or indecent. The pictures in question
severe, is within the range of liberty of speech, merely depict persons as they actually live,
unless the intention and effect is to be seditious without attempted presentation of persons in
[People v. Perez, G.R. No. 21049 (1923)]. unusual postures or dress [People v. Kottinger,
supra].
d. Obscenity/Pornography
Child Pornography
Obscenity Child pornography, in all mediums, is
The State, as parens patriae, in pursuing its proscribed under several statutes:
mandate to protect the public from obscene, 1. R.A. No. 9775 or the Anti-Child
immoral and indecent materials must justify the Pornography Act of 2009
regulation or limitation. 2. R.A. No. 9208 or the Anti-Trafficking
Persons Act of 2003
No one will be subject to prosecution for the 3. R.A. No. 10175 or the Cybercrime
sale or exposure of obscene materials unless Prevention Act of 2012 (which increased
these materials depict or describe patently the penalties of offenses under RA No.
offensive hard core sexual conduct. Examples 9775 if committed through a computer
included (a) patently offensive representations system)
or descriptions of ultimate sexual acts, normal 4. R.A. No. 7610 or the Special Protection of
or perverted, actual or simulated; and (b) Children Against Abuse, Exploitation and
patently offensive representations or Discrimination Act (also known as the Child
descriptions of masturbation, excretory Abuse Law)
functions, and lewd exhibition of the genitals
[Miller v. California, 413 U.S. 15 (1973)]. e. Commercial Speech
What remains clear is that obscenity is an issue Commercial Speech

proper for judicial determination and should be Central Hudson Gas & Elec. v. Public Svc.
treated on a case to case basis and on the Comm’n [447 U.S. 557 (1980)] established the
judge’s sound discretion. test to be applied to regulations on commercial
speech:
1. Speech must not be false, misleading or
proposing an illegal activity;
Page 167 of 412
2. Government interest sought to be served congressmen in the discharge of their duties
by regulation must be substantial; [Jimenez v. Cabangbang, G.R. No. L-15905
3. The regulation must advance government (1966)].
interest; and
4. The regulation must not be overbroad. False reports about a public official or other
person are not shielded by the right to free
f. Political Speech speech enshrined in the Constitution. Making
knowingly false statements made with reckless
Political Speech disregard of the truth does not enjoy
Considered pure and protected speech. The constitutional protection. The guaranty of free
government is required to prove a “true threat”, speech cannot be considered as according
it cannot punish mere political hyperbole [Watts protection to the disclosure of lies, gossip or
v. US, 394 U.S. 705 (1969)]. rumor [In Re: Jurado, supra].
A tarpaulin that expresses a political opinion

constitutes political speech. Speech that
promotes dialogue on public affairs, or airs out
grievances and political discontent, should be
protected and encouraged [Diocese of
Bacolod v. COMELEC, G.R. No. 205728
(2015)].
Political Speech Commercial

Speech
Speech "both Speech that does

intended and “no more than
received as a propose a
contribution to public commercial
deliberation about transaction.”
some issue,"
"foster[ing] informed
and civic minded
deliberation."
g. National Emergencies
One of the misfortunes of an emergency,
particularly, that which pertains to security, is
that military necessity and the guaranteed
rights of the individual are often not compatible.
The right against unreasonable search and

seizure; the right against warrantless arrest;
and the freedom of speech, of expression, of
the press, and of assembly under the Bill of
Rights suffered the greatest blow [David v.
Macapagal-Arroyo, supra].
h. Speech of Public Officers

A libelous letter of a congressman, published in
a newspaper, does not fall under “speech or
debate” protected by the Constitution. Speech
or debate refers to speeches, statements, or
votes made within Congress while it is in
session, or duly authorized actions of
Page 168 of 412
E. Freedom of Religion disapproval of religion [Victoriano v. Elizalde
Rope Workers Union, supra].
1987 Constitution, SECTION 5, ARTICLE III. No Basis [Imbong v. Ochoa, supra]
law shall be made respecting an establishment of
religion; or prohibiting the free exercise thereof. The
“[T]he principle of separation of Church and
free exercise and enjoyment of religious profession State is based on mutual respect. Generally,
and worship, without discrimination or preference, the State cannot meddle in the internal affairs
shall forever be allowed. No religious test shall be of the church, much less question its faith and
required for the exercise of civil or political rights. dogmas or dictate upon it. It cannot favor one
religion and discriminate against another. On
1. Non-Establishment and Free the other hand, the church cannot impose its
beliefs and convictions on the State and the
Exercise Clauses rest of the citizenry. It cannot demand that the
nation follow its beliefs, even if it sincerely
a. Non-Establishment Clause believes that they are good for the country”
1987 Constitution, SECTION 6, ARTICLE II. The [Imbong v. Ochoa, supra, on the
separation of Church and State shall be inviolable. constitutionality of the RH Law].
This is rooted in the separation of Church and

1987 Constitution, SECTION 2(5), ARTICLE IX-C. State.
Religious denominations and sects shall not be
registered [as political parties].
Impermissible Acts
● Prayer and Bible-reading in public schools
[Abington School District v. Schemp, 374
1987 Constitution, SECTION 5(2), ARTICLE VI.
For three consecutive terms after the ratification of U.S. 203 (1963)]
this Constitution, one-half of the seats allocated to ● Financial subsidy for parochial schools
party-list representatives shall be filled, as provided [Lemon v. Kurtzman, 403 U.S. 602 (1971)]
by law, by selection or election from […] sectors as ● Religious displays in public spaces:
may be provided by law, except the religious Display of granite monument of 10
sector.
commandments in front of a courthouse is
unconstitutional for being unmistakably
Concept non-secular [Glassroth v. Moore, 335 F.3d
“From the religious perspective, religion 1282 (2003)]
requires voluntarism because compulsory faith ● Mandatory religious subjects or prohibition
lacks religious efficacy. Compelled religion is a of secular subjects (evolution) in schools
contradiction in terms [...] Such voluntarism [Epperson v. Arkansas, 393 U.S. 97
cannot be achieved unless the political process (1968)]
is insulated from religion and unless religion is ● Mandatory bible reading in school (a form
insulated from politics. Non-establishment thus of preference for belief over non-belief)
calls for government neutrality in religious [School District v. Schempp, 374 U.S. 203
matters to uphold voluntarism and avoid (1963)]
breeding interfaith dissension” [Estrada v.
Escritor, A.M. No. P-02-1651 (2003)].
Permissible Acts
Note: In Estrada v. Escritor, the petitioner filed
a complaint against the respondent, who was a 1. Constitutionally created
court employee, praying for her dismissal on
account of immorality for cohabiting with a man Tax Exemption
not her husband. The respondent claims that 1987 Constitution, SECTION 28(3), ARTICLE VI.
their arrangement is permitted by her religion. Charitable institutions, churches and personages or
● Estrada is a carefully crafted doctrine, the convents appurtenant thereto, mosques, non-profit
use of which is limited for the protection of cemeteries, and all lands, buildings, and
religious minorities improvements, actually, directly, and exclusively
used for religious, charitable, or educational
purposes shall be exempt from taxation.
The clause prohibits excessive government
entanglement with, endorsement or
Page 169 of 412
Operation of Sectarian Schools ● Display of crèche in a secular setting –
1987 Constitution, SECTION 4(2), ARTICLE XIV.
Depicts origins of the holiday [Lynch v.
Educational institutions, other than those Donnely, 465 U.S. 668 (1984)]
established by religious groups and mission boards, ● Financial support for secular academic
shall be owned solely by citizens of the Philippines facilities (i.e. library and science center) in
or corporations or associations at least sixty per parochial schools – Has secular use [Tilton
centum of the capital of which is owned by such v. Richardson, 403 U.S. 672 (1971)]
citizens.
● Exemption from zoning requirements to
accommodate unique architectural
Religious Instruction in Public Schools features of religious buildings i.e. Mormon’s
1987 Constitution, SECTION 3(3), ARTICLE XIV. tall pointed steeple [Martin v. Corporation
At the option expressed in writing by the parents or of the Presiding Bishop, 434 Mass. 141
guardians, religion shall be allowed to be taught to (2001)]
their children or wards in public elementary and high
schools within the regular class hours by instructors b. Free Exercise Clause
designated or approved by the religious authorities
of the religion to which the children or wards belong,
The Free Exercise Clause affords absolute
without additional cost to the Government. protection to individual religious convictions.
However, the government is able to regulate
the times, places, and manner of its exercise
Limited Public Aid to Religion [Cantwell v. Connecticut, 310 U.S. 296 (1940)].
1987 Constitution, SECTION 29(2), ARTICLE VI. Under the Free Exercise Clause, religious
No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for
belief is absolutely protected, religious speech
the use, benefit, or support of any sect, church, and proselytizing are highly protected but
denomination, sectarian institution, or system of subject to restraints applicable to non-religious
religion, or of any priest, preacher, minister, other speech, and unconventional religious practice
religious teacher, or dignitary as such, except when receives less protection; nevertheless conduct,
such priest, preacher, minister, or dignitary is even if it violates the law, could be accorded
assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.
protection [Estrada v. Escritor, supra].
Dual Aspect
2. Test to Determine the Constitutionality of a. Freedom to believe — Absolute
Policies Challenged Under the b. Freedom to act on one’s belief — Subject
Establishment Clause (Lemon Test): to regulation
a. The statute must have a secular legislative
purpose; Conduct remains subject to regulation for the
b. Its primary or principal effect must be one protection of society. The freedom to act must
that neither advances nor inhibits religion. have appropriate definitions to preserve the
c. The statute must not foster an excessive enforcement of that protection. In every case,
entanglement with religion [Estrada v. the power to regulate must be so exercised, in
Escritor, supra]. attaining a permissible end, as not to unduly
3. Jurisprudence infringe on the protected freedom.
● Religious activities with secular
purpose/character — Postage stamps In a nutshell, the Constitution guarantees the
depicting the Philippines as the site of a freedom to believe absolutely, while the
significant religious event – promotes freedom to act based on belief is subject to
Philippine tourism [Aglipay v. Ruiz, G.R. regulation by the State when necessary to
No. L-45459]. protect the rights of others and in the interest of
● Government sponsorship of town fiestas. – public welfare [Valmores v. Achacoso, G.R.
Has secular character [Garces v. Estenzo, No. 217453 (2017)].
G.R. No. L- 53487 (1981)]
● Book lending program for students in Laws and Acts Justified under Free
parochial schools. – Benefit to parents and Exercise Clause
students [Board of Education v. Allen, 392 ● Exemption from flag salute in school
U.S. 236 (1968)] [Ebralinag v. Division Superintendent of
Schools of Cebu, G.R. No. 95770 (1993)]
Page 170 of 412
● Freedom to propagate religious doctrines. indirectly what they cannot do directly [Imbong
The power to tax the exercise of the v. Ochoa, supra].
privilege is the power to control or suppress
its enjoyment [American Bible Society v. Note: The Court, however, held that the policy
City of Manila, G.R. No. L-9367 (1957)]. of the government with regard to the promotion
● Non-disqualification of religious leaders of contraceptives was not violative of the
from local government office [Pamil v. establishment clause. “[T]he State is not
Teleron, G.R. No. L-34854 (1978)] precluded to pursue its legitimate secular
● Working hours from 7:30am to 3:30pm objectives without being dictated upon by the
without break during Ramadan [Re: policies of any one religion” [Imbong v. Ochoa,
Request of Muslim Employees in the supra].
Different Courts of Iligan City, A.M. No. 02-
2-10-SC (2005)] 3. Tests to Determine the Validity of
● Exemption from administrative charge on Governmental Regulation
immorality: Cohabiting with a married man
with church sanction evidenced by a a. Clear and Present Danger - Used for
document of “Declaration of Pledging
religious speech.
Faithfulness” [Estrada v. Escritor, supra].
In order to justify restraint the court must
determine whether the expression presents a
2. Conscientious Objectors clear and present danger of any substantive
evil, which the state has a right to prevent
Conscientious Objector In the RH Law [American Bible Society v. City of Manila,
Sections 7, 23, and 24 of R.A. No. 10354 supra].
(Reproductive Health Law) impose upon the
conscientious objector the duty to refer the b. Benevolent Neutrality — Compelling
patient seeking reproductive health services to
State Interest
another medical practitioner.
Under the Benevolent Neutrality Doctrine, this
is the proper test where conduct arising from
A conscientious objector should be exempt
religious belief is involved:
from compliance with the mandates of the RH
1. Has the government action created a
Law. If he is compelled to act contrary to his
burden on the free exercise? The Court
religious belief and conviction, it would be
must look into sincerity (but not trust) of
violative of "the principle of non-coercion"
belief.
enshrined in the constitutional right to free
2. Is there a compelling state interest to justify
exercise of religion.
the infringement?
3. Are the means to achieve the legitimate
The Court found no compelling state interest
state objective the least intrusive? [Estrada
which would limit the free exercise of
v. Escritor, supra]
conscientious objectors. Only the prevention of
an immediate danger to the security and
welfare of the community can justify the F. Liberty of Abode and Right to
infringement of religious freedom [Imbong v. Travel
Ochoa, supra].
1987 Constitution, SECTION 6, ARTICLE III. The
Duty to Refer in the RH Law is violative of liberty of abode and of changing the same within the
the Free Exercise Clause limits prescribed by law shall not be impaired except
The provisions mandating a “hospital or a upon lawful order of the court. Neither shall the right
medical practitioner to immediately refer a to travel be impaired except in the interest of national
person seeking health care and services under security, public safety or public health, as may be
provided by law.
the law to another accessible healthcare
provider despite their conscientious objections
based on religious or ethical beliefs” is violative 1. Scope and Limitations
of free exercise. The Court held that this opt-
out class is a false compromise because it Scope
cannot force someone, in conscience, to do Freedom of movement includes two rights:
Page 171 of 412

1. Liberty of abode. A person’s right to travel is subject to usual
2. Liberty of travel. constraints imposed by the very necessity of
safeguarding the system of justice [Marcos v.
Limitations Sandiganbayan, G.R. Nos. 115132-34 (1995)].
a. Liberty of abode The right to travel does not mean the right to
May be impaired only upon lawful order of the choose any vehicle in traversing a toll way. The
court. right to travel refers to the right to move from
one place to another. The right to travel does
The court itself is to be guided by the limits not entitle a person to the best form of transport
prescribed by law. or to the most convenient route to his
destination [Mirasol v. DPWH, G.R. No.
A condition imposed by the court in connection 158793 (2006)].
with the grant of bail is an example of a valid
limitation to liberty. Proclamation No. 475 does not constitute an
impairment of the right to travel. Any bearing
b. Liberty of travel that Proclamation No. 475 may have on the
May be impaired even without a lawful order of right to travel is merely corollary to the closure
the court. of Boracay and the ban of tourists and non-
residents therefrom which were necessary
While liberty of travel may be impaired even incidents of the island's rehabilitation [Zabal v.
without Court order, executive officials or Duterte, G.R. No. 238467 (2019)].
administrative authorities are not armed with
arbitrary discretion to impose limitations. Such Several laws recognized as constituting an
limits may only be imposed on the basis of impairment on the right to travel which directly
“national security, public safety, or public impose restriction on the right, viz.:
health” and “as may be provided by law,” a ● The law restricts the right travel of an
limitive phrase which did not exist in the 1973 individual charged with the crime of
text [Silverio v. CA, G.R. No. 94284 (1991), terrorism even though such person is out
citing Bernas]. on bail [The Human Security Act of 2010 or
R.A. No. 9372].
Impairment of the liberty of travel is subject to ● Pursuant to said law, the Secretary of
judicial review. Foreign Affairs or his authorized consular
officer may refuse the issuance of, restrict
The executive of a municipality does not have the use of, or withdraw, a passport of a
the right to force citizens of the Philippines to Filipino citizen [The Philippine Passport Act
change their domicile from one locality to of 1996 or R.A. No. 8239].
another [Villavicencio v. Lukban, G.R. No. L- ● Pursuant to the provisions thereof, the
14639 (1919)]. Bureau of Immigration, in order to manage
migration and curb trafficking in persons,
Right to Travel issued Memorandum Order Radjr No.
Restraint on right to travel of accused on bail is 2011-011, allowing its Travel Control and
allowed to avoid the possibility of losing Enforcement Unit to 'offload passengers
jurisdiction if accused travels abroad [Manotoc with fraudulent travel documents, doubtful
v. CA, G.R. No. L- 62100 (1986)]. purpose of travel, including possible victims
of human trafficking' from our ports [The
OCA Circular No. 49-2003 which requires that Anti-Trafficking in Persons Act of 2003 or
all foreign travels of judges and court personnel R.A. No. 9208].
must be with prior permission from the Court ● In enforcement of said law, the Philippine
does not restrict, but merely regulates, the right Overseas Employment Administration
to travel. (POEA) may refuse to issue deployment
permit[s] to a specific country that
To “restrict” is to restrain or prohibit a person effectively prevents our migrant workers to
from doing something, to “regulate” is to govern enter such country [The Migrant Workers
or direct according to rule [Genuino v. De Lima, and Overseas Filipinos Act of 1995 or R.A.
G.R. No. 197930 (2018)]. No. 8042, as amended by R.A. No. 10022].
Page 172 of 412
● The law restricts movement of an individual Conditions for the issuance of a PHDO
against whom the protection order is 1. Probable cause exists as determined by
intended [The Act on Violence Against the judge in whose court the application is
Women and Children or R.A. No. 9262]. filed, and
● The Inter-Country Adoption Board may 2. There is a high probability that the
issue rules restrictive of an adoptee's right respondent will depart from the Philippines
to travel 'to protect the Filipino child from to evade arrest and prosecution of crime
abuse, exploitation, trafficking and/or sale against him or her.
or any other practice in connection with
adoption which is harmful, detrimental, or Validity of the PHDO
prejudicial to the child’ [Inter-Country The order shall be valid until lifted by the
Adoption Act of 1995 or R.A. No. 8043]. issuing court as may be warranted by the
preliminary investigation [Section 6, Rule on
2. Watch-List and Hold Departure Precautionary Hold Departure Order].
Orders
Distinction between WLO and HDO
Precautionary Hold Departure Order The WLO also does not bear a significant
(PHDO) distinction from a HDO, thereby giving the
It is an order in writing issued by a court, impression that they are one and the same or,
commanding the Bureau of Immigration to at the very least, complementary such that
prevent any attempt by a person suspected of whatever is not covered in Section 1,which
a crime to depart from the Philippines which pertains to the issuance of HDO, can
shall be issued ex-parte in cases involving conveniently fall under Section 2,which calls for
crimes where the minimum of the penalty the issuance of WLO. In any case, there is an
prescribed by law is at least six years and one identical provision in DOJ Circular No. 41 which
day, or when the offender is a foreigner authorizes the Secretary of Justice to issue a
regardless of the imposable penalty [Section 1, HDO or WLO against anyone, motu proprio, in
Rule on Precautionary Hold Departure Order]. the interest of national security, public safety or
public health. With this all-encompassing
Who files an application for a PHDO? provision, there is nothing that can prevent the
Prosecutor Secretary of Justice to prevent anyone from
leaving the country under the guise of national
Where is it filed? security, public safety or public health [Genuino
General Rule: A PHDO is filed with any RTC v. De Lima, supra].
within whose jurisdiction the alleged crime
was committed. G. Right to Information
Exceptions 1987 Constitution, SECTION 7, ARTICLE III. The
For compelling reasons, it can be filed with right of the people to information on matters of public
ANY RTC within the judicial region where the concern shall be recognized. Access to official
crime was committed if the place of the records, and to documents and papers pertaining to
commission of the crime is known. official acts, transactions, or decisions, as well as to
government research data used as basis for policy
development, shall be afforded the citizen, subject to
The RTCs in the City of Manila, Quezon City, such limitations as may be provided by law.
Cebu City, Iloilo City, Davao City and Cagayan
de Oro City shall also have the authority to act
on the applications filed by the prosecutor 1987 Constitution, SECTION 28, ARTICLE II.
based on complaints instituted by the NBI, Subject to reasonable conditions prescribed by law,
regardless where the alleged crime was the State adopts and implements a policy of full
committed [Section 2, Rule on Precautionary public disclosure of all its transactions involving
public interest.
Hold Departure Order].
Page 173 of 412

1987 Constitution, SECTION 10, ARTICLE XVI. Right to information covers matters of
The State shall provide the policy environment for public concern:
the full development of Filipino capability and the 1. Official records
emergence of communication structures suitable to 2. Documents pertaining to official acts
the needs and aspirations of the nation and the 3. Government research date used as basis
balanced flow of information into, out of, and across
the country, in accordance with a policy that
for policy development
respects the freedom of speech and of the press.
Matters of public concern in
jurisprudence
1. Scope and Limitations 1. Loanable funds of GSIS [Valmonte v.
Belmonte, G.R. No. 74930 (1989)]
Policy of Full Public Disclosure v. Right to 2. Civil service eligibility of sanitarian
Information [IDEALS v. PSALM, G.R. No. employees [Legazpi v. CSC, supra]
192088 (2012)] 3. Appointments made to public offices and
the utilization of public property [Gonzales
Policy of Full Public Disclosure [Section 28, v. Narvasa, G.R. No. 140835 (2000)]
Article II, 1987 Constitution] 4. National board examinations such as the
● Covers all transactions involving public CPA Board Exams [Antolin v. Domondon,
interest, including any matter contained G.R. No.165036 (2010)]
in official communications and public 5. Presidential and Vice Presidential Debates
documents of the government agency. [Rappler, Inc. v. Bautista, G.R. No. 222702
● Does not require demand. (2016)]
● Pertains to duty to disclosure of the
government, pursuant to the policy of The constitutional right to information includes
full public disclosure. official information on on-going negotiations
before a final contract. The information,
Right to Information on Matters of Public however, must constitute definite propositions
Concern [Section 7, Article III, 1987 by the government, and should not cover
Constitution] recognized exceptions [Chavez v. PEA and
● Covers matters of public concern Amari, supra].
The people’s right to information is not While evaluation of bids or proposals is on-
absolute. The Constitutional guarantee to going, there are no “official acts, transactions,
information “does not open every door to any or decisions.” However, once the committee
and all information” [Legazpi v. CSC, G.R. No. makes an official recommendation, there
L-72119 (1987)]. It is limited to matters of arises a definite proposition. From this
public concern, and is subject to such moment, the public’s right to information
limitations as may be provided by law. Also, the attaches, and any citizen can assail the
State’s policy of full disclosure is restricted to nonproprietary information leading to such
transactions involving public interest, and is definite propositions [Chavez v. PEA and
further subject to reasonable conditions Amari, supra]
prescribed by law [Sereno v. CTRM-NEDA,
G.R. No. 175210 (2016)]. Two requisites must concur before the
right to information may be compelled by
There is no rigid test in determining whether or writ of mandamus
not a particular information is of public concern 1. The information sought must be in relation
or public interest. Both terms cover a wide- to matters of public concern or public
range of issues that the public may want to be interest;
familiar with either because the issues have a 2. It must not be exempt by law from the
direct effect on them or because the issues operation of the constitutional guarantee
"naturally arouse the interest of an ordinary [Sereno v. CTRM-NEDA, supra].
citizen." As such, whether or not the
information sought is of public interest or public Restrictions to Right to Information
concern is left to the proper determination of The right of the people to information must be
the courts on a case-to-case basis [Sereno v. balanced against other genuine interests
CTRM-NEDA, supra].
Page 174 of 412
necessary for the proper functioning of the H. Eminent Domain
government [Bernas].
a. Based on Kinds of Information 1987 Constitution, SECTION 9, ARTICLE III.

Private property shall not be taken for public use
without just compensation.
Exempted Information
1. Privileged information rooted in separation
of powers 1. Concept
2. Information on military and diplomatic The power of eminent domain is the inherent
secrets right of the State to forcibly acquire needed
3. Information affecting national and property upon just compensation, in order to
economic security devote it to the intended public use [Cruz].
4. Information on investigations of crimes by
law enforcers before prosecution [Chavez It is also called the power of expropriation.
v. PEA and Amari, supra]
5. Trade secrets and banking transactions Section 9, Article III merely imposes a limit on
[Chavez v. PCGG, G.R. No. 130716 the government’s exercise of this power
(1998)] [Republic v. Tagle, G.R. No. 129079 (1998)].
6. Offers exchanged during diplomatic
negotiations [Akbayan v. Aquino, G.R. No. The exercise of the right of eminent domain,
170516 (2008)] whether directly by the State or by its
7. Other confidential matters (i.e. R.A. No. authorized agents, is necessarily in derogation
6713, closed door Cabinet meetings, of private rights. The authority to condemn is to
executive sessions, or internal be strictly construed in favor of the owner
deliberations in the Supreme Court) and against the condemnor. When the power
[Chavez v. PCGG, supra] is granted, the extent to which it may be
exercised is limited to the express terms or
b. Based on Access clear implication of the statute in which the
1. Opportunity to inspect and copy records at grant is contained [National Power Corp. v.
his expense [Chavez v. PEA and Amari, Tarcelo, G.R. No. 198139 (2014)].
supra]
2. Not the right to compel custodians of official Who May Exercise
records to prepare lists, abstracts, The repository of eminent domain powers is the
summaries and the like [Valmonte v. legislature (i.e. exercised through the
Belmonte, supra] enactment of laws). But the power of eminent
domain may be delegated to LGUs and other
The authority to regulate the manner of government entities (via charter); however,
examining public records does not carry with it such delegation must be made by law
the power to prohibit; thus, while the manner of [Manapat v. CA, supra].
examining public records may be subject to
reasonable regulation by the government Under the existing laws, the following may
agency in custody thereof, the duty to disclose exercise the power of expropriation:
the information of public concern, and to afford 1. Congress
access to public records cannot be 2. President
discretionary on the part of said agencies 3. Local legislative bodies
[Legaspi v. CSC, G.R. No. L-72119 (1987)]. 4. Certain public corporations, like the
National Housing Authority (NHA) and
c. Based on Availability water districts [Metropolitan Cebu Water
The right is only available to citizens. District v. J. King and Sons Company, Inc.,
G.R. No. 175983 (2009)].
In case of denial of access, the government 5. Quasi-public corporations like the
agency has the burden of showing that the Philippine National Railways (PNR), PLDT,
information requested is not of public concern, Meralco
or if it is of public concern, that the same has
been exempted by law from the operation of Requisites for Valid Exercise
the guarantee [Legaspi v. CSC, supra]. 1. Private property
Page 175 of 412
2. Genuine necessity — Inherent/presumed Eminent Domain vs. Regulatory Taking
in legislation, but when the power is 1. Eminent domain is an inherent power of the
delegated (e.g. LGUs), necessity must be state. Just compensation must be paid.
proven 2. Regulatory taking is done in the exercise of
3. For public use - Court has adopted a broad the state’s police power. In this case, just
definition of “public use” compensation need not be paid.
4. Payment of just compensation
5. Due process [Manapat v. CA, supra] Examples from Jurisprudence
The imposition of an aerial easement of right-
How Exercised of-way was held to be compensable taking.
Our laws require that the State's power of The exercise of the power of eminent domain
eminent domain shall be exercised through does not always result in the taking or
expropriation proceedings in court. Whenever appropriation of title to the expropriated
private property is taken for public use, it property; it may also result in the imposition of
becomes the ministerial duty of the concerned a burden upon the owner of the condemned
office or agency to initiate expropriation property, without loss of title or possession
proceedings [Department of Transportation [National Power Corporation v. Gutierrez, G.R.
and Communication v. Sps. Abecina, G.R. No. No. L-60077 (1991)].
206484 (2016)].
A municipal ordinance prohibiting a which
Prior filing of an expropriation case is a would impair the view of the plaza from the
condition sine qua non before the government highway was considered regulatory taking
is allowed to enter the property being reclaimed [People v. Fajardo, G.R. No. L-12172 (1958)].
and without which, the government’s
possession over the subject property becomes Public Use
illegal [Secretary of the Department of Public Any use directly available to the general public
Works and Highways v. Tecson, G.R. No. as a matter of right and not merely of
179334 (2015)]. forbearance of accommodation.
However, full payment of just compensation is Public use may also cover uses which, while
not a prerequisite for the Government’s not directly available to the public, redound to
effective taking of the property. When the their indirect advantage or benefit.
taking of the property precedes the payment of
just compensation, the Government shall The requirement of public use is deemed
indemnify the property owner by way of interest satisfied because of the vicarious advantages
[Republic v. Mupas, G.R. No. 181892 (2015)]. enjoyed by the people as a whole, by the
promotion of social justice objectives (e.g.
Taking vs. Transfer of Title equitable diffusion of property ownership;
There is taking when the owner is actually agrarian reform; enhancement of the dignity;
deprived or dispossessed of his property, or welfare and security of the underprivileged).
when there is a practical destruction or a
material impairment of the value of his Under the new concept, "public use" means
property, or when he is deprived of the ordinary public advantage, convenience or benefit,
use thereof [Republic v. Heirs of Borbon, 750 which tends to contribute to the general welfare
Phil. 37, 54 (2015), citing Ansaldo v. Tantuico, and the prosperity of the whole community, like
Jr., 266 Phil. 319 (1990)]. a resort complex for tourists or housing project
[Heirs of Juancho Ardano v. Reyes, G.R. Nos.
Two Phases of Expropriation: L-60549, 60553-60555 (1983); Sumulong v.
a. The condemnation of the property after it is Guerrero, G.R. No. L-48685 (1987)].
determined that its acquisition will be for a
public purpose or public use; and 2. Just Compensation
b. the determination of just compensation to be
paid for the taking of private property to be a. Definition
made by the court with the assistance of not The property’s fair market value at the time of
more than three commissioners [Republic v. the filing of the complaint, or that sum of money
Mupas, supra]. which a person desirous to buy but not
Page 176 of 412
compelled to buy, and an owner willing but not long line of cases, the fair market value of the
compelled to sell, would agree on as price to property at the time of taking is controlling for
be given and received therefor [National purposes of determining just compensation
Power Corporation v. Baguio, G.R. No. L- [Estate of Susano J. Rodrguez v. National
15763 (2008)]. Transmission Corporation, G.R. No. 245377
(2020)].
b. Determination of Just Compensation
Determination of just compensation is a In cases where the fair market value of the
judicial function that cannot be “usurped by property is difficult to ascertain, the court may
any other branch or official of the government” use other just and equitable market methods of
[National Power Corporation v. Zabala, G.R. valuation in order to estimate the fair market
No. 173520 (2013)]: value of the property [Republic v. Mupas, G.R.
● No legislative enactments or executive No. 181892 (2015)].
issuances can prevent the courts from
determining whether the right of the In order to determine just compensation, the
property owners to just compensation has trial court should first ascertain the market
been violated. value of the property by considering the cost of
● Section 3A of R.A. No. 6395, which limits acquisition, the current value of like properties,
its liability to easement fee of not more than its actual or potential uses, and in the particular
10% of the market value of the property case of lands, their size, shape, location, and
traversed by its transmission lines, cannot the tax declarations thereon [Republic v. Sps.
restrict the constitutional power of the Salvador, G.R. No. 205428 (2017)].
courts to determine just compensation.
● Statutes and executive issuances fixing or If as a result of the expropriation, the remaining
providing for the method of computation lot suffers from an impairment or decrease in
just compensation are not binding on value, consequential damages may be
courts and, at best, are treated as mere awarded by the trial court, provided that the
guidelines in ascertaining the amount consequential benefits which may arise from
thereof. the expropriation do not exceed said damages
suffered by the owner of the property [Republic
General Rule: Just compensation is v. Sps. Salvador, supra].
determined as of the date of the taking of the
property, or the filing of the complaint, Prevailing rate of interest
whichever came first [Section 4, Rule 67, Rules 6% per annum [BSP Circular No. 799 (s. 2013),
of Court]. If the filing of the complaint takes effective July 1, 2013]
place at the same time as the taking or entry, it
is computed at the time of filing [City of Iloilo v. Just compensation contemplates just and
Judge Contreras Besana, G.R. No. 168967 prompt payment, and 'prompt' payment, in turn,
(2010)]. requires the payment in full of the just
compensation as finally determined by the
When the taking of the property sought to be courts.
expropriated coincides with the
commencement of the expropriation Absent full payment of just compensation,
proceedings, or takes place subsequent to the interest on the unpaid portion (i.e., the just
filing of the complaint for eminent domain, the compensation determined by the court at the
just compensation should be determined as of time the decision becomes final and executory
the date of the filing of the complaint [City of minus the initial deposit), likewise runs as a
Iloilo v. Judge Contreras Besana, supra]. matter of law and follows as a matter of course
[Republic v. Decena et al, G.R. No. 212786
Exception: When the property is taken before (2018)]
the filing of the complaint, assessment should
be made as of the time of taking or entry. R.A. No. 8974 requires the government to
pay at two stages:
The Court uniformly ruled in Secretary of the 1. Immediately upon the filing of the
Department of Public Works and Highways v. complaint, the initial deposit which is 100%
Sps. Tecson [G.R. No. 179334 (2013)] that in a of the value of the property based on the
Page 177 of 412
current relevant zonal valuation of the BIR, 1987 Constitution, SECTION 3, ARTICLE XIII. The
and the value of the improvements and/or State shall afford full protection to labor, local and
structures sought to be expropriated; overseas, organized and unorganized, and promote
2. The just compensation as determined by full employment and equality of employment
the court, when the decision becomes final opportunities for all.
and executory, in which case the
It shall guarantee the rights of all workers to self
implementing agency shall pay the owner organization, collective bargaining negotiations,
the difference between the just and peaceful concerted activities including the right
compensation as determined by the court to strike in accordance with law. They shall be
and the amount already or initially paid entitled to security of tenure, humane conditions of
[Republic v. Decena et al, supra]. work, and a living wage. They shall also participate
in policy and decision-making processes affecting
their rights and benefits as may be provided by law.
c. Effect of Delay xxx
General Rule: For non-payment, the remedy is

the demand of payment of the fair market value 1987 Constitution, SECTION 2(5), ARTICLE IX-B.
of the property and not the recovery of The right to self-organization shall not be denied to
possession of the expropriated lots [Republic of government employees.
the Philippines v. Court of Appeals, G.R. No.
146587 (2002); Reyes v. National Housing How should the limitation “for purposes
Authority, G.R. No. 147511 (2003)]. not contrary to law” be interpreted?
Unless an association or society could be
Exception: When the government fails to pay shown to create an imminent danger to public
just compensation within five years from the safety, there is no justification for abridging the
finality of the judgment in the expropriation right to form associations.
proceedings, the owners concerned shall have
the right to recover possession of their property The government must comply with the heavy
[Republic v. Vicente Lim, G.R. No. 161656 burden of showing that the organization in fact
(2005)]. presents a clear and present danger of
substantive evil which the State has the right to
3. Expropriation by Local protect [Bernas].
Government Units
1. Scope and Limitations
Requisites
1. Enactment of an ordinance, not a The right is recognized as belonging to people
resolution whether employed or unemployed, and
2. Must be for a public use, purpose or whether in the government or in the private
welfare, or for the benefit of the poor and sector includes the right to unionize.
the landless
3. Payment of just compensation The State does not infringe on the fundamental
4. Must be preceded by a valid and definite right to form lawful associations when it leaves
offer made to the owner, who rejects the to citizens the power and liberty to affiliate or
same [Yusay v. CA, G.R. No. 156684 not affiliate with labor unions [Victoriano v.
(2011)] Elizalde Rope Workers Union, G.R. No. L-
25246 (1974)].
I. Right to Association
Every group has a right to join the democratic
process, association itself being an act of
1987 Constitution, SECTION 8, ARTICLE III. The
right of the people, including those employed in the expression of the member’s belief, even if the
public and private sectors, to form unions, group offends the sensibilities of the majority.
association, or societies for purposes not contrary to Any restriction to such requires a compelling
law shall not be abridged. state interest to be proven by the State [Ang
Ladlad LGBT Party v. COMELEC, G.R. No.
190582 (2010)].
Page 178 of 412

Political parties may freely be formed although This provision prohibits the passing of a law
there is a restriction on their activities [...] but that changes the terms of an already existing
the ban is narrow, not total. It operates only on contract which:
concerted or group action of political parties. 1. Changes the terms of a contract between
the parties
A political group should not be hindered solely 2. Imposes new conditions
because it seeks to publicly debate 3. Dispenses with those agreed upon, or
controversial political issues in order to find 4. Withdraws remedies for the enforcement of
solutions capable of satisfying everyone the rights of the parties [PADPAO v.
concerned. Only if a political party incites COMELEC, supra]
violence or puts forward policies that are
incompatible with democracy does it fall A change in procedural remedies which does
outside the protection of the freedom of not diminish substantive rights or increase
association guarantee [Ang Ladlad LGBT Party substantive obligations does not violate the
v. COMELEC, supra]. guarantee.
Freedom not to associate Substantial impairment is a law which changes

Freedom of association presupposes freedom the terms of a legal contract between parties,
not to associate [Roberts v. United States either in the time or mode of performance, or
Jaycees, supra] imposes new conditions, or dispenses with
those expressed, or authorizes for its
Government actions that unconstitutionally satisfaction something different from that
burden that right may take many forms, one of provided in its terms, is law which impairs the
which is intrusion into a group’s internal affairs obligation of a contract and is therefore null and
by forcing it to accept a member it does not void [Lepanto Consolidated Mining Co. v. WMC
desire. Such forced membership is Resources Int'l. Pty. Ltd., G.R. No. 162331
unconstitutional if the person’s presence (2006)].
affects in a significant way the group’s ability to
advocate public or private viewpoints [Boy Contemporary Application of the Non-
Scouts of America v. Dale, 530 U.S. 640 impairment Clause
(2000)].
a. When Non-Impairment Clause
J. Non-impairment of Contracts Prevails
1. Against the removal of tax exemptions,
1987 Constitution, SECTION 10, ARTICLE III. No where the consideration for the contract is
law impairing the obligation of contracts shall be the tax exemption itself.
passed. 2. Regulation on loans. New regulations on
loans making redemption of property sold
on foreclosure stricter are not allowed to
1. Concept and Limitations apply retroactively [Co v. Philippine
National Bank, G.R. No. 51767 (1982)].
The non-impairment clause ensures that the
integrity of contracts is protected from any b. When Non-Impairment Clause Yields
unwarranted State interference. It ensures that 1. Valid exercise of police power (i.e. zoning
the terms of a contract mutually agreed upon regulation) [Presley v. Bel-Air Village
by the parties are not tampered with or Association, G.R. No. 86774 (1991)]
modified by a subsequent law [BDO v. ICEC, 2. Premature campaign ban [Chavez v.
G.R. Nos. 218485-86 & 218493-97 (2021)]. COMELEC, G.R. No. 162777 (2004)]
3. Liquidation of a chartered bank [Philippine
The non-impairment clause is limited in Veterans Bank Employees Union v.
application to laws that derogate from prior acts Philippine Veterans Bank, G.R. No. 67125
or contracts by enlarging, abridging or in any (1990)]
manner changing the intention of the parties 4. Statute that exempts a party from any on
[PADPAO v. COMELEC, G.R. No. 223505 class of taxes
(2007)]. 5. Against freedom of religion [Victoriano v.
Elizalde Rope Workers, supra]
Page 179 of 412
6. Judicial or quasi-judicial order the latter, who may alter the same” [Ocampo v.
Enriquez, supra].
Examples of valid impairment of
contracts K. Free Access to Courts and
1. Invalidating contracts concerning forest
lands. Preservation of forest lands could
Adequate Legal Assistance
entail intrusion upon contractual rights if it
is for the benefit of the many [Land Bank v. 1987 Constitution, SECTION 11, ARTICLE III.
Republic, G.R. No. 150824 (2008)] Free access to the courts and quasi-judicial bodies
2. Caps on the rates that cooperatives can and adequate legal assistance shall not be denied
to any person by reason of poverty.
charge [SURNECO v. Energy Regulatory
Commission, G.R. No. 183626 (2010)]
3. Municipal ordinance, invalidating Rules of Court, SECTION 21, RULE 3. Indigent
restrictions set by private developers party. — xxx If the court should determine after
regarding the use of land [The Learning hearing that the party declared as an indigent is in
Child v. Ayala Alabang, G.R. No. 134269 fact a person with sufficient income or property, the
(2010)] proper docket and other lawful fees shall be
assessed and collected by the clerk of court.
c. Exclusions
The non-impairment clause is a limit on
Rules of Court, SECTION 19, RULE 141. Indigent
legislative power, and not of judicial or quasi-
litigants exempt from payment of legal fees. —
judicial power [BPI v. SEC, G.R. No. 164641 Indigent litigants (a) whose gross income and that of
(2007)]. their immediate family do not exceed four thousand
(P4,000.00) pesos a month if residing in Metro
Examples of contracts not included in the Manila, and three thousand (P3,000.00) pesos a
provision: month if residing outside Metro Manila, and (b) who
do not own real property with an assessed value of
1. Timber license contracts [Republic v. more than fifty thousand (P50,000.00) pesos shall
Pagadian Timber Co, G.R. 159308 (2008)] be exempt from the payment of legal fees.
2. Franchise contracts [PAGCOR v. BIR, G.R.
208731 (2016)] The legal fees shall be a lien on any judgment
3. Exercise of quasi-judicial powers of a rendered in the case favorably to the indigent
department, even if affirmed by the litigant, unless the court otherwise provides.
President [Hacienda Luisita v. PARC, G.R. To be entitled to the exemption herein provided, the
No. 171101 (2011)] litigant shall execute an affidavit that he and his
immediate family do not earn a gross income above
Note: Timber licenses, permits, and license mentioned, nor they own any real property with the
agreements are the principal instruments by assessed value aforementioned, supported by an
which the State regulates the utilization and affidavit of a disinterested person attesting to the
truth of the litigant's affidavit.
disposition of forest resources to the end that
public welfare is promoted. They are not Any falsity in the affidavit of a litigant or disinterested
deemed contracts within the purview of the due person shall be sufficient cause to strike out the
process of law clause [Oposa v. Factoran, G.R. pleading of that party, without prejudice to whatever
No. 101083 (1993)]. criminal liability may have been incurred.
The Court held that the non-impairment clause Concept

does not apply to the 1992 Memorandum of The Constitution explicitly premised the fee
Agreement (MOA) between The Government access clause on a person’s poverty, a
of the Republic of the Philippines and the condition from which only a natural person can
Marcos family. If one Congress cannot limit or suffer.
reduce the plenary legislative power of
succeeding Congresses, so, too, the exercise Extending fee exemption to a juridical person
of executive power by the past president may be prone to abuse by corporations and
cannot emasculate that of the incumbent entities bent on circumventing the rule thereof.
president. The discretionary act of the former is
not binding upon and cannot tie the hands of
Page 180 of 412

Indigent party L. Rights under Custodial
A party may be authorized to litigate his action,
claim or defense as an indigent if the court,
Investigation
upon an ex parte application and hearing, is
satisfied that the party is one who has no 1987 Constitution, SECTION 12, ARTICLE III. (1)
money or property sufficient and available for Any person under investigation for the commission
food, shelter and basic necessities for himself of an offense shall have the right to be informed of
his right to remain silent and to have competent and
and his family. independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he
Such authority shall include an exemption from must be provided with one. These rights cannot be
payment of docket and other lawful fees, and waived except in writing and in the presence of
of transcripts of stenographic notes which the counsel.
court may order to be furnished to him.
(2) No torture, force, violence, threat, intimidation, or
any other means which vitiate the free will shall be
If the applicant for exemption meets the salary used against him. Secret detention places, solitary,
and property requirements under Section 19 of incommunicado, or other similar forms of detention
Rule 141, then the grant of the application is are prohibited.
mandatory. When the application does not
satisfy one or both requirements, then the (3) Any confession or admission obtained in violation
of this or Section 17 hereof shall be inadmissible in
application should not be denied outright; evidence against him.
instead, the court should apply the “indigency
test” under Section 21 of Rule 3 and use its (4) The law shall provide for penal and civil sanctions
sound discretion in determining the merits of for violations of this section as well as compensation
the prayer for exemption [Sps. Algura v. LGU to the rehabilitation of victims of torture or similar
of Naga City, G.R. No. 150135 (2006)]. practices, and their families.
Free access to the court does NOT mean

the courts cannot impose filing fees. Miranda Warning [Based on Section 12,
Exemption of cooperatives from payment of Article III, 1987 Constitution]
court and sheriff fees no longer stands. The person under custodial investigation must
Cooperatives can no longer invoke R.A. No. be informed that:
6938, as amended by R.A. No. 9520, as basis 1. He has the right to remain silent, and
for exemption from the payment of legal fees that any statement he makes may be
[Re: In the matter of clarification of exemption used as evidence against him;
from payment of all court and sheriffs fees of 2. He has the right to have competent and
cooperatives, A.M. No. 12-2- 03-0 (2012)]. independent counsel of his choice;
3. He has a right to be informed of the first
two rights
Page 181 of 412

R.A. No. 7438: Rights Of Persons Under
Non-compliance with the second requirement
Custodial Investigation will render the report null and void and of no
effect whatsoever [Section 2(c), R.A. No.
SECTION 1. Statement of Policy. — It is the policy 7438].
of the State to value the dignity of every human
being and guarantee full respect for human rights.
Show-Up and Police Line-Up
SECTION 2. Rights of Persons Arrested, General Rule: No right to counsel.
Detained or Under Custodial Investigation;
Duties of Public Officers. — xxx Exception: There is right to counsel if show-up
(b) Any public officer or employee, or anyone acting or line-up is accusatory. The movement there
under his order or his place, who arrests, detains or is a move or even an urge of said investigations
investigates any person for the commission of an
to elicit admissions or confessions or even
offense: shall inform the latter, in a language known
to and understood by him, of his rights to remain plain information which may appear innocent
silent and to have competent and independent or innocuous at the time, from said suspect
counsel, preferably of his own choice, who shall at [Gamboa v. Cruz, G.R. No. L-56291 (1988)].
all times be allowed to confer privately with the
person arrested, detained or under custodial 2. Rights of a Person under
investigation. If such person cannot afford the
services of his own counsel, he must be provided Custodial Investigation
with a competent and independent counsel by the
investigating officer. What is required is effective communication by
the investigator of rights of accused [People v.
Agustin, G.R. No. 110290 (1995)].
When Available
a. When the person is already under custodial a. Right to Remain Silent
investigation The warning is needed simply to make the
b. During “critical pre-trial stages” in the person under custodial investigation aware of
criminal process the existence of the right.
1. Meaning of Custodial This warning is the threshold requirement for

Investigation an intelligent decision as to its exercise.
Further, the warning will show the individual

Any questioning initiated by law enforcement.
that his interrogators are prepared to recognize
his privilege should he choose to exercise it.
When the investigation is no longer a general
inquiry unto an unsolved crime but has begun
The warning of the right to remain silent must
to focus on a particular suspect, as when the
be accompanied by the explanation that
suspect has been taken into police custody and
anything said can and will be used against the
the police carries out a process of interrogation
individual in court. This warning is needed in
that lends itself to eliciting incriminating
order to make him aware not only of the
statements [People v. Mara, G.R. No. 108494
privilege to remain silent, but also of the
(1994)].
consequences of forgoing it.
Includes issuing an invitation to a person under
investigation in connection with an offense he b. Right to Counsel
is suspected to have committed [Section 2, R.A. No. 7438: Rights Of Persons Under
R.A. No. 7438]. Custodial Investigation, SECTION 2. Rights of
Persons Arrested, Detained or Under Custodial
Investigation; Duties of Public Officers. — (a)
Custodial Investigation Report Any person arrested, detained or under custodial
a. Reduced to writing by the investigating investigation shall at all times be assisted by
officer. counsel. xxx
b. Shall be read and adequately explained to
a person arrested or detained by counsel
or assisting counsel in a language or Competent and independent counsel
dialect known to him. preferably of the suspect’s own choice.
Page 182 of 412

Non-independent counsels include: a special 3. Requisites of a Valid Waiver
counsel, prosecutor, counsel for the police or a
R.A. No. 7438: Rights Of Persons Under
municipal attorney whose interest is adverse to Custodial Investigation, SECTION 2. Rights of
that of the accused [People v. Fabro, G.R. No. Persons Arrested, Detained or Under Custodial
95089 (1997); Mayor [People v. Taliman, G.R. Investigation; Duties of Public Officers. — Xxx
No. 109143; Barangay captain [People v. (c) The custodial investigation report shall be
Tomaquin, G.R. No. 133188 (2004)]. reduced to writing by the investigating officer,
provided that before such report is signed, or
thumbmarked if the person arrested or detained
A lawyer who was applying for work in the NBI does not know how to read and write, it shall be read
cannot be considered independent because he and adequately explained to him by his counsel or
cannot be expected to work against the interest by the assisting counsel provided by the
of a police agency he was hoping to join, as a investigating officer in the language or dialect known
few months later, he in fact was admitted into to such arrested or detained person, otherwise, such
its work force [People v. Januario, G.R. No. investigation report shall be null and void and of no
effect whatsoever.
98552 (1997)].
Any waiver by a person arrested or detained under
Non-competent counsel: Lawyer signing only the provisions of Article 125 of the Revised Penal
as witness [People v. Ordoño, G.R. No. 132154 Code, or under custodial investigation, shall be in
(2000)], mayor of town where accused is writing and signed by such person in the presence
detained [People v. Velarde, G.R. No. 139333 of his counsel; otherwise the waiver shall be null and
void and of no effect.
(2002)].
Failure to ask for counsel does not constitute a What can be waived?
waiver. The right to remain silent and the right to
counsel.
No effective waiver of the right to counsel
during interrogation can be recognized unless What cannot be waived?
specifically made after the warnings have been The right to be given the Miranda warnings.
given.
Requisites [Section 12, Article III, 1987
Request for assistance of counsel before any Constitution]
interrogation cannot be ignored/denied by a. Must be in writing
authorities. Not only the right to consult with an b. Must be made in the presence of counsel
attorney but the right to be given a lawyer to
represent him if he’s indigent. Burden of Proving Voluntariness of
Waiver [People v. Jara, G.R. No. L-61356-
c. Rights to Visitation and Conference 57 (1986)]
R.A. No. 7438: Rights Of Persons Under The presumption is against the waiver. Thus,
Custodial Investigation, SECTION 2. Rights of the burden of proof lies with the prosecution.
Persons Arrested, Detained or Under Custodial The prosecution must prove with strongly
Investigation; Duties of Public Officers. — Xxx
convincing evidence to the satisfaction of the
(f) Any person arrested or detained or under
custodial investigation shall be allowed visits by or Court that indeed the accused:
conferences with any member of his immediate a. Willingly and voluntarily submitted his
family, or any medical doctor or priest or religious confession, and;
minister chosen by him or by any member of his b. Knowingly and deliberately manifested that
immediate family or by his counsel, or by any he was not interested in having a lawyer
national non-governmental organization duly
assist him during the taking of such
accredited by the Commission on Human Rights or
by any international non- governmental organization confession.
duly accredited by the Office of the President. The
person's "immediate family" shall include his or her 4. Exclusionary Doctrine
spouse, fiancé or fiancée, parent or child, brother or
sister, grandparent or grandchild, uncle or aunt,
According to this rule, once the primary source
nephew or niece, and guardian or ward.
(the tree) is shown to have been unlawfully
obtained, any secondary or derivative evidence
(the fruit) derived from it is also inadmissible.
The fruit of the poisonous tree is at least once
Page 183 of 412
removed from the illegally seized evidence, but M. Rights of the Accused
it is equally inadmissible. The rule is based on
the principle that evidence illegally obtained by
the State should not be used to gain other 1987 Constitution, SECTION 14, ARTICLE III. (1)
No person shall be held to answer for a criminal
evidence because the originally illegally offense without due process of law.
obtained evidence taints all evidence
subsequently obtained [People v. (2) In all criminal prosecutions, the accused shall be
Samontañez, G.R. No. 134530 (2000)]. presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and
Violations of the Miranda rights render counsel, to be informed of the nature and cause of
the accusation against him, to have a speedy,
inadmissible only the extrajudicial confession impartial, and public trial, to meet the witnesses face
or admission made during the custodial to face, and to have compulsory process to secure
investigation. The admissibility of other the attendance of witnesses and the production of
evidence is not affected even if obtained or evidence in his behalf. However, after arraignment,
taken in the course of the custodial trial may proceed notwithstanding the absence of
investigation [People v. Malimit, G.R. No. the accused provided that he has been duly notified
and his failure to appear is unjustifiable.
109775 (1996)].
Extrajudicial Confession by a person

arrested, detained or under custodial Rules of Court , SECTION 1, RULE 115. Rights of
accused at the trial. — In all criminal prosecutions,
investigation: the accused shall be entitled to the following rights:
1. Shall be in writing; and a. To be presumed innocent until the contrary
2. Signed in the presence of this counsel, is proved beyond reasonable doubt.
or in the latter’s absence: b. To be informed of the nature and cause of
a. Upon a valid waiver; and the accusation against him.
b. In the presence of any of the c. To be present and defend in person and by
counsel at every stage of the proceedings,
following: from arraignment to promulgation of the
i. Any of the parents judgment. The accused may, however,
ii. Older brother and waive his presence at the trial pursuant to
sisters the stipulations set forth in his bail, unless
iii. Spouse his presence is specifically ordered by the
iv. Municipal mayor court for purposes of identification.
1. The absence of the accused
v. Municipal judge without justifiable cause at the trial
vi. District school of which he had notice shall be
supervisor considered a waiver of his right to
vii. Priest or minister of the be present thereat.
gospel as chosen by 2. When an accused under custody
him escapes, he shall be deemed to
have waived his right to be
present on all subsequent trial
Otherwise, such extrajudicial confession shall dates until custody over him is
be inadmissible as evidence in any proceeding regained. Upon motion, the
[Section 2(d), R.A. No. 7438]. accused may be allowed to
defend himself in person when it
In the absence of a valid waiver, any sufficiently appears to the court
that he can properly protect his
confession obtained from the appellant during right without the assistance of
the police custodial investigation relative to the counsel.
crime, including any other evidence secured by d. To testify as a witness in his own behalf but
virtue of the said confession is inadmissible in subject to cross-examination on matters
evidence even if the same was not objected to covered by direct examination. His silence
during the trial by the counsel of the appellant shall not in any manner prejudice him.
e. To be exempt from being compelled to be
[People v. Samontañez, supra]. a witness against himself.
f. To confront and cross-examine the
witnesses against him at the trial. Either
party may utilize as part of its evidence the
testimony of a witness who is deceased,
out of or cannot with due diligence be found
Page 184 of 412

in the Philippines, unavailable or otherwise Purpose of Bail
unable to testify, given in another case or The purpose for bail is to guarantee the
proceeding, judicial or administrative, appearance of the accused at the trial, or
involving the same parties and subject whenever so required by the Court. The
matter, the adverse party having the amount should be high enough to assure the
opportunity to cross-examine him.
presence of the accused when required but no
g. To have compulsory process issued to
secure the attendance of witnesses and higher than is reasonably calculated to fulfill
production of other evidence in his behalf. this purpose. To fix bail at an amount
h. To have speedy, impartial and public trial. equivalent to the civil liability of which petitioner
i. To appeal in all cases allowed and in the is charged is to permit the impression that the
manner prescribed by law. amount paid as bail is an exaction of the civil
liability that accused is charged of; this we
1. Criminal Due Process cannot allow because bail is not intended as a
punishment, nor as a satisfaction of civil liability
Due process in criminal proceedings is which should necessarily await the judgment of
satisfied if the accused is “informed as to why the appellate court [Yap v. CA, G.R. No.
he is proceeded against, and what charge he 141529 (2001)].
shall meet, with his conviction being made to
rest on evidence that is not tainted with falsity Basis of Right
after full opportunity for him to rebut it and the The basis of the right to bail is the
sentence being implied in accordance with a presumption of innocence, which is
valid law. It is assumed, of course, that the accorded to every accused upon whom should
court that rendered the decision is one of not be inflicted incarceration at the outset
competent jurisdiction [Mejia v. Pamaran, G.R. since, after the trial, he would be entitled to
No. L-56741-42 (1988)]. acquittal, unless his guilt be established
beyond reasonable doubt [Paderanga v. CA,
Requisites G.R. No. 115407 (1995)].
a. Accused is heard by a court of competent
jurisdiction; Who May Avail; Exceptions
b. Accused is proceeded against under the
orderly process of law; General Rule: All persons under custody of
c. Accused is given notice and opportunity to law may avail of bail.
be heard; and
d. Judgment rendered is within the authority Exceptions:
of a constitutional law a. Those charged with a capital offense, or an
offense punishable by reclusion perpetua
2. Bail or life imprisonment when evidence of guilt
is strong, regardless of the stage of the
1987 Constitution, SECTION 13, ARTICLE III. All criminal prosecution [Section 7, Rule 114,
persons, except those charged with offenses Rules of Court]
punishable by reclusion perpetua when evidence of
guilt is strong, shall, before conviction, be bailable
b. Military men who participated in failed coup
by sufficient sureties, or be released on d’état because of their threat to national
recognizance as may be provided by law. The right security [Comendador v. De Villa, G.R. No.
to bail shall not be impaired even when the privilege 93177 (1991)]
of the writ of habeas corpus is suspended.
Excessive bail shall not be required.
When Right of Bail Available
General Rule: From the very moment of arrest

Rules of Court, SECTION 1, RULE 114. Bail (which may be before or after the filing of formal
defined. — Bail is the security given for the release charges in court) up to the time of conviction by
of a person in custody of the law, furnished by him
final judgment (which means after appeal).
or a bondsman, to guarantee his appearance before
any court as required under the conditions
hereinafter specified. Bail may be given in the form Arraignment of the accused is not essential to
of corporate surety, property bond, cash deposit, or the approval of the bail bond. When bail is
recognizance. authorized, it should be granted before
arraignment. Otherwise the accused may be
Page 185 of 412
precluded from filing a motion to quash. Also, Bail as a Matter of Discretion
the court will be assured of the presence of the When the accused has been convicted in the
accused at the arraignment precisely by RTC of an offense not punishable by death,
granting bail and ordering his presence at any reclusion perpetua or life imprisonment, the
stage of the proceeding [Lavides v. CA, G.R. admission to bail becomes discretionary
No. 129670 (2000)]. [Section 5, Rule 114, Rules of Court].
Rules of Court, SECTION 18, RULE 114. Notice Note: Since the grant of bail is a matter of
of application to prosecutor. — In the application discretion, a hearing must be conducted
for bail under section 8 of this Rule, the court must whether or not the prosecution refuses to
give reasonable notice of the hearing to the present evidence and the prosecutor must be
prosecutor or require him to submit his notified to require him to submit his
recommendation.
recommendation. This notice of hearing
applies in all cases whether bail is a matter of
In this jurisdiction, before a judge may grant an right or a matter of discretion [Zuño v. Cabebe,
application for bail, whether bail is a matter of A.M. OCA No. 03-1800-RTJ (2004), citing
right or discretion, the prosecutor must be Cortes v. Catral, A.M. No. RTJ-97-1387
given reasonable notice of hearing or he must (1997)].
be asked to submit his recommendation
[Taborite v. Sollesta, A.M. MTJ-02-1388 In the cases where the grant of bail is
(2003)]. discretionary, due process requires that the
prosecution must be given an opportunity to
The prosecution must first be accorded an present, within a reasonable time, all the
opportunity to present evidence. It is on the evidence that it may desire to introduce before
basis of such evidence that judicial discretion is the court should resolve the motion for bail
exercised in determining whether the evidence [People v. Judge Donato, G.R. No. 79269
of guilt of the accused is strong. In other words, (1991)].
discretion must be exercised regularly, legally
and within the confines of procedural due In case the evidence of guilt is strong
process, that is, after evaluation of evidence In such a case, according to People v. San
submitted by the prosecution [Taborite v. Diego [G.R. No. L-29676 (1966)] the court’s
Sollesta, supra]. discretion to grant bail must be exercised in the
light of a summary of the evidence presented
Bail for the provisional liberty of the accused by the prosecution.
regardless of the crime charged should be
allowed independently of the merits of the Thus, the order granting or refusing bail must
charge, provided his continued incarceration is contain a summary of the evidence for the
clearly shown to be injurious to his health or to prosecution followed by the conclusion on
endanger his life [Enrile v. Sandiganbayan, whether or not the evidence of guilt is strong.
G.R. No. 213847 (2015)].
The clear implication therefore, is that if an
Bail as a Matter of Right accused who is charged with a crime
punishable by reclusion perpetua is convicted
All persons, except those charged with by the trial court and sentenced to suffer such
offenses punishable by reclusion perpetua a penalty, bail is neither a matter of right on the
when evidence of guilt is strong, shall, before part of the accused nor of discretion on the part
conviction, be bailable by sufficient sureties, or of the court. In such a situation, the court would
be released on recognizance as may be have ruled that the accused's guilt has been
provided by law. The right to bail shall not be proven beyond reasonable doubt. Bail must not
impaired even when the privilege of the writ of then be granted to the accused during the
habeas corpus is suspended. pendency of his appeal from the judgment of
conviction [People v. Nitcha, G.R. No. 113517
Excessive bail shall not be required [Section (1995)].
13, Article III, 1987 Constitution].
Page 186 of 412

In extradition proceedings show that the guilt of the accused is strong
Extradition courts do not render judgements of for the purpose of enabling the court to
conviction or acquittal so it does not matter exercise its sound discretion [Sections. 7 &
whether or not the crimes the accused is being 8, Rule 114, Rules of Court];
extradited for is punishable by reclusion 3. Decide whether the guilt of the accused is
perpetua [US Government v. Judge Puruganan strong based on the summary of evidence
and Mark Jimenez, G.R. No. 148571 (2002)]. of the prosecution; and
4. If the guilt of the accused is not strong,
While our extradition law does not provide for discharge the accused upon approval of
the grant of bail to an extradite, however, there the bail bond [Section 19, Rule 114, Rules
is no provision prohibiting him or her from filing of Court]
a motion for bail, a right to due process under
the Constitution [Government of Hong Kong 3. Presumption of Innocence
SAR v. Olalia, G.R. No. 153675 (2007)].
The requirement of proof beyond reasonable
Standards for fixing bail doubt is a necessary corollary of the
Rules of Court, SECTION 9, RULE 114. Amount constitutional right to be a presumed innocent
of bail; guidelines. — The judge who issued the [People v. Dramayo, G.R. No. L-21325 (1971)].
warrant or granted the application shall fix a
reasonable amount of bail considering primarily, but The presumption of innocence in favor of the
not limited to, the following factors: accused imposes upon the People of the
(a) Financial ability of the accused to give bail;
Philippines, “as the plaintiff in criminal cases, to
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged; prove beyond reasonable doubt not only each
(d) Character and reputation of the accused; element of the crime but also the identity of the
(e) Age and health of the accused; accused as the criminal” [People v. Espera,
(f) Weight of the evidence against the accused; G.R. No. 202868 (2013)].
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
The accused cannot present evidence before
(i) The fact that accused was a fugitive from
justice when arrested; and the prosecution does so, even if the accused
(j) Pendency of other cases where the accused is on pleads guilty. It violates the presumption of
bail. innocence [Alejandro v. Pepito, G.R. L-52090
(1980)].
Excessive bail shall not be required.
The presumption of regularity in official duties
Discretion is with the court called upon to rule cannot by itself prevail over the presumption of
on the question of bail. We must stress, innocence of the accused. But where it is not
however, that where conditions imposed upon the sole basis for conviction, the presumption
a defendant seeking bail would amount to a of regularity of performance of official functions
refusal thereof and render nugatory the may prevail over the constitutional presumption
constitutional right to bail, we will not hesitate of innocence [People v. Acuram, G.R. No.
to exercise our supervisory powers to provide 117954 (2000); People v. Abenes, G.R. No.
the required remedy [Dela Camara v. Enage, 210878 (2016)].
G.R. No. L-32951-52 (1971)].
A corporate entity has no personality to invoke
Duties of a trial judge in case an the right to be presumed innocent which right is
application for bail is filed [Cortes v. Catral, available only to an individual who is an
A.M. No. RTJ-97-1387 (1997)]: accused in a criminal case [Feeder
1. In all cases, whether bail is a matter of right International v. CA, G.R. No. 94262 (1991)].
or of discretion, notify the prosecutor of the
hearing of the application for bail or require Equipoise Rule
him to submit his recommendation [Section The presumption of innocence has given rise
18, Rule 114, Rules of Court]; to a jurisprudential rule referred to as the
2. Where bail is a matter of discretion, equipoise rule.
conduct a hearing of the application for bail
regardless of whether or not the Where the evidence adduced by the parties is
prosecution refuses to present evidence to evenly balanced, the constitutional
Page 187 of 412
presumption of innocence should tilt the decisive legal assistance, and not simply a
balance in favor of the accused [Corpus v. perfunctory representation [People v. Bermas,
People, G.R. No. 180016 (1991)]. G.R. No. 120420 (1999)].
The application of the rule is triggered by a The right of the accused to present evidence is
situation where: guaranteed by no less than the Constitution
a. The court is faced with conflicting versions itself. Article III, Section 14(2) thereof, provides
of the prosecution and the defense; and that in all criminal prosecutions, the accused
b. The evidence, facts, and circumstances shall enjoy the right to be heard by himself and
are capable of two or more explanations, counsel. This constitutional right includes the
one of which is consistent with the right to present evidence in one’s defense, as
innocence of the accused and the other well as the right to be present and defend
consistent with his guilt. oneself in person at every stage of the
proceedings. Stripping the accused of all his
Proof Beyond Reasonable Doubt pre-assigned trial dates constitutes a patent
Proof beyond reasonable doubt does not mean denial of the constitutionally guaranteed right to
such a degree of proof, excluding possibility of due process [Villareal v. People, G.R. No.
error, produces absolute certainty. Moral 151258 (2012)].
certainty only is required, or that degree of
proof which produces conviction in an Nevertheless, a party is not compelled to speak
unprejudiced mind [Section 2, Rule 133, Rules if it chooses to be silent. If it avails itself of the
of Court]. right to be heard, well and good; but if not, that
is also its right. In the latter situation, however,
In order that circumstantial evidence may it cannot later complain that, because it was not
warrant conviction, the following requisites heard, it was deprived of due process
must concur: [Stronghold Insurance Co., Inc. v. CA, G.R. No.
1. There is more than once circumstance; 88050 (1992)].
2. The facts from which the inferences are
derived from are proven; and 5. Right to Counsel
3. The combination of all the circumstances is
such as to produce a conviction beyond
1987 Constitution, SECTION 12(1), ARTICLE III.
reasonable doubt [People v. Bato, G.R. No. Any person under investigation for the commission
113804 (1998)]. of an offense shall have the right to be informed of
his right to remain silent and to have competent and
4. Right to be Heard independent counsel preferably of his own choice. If
must be provided with one. These rights cannot be
1987 Constitution, SECTION 14(2), ARTICLE III. waived except in writing and in the presence of
In all criminal prosecutions, the accused shall be counsel.
presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and
counsel xxx Rules of Court, SECTION 1(c), RULE 115. Rights
of accused at the trial. — In all criminal
prosecutions, the accused shall be entitled to the
1987 Constitution, SECTION 12(1), ARTICLE III. following rights: xxx
Any person under investigation for the commission
of an offense shall have the right to be informed of (c) To be present and defend in person and by
his right to remain silent and to have competent and counsel at every stage of the proceedings, from
independent counsel preferably of his own choice. If arraignment to promulgation of the judgment. xxx
must be provided with one. These rights cannot be
waived except in writing and in the presence of R.A. No. 7438: Rights Of Persons Under
counsel. Custodial Investigation, SECTION 2(a). Rights of
Persons Arrested, Detained or Under Custodial
Investigation; Duties of Public Officers. – (a) Any
It means the accused is amply accorded legal person arrested, detained or under custodial
assistance extended by a counsel who investigation shall at all times be assisted by
commits himself to the cause of the defense counsel.
and acts accordingly. It is an efficient and truly
Page 188 of 412
It means the accused is amply accorded legal R.A. No. 8493: Speedy Trial Act of 1998,
assistance extended by a counsel who SECTION 17. Act not a bar to provision on
commits himself to the cause of the defense speedy trial in the Constitution. — No provision of
and acts accordingly. It is an efficient and truly law on speedy trial and no rule implementing the
decisive legal assistance, and not simply a same shall be interpreted as a bar to any charge of
perfunctory representation. denial of the right to speedy trial guaranteed by
Section 14(2), Article III, of the 1987 Constitution.
The right to counsel proceeds from the

fundamental principle of due process which Concept of “impartial”
basically means that a person must be heard A civilian cannot be tried by a military court so
before being condemned. The due process long as the civil courts are open and operating,
requirement is part of a person’s basic rights; it even during Martial Law [Olaguer v. Military
is not a mere formality that may be dispensed Commission, G.R. No. L-54558 (1987)].
with or performed perfunctorily [People v.
Bermas, G.R. No. 120420 (1999)]. Dismissal based on the denial of the right to
speedy trial amounts to an acquittal [Acebedo
One need not, however, be an accused to avail v. Sarmiento, G.R. No. L-28025 (1970)].
of the right to counsel and the right to counsel
does not commence only during trial. Every When right not available
person under custody of the law enjoys the The right to speedy trial cannot be invoked
right. Even a person under investigation for an where to sustain the same would result in a
offense has the right to have a competent and clear denial of due process to the prosecution
independent counsel preferably of his own [Uy v. Hon. Adriano, supra].
choice [Riano].
Rationale of right to speedy trial
Elements a. To prevent oppressive pre-trial
a. Court’s duty to inform the accused of right incarceration;
to counsel before being arraigned; b. To minimize anxiety and concern of the
b. Court must ask accused if he desires the accused; and
services of counsel; c. To limit the possibility that the defense will
c. If accused does, and is unable to get one, be impaired.
the court must give him one; if the accused
wishes to procure private counsel, the court 8. Right to Confrontation
must give him time to obtain one
d. Where no lawyer is available, the Court Serves as the basis of the right to cross-
may appoint any person resident of the examination.
province and of good repute for probity and
ability Two-fold purpose
a. To afford the accused an opportunity to test
6. Right to be Informed of the Nature the testimony of the witness by cross-
and Cause of Accusation examination.
b. To allow the judge to observe the
Procedural due process requires that the deportment of [the] witness [Go et. al. v.
accused must be informed why he is being The People of the Philippines and
prosecuted and what charge he must meet Highdone Company, Ltd. G.R. No. 185527
[Vera v. People, supra]. (2012)].
7. Right to Speedy, Impartial and 9. Right to Compulsory Processes

Public Trial
The right to compulsory process may be
invoked by the accused to secure the
1987 Constitution, SECTION 16, ARTICLE III. All
persons shall have the right to a speedy disposition attendance of witnesses and the production of
of their cases before all judicial, quasi-judicial, or witnesses in his behalf. This is a constitutional
administrative bodies. right embodied in Section 14(2), Article III of the
Bill of Rights.
Page 189 of 412

In case of the unjustified failure of the witness Concept
to comply, the court or judge issuing the The right to speedy disposition of cases is not
subpoena, upon proof of the service of such limited to the accused in criminal proceedings
subpoena and proof of his failure to attend, but extends to all parties in all cases, be it civil
may issue a warrant for his arrest [Section 8, or administrative in nature, as well as all
Rule 21, Rules of Court]. proceedings, either judicial or quasi-judicial
[Coscolluela v. Sandiganbayan (First Division),
Compulsory Process G.R. No. 191411 (2013)].
a. Right to Secure Attendance of Witness
b. Right to Production of Other Evidence While the right to speedy trial is invoked against
c. Subpoena courts of law, the right to speedy disposition of
cases may be invoked before quasi-judicial or
10. Trial In Absentia administrative tribunals in proceedings that are
adversarial and may result in possible criminal
Requisites liability [Cagang v. Sandiganbayan, G.R. Nos.
a. Accused failed to appear for trial despite 206438, 210141-42 (2018)].
postponement and notice.
b. Failure to appear is unjustified Due regard must be given to the facts and
c. After arraignment. circumstances surrounding each case xxx.
What the Constitution prohibits are
Consequences of the Accused’s Failure unreasonable, arbitrary and oppressive delays
to Appear for Trial which render rights nugatory [Ombudsman v.
Waiver of right to cross-examine and present Jurado, G.R. No. 154155 (2008)].
evidence [Gimenez v. Nazareno, G.R. No. L-
37933 (1988)]. Cases where the delay caused by the
judge was not excused:
When presence of the accused is a duty ● A judge’s illness should not be an excuse
for his failure to render the corresponding
General Rule: decision or resolution within the prescribed
a. Arraignment and Plea period [Balajedeong v. Del Rosario, A.M.
Section 1(b) of Rule 116 requires that the No. MTJ-07-1662 (2007)]
“accused must be present at the arraignment ● A heavy workload due to additional work,
and must personally enter his plea.” as acting presiding judge in other courts, is
not sufficient justification for the delay
b. During Trial for Identification because judges are allowed, upon motion
Common reason suggests that the prosecution or letter-requests, extensions of the
must be afforded the right to identify the reglementary period in deciding cases [Re:
accused as the perpetrator of the offense and Report on the Judicial and Financial Audit
the very person named or described in the Conducted in MTC’s of Bayombong and
complaint or information because rights during Solano and MCTC, Aritao-Sta. Fe, Nueva
the trial are not designed to be for the accused Vizcaya, A.M. NO. 05-3-83-MTC (2007)].
alone. ● The absence of a branch clerk of court
should not affect the prompt disposition of
c. Promulgation of Sentence cases. It is the duty of the judge to
recommend to the Supreme Court the
immediate appointment of a branch clerk of
N. Right to Speedy Trial and court [Office of the Court Administrator v.
Speedy Disposition of Cases Laron, A.M. NO. RTJ-04-1870 (2007)].
● The non-submission of the transcript of the
1987 Constitution, SECTION 16, ARTICLE III. All stenographic notes by stenographers
persons shall have the right to a speedy disposition would not relieve judges of their duty to
of their cases before all judicial, quasi-judicial, or render a decision within the required period
administrative bodies. as judges are directed to take down notes
of salient portions of the hearing and
proceed in the preparation of decisions
without waiting for the transcribed
Page 190 of 412
stenographic notes [Office of the Court c. Administrative actions wherein the hearing
Administrator v. Janolo Jr., 534 SCRA partakes the nature of a criminal
262]. proceeding because of the nature of the
● The defects in a motion are not reasons for penalty.
a judge not to act on the same [Heirs of d. Legislative investigations
Simeon Piedad v. Estrera, A.M. No. RTJ- e. Civil actions
09-2170 (2009)].
a. Exclusions
Dismissal based on violation of the right An accused may be compelled to be
to speedy disposition of cases photographed or measured, his garments may
A criminal case may be dismissed for violation be removed, and his body may be examined.
of a person’s right to speedy disposition of The Court has also declared as constitutional
cases [Coscolluela v. Sandiganbayan, supra]. several procedures performed on the accused
such as pregnancy tests for women accused of
O. Right against Self- adultery, expulsion of morphine from one’s
mouth and the tracing of one’s foot to
Incrimination determine its identity with bloody footprints.
1987 Constitution, SECTION 17, ARTICLE III. No The Court has even authorized the
person shall be compelled to be a witness against examination of a woman’s genitalia, in an
himself. action for annulment filed by her husband, to
verify his claim that she was impotent, her
The right against self-incrimination secures to orifice being too small for his penis.
a witness, whether she/he is a party or not, the
right to refuse to answer any particular Some of these procedures were, to be sure,
incrimination question. rather invasive and involuntary, but all of them
were constitutionally sound. DNA testing and
It prescribes an “option of refusal to answer its results are now similarly acceptable [Agustin
incrimination questions and not a prohibition of v. CA, supra].
inquiry [People v. Ayson, G.R. No. 85215
(1989)]. Other exclusions:
1. Handwriting in connection with a
The right against self-incrimination proscribes prosecution for falsification is not allowed
the use of physical or moral compulsion to [Beltran v. Samson, G.R. No. 32025
extort communications from the accused. If (1929); Bermudez v. Castillo, Per. Rec. No.
he/she chooses to remain silent, he/she suffers 714-A (1937)]
no penalty for such silence. Included in this 2. Accused may be made to take off her
right are: garments and shoes and be photographed
1. To be exempt from being a witness against [People v. Otadura, G.R. No. L-2154
himself; and (1950)]; compelled to show her body for
2. To testify as witness in his own behalf physical investigation to see if she is
[People v. Ang, G.R. No. 231854 (2020)]. pregnant by an adulterous relation [Villaflor
v. Summers, G.R. No. 16444 (1920)]
1. Extent of the Right
Note: Re-enactment of the crime by the
accused is not allowed
The right applies only to testimonial compulsion
and production of documents, papers, and
When to invoke
chattels in court, except when books of account
1. This right may only be invoked for that
are to be examined in the exercise of police
specific incriminating question and cannot
power and the power of taxation.
be claimed for any other time [Sabio v.
Gordin, G.R. Nos. 174340, 174318 &
The right is available in:
174177 (2006)].
a. Criminal proceedings
2. It does not give a witness the right to
b. Governmental proceedings
disregard a subpoena and decline to testify
altogether. The witness must still take the
Page 191 of 412
stand, be sworn, and answer questions. It Application
is the duty of his/her counsel to advise
him/her of his/her right against self- General Rule: The privilege is available in any
incrimination [People v. Ayson, supra]. proceeding, even outside the court, for they
may eventually lead to a criminal prosecution.
b. Right Against Self-Incrimination of
Accused vs. Ordinary Witness 2. Immunity Statutes
Accused Ordinary Witness
Nature and Purpose
Immunity statutes seek a rational
The defendant in a An ordinary witness accommodation between the imperatives of an
criminal case cannot may be compelled to individual’s constitutional right against self-
be compelled by testify and invoke incrimination and the legitimate governmental
subpoena or any the right only against interest in securing testimony. By voluntarily
other process or each question offering to give information on the commission
order of the court to requiring an of a crime and to testify against the culprits, a
testify or produce incriminating answer person opens himself to investigation and
evidence in the [People v. Ayson, prosecution if he himself had participated in the
criminal case in supra]. criminal act. To secure his testimony without
which he is the exposing him to the risk of prosecution, the law
accused or one of recognizes that the witness can be given
the accused. In immunity from prosecution. In this manner, the
other words, s/he state interest is satisfied while respecting the
can refuse to testify individual’s constitutional right against self-
altogether. incrimination [Quarto v. Ombudsman, G.R. No.
169042 (2011)].
If the witness is
accused, he may P. Right against Double
totally refuse to take
the stand.
Jeopardy
1987 Constitution, SECTION 18, ARTICLE III. —

Note: The right against self-incrimination is not No person shall be detained solely by reason of his
self- executing. It must be claimed. If not political beliefs and aspirations.
claimed by or in behalf of the witness, the
protection does not come into play. It follows No involuntary servitude in any form shall exist
that the right may be waived, expressly, or except as a punishment for a crime whereof the
party shall have been duly convicted.
impliedly, as by a failure to claim it at the
appropriate time [People v. Ayson, supra].
1. Requisites
c. Effect of Denial of Privilege a. First jeopardy attached prior to the second
1. Exclusionary Rule [under Section 17, b. First jeopardy must have been validly
Article III, 1987 Constitution in relation to terminated
Section 12]: When the privilege against c. Second jeopardy must be for the same
self-incrimination is violated outside of offense, or the second offense includes or
court (e.g. police), then the testimony, as is necessarily included in the first offense;
already noted, is not admissible. or is an attempt or frustration thereof
2. Ousted of Jurisdiction: When the
privilege is violated by the Court itself, that Requisites for first jeopardy to attach:
is, by the judge, the court is ousted of its A previous case must be filed and must contain
jurisdiction, and all its proceedings, and the following:
even judgment are null and void [Chavez v. a. There must be a complaint or information
CA, G.R. No. L-29169 (1968)]. or other formal charge sufficient in form and
substance to sustain a conviction;
b. The complaint or information must be filed
before a court of competent jurisdiction;
Page 192 of 412
c. The accused has been arraigned and has 2. There is conviction or acquittal under either
pleaded to the charges;
d. The accused must have been convicted or 2. Limitations
acquitted or the case against him was
dismissed or otherwise terminated without The conviction of the accused shall not be a bar
his express consent [Section 7, Rule 117, to another prosecution for an offense which
Rules of Court; People v. Obsania (1968)] necessarily includes the offense charged in the
former complaint or information under the
Then, a subsequent complaint or following instances, pursuant to Section 7, Rule
information was filed containing a crime 117, Rules of Court:
that is:
a. The same offense Waiver of right against double jeopardy
b. An attempt to commit the said offense; The right against double jeopardy is deemed
c. A frustration of the said offense; waived if he appeals his conviction.
d. Any offense which necessarily includes the
first offense charged; If the accused had been prosecuted for a
e. Any offense which is necessarily included higher offense but was convicted for a lower
in the first offense charged. offense, he has technically been acquitted of
the higher offense. His appeal would give the
Application Court the right to impose a penalty higher than
● Not applicable in administrative cases that of the original conviction imposed on him
[Cayao-Lasam v. Ramolet, G.R. No. [Trono v. U.S., 199 U.S. 521 (1905)].
159132 (2008)] General Rule: Dismissal with consent of
● Applicable in contempt proceedings, since accused waives double jeopardy.
a contempt charge partakes the nature of a
penal proceeding. Acquittal effectively bars When the case is dismissed other than on the
a second prosecution [Atty. Santiago v. merits, upon motion of the accused personally,
Hon. Anunciacion, Jr., G.R. No. 89318 or through counsel, such dismissal is regarded
(1990)]. as “with express consent of the accused”, who
is therefore deemed to have waived the right to
Termination of Jeopardy plea double jeopardy.
a. By acquittal
b. By final conviction Q. Right against Involuntary
c. By dismissal without express consent of
the accused. Servitude
d. By “dismissal” on the merits
1987 Constitution, SECTION 18, ARTICLE III. —
Two types of jeopardy [People v. Relova, No person shall be detained solely by reason of his
G.R. No. L-45129 (1987)] political beliefs and aspirations.
No involuntary servitude in any form shall exist

a. Prosecution for the same offense except as a punishment for a crime whereof the
1. Same offense charged; party shall have been duly convicted.
2. Attempt of the same offense;
3. Frustration of the same offense;
4. Offense necessarily included in the 1st 1. Involuntary Servitude
offense (All the elements of the 2nd
constitute some of the elements of the 1st Refers to a condition of enforced and
offense) compulsory service induced by means of any
5. Offense that necessarily includes the 1st scheme, plan or pattern, intended to cause a
offense (All the elements of the 1st person to believe that if he or she did not enter
constitute some of the elements of the 2nd into or continue in such condition, he or she or
offense) another person would suffer serious harm or
other forms of abuse or physical restraint, or
b. Prosecution for the same act threat of abuse or harm, or coercion including
1. If punished by law and at the same time depriving access to travel documents and
punished by an ordinance; withholding salaries, or the abuse or
Page 193 of 412
threatened abuse of the legal process [R.A. No. R. Right against Excessive
9208, as amended by R.A. No. 10364].
Fines, and Cruel and
Slavery and involuntary servitude, together Inhuman Punishments
with their corollary peonage, all denote “a
condition of enforced, compulsory service of 1987 Constitution, SECTION 19, ARTICLE III. (1)
one to another” [Hodges v. U.S., 203 U.S. 1 Excessive fines shall not be imposed, nor cruel,
(1906) in Rubi v. Provincial Board of Mindoro, degrading or inhuman punishment inflicted. Neither
supra]. shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the
Congress hereafter provides for it. Any death
2. Exceptions penalty already imposed shall be reduced to
reclusion perpetua.
a. If punishment is for a crime after conviction
[Section 18, Article III, 1987 Constitution] (2) The employment of physical, psychological, or
b. In the interest of national defense, all degrading punishment against any prisoner or
detainee or the use of substandard or inadequate
citizens may be compelled by law to render penal facilities under subhuman conditions shall be
personal military or civil service [Section 4, dealt with by law.
Article II, 1987 Constitution]
c. Return to work order. “So imperative is the
order in fact that it is not even considered 1. Cruel Punishment
violative of the right against involuntary
servitude. A worker must obey the order if ● Involve torture of lingering death [Legarda
he wants to retain his work even if his v. Valdez, G.R. No. 513 (1902)].
inclination is to strike.” [Sarmiento et. al. v. ● Not only severe, harsh, or excessive but
Tuico, G.R. No. 75271-73 (1988)] flagrantly and plainly oppressive
d. Naval enlistment [Robertson v. Baldwin, ● Wholly or disproportionate to the nature of
165 U.S. 275 (1897)] the offense as to shock the moral sense of
e. Posse comitatus - obligation of the the community [People v. Estoista, G.R.
individual to assist in the protection of the No. L-5793 (1953)].
peace and good order of his community
[Kaisahan ng Manggagawa sa Kahoy v. The constitutional limit must be reckoned on
Gotamco Sawmills, G.R. No. L-1573] the basis of the nature and of punishment
measured in terms of physical pain.
3. Political Prisoners
What is prohibited is cruel and unusual
The accused being political prisoners subject to punishment. Unusual punishment is not
the civil jurisdiction of ordinary courts of justice, prohibited, especially if it makes the penalty
if they are to be prosecuted at all, the army has less severe.
no jurisdiction, nor power, nor authority, from all
legal standpoints, to continue holding them in The imposition of the penalty of death is hereby
restraint. They are entitled, as a matter of prohibited. Accordingly, R.A. No. 8177,
fundamental right, to be immediately released, otherwise known as the Act Designating Death
any allegation as to whether a war has ended by Lethal Injection is hereby repealed. R.A. No.
or not [Raquiza v. Bradford, G.R. No. L-44 7659, otherwise known as the Death Penalty
(1945)]. Law, and all other laws, executive orders and
decrees, insofar as they impose the death
penalty are hereby repealed or amended
accordingly [Section 1, R.A. No. 9346].
The import of the grant of power to Congress

to restore the death penalty requires:
1. That the Congress defined or describe
what is meant by heinous crimes
2. That Congress specify and penalize by
death, only crimes that qualify as heinous
in accordance with the definition or
Page 194 of 412
description set in the death penalty bill A person may be imprisoned as a penalty for a
and/or designate crimes punishable by crime arising from a contractual debt and
reclusion perpetua to death in which latter imposed in a proper criminal proceeding. Thus,
case, death can only be imposed upon the the conversion of a criminal fine into a prison
attendance of circumstances duly proven in term does not violate the right to imprisonment
court that characterize the crime to be for debts because in such a case,
heinous in accordance with the definition or imprisonment is imposed for a monetary
description set in the death penalty bill. obligation arising from a crime [Ajeno v. Judge
3. That Congress, in enacting this death Insero, A.M. No. 1098-CFI (1976)].
penalty bill be singularly motivated by
“compelling reasons involving heinous T. Ex Post Facto Laws and Bills
crimes.”
of Attainder
For a death penalty bill to be valid, Section
19(1) does not require that there be a positive 1. Ex Post Facto Laws
manifestation in the form of higher incidence of
crime first perceived and statistically proven. Definition
Neither does the said provision require that the An ex post facto law is one that would make a
death penalty be resorted to as a last recourse previous act criminal although it was not so at
when all other criminal reforms have failed to the time it was committed [Cruz].
abate criminality in society [People v.
Echegaray, G.R. No. 117472 (1997)]. Concept
In general, the proscription against ex post
S. Non-imprisonment for Debts facto laws prohibit retrospectivity of penal laws.
Moreover, the mode of procedure provided for
in the right to appeal, which is statutory and not
1987 Constitution, SECTION 20, ARTICLE III. No natural, is not included in the prohibition
person shall be imprisoned for debt or non-payment against ex post facto laws [Lacson v. Executive
of a poll tax.
Secretary, G.R. No. 128096 (1999)].
Debt Equivalent of the impairment clause in criminal

Any civil obligation arising from a contract.It matters.
includes even debts obtained through fraud
since no distinction is made in the Constitution What are Considered Ex Post Facto Laws
[Ganaway v. Quillen, G.R. No. L-18619 ● Makes criminal an action done before the
(1922)]. passage of the law which was innocent
when done, and punishes such action.
Poll Tax ● Aggravates a crime or makes it greater
A specific sum levied upon any person than when it was committed.
belonging to a certain class without regard to ● Changes the punishment and inflicts a
property or occupation (e.g. community tax). greater punishment than the law annexed
to the crime when it was committed.
Doctrines under Non-Imprisonment for ● Alters the legal rules of evidence and
Debts receives less or different testimony than the
In Ramirez v. de Orozco [G.R. No. L-11157 law required at the time of the commission
(1916)], the accused was convicted and of the offense in order to convict the
imprisoned for estafa for failing to render defendant [Mekin v. Wolfe, G.R. No. 1251
promised service to the injured in exchange for (1903)].
the latter’s retrieval of the former’s cedula. The ● Assumes to regulate civil rights and
Court held that the imprisonment was correct remedies only but in effect imposes a
since it was for estafa, and not involuntary penalty or deprivation of a right which when
servitude or imprisonment for debt. done was lawful.
● Deprives a person accused of a crime of
No person may be imprisoned for debt in virtue some lawful protection of a former
of a civil proceeding [Makapagal v. Santamaria, conviction or acquittal, or a proclamation of
G.R. No. L-34616 (1930)].
Page 195 of 412
amnesty [In re: Kay Villegas Kami, G.R. In relation to Ex Post Facto Law
No. L-32485 (1970)]. Frequently a bill of attainder was doubly
objectionable because of its ex post facto
Characteristics of an ex-post facto law features.
(CReP)
a. Refer to criminal matters Therefore, if a statute is a bill of attainder, it is
b. Retroactive in its application also an ex post facto law. But if it is not an ex
c. To the prejudice of the accused [Cruz] post facto law, the reasons that establish that it
is not are persuasive that it cannot be a bill of
The prohibition applies only to criminal or penal attainder” [People v. Ferrer, G.R. No. L-32613-
matters and not to laws which concern civil 14 (1972)].
matters or proceedings generally, or which
affect or regulate civil or private rights [Republic Examples of statutes which are NOT bills
v. Fernandez, G.R. No. L-9141 (1956)]. of attainder
● R.A. No. 9335, which provides for the
Examples: removal of the Bureau of Customs’
● In Bayot v. Sandiganbayan [G.R. No. L- employees who would not be able to meet
61776-61861 (1984)], an amendment to their revenue targets, as prescribed by law.
R.A. No. 3019, which provides for R.A. No. 9335 does not seek to inflict
suspension pendente lite of any public punishment without judicial trial, but it
officer or employee accused of offenses merely lays down the grounds for the
involving fraudulent use of public funds or termination of a BIR or BOC official or
property, including those charged earlier, is employee and provides for the
not an ex post facto law. The suspension consequences thereof [Bureau of Customs
was not punitive, but only preventive in Employees Association v. Teves, G.R. No.
nature. 181704 (2011)].
● In People v. Estrada [G.R. Nos. 164368-69
(2009)], R.A. No. 9160, which was made to In other words, if a legislation only states
apply to the accused for acts allegedly the grounds for a violation, then it is not
committed prior to its enactment, was considered as a bill of attainder
considered ex post facto. Prior to its
enactment, numbered accounts or ● Section 20 of the Cybercrime Law, which
anonymous accounts were permitted imposes a penalty of imprisonment upon
banking transactions, whether they be those who would fail to comply with certain
allowed by law or by a mere banking provisions of Chapter IV of the said law, is
regulation. not a bill of attainder.
2. Bill of Attainder The Court held that since the non-

compliance would be punished as a
Refers to a legislative act which inflicts violation of P.D. No. 1829, Section 20 of the
punishment without trial. The essence of a bill Cybercrime Law necessarily incorporates
of attainder is the substitution of legislative fiat elements of the offense which are defined
for a judicial determination of guilt. There is a therein. The act of noncompliance, for it to
bill of attainder when a statute applies to either be punishable, must still be done
named individuals or to easily ascertainable “knowingly or willfully.” There must still be
individuals, and such statute inflicts a judicial declaration of guilt, during
punishment unto them without trial. which, defense and justifications for non-
compliance may be raised [Disini v. Sec. of
Elements Justice, supra].
a. There must be a law
b. Law imposes a penal burden on a named ● R.A. No. 1700 which declared the
individual or easily ascertainable Communist Party of the Philippines a clear
members of a group and present danger to Philippine security,
c. There is a direct imposition of penal and thus prohibited membership in such
burden without judicial trial organization, was contended to be a bill of
attainder.
Page 196 of 412
Although the law mentions the CPP in Availability
particular, its purpose is not to define a 1. Involuntary restraint of liberty
crime but only to lay a basis or to justify the 2. Voluntary restraint of liberty (i.e. right of
legislative determination that membership parents to regain custody of minor child
in such organization is a crime because of even if the child is in the custody of a third
the clear and present danger to national person of her own free will [Sombong v.
security [People v. Ferrer, supra]. CA, supra].
3. Illegal arrest with supervening event when
U. Writs of Habeas Corpus, restraint of liberty is already by virtue of the
complaint or information [Velasco v. CA,
Kalikasan, Habeas Data, and G.R. No. 118644 (1995)].
Amparo a. The issuance of a judicial process
preventing the discharge of the
1987 Constitution, SECTION 15, ARTICLE III. The detained person.
privilege of the writ of habeas corpus shall not be b. Another is the filing of a complaint or
suspended except in cases of invasion or rebellion information for the offense for which the
when the public safety requires it. accused is detained [Section 4, Rule
102, Rules of Court]
4. Where a sentence imposes punishment in
Suspension of the Privilege of the Writ excess of the power of the court to impose,
1987 Constitution, SECTION 18, ARTICLE VII. such sentence is void as to the excess
The President shall be the Commander-in-Chief of [Gumabon v. Director of Prisons, G.R. No.
all armed forces of the Philippines and whenever it L-30026 (1971)].
becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence,
5. Habeas corpus is the proper remedy for a
invasion or rebellion. In case of invasion or rebellion, person deprived of liberty due to mistaken
when the public safety requires it, he may, for a identity. In such cases, the person is not
period not exceeding sixty days, suspend the under any lawful process and is
privilege of the writ of habeas corpus or place the continuously being illegally detained [In the
Philippines or any part thereof under martial law. Matter of Petition for Habeas Corpus of
xxx
Datukan Malang Salibo, G.R. No. 197597
(2015)].
A state of martial law does not suspend the
operation of the Constitution, nor supplant the Restraint of Liberty
functioning of the civil courts or legislative The nature of the restraint of liberty need not
assemblies, nor authorize the conferment of be related to any offense so as to entitle a
jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor person to the efficient remedy of habeas
automatically suspend the privilege of the writ. corpus. It may be availed of as a post-
conviction remedy or when there is an alleged
The suspension of the privilege of the writ shall apply violation of the liberty of abode. In other words,
only to persons judicially charged for rebellion or habeas corpus effectively substantiates the
offenses inherent in or directly connected with implied autonomy of citizens constitutionally
invasion.
protected in the right to liberty in Article III,
Section 1 of the Constitution. Habeas corpus
1. Writ of Habeas Corpus being a remedy for a constitutional right, courts
must apply a conscientious and deliberate level
Definition of scrutiny so that the substantive right to liberty
A writ issued by a court directed to a person will not be further curtailed in the labyrinth of
detaining another, commanding him to produce other processes [In the Matter of the Petition for
the body of the prisoner at a designated time Habeas Corpus of Datukan Malang Salibo,
and place, with the day and cause of his supra].
caption and detention, to do, to submit to, and
to receive whatever the court or judge awarding Not only physical restraint but any restraint on
the writ shall consider in his behalf [Sombong freedom of action is sufficient i.e. (1) curtailed
v. CA, G.R. No. 111876 (1990)]. freedom of movement by the condition that he
must get approval of respondents for any travel
outside Metro Manila, (2) abridged liberty of
Page 197 of 412
abode because prior approval of respondent is Scope
required in case petitioner wants to change The Amparo Rule was intended to address the
place of residence, (3) abridged freedom of intractable problem of “extralegal killings” and
speech due to prohibition from taking any “enforced disappearances,” and its coverage,
interviews inimical to national security, and (4) in its present form is confined to these
petitioner is required to report regularly to instances or to threats thereof. If what is
respondents or their reps [Moncupa v. Enrile, involved is the issue of child custody and the
G.R. No. L-63345 (1986)]. exercise of parental rights over a child, who, for
all intents and purposes, has been legally
This Court has held that a restrictive custody considered a ward of the State, the Amparo
and monitoring of movements or whereabouts rule cannot be properly applied [Caram v.
of police officers under investigation by their Segui, G.R. No. 193652 (2014)].
superiors is not a form of illegal detention or
restraint of liberty [Ampatuan v. Macaraig, G.R. a. Extralegal Killings
No. 182497 (2010)]. Killings committed without due process of law
(i.e. without legal safeguards of judicial
Restrictive custody is, at best, nominal restraint proceedings) [Secretary of National Defense v.
which is beyond the ambit of habeas corpus. It Manalo, G.R. No. 180906 (2008)].
is neither actual nor effective restraint that
would call for the grant of the remedy prayed b. Enforced Disappearance
for. It is a permissible precautionary measure
to assure the PNP authorities that the police Elements
officers concerned are always accounted for 1. That there be an arrest, detention,
[Ampatuan v. Macaraig, supra]. abduction or any form of deprivation of
liberty;
Note: The fact that the party to whom the writ is 2. That it be carried out by, or with the
addressed has illegally parted with the custody authorization, support or acquiescence of,
of a person before the application for the writ is the State or a political organization;
no reason why the writ should not issue 3. That it be followed by the State or political
[Villavicencio v. Lukban, G.R. No. L-14639 organization’s refusal to acknowledge or
(1919)]. give information on the fate or whereabouts
of the person subject of the amparo
Test for valid suspension of the privilege of petition; and,
the writ 4. That the intention for such refusal is to
Arbitrariness, not correctness. remove subject person from the protection
of the law for a prolonged period of time
2. Writ of Amparo [Secretary of National Defense v. Manalo,
A.M. No. 07-9-12-SC, SECTION 1. Petition. — The supra].
petition for a writ of amparo is a remedy available to
any person whose right to life, liberty and security is Basis
violated or threatened with violation by an unlawful
act or omission of a public official or employee, or of 1987 Constitution, SECTION 5, ARTICLE VIII. The
a private individual or entity. Supreme Court shall have the following powers: xxx
(5) Promulgate rules concerning the protection and

Concept enforcement of constitutional rights, xxx. Such rules
An amparo proceeding does not determine shall provide a simplified and inexpensive procedure
for the speedy disposition of cases, shall be uniform
guilt nor pinpoint criminal culpability for the for all courts of the same grade, and shall not
disappearance [threats thereof or extrajudicial diminish, increase, or modify substantive rights.
killings]; it determines responsibility, or at least
accountability for purposes of imposing the
appropriate remedies to address the Petition for Writ
disappearance [Razon Jr. v. Tagitis, G.R. No.
182498 (2009)]. a. Form
The form shall be signed and verified [Section
5, A.M. No. 07-9-12-SC].
Page 198 of 412

b. Contents
was
The petition shall allege the following:
committed or
1. The personal circumstances of the
any of its
petitioner
elements
2. The name and personal circumstances of
occurred
the respondent responsible for the threat,
act or omission, or, if the name is unknown Court of 1. Before the
or uncertain, the respondent may be Appeals or issuing court
described by an assumed appellation any of its any justice
3. The right to life, liberty and security of the justices thereof; or
aggrieved party violated or threatened with 2. Before the
violation by an unlawful act or omission of Supreme Sandiganba
the respondent, and how such threat or Court or any yan or any
violation is committed with the attendant of its justices CA or any of
circumstances detailed in supporting their justices
affidavits 3. Any RTC
4. The investigation conducted, if any, of the place
specifying the names, personal where the
circumstances, and addresses of the threat, act or
investigating authority or individuals, as omission
well as the manner and conduct of the was
investigation, together with any report committed or
5. The actions and recourses taken by the any of its
petitioner to determine the fate or elements
whereabouts of the aggrieved party and the occurred
identity of the person responsible for the
threat, act or omission
6. The relief prayed for. d. Return
The petition may include a general prayer for Within 72 hours after service of the writ, the
other just and equitable reliefs [Section 5, A.M. respondent shall file a verified written return
No. 07-9-12-SC]. together with supporting affidavits which shall,
among other things, contain his defenses. A
c. Where to File general denial is not allowed [Section 9, A.M.
No. 07-9-12-SC].
Filed Enforced Returnable
RTC of the Anywhere in Before the

e. Hearing
Summary or court may call for a preliminary
place where the issuing court
conference; given same priority as petition for
the threat, Philippines or judge
habeas corpus [Section 13, A.M. No. 07-9-12-
act, or
SC].
omission
was
committed or f. Proof required; Substantial Evidence
any of its For the protective writ of amparo to issue,
elements allegation and proof that the persons subject
occurred thereof are missing are not enough. It must
also be shown by the required quantum of
Sandiganbay 1. Before the proof that their disappearance was carried out
an or any of issuing court by, or with the authorization, support or
its justices any justice acquiescence of, [the government] or a political
thereof; or organization, followed by a refusal to
2. Any RTC acknowledge [the same or] give information on
of the place the fate or whereabouts of [said missing]
where the persons [Navia v. Pardico, G.R. No. 184467
threat, act or (2012)].
omission
Page 199 of 412

g. Defense ecology by an unlawful act or omission of a
1. Private individual — Ordinary diligence public official or employee, or private individual
2. Public official — Extraordinary diligence, no or entity, involving environmental damage of
presumption of regularity of duties [Section such magnitude as to prejudice the life, health
17, A.M. No. 07-9-12-SC] or property of inhabitants in two or more cities
or provinces.
Note: Command responsibility is a way of
impleading a superior of the accused (subject Requisites
of the writ) to be made responsible for the a. There is an actual or threatened violation of
crimes committed by his subordinates — by the constitutional right to a balanced and
failing to prevent or punish the said accused. healthful ecology;
As regards the relief granted, the Court held b. The actual or threatened violation arises
that the production order under the Amparo from an unlawful act or omission of a public
rule is different from a search warrant and may official or employee, or private individual or
be likened to the production of documents or entity; and
things under Rule 27.1, ROC [Secretary of c. The actual or threatened violation involves
National Defense v. Manalo, supra]. or will lead to an environmental damage of
such magnitude as to prejudice the life,
3. Writ of Habeas Data [AM No. 08-1-16- health or property of inhabitants in two or
SC] more cities or provinces [Segovia v.
Climate Change Commission, G.R. No.
The writ of habeas data is an independent and 211010 (2017)].
summary remedy designed to protect the
image, privacy, honor, information, and A suit for the issuance of the writ of kalikasan
freedom of information of an individual, and to is a special civil action. The writ of kalikasan is
provide a forum to enforce one’s right to the extraordinary in nature and is issued not only
truth and to informational privacy. when there is actual violation of the
constitutional right to a balanced and healthful
There must be a nexus between the right to ecology. Threat of violation through an unlawful
privacy on the one hand, and right to life, liberty act is enough, whether the threat be committed
and security on the other [Lee v. Ilagan, G.R. by a natural or juridical person, or a public or
No. 203254 (2014)]. private person or entity.
Right to Informational Privacy v.

Legitimate State Interest
The determination of whether the privilege of
the writ of habeas data, being an extraordinary
remedy, may be granted in this case entails a
delicate balancing of the alleged intrusion upon
the private life of a person and the relevant
state interest involved [Gamboa v. Chan,
supra].
Without an actionable entitlement in the first

place to the right to informational privacy, a
habeas data petition will not prosper [Vivares v.
St. Theresa’s College, et al., G.R. No. 202666
(2014)].
4. Writ of Kalikasan [A.M. No. 09-6-8-

SC]
Definition
Remedy against violation or threat of violation
of constitutional right to a balance and healthful
Page 200 of 412
LAW ON PUBLIC
OFFICERS
POLITICAL LAW
LAW ON PUBLIC OFFICERS POLITICAL LAW
I. GENERAL PRINCIPLES 1987 Constitution, Section 1, Article XI. Public

office is a public trust. Public officers and employees
must, at all times, be accountable to the people,
1. Public Office serve them with utmost responsibility, integrity,
loyalty, and efficiency; act with patriotism and
a. Definition justice, and lead modest lives.
It is the right, authority and duty, created and
conferred by law, by which, for a given period The provision embodies the nature of a public
either fixed by law or enduring at the pleasure office as a public trust, and not as a property
of the creating power, an individual is invested right. It means that public office is a
with some portion of the sovereign functions of responsibility.
government, to be exercised by that individual
for the benefit of the public [Fernandez v. Sto. c. Elements of a Public Office
Tomas, G.R. No. 116418 (1995)]. 1. It must be created by the Constitution or
by the legislature or created by a
Nature and Purpose municipality or other body through
The purpose and nature of public office is authority conferred by the legislature;
grounded on its being a public trust. 2. It must possess a delegation of a portion
of the sovereign power of government,
Public offices are created for effecting the end to be exercised for the benefit of the public;
for which government has been instituted, 3. The powers conferred and the duties to
which is the common good or for the benefit of be discharged must be defined, directly
the public, and not for the profit, honor, or or impliedly, by the legislature or
private interest of any person, family, or class through legislative authority;
of persons. 4. The duties must be performed
independently and without control of a
The nature of a public office is inconsistent with superior power, other than the law, unless
either a property or contract right. It is they be those of an inferior or subordinate
conceived of as a responsibility and not a right office, created or authorized by the
[De Leon]. legislature and by it placed under the
general control of a superior officer or body;
b. Constitutional Principles 5. It must have some permanency and
continuity and not be only temporary or
1987 Constitution, Section 1, Article II. The
Philippines is a democratic and republican State. occasional [State Ex Rel. Barney v.
Sovereignty resides in the people and all Hawkins, 257 P. 411 (1927)].
government authority emanates from them.
However, the elements of permanence and
continuity are not indispensable [Laurel v.
This is the central or core provision for the law
Desierto, G.R. No. 145368 (2002)].
on public officers. The second sentence, in
particular, is the foundation of the law on public
While salary is a usual criterion for determining
accountability.
the nature of a position, it is not a necessary
condition. The material factor was the
A public officer exercises delegated
delegation of sovereign functions [Laurel v.
powers: A public official exercises power, not
Desierto, supra].
rights. The government itself is merely an
agency through which the will of the state is
The delegation of a portion of the sovereign
expressed and enforced. Its officers therefore
powers of government is the most important
are likewise agents entrusted with the
element of a public office and distinguishes it
responsibility of discharging its functions. As
from private employment or a contract
such, there is no presumption that they are
[Mechem].
empowered to act, there must be a delegation
of such authority, either express or implied. In
the absence of a valid grant, they are devoid of Independent Performance of Duties
power [Villegas v. Subido, G.R. No. L-26534 General Rule: Duties must be performed
(1969)]. independently and without the control of a
superior power other than the law.
Page 202 of 412
Exception: Duties of an inferior or subordinate of particular offices. As far as bureaus,
office that was created or authorized by the agencies or offices in the executive department
Legislature and which inferior or subordinate are concerned, the President's power of control
office is placed under the general control of a may justify him to inactivate the functions of a
superior office or body. particular office, or certain laws may grant him
the broad authority to carry out reorganization
d. Creation, Modification, Abolition measures [Buklod ng Kawaning EIIB v.
Zamora, G.R. No. 142801-2 (2001)].
1. Creation
Modes of Creation of Public Office: e. Characteristics
1. By the Constitution;
2. By statute/law; or 1. Public office is a public trust
3. By a tribunal or body to which the power to
create the office has been delegated. 2. Public office is not a property right.
No one has a vested right to any public office,
General Rule: The creation of a public office is much less a vested right to an expectancy of
primarily a legislative function. holding a public office. A public office is not
property within the sense of the constitutional
Exception: Where the office is created by the guaranties of due process of law, but is a public
Constitution itself. trust or agency. Congress may amend at any
time the law to change or even withdraw the
The power to create a public office may be statutory right [Montescarlos v. COMELEC,
delegated by Congress, subject to the G.R. No. 152295 (2002); Cornejo v. Gabriel,
requirements of a valid delegation of legislative G.R. No. 16887 (1920)].
powers.
Exception: Public office is analogous to
The delegation is limited by the Constitution property in a limited context and due process
and the relevant statute. Hence, the president may be invoked when the dispute concerns
cannot deprive courts of jurisdiction by one‘s constitutional right to security of tenure
requiring administrative appeals prior to court [Lumiqued v. Exevea, G.R. No. 117565
action when the statute does not provide for (1997)].
that limitation. This is because the power to
apportion jurisdiction is exclusively within the 3. Public office is not a contract
powers of Congress [UST v. Board of Tax An office also differs from a contract, for, as has
Appeals, G.R. No. 5701 (1953)]. been said, “the latter from its nature is
necessarily limited in its duration and specific
2. Modification/Abolition in its objects. The terms agreed upon define the
rights and obligations of both parties, and
General Rule: The power to create an office neither may depart from them without the
includes the power to modify or abolish it. assent of the other” [Mechem].
(Hence, the power to modify or abolish an
office is also primarily legislative) 4. Public office is personal
Public office being personal, the death of a
Exception: Where the Constitution prohibits public officer terminates his right to occupy the
such modification/abolition. contested office and extinguishes his
counterclaim for damages. His widow and/or
Abolishing an office also abolishes unexpired heirs cannot be substituted in the counterclaim
term: The legislature’s abolition of an office suit [Abeja v. Tañada, G.R. No. 112283
(e.g. a court) also abolishes the unexpired (1994)].
term. The legislative power to create a court
carries with it the power to abolish it [Ocampo
v. Secretary of Justice, G.R. No. 7910 (1955)].
The President has power to reorganize the

Executive. The President’s power of control
gives him authority to deactivate the functions
Page 203 of 412
Public Office Contract “officer” includes any government employee, agent
How created or body having authority to do the act or exercise that
function.
Incident of Originates from will
sovereignty. of the contracting
Sovereignty is parties Under the Revised Penal Code
omnipresent RPC, ARTICLE 203. Who are public officers. — For
Object the purpose of applying the provisions of this and the
preceding titles of this book, any person who, by
To carry out the Obligations imposed direct provision of the law, popular election or
appointment by competent authority, shall take part
sovereign as well as only upon the
in the performance of public functions in the
governmental persons who Government of the Philippine Islands, or shall
functions affecting entered into the perform in said Government or in any of its branches
even persons not contract. public duties as an employee, agent or subordinate
bound by the official, of any rank or class, shall be deemed to be
contract. a public officer.
Subject matter
Under R.A. No. 3019 (Anti-Graft and
A public office Limited duration and
embraces the idea specific in its object.
Corrupt Practices Act)
of tenure, duration, Its terms define and R.A. No. 3019, SECTION 2 (a)(b).
continuity, and the limit the rights and a. “Government” includes the national
government, the local governments, the
duties connected obligations of the
government-owned and government- controlled
therewith are parties, and neither corporations, and all other instrumentalities or
generally continuing may depart agencies of the Republic of the Philippines and
and permanent. therefrom without their branches.
the consent of the
other. b. “Public officer” includes elective and appointive
officials and employees, permanent or
Scope temporary, whether in the classified or
unclassified or exempt service receiving
Duties are generally Duties are very compensation, even nominal, from the
continuing and specific to the government as defined in the preceding
permanent. contract. subparagraph.
Where duties are defined
The law Contract b. Public Officer vs. Public Employee
RAC, SECTION 2(15). “Employee” when used with
2. Public Officer reference to a person in the public service, includes
any person in the service of the government or any
of its agencies, divisions, subdivisions or
a. Definitions instrumentalities.
A public officer is an individual vested with
some portion of the sovereign functions of the
Public employment is broader than public
government to be exercised by him for the
office. All public office is public employment,
benefit of the public [Alba v. Evangelista, G.R.
but not all public employment is a public office.
Nos. L-10360 and L-10433 (1957)].
Public employment as a position lacks either
one or more of the foregoing elements of a
Under the Revised Administrative Code public office. It is created by contract rather
(RAC) than by force of law.
RAC, SECTION 2(14). “Officer” as distinguished
from “clerk” or “employee”, refers to a person whose An "officer" is distinguished from an
duties, not being of a clerical or manual nature, "employee" in the greater importance, dignity,
involves the exercise of discretion in the and independence of his position, being
performance of the functions of the government.
required to take an official oath. Moreover, a
When used with reference to a person having
authority to do a particular act or perform a particular public officer must be invested by law with a
function in the exercise of governmental power, portion of the sovereignty of the State, and
Page 204 of 412

authorized to exercise functions either of an Classifications [Cruz]
executive, legislative, or judicial character.
Creation Constitutional
However, the fact that the position is a
subordinate one and that its holder may be Statutory
accountable to a superior does not prevent it
from being an office [De Leon]. Public Body Served National
An officer is distinguished from a mere Local

employee in the sense that:
1. His position has greater importance, Department of Legislative
dignity, and independence; government to
2. He is required to take an official oath, and which their Executive
to give an official bond; functions pertain
3. He has greater liability to account for Judicial
misfeasance or nonfeasance in office: and
4. His tenure of office is usually different from Nature of Functions Civil
that of an ordinary employee [Suarez]
Military
c. Who are not Public Officers
Generally, persons holding offices or Exercise of Discretionary
employment which are not public offices, i.e. Judgment or
those missing one of the essential elements, Discretion Ministerial
supra.
Legality of Title to De Jure
Examples: Office
1. A concession forest guard, even when De Facto
appointed by a government agency, if such
appointment was in compliance with a Compensation Lucrative
requirement imposed by an administrative
regulation on the lumber company who was Honorary
also mandated to pay the guard’s salaries
[Martha Lumber Mill v. Lagradante, G.R.
No. 7599 (1956)].
3. Modes of Acquiring Title to
Public Office
Rationale: There was no public office in this
case. The Court further noted that the a. Overview of Modes
appointment by the government was only done
to ensure the faithful performance of the
1. Appointment
guard’s duties [Martha Lumber Mill v.
The act of designation by the executive officer,
Lagradante, supra].
board, or body to whom that power has been
delegated, of the individual who is to exercise
2. A company cashier of a private corporation
the powers and function of a given office. It is
owned by the government [Tanchoco v.
to be distinguished from the selection or
GSIS, G.R. No. L-16826 (1962)]
designation by a popular vote [De Leon].
Rationale: Even if the Manila Railroad
Company was owned by the Government, its
2. Election
The choice or selection of candidates to public
funds were private funds because the Court
office by popular vote through the use of the
found that it was not imbued with governmental
ballot [Rulloda v. COMELEC, G.R. No. 154198
powers [Tanchoco v. GSIS, supra].
(2003)].
The act of selecting or choosing a person by

popular vote to occupy the office.
Page 205 of 412

3. Designation of the appointment intended (i.e., whether the
The mere imposition of new or additional duties appointment is permanent or temporary).
upon an officer to be performed by him in a
special manner. It presupposes that the officer Generally: Appointment is generally a
is already in the service by virtue of an earlier political question involving considerations of
appointment, performing other functions. wisdom which only the appointing authority can
decide.
4. Other Modes
Exception: Appointments requiring
b. Appointment confirmation by the Commission on
Appointments. In such cases, the Commission
on Appointments may review the wisdom of the
1. Nature appointment and has the power to refuse to
concur with it even if the President's choice
Appointment is a Discretionary Power possessed all the qualifications prescribed by
Appointment is an essentially discretionary law [Luego v. CSC, supra].
power and must be performed by the officer in
which it is vested according to his best lights,
Power of CSC to Recall Appointments
the only condition being that the appointee
Does NOT Include Control of Discretion
should possess the qualifications required by
The CSC authority to recall an appointment
law. If he does, then the appointment cannot be
which has been initially approved when it is
faulted on the ground that there are others
shown that the same was issued in disregard
better qualified who should have been
of pertinent laws, rules and regulations.
preferred” [Luego v. CSC, G.R. No. 69137
(1986)].
However, it does not have the power to recall
an appointment on the ground that another
Administrators of public officers, primarily the
person is better qualified [See Luego v. CSC,
department heads should be entrusted with
supra].
plenary, or at least sufficient, discretion. Their
position most favorably determines who can
best fulfill the functions of a vacated office.
The Promotion of the “Next-in-Rank” is
There should always be full recognition of the NOT Mandatory
wide scope of a discretionary authority, unless While there is a preference for the next- in-rank
the law speaks in the most mandatory and in the Civil Service Law [See Section 21(1)-(6),
peremptory tone, considering all the Book V, Administrative Code], it does not
circumstances [Reyes v. Abeleda, G.R. No. impose a “rigid or mechanistic formula” that
25491 (1968)]. requires the appointing power to select the
more senior officer. Unless the law speaks in
Requisites for a Valid Appointment the most mandatory and peremptory tone,
1. President signs an appointee's there should be full recognition of the wide
appointment paper to a vacant office scope of the discretionary authority to appoint
2. The official transmittal of the appointment [Reyes v. Abeleda, G.R. No. 25491 (1968)].
paper (preferably through the Malacañang
Records Office) There is no requirement that “vacancies must
3. Receipt of the appointment paper by the be filled by promotion, transfer, reinstatement,
appointee, reemployment or certification, in that order.
4. Acceptance of the appointment by the That would be to construe the provision not
appointee evidenced by his or her oath of merely as a legislative prescription of
office or his or her assumption to office qualifications but as a legislative appointment,
[Velicaria-Garafil v. Office of the President, repugnant to the Constitution. What [the law]
G.R. No. 203372 (2015)]. does purport to say is that as far as practicable
the person next in rank should be promoted,
otherwise the vacancy may be filled by transfer,
2. Scope of Discretion
reinstatement, reemployment or certification,
The discretion of the appointing authority is not
as the appointing power sees fit, provided the
only in the choice of the person who is to be
appointee is certified to be qualified and
appointed but also in the nature and character
Page 206 of 412

eligible” [Pineda v. Claudio, G.R. No. 29661 Exceptions
(1967)]. 1. Congress may appoint its own officials and
staff [See Springer v. Government, 277
“Upon recommendation” is merely advisory. In U.S. 189 (1928)].
cases of provincial and city prosecutors and 2. When the Constitution vests the powers in
their assistants, they shall be appointed by the another branch of the State (i.e. Judiciary,
President “upon the recommendation of the Section 5(6), Article VIII) or an independent
Secretary” [Section 10, P.D. No. 1275]. The office (e.g. Constitutional Commissions,
phrase “upon recommendation of the Section 4, Article IX-A; Ombudsman,
Secretary of Justice” should be interpreted to Section 6, Article XI; Commission on
be mere advice. It is persuasive in character, Human Rights, Section 18(10), Article XIII).
but is not binding or obligatory upon the person
to whom it is made [Bermudez v. Torres, G.R. Note: The power to appoint may be granted by
No. 131429 (1999)]. law to officials exercising executive functions.
This is expressly sanctioned by the provision
Note: The rule is different with respect to which holds that “Congress may, by law, vest
recommendations made by officers over whom the appointment of other officers lower in rank
the appointing power exercises no power of [...] in the heads of departments, agencies,
control, e.g. as the recommendation by the commissions, or boards” [Section 16, Article
Governor of a Province to the Secretary of the VII, 1987 Constitution].
Department of Budget and Management in the
appointment of a Provincial Budget Officer. In Congress cannot vest such power in officials
the said example, the recommendation by the not mentioned in the above provision, such as
Governor is a condition sine qua non for the heads of bureaus [De Leon].
validity of the appointment [See San Juan v.
CSC, G.R. No. 92299 (1991)]. The power of local chief executives to appoint
local government employees under the Local
General Rule: With regard to the power of Government Code is separately sanctioned in
appointment, courts will act with restraint. the power of Congress to “provide for the
qualifications, election, appointment and
Hence, mandamus will not lie to require the removal, term, salaries, powers and functions
appointment of a particular applicant or and duties of local officials, and all other
nominee. matters relating to the organization and
operation of the local units” [Section 3, Article
Exceptions: X, 1987 Constitution].
1. When there is grave abuse of discretion,
prohibition or mandamus will lie [See Must be Unhindered by Congress
Aytona v. Castillo, G.R. No. 19313 (1962), The President’s power to appoint under the
on the midnight appointments of President Constitution should necessarily have a
Garcia]. reasonable measure of freedom, latitude, or
2. Where the palpable excess of authority or discretion in choosing appointees [Cuyegkeng
abuse of discretion in refusing to issue v. Cruz, G.R. No. 16263 (1960)].
promotional appointment would lead to
manifest injustice, mandamus will lie to Congress cannot either appoint the
compel the appointing authority to issue Commissioner of the Service, or impose upon
said appointments [Pineda v. Claudio, G.R. the President the duty to appoint any particular
No. 29661 (1967)]. person to said office. The appointing power is
the exclusive prerogative of the President,
Appointment is Generally an Executive upon which no limitations may be imposed by
Function Congress, except those resulting (1) from the
need of securing the concurrence of the
General Rule: Appointment to office is Commission on Appointments and (2) from the
intrinsically an executive act involving the exercise of the limited legislative power to
exercise of discretion [Concepcion v. Paredes, prescribe the qualifications to a given
G.R. 17539 (1921)]. appointive office [Manalang v. Quitoriano, G.R.
No. 6898 (1954)].
Page 207 of 412
Legislative Appointments The first consideration of every democratic
Legislative appointments are repugnant to the polity is to give effect to the expressed will of
Constitution [Pineda v. Claudio, G.R. No. the majority.
29661 (1967)].
Characteristics of an Elective Official
Effectively legislative appointments are 1. Occupy their office by virtue of the mandate
also prohibited: “When Congress clothes the of the electorate
President with the power to appoint an officer, 2. Definite term
it (Congress) cannot at the same time limit the 3. May be removed only upon stringent
choice of the President to only one candidate. opinions
[...] when the qualifications prescribed by 4. Expressly allowed to take part in political
Congress can only be met by one individual, and electoral activities [De Leon]
such enactment effectively eliminates the
discretion of the appointing power to choose d. Delegation
and constitutes an irregular restriction on the
power of appointment” [Flores v. Drilon, G.R. Definition
No. 104732 (1993)]. In this case, the law It is the imposition of additional duties, usually
assailed provided that “for the first year of its by law, on a person already in public office
operations from the effectivity of this Act, the [Binamira v. Garrucho, G.R. No. 92008 (1990)].
mayor of the City of Olongapo shall be
appointed [by the President] as the chairman Designation may also be loosely defined as an
and chief executive officer of the Subic appointment because it likewise involves the
Authority.” naming of a particular person to a specified
public office. That is the common
Note: This is not to be confused with the power understanding of the term. However, where the
of Congress to appoint its own staff and person is merely designated and not
officials [Flores v. Drilon, supra]. appointed, the implication is that he shall hold
the office only in a temporary capacity and may
Appointment Under Civil Service be replaced at will by the appointing authority.
Qualification Standard In this sense, the designation is considered
A qualification standard expresses the only an acting or temporary appointment, which
minimum requirements for a class of positions does not confer security of tenure on the
in terms of education, training and experience, person named.
civil service eligibility, physical fitness and other
qualities required for successful performance Nature
[De Leon]. An employee who is designated in an acting
capacity is not entitled to the difference in
c. Election salary between his regular position and the
higher position to which he is designated, in the
Definition absence of any authority to authorize the
Election is the means by which the people payment of his additional salary [Dimaandal v.
choose their officials for a definite and fixed Commission on Audit, G.R. No. 122197
period and to whom they entrust for the time (1998)].
being the exercise of the powers of the
government [Garchitorena v. Crescini, G.R. Appointment vs. Designation
No. L-14514 (1918)].
Appointment Designation
Nature Definition Appointing Imposition of
In an election, an officer occupies the office by authority additional
virtue of the mandate of the electorate. They selects an duties upon
are elected for a definite term and may be individual who existing office.
removed therefrom only upon stringent will occupy a
conditions [Farinas v. Executive Secretary, certain public
G.R. No. 147387 (2003)]. office.
Page 208 of 412

As to Executive, Legislative,
nature Irrevocable revocable
As to Selection of Mere
effect an individual imposition by
who is to law of
exercise the additional
functions of a duties on an
given office. incumbent
official.
Can be Cannot be
subject of a subject of a
protest before protest before
the CSC. the CSC.
As to Connoted Implies
effectivity permanency temporariness
Extent of Comprehensi Limited

Power ve
Security Yes. No. The

of Tenure designation
may be
revoked at will.
[Binamira v.
Garucho, G.R.
No. 92008
(1990)]
Abandon- Yes. A public No. While

ment of officer who assuming the
Prior later accepts designated
Office even a functions or if
temporary the
appointment designation is
terminates his revoked, the
relationship public officer
with his former may perform
office the functions
[Romualdez III of the “prior”
v. CSC, G.R. office.
Nos. 94878-
81 (1991)].
e. Other Modes
A person may also acquire title to public office
through two other means, namely:
a. Succession by operation of law (when the
office to which one succeeds is legally
vacated) or;
b. By direct provision of law (such as when
the office is validly held in an ex-officio
capacity by a public officer).
Page 209 of 412

II. KINDS OF APPOINTMENT Security Yes. No.

of Appointment
1. As to term Tenure is revocable
at will and
Permanent Temporary without the
Appointment Appointment necessity of
just cause or
Eligibility Issued to a Issued to a a valid
person who person who investigation.
meets all the meets all the
requirements requirements
for the for the a. Permanent
positions to position to A permanent appointment is extended to a
which he is which he is person possessing the requisite qualifications,
being being including the eligibility required for the position,
appointed appointed and thus, protected by the constitutional
issued to a except the guarantee of security of tenure [Nachura].
person who appropriate
meets all the civil service b. Temporary
requirements eligibility, A temporary appointment is an acting
for the provided the appointment; it is extended to one who may not
positions to following possess the requisite qualifications or eligibility
which he is conditions are required by law for the position, and is
being present: revocable at will, without the necessity of just
appointed, (1) absence cause or valid investigation [Nachura].
including the of appropriate
appropriate eligibles Temporary appointment shall not exceed 12
eligibility (2) it months, but the appointee may be replaced
prescribed becomes sooner if a qualified civil service eligible
[Section 27, necessary in becomes available [Section 25(b), P.D. 807].
Chapter 5, the public
Subtitle A, interest to fill An “acting” appointment is a temporary
Title I, Book a vacancy appointment and revocable in character
V, E.O. No. [Section 27, [Marohombsar v. Alonto, G.R. No. 93711
292] Chapter 5, (1991)].
Subtitle A,
Title I, Book A mere designation does not confer security of
V, E.O. No. tenure, as the person designated occupies the
292] position only in an acting capacity [Sevilla v.
CA, 209 SCRA 637].
Confirma- Yes, if Not subject to
tion by CA required by confirmation Acquisition of the appropriate civil service
the office. by the CA. eligibility by a temporary appointee will not ipso
Such facto convert the temporary appointment into a
confirmation, permanent one; a new appointment is
if given necessary [Province of Camarines Sur v. CA,
erroneously, G.R. No. 104639 (1995)].
will not make
the incumbent The mere fact that a position belongs to the
a permanent Career Service does not automatically confer
appointee security of tenure. Such right will have to
[Valencia v. depend on the nature of the appointment
Peralta, G.R. which, in turn, depends on the appointee’s
No. L-20864 eligibility or lack of it [De Leon v. CA, G.R. No.
(1963)] 127182 (2001)].
Page 210 of 412

When temporary appointments are not b. Ambassadors;
allowed: In no case shall any Member (or c. Other public ministers and consuls;
Chair) of the (a) Civil Service Commission, (b) d. Officers of the armed forces from the rank
Commission on Elections, or (c) Commission of colonel or naval captain;
on Audit be appointed or designated in a e. Other officers whose appointments are
temporary or acting capacity [Section 1(2), vested in him by the Constitution:
Article IX-B; Section 1(2), Article IX-C; Section i. Regular members of the Judicial and
1(2), Article IX-D, 1987 Constitution]. Bar Council
ii. The Chairman and Commissioners of
Presidential Appointments the Civil Service Commission
The President shall nominate and, with the iii. The Chairman and Commissioners of
consent of the Commission on Appointments, the COMELEC
appoint the heads of the executive iv. The Chairman and Commissioners of
departments, ambassadors, other public the Commission on Audit
ministers and consuls, or officers of the armed v. Members of the Regional
forces from the rank of colonel or naval captain, Consultative Commission
and other officers whose appointments are
vested in him in this Constitution. He shall also 2nd Group: All other officers of the
appoint all other officers of the Government Government whose appointments are not
whose appointments are not otherwise otherwise provided for by law.
provided for by law, and those whom he may
be authorized by law to appoint. The Congress 3rd Group: Officers whom the President may
may, by law, vest the appointment of other be authorized by law to appoint
officers lower in rank in the President alone, in a. Examples:
the courts, or in the heads of departments, i. Heads of GOCCs
agencies, commissions, or boards. ii. Undersecretaries
iii. Heads of bureaus and offices
The President shall have the power to make
appointments during the recess of the 4th Group: Officers lower in rank whose
Congress, whether voluntary or compulsory, appointments the Congress may by law vest in
but such appointments shall be effective only the President alone.
until after disapproval by the Commission on
Appointments or until the next adjournment of The list of appointments requiring confirmation
the Congress [Section 16, Article VII, 1987 is exclusive. Congress cannot, by law, require
Constitution]. confirmation by the CA for a public office
created by statute. This would be
Four (4) groups of officers whom the unconstitutional as it expands the powers of the
President shall appoint: CA [Calderon v. Carale, G.R. No. 91636
1. Heads of the executive departments, (1992)].
ambassadors, other public ministers and
consuls, officers of the armed forces from Court of Appeals Confirmation
the rank of colonel or naval captain, and Requirement
other officers whose appointments are
vested in him in this Constitution When CA When CA
2. All other officers of the Government whose Confirmation Confirmation Not
appointments are not otherwise Required Required
provided for by law
Those specifically 1. All other officers
3. those whom the President may be
enumerated under whose
authorized by law to appoint
Section 16, Article VII appointments are
4. officers lower in rank whose
of the Constitution: not otherwise
appointments the Congress may by law
1. Heads of the provided for by
vest in the President alone.
executive law;
departments; 2. Officers whom the
1st Group: Specifically enumerated under
2. Ambassadors; President may be
Section 16, Article VII of the Constitution
3. Other public authorized by law
a. Heads of the executive departments;
Page 211 of 412
ministers and to appoint; 2. Regular or Ad Interim

consuls; 3. Appointments Appointment
4. Officers of the explicitly
armed forces from exempted from Regular Ad Interim
the rank of colonel the confirmation Appointment Appointment
or naval captain; requirement under
5. Other officers the Constitution: When While During the
whose a. Vice- made by Congress is recess of the
appointments are President as a the in session Congress,
vested in him by member of President [Section whether
the Constitution. the cabinet 16(2), Article voluntary or
[Section 3, VII] compulsory
Article VII]; [Section
b. Members of 16(2), Article
the Supreme VII]
Court and
Nature of Permanent Permanent
judges of
appoint-
lower courts
ment
[Section 9,
Article VIII]; Effectivity Upon Immediately
c. The confirmation effective
Ombudsman by the CA
and his
deputies Duration Until the end Ceases to be
[Section 9, of the term valid:
Article XI]. a. If disapp-
roved by the
Power to Appoint as Presidential CA; or
Prerogative b. If bypass-
The power to appoint is the prerogative of the ed by the CA
President, except in those instances when the upon the next
Constitution provides otherwise. Usurpation of adjournment
this fundamentally Executive power by the of Congress
Legislative and Judicial branches violates the
system of separation of powers that inheres in a. Ad Interim Appointment and
our democratic republican government [Rufino Appointment in an Acting Capacity
v. Endriga, G.R. No. 139554 (2006)].
However, the grant of power to appoint to the
Nature
heads of agencies, commissions, or boards is
An ad interim appointment is a permanent
a matter of legislative grace. Congress has the
appointment because it takes effect
discretion to grant to, or withhold from, the
immediately and can no longer be withdrawn
heads of agencies, commissions, or boards,
by the President once the appointee has
the power to appoint lower-ranked officers. If it
qualified into office. The Constitution itself
so grants, Congress may impose certain
makes an ad interim appointment permanent in
conditions for the exercise of legislative
character by making it effective until
delegation, like requiring the recommendation
disapproved by the Commission on
of subordinate officers or the concurrence of
Appointments or until the next adjournment of
the other members of the commission or board.
Congress [Matibag v. Benipayo, G.R. No.
The Constitution is clear that the officers whom
149036 (2002)].
the heads of departments, agencies,
commissions, or boards may appoint must be
The Constitution imposes no condition on the
of lower rank than those vested by law with the
effectivity of an ad interim appointment, and
power to appoint.
thus an ad interim appointment takes effect
immediately. The appointee can at once
Page 212 of 412

assume office and exercise, as a de jure Exception: Temporary appointments to
officer, all the powers pertaining to the office executive positions when continued vacancies
[Matibag v. Benipayo, supra]. therein will prejudice public service or
endanger public safety [Section 15, Article VII,
While an ad interim appointment is permanent 1987 Constitution]
and irrevocable except as provided by law, an
appointment or designation in a temporary or This provision applies only to presidential
acting capacity can be withdrawn or revoked at appointments. There is no law that prohibits
the pleasure of the appointing power. A local executive officials from making
temporary or acting appointee does not enjoy appointments during the last days of their
any security of tenure, no matter how briefly. tenure [De Rama v. CA, G.R. No. 131136
This is the kind of appointment that the (2001)].
Constitution prohibits the President from
making to the three independent constitutional The prohibition does not apply to Members of
commissions, including the COMELEC the Supreme Court and the judiciary [De Castro
[Matibag v. Benipayo, supra]. v. JBC, G.R. No. 191002 (2010)].
b. Disapproval vs. Bypass
An ad interim appointee disapproved by the

COA cannot be reappointed. But a by-passed
appointee, or one whose appointment was not
acted upon the merits by the CA, may be
appointed again by the President, because
failure by the CA to confirm an ad interim
appointment is not disapproval.
Renewal of by-passed appointment

“A by-passed appointment is one that has not
been finally acted upon on the merits by the
Commission on Appointments at the close of
the session of Congress. There is no final
decision by the Commission on Appointments
to give or withhold its consent to the
appointment as required by the Constitution.
Absent such decision, the President is free to
renew the ad interim appointment of a by-
passed appointee” [Matibag v. Benipayo,
supra].
Classification of appointments into regular and

ad interim can be used only when referring to
the four (4) categories of appointments made
by the President of the Philippines in the first
sentence of Section 16, Article VIII of the
Constitution.
3. Midnight Appointments
General Rule: A President or Acting President
shall not make appointments two (2) months
immediately before the next presidential
elections and up to the end of his term
Page 213 of 412

III.DISABILITIES AND 3. No appointive official shall hold any other

office or employment in the Government or
INHIBITIONS OF PUBLIC any subdivision, agency or instrumentality
thereof, GOCCs or their subsidiaries,
OFFICERS unless otherwise allowed by law or his
position’s primary functions [Section 7(2),
1. Definition Article IX-B, 1987 Constitution].
Disqualification 4. The President, Vice-President, the

It is the presence of circumstances and Members of the Cabinet, and the deputies
qualities which make an individual ineligible or assistants shall not, unless otherwise
from holding a public office. Lack of provided in the Constitution, hold any other
disqualification itself is a qualification [De Leon] office of employment during their tenure.
2. Power of Congress a. On the Holding of Multiple Offices

The provision in Article IX-B is the general
Constitutional prohibition on holding multiple
a. Authority to Prescribe offices, as opposed to the prohibition in Article
Disqualifications VII which is specific to high-ranking executive
The legislature has the right to prescribe department officials in Civil Liberties Union v.
disqualifications in the same manner that it can Executive Secretary [G.R. No. 83896 (1991)]:
prescribe qualifications, provided the The prohibition in Section 13, Article VII against
prescribed disqualifications do not violate the the President, Vice President, Cabinet and
Constitution. deputies is absolute, covering public and
private positions or employment.
b. Restrictions
1. Congress may not add disqualifications On the other hand, the prohibition in Section 7,
where the Constitution has provided them para. 2, Article IX-B only refers to other
in such a way as to indicate an intention positions in the government, GOCCSs and
that the disqualifications provided shall their subsidiaries, and does not cover private
embrace all that are to be permitted and employment.
2. When the Constitution has attached a
disqualification to the holding of any office, Note: “Members of the Cabinet” here are
Congress cannot remove it until the power synonymous with “heads of the executive
to prescribe qualifications as to such offices departments,” i.e. the prohibition does not
as it may create [De Leon] apply to all officers of cabinet rank.
3. Constitutional b. Exceptions
Disqualifications i. Unless otherwise provided in the Constitution
(i.e. Secretary of Justice as ex officio member
Disqualifications under the of the JBC)
Constitution:
1. No candidate who has lost in any election, ii. Ex officio positions
shall within one year after such election, be
appointed to any office in the Government There is no violation of the constitutional
or any Government-owned or controlled provision when another office is held by a
corporations or in any of their subsidiaries public officer in an ex officio capacity (where
[Section 6, Article IX-B, 1987 Constitution]. one can’t receive compensation or other
honoraria anyway), as provided by law and as
2. No elective official shall be eligible for required by the primary functions of his office
appointment or designation in any capacity [National Amnesty Commission v. COA, G.R.
to any public office or position during his No. 156982 (2004)].
tenure [Section 7(1), Article IX-B, 1987
Constitution] unless they forfeit their seat.
Page 214 of 412

c. Requirements for a Valid Ex Officio 8. No member of a Constitutional
Holding [National Amnesty Commission v. Commission shall, during his tenure, hold
COA, supra] any other office or employment [Section 2,
Article IX-A, 1987 Constitution].
i. Holding of the ex officio office is provided by
law The same disqualification applies to the
ii. The holding is required by the primary Ombudsman and his Deputies [Section 8,
functions of their positions Article XI, 1987 Constitution].
iii. The position is held without additional
compensation 9. Members of the Constitutional
Commissions must not have been
The prohibition against dual or multiple offices candidates for any elective position in the
held by one official must be construed as to elections immediately preceding their
apply to all appointments or designations, appointment [Section 1, Article IX-B, IX-C,
whether permanent or temporary [Funa v. IX-D, 1987 Constitution].
Agra, G.R. No. 191644 (2013)].
10. Ombudsman and his Deputies shall not be
5. Impeachment: Judgment in cases of qualified to run for any office in the election
impeachment shall not extend further than immediately succeeding their cessation
removal from office and disqualification to from office [Section 11, Article XI, 1987
hold any office under the Republic of the Constitution].
Philippines [Section 3(7), Article XI, 1987
Constitution] 11. The President’s spouse and relatives by
consanguinity or affinity within the fourth
6. No Senator or Member of the House of civil degree shall not during his tenure be
Representatives may hold any other office appointed as Members of the
or employment in the Government, or any Constitutional Commissions, Office of the
subdivision, agency, or instrumentality Ombudsman, Secretaries,
thereof, including GOCCs or their Undersecretaries, Chairmen or Heads of
subsidiaries, during his term without Bureaus or Officers [Section 12, Article VII,
forfeiting his seat (Incompatible Office) 1987 Constitution].
Neither shall he be appointed to any office 4. Constitutional Disabilities

which may have been created nor the
emoluments thereof increased during the
a. For President, Vice President,
term for which he was elected (Prohibited/
Forbidden Office) [Section 13, Article IV, Members of Cabinet, and their
1987 Constitution] Deputies and Assistants:
1. They shall not practice any other
7. Members of the Supreme Court and of profession.
other courts established by law shall not be 2. They shall not participate, directly or
designated to any agency performing indirectly, in any business.
quasi-judicial or administrative functions 3. They shall not be financially interested,
[Section 12, Article VII, 1987 Constitution] directly or indirectly, in any contract with,
or in any franchise or special privilege
a. Exception: granted by the government or any
subdivision, agency or instrumentality
Designation to the Presidential Electoral thereof, including any GOCC or their
Tribunal, Senate Electoral Tribunal or House of subsidiaries.
Representatives Electoral Tribunal [Section 4. They shall strictly avoid conflict of
4(7), Article VII; Section 7, Article VI, 1987 interest in the conduct of their office.
Constitution; See also Macalintal v.
Presidential Electoral Tribunal, G.R. No. The President is also prohibited during
191618 (2010)] his tenure from appointing his spouse
and relatives by consanguinity or affinity
Page 215 of 412

within the fourth civil degree [Section 13, 5. Disqualifications for
Article VII, 1987 Constitution].
Appointive Officers
b. For Members of Congress
a. Under Administrative Code, Book V,
1. They may not personally appear as counsel Section 58 — Limitations on
before any court, election tribunal, or quasi- Appointment
judicial body.
1. Being an Elective Official
2. They shall not be financially interested,
directly or indirectly, in any contract with, or in General Rule: No elective official shall be
any franchise or special privilege granted by eligible for appointment or designation in any
the government or any subdivision, agency or capacity to any public office or position during
instrumentality thereof, including any GOCC or his tenure.
their subsidiaries during his term of office.
Exception: The appointment will be valid if the
Financial interest – Any contract that involves elective official resigns from his elective seat
financial investment or business out of which [De Leon].
he derives profit or gain. However, borrowing
money from a GOCC cannot be considered as 2. Losing Election in Immediately
such. Preceding Year
The prohibition on financial interest in any No candidate who has lost in any election shall,
contract with the government extends to his within one year after election, be appointed to
spouse. However, it does not extend to his any office in the Government or any
brother or son unless used as a dummy [De government-owned or controlled corporations
Leon]. or in any of its subsidiaries.
3. They shall not intervene in any government 3. Simultaneous Holding
office for his pecuniary benefit or where he may
be called upon to act on account of his office General Rule: No appointive official shall hold
[Section 14, Article VI, 1987 Constitution]. any other office or employment in the
Government or any subdivision, agency or
c. For Members of Constitutional instrumentality thereof, including government-
Commissions owned or controlled corporations or their
subsidiaries.
1. They shall not hold any other office or
employment. Exceptions: Unless otherwise allowed by law
2. They shall not engage in the practice of any or by the primary functions of his position
profession or in the active management or 1. When allowed by law, the positions may be
control of any business that in any way may totally unrelated to each other.
be affected by the functions of his office. 2. When the functions are related, the
3. They shall not be financially interested, prohibition does not apply even in the
directly or indirectly, in any contract with, or absence of an enabling law [De Leon].
in any franchise or special privilege granted
by the government or any subdivision, b. Nepotism
agency or instrumentality thereof, including Administrative Code, SECTION 59, CHAPTER 7,
any GOCC or their subsidiaries. BOOK V. (1) All appointments in the national,
provincial, city and municipal governments or in any
branch or instrumentality thereof, including
government-owned or controlled corporations,
made in favor of a relative of the appointing or
recommending authority, or of the chief of the
bureau or office, or of the persons exercising
immediate supervision over him, are hereby
prohibited.
Page 216 of 412

As used in this Section, the word "relative" and a body [Cortes v. CSC, G.R. No. 200103
members of the family referred to are those related (2014)].
within the third-degree either or consanguinity or of
affinity.
Exception: The prohibition on nepotic
(2) The following are exempted from the operation appointments in the Civil Service Law does not
of the rules on nepotism: (a) persons employed in a apply if the appointee is:
confidential capacity, (b) teachers, (c) physicians, 1. Person employed in a confidential capacity
and (d) members of the Armed Forces of the 2. Teachers
Philippines: Provided, however, That in each 3. Physicians
particular instance full report of such appointment
shall be made to the Commission. 4. Member of the Armed Forces of the
Philippines
The restriction mentioned in subsection (1) shall not
be applicable to the case of a member of any family 6. Disqualifications under the
who, after his or her appointment to any position in
an office or bureau, contracts marriage with Local Government Code
someone in the same office or bureau, in which
event the employment or retention therein of both
husband and wife may be allowed.
a. Those Absolutely Disqualified
The following persons are disqualified from
In order to give immediate effect to these provisions, running for any elective local position:
cases of previous appointments which are in 1. Sentenced by final judgment for an
contravention hereof shall be corrected by transfer, offense involving moral turpitude or for
and pending such transfer, no promotion or salary an offense punishable by 1 year or more
increase shall be allowed in favor of the relative or
relatives who are appointed in violation of these
of imprisonment, within 2 years after
provisions. serving sentence;
2. Removed from office as a result of an
Definition of Relative: One who is related administrative case;
within the third degree of either consanguinity 3. Convicted by final judgment for violating
or of affinity [Section 59, Chapter 7, Book V, the oath of allegiance to the Republic;
Administrative Code]. 4. Dual citizenship;
5. Fugitive from justice in criminal or non-
General Rule on Nepotism: The Civil Service political cases here or abroad;
Law prohibits all appointments in the national 6. Permanent residents in a foreign country
and local governments or any branch or or those who have acquired the right to
instrumentality thereof made in favor of the reside abroad and continue to avail of the
relative of: same right after the effectivity of the
1. Appointing authority; Local Government Code; or
2. Recommending authority; 7. Insane or feeble-minded [Section 40,
3. Chief of the bureau or office; or LGC].
4. Person exercising immediate supervision
over the appointee b. Dual Citizenship vs. Dual Allegiance
Dual Citizenship Dual Allegiance
In the last two cases, it is immaterial who the Dual citizenship Dual allegiance, on
appointing or recommending authority is. To arises when, as a the other hand,
constitute a violation of the law, it suffices that result of the refers to the
an appointment is extended or issued in favor concurrent situation in which a
of a relative of the chief of the bureau or office, application of the person
or the person exercising immediate supervision different laws of two simultaneously
over the appointee [CSC v. Dacoycoy, G.R. or more states, a owes, by some
No. 135805 (1999)]. person is positive act, loyalty
simultaneously to two or more
The restriction against nepotic appointments considered a states.
extends to appointments made by a group of national by the said
individuals acting as a body. The Court has states.
deemed the appointment of a daughter of a
sitting Commissioner to a position in the CHR Involuntary Voluntary
as nepotic even if made by the Commission as
Page 217 of 412
What the law prohibits is DUAL ALLEGIANCE. consent of the Congress, any present,
emolument, office, or title of any kind from any
The Constitutional Commission was not foreign government.
concerned with dual citizens per se but with
naturalized citizens who maintain their Pensions or gratuities shall not be considered
allegiance to their countries of origin even as additional, double, or indirect compensation
after their naturalization. [Section 8, Article IX-B, 1987 Constitution].
Hence, the phrase “dual citizenship” in Sec. d. Prohibition against Grant of Loan,
40(d), LGC, must be understood as referring to Guaranty or Other Form of Financial
“dual allegiance” [Mercado v. Manzano, G.R. Accommodation
No. 135083 (1999)].
No loan, guaranty, or other form of financial
7. Other Prohibitions accommodation for any business purpose may
be granted, directly or indirectly, by any
a. Prohibition against Engaging in government-owned or controlled bank or
Partisan Political Activities for Career financial institution to the President, the Vice-
President, the Members of the Cabinet, the
Service Employees
Congress, the Supreme Court, and the
Constitutional Commissions, the Ombudsman,
Officers and employees of the CSC and
or to any firm or entity in which they have
members of the military are prohibited from
controlling interest, during their tenure [Section
engaging directly or indirectly in any partisan
16, Article XI, 1987 Constitution].
political activity.
Partisan politics – acts designed to have a e. Prohibition on Holding Offices in

candidate elected or not, or to promote the Private Sector
candidacy of a person to a public office. It is
also synonymous to electioneering or partisan General Rule: During their incumbency, public
political campaign. officials and employees are prohibited to:
1. Own, control, manage, or accept
Note: Elective officials and cabinet members employment as officer, employee,
who are holding political offices are not consultant, counsel, broker, agent, trustee
embraced in the prohibition [De Leon]. or nominee in any private enterprise
regulated, supervised or licensed by their
b Prohibition against Acceptance of office unless expressly allowed by law.
2. Engage in the private practice of their
Any Present from Any Foreign State
profession unless authorized by the
Constitution or law, provided, that such
What is prohibited is the acceptance of a
practice will not conflict or tend to conflict
present officially offered by the government of
with their official functions [Section 7, R.A.
the foreign state. However, it is permissible for
No. 6713].
an official of the Philippines to accept a private
or personal gift from the head of a foreign
Exception: A public official or employee CAN
government. The prohibition is directed only
engage in the practice of his or her profession
against public officers and not private citizens
under the following conditions:
[De Leon].
1. the private practice is authorized by the
Constitution or by the law; and
c. Prohibition against Receiving 2. the practice will not conflict, or tend to
Additional, Double, or Indirect conflict, with his or her official functions.
Compensation
No elective or appointive public officer or

employee shall receive additional, double, or
indirect compensation, unless specifically
authorized by law, nor accept without the
Page 218 of 412

f. Prohibitions regarding Practice of Exception: If an employee is granted
Profession and Engagement in Private permission to engage, in outside activities, the
Business and Professions time so devoted outside of office hours should
be fixed by the chief of the agency to the end
that it will not impair in any way the efficiency
1. For elective officers under LGC
of the officer or employee
All governors, city, and municipality mayors
prohibited from practicing their professions or
Exception to Exception: No permission is
engaging in any occupation other than exercise
necessary in the case of investments, made by
of functions as local chief executives.
an officer or employee, which do not involve
Sanggunian members may practice their
any real or apparent conflict between his
professions or engage in any occupation
private interests and public duties, or in any
except during session hours. However, those
way influence him in the discharge of his
who are members of the bar shall not:
duties, and he shall not take part in the
i. appear as counsel before any court in
management of the enterprise or become an
any civil case where the LGU is adverse
officer or member of the board of directors
party
[Section 12, Rule XVIII, Revised Civil Service
ii. appear as counsel in criminal case
Rules].
where official of government is accused
of an offense in relation to his office
iii. collect any fee for appearance in g. Prohibition against Appointment of
administrative proceedings involving his Members of the Armed Forces to
LGU Certain Positions
iv. use property and personnel of the
government except when sanggunian No member of the armed forces in the active
member is defending interest of the service shall, at any time, be appointed or
government designated in any capacity to a civilian position
in the Government, including government-
Doctors may practice profession even during owned or controlled corporations or any of their
work hours only in occasions of emergency, subsidiaries [Section 5(4), Article XVI, 1987
provided that officials concerned do not derive Constitution].
monetary compensation [Section 90, LGC].
A civil service officer or employee whose

responsibilities do not require his time to be
fully at the disposal of the government can
engage in the private practice of law only with
the written permission of the head of the
department concerned [Catu v. Rellosa, A.C.
No. 5738 (2008)].
2. For Appointive Officers under Civil

Service Rules
General Rule: No officer shall engage directly

in any private business, vocation, or profession
or be connected with any commercial, credit,
agricultural, or industrial undertaking without a
written permission from the head of the
department.
This prohibition will be absolute in the case of

those officers and employees whose duties
and responsibilities require that their entire time
be at the disposal of the Government.
Page 219 of 412

IV. POWERS AND DUTIES Doctrine of Necessary Implication

All powers necessary for the effective exercise
OF PUBLIC OFFICERS of the express powers are deemed impliedly
granted [Nachura].
1. Scope of Power of a Public
Authority can be exercised only during the term
Officer when the public officer is, by law, invested with
a. Expressly conferred upon him by law the rights and duties of the office.
under which he has been appointed or
elected Territorial limitation of authority of public
b. Expressly annexed to the office by law officers:
which created it or some other law ● The authority of public officers is limited to
referring to it territory where law has effect, by virtue of
c. Attached to the office as incidents to it which they claim, has sovereign force—the
authority cannot exist in places where the
Generally, the powers are prescribed by the law has no effect
Constitution or statutes. They only have those ● Where a public officer authorized by law to
powers expressly granted to them. If broader perform his office at a particular place, his
powers are desirable, must be conferred by the action at a place not authorized by law is
proper authority; cannot be merely assumed invalid (i.e. judge levying and selling
nor created by the courts [De Leon]. property outside its jurisdiction is invalid)
[De Leon].
Source of Powers of Public Officer
Authority of Public Officers is derived from the Duration of authority
people themselves. The people, directly or Limited to the term during which he is by law
through representatives, create offices and invested with the rights and duties of the office
agencies as they deem desirable for the [De Leon]
administration of the public function [De Leon].
Construction of grant of powers
Sovereignty resides in the people and all
Express grants of power are subject to a strict
government authority emanates from them
interpretation and will be construed as
[Section 1, Article II, 1987 Constitution].
conferring those powers only which are
expressly imposed or necessarily implied [De
The right to be a public officer, then, or to
Leon; Banco Filipino Savings & Mortgage Bank
exercise the powers and authority of a public
v. Monetary Board, G.R. 70054 (1991)].
office, must find its source in some provision of
the public law.
2. Classification of Powers and
In the absence of a valid grant, public officials Duties
are devoid of power. A public official exercises
power, not rights. The Government itself is a. As to Nature
merely an agency through which the will of the
State is expressed and enforced. Its officers 1. Ministerial – Official duty is ministerial when
therefore are likewise agents entrusted with the it is absolute, certain and imperative involving
responsibility of discharging its functions. As merely execution of a specific duty arising from
such there is no presumption that they are fixed and designated facts. Where the officer or
empowered to act. There must be a delegation official body has no judicial power or discretion
of such authority, either express or implied as to the interpretation of the law, and the
[Villegas v. Subido, G.R. No. L-26534 (1969)]. course to be pursued is fixed by law, their acts
are ministerial only [State ex rel. School Dist. v.
But once the power is expressly granted, it will Ellis, 163 Neb. 86 (Neb. 1956)].
be broadly construed in line with the doctrine of
necessary implication [De Leon]. General Rule: Performance of duties of this
nature may be properly delegated to another.
Page 220 of 412

Exceptions uniformity, system and dispatch in public
● Delegation is expressly prohibited by law; business are generally deemed directory.
or
● The law expressly requires that the act be If the act does not affect third persons and is
performed by the officer in person. not clearly beneficial to the public, permissive
words will not be construed as mandatory [De
Mandamus will lie but only upon a clear Leon].
showing of a legal right [Section 3, Rule 65,
Rules of Court] c. As to the Relationship of the Officer
to His/Her Subordinates
2. Discretionary – Acts which necessarily
require the exercise of reason in the adaptation Power of Control – It implies the power of an
of means to an end, and discretion in officer to manage, direct or govern, including
determining how or whether the act shall be the power to alter or modify or set aside what a
done or the course pursued. When the law subordinate had done in the performance of his
commits to any officer the duty of looking into duties and to substitute his judgment for that of
facts and acting upon them, not in a way which the latter.
it specifically directs, but after a discretion in its
nature, the function is discretionary (e.g. quasi- Power of Supervision
judicial acts). Supervisory power is the power of mere
oversight over an inferior body which does not
General Rule: A public officer cannot delegate include any restraining authority over such
his discretionary duties to another. body. A supervising officer merely sees to it
that the rules are followed, but he himself does
Rationale: In cases where the execution of the not lay down such rules, nor does he have the
office requires exercise of judgment or discretion to modify or replace them [De Leon].
discretion by the officer, the presumption is that
he was chosen because he was deemed fit and
competent to exercise such judgment.
3. Duties of Public Officers
Exception: The power to substitute another in a. General (Constitutional) duties

his place has been expressly granted by law. 1. To be accountable to the people; to serve
them with utmost responsibility, integrity,
Mandamus will not lie for the performance of a loyalty and efficiency; to act with patriotism and
discretionary duty. justice; and to lead modest lives [Section 1,
Article IX, 1987 Constitution]
Exception to the Exception: When the
discretion is granted only as to the manner of 2. To submit a declaration under oath of his
its exercise and not the discretion to act or not assets, liabilities and net worth upon
to act, the court may require a general action assumption of office and as often thereafter as
[BF Homes v. National Water Resources may be required by law [Section 17, Article XI,
Council, G.R. No. 78529 (1987)] 1987 Constitution]
b. As to the Obligation of the Officer to 3. To owe the State and the Constitution
allegiance at all times [Section 18, Article XI,
Perform His/Her Powers and Duties 1987 Constitution]
1. Mandatory – Powers conferred on public
Duty to make financial disclosures for
officers are generally construed as mandatory
Members of Congress— All Members of the
although the language may be permissive,
Senate and the House of Representatives
where they are for the benefit of the public or
shall, upon assumption of office, make a full
individuals.
disclosure of their financial and business
interest. They shall notify the House concerned
2. Permissive – Statutory provisions define the
of a potential conflict of interest that may arise
time and mode in which public officers will
from the filing of a proposed legislation of which
discharge their duties, and those which are
obviously designed merely to secure order,
Page 221 of 412
they are authors [Section 12, Article VI, 1987 7. Act immediately on the public’s personal
Constitution] transactions
8. All public officials and employees must
b. Duties of Public Officers as attend to anyone who wants to avail himself
Trustees for the Public of the services of their offices, and must, at
all times, act promptly and expeditiously.
1. In general 9. Make documents accessible to the public
a. Duty to obey the law 10. All public documents must be made
b. Duty to accept and continue in office accessible to, and readily available for
c. Duty to accept burden of office inspection by, the public within reasonable
d. Duty as to diligence and care in the working hours [De Leon, citing Section 5,
performance of official duties R.A. 6713].
e. Duty in choice and supervision of
subordinates
2. Ethical duties – Bound to perform

honestly, faithfully, and to the best of his ability,
and to act primarily for the benefit of the people.
An attempt to exercise those powers corruptly
for some improper purpose is null and void.
a. Duty to refrain from outside activities that
interfere with the proper discharge of their
duties
b. Duty not to use his official power to further
his own interest.
c. Duty to act with civility [De Leon]
c. Specific Duties under the Code of

Conduct and Ethical Standards for
Public Officials and Employees
1. Act promptly on letters and requests
2. All public officials shall, within fifteen (15)
working days from receipt, respond to
letters, telegrams or other means of
communication sent by the public. The
reply must contain the answer taken on the
request.
3. Submit annual performance reports
4. All heads or other responsible officers of
agencies of the government or of GOCCs
shall, within forty-five (45) working days
from the end of the year, render a full and
complete report of performance and
accomplishments, as prescribed by
existing rules and regulations of the
agency, office or corporation concerned.
5. Process documents and papers
expeditiously
6. All official papers and documents must be
processed and completed within a
reasonable time from the preparation
thereof and must contain, as far as
practicable, not more than three (3)
signatories therein.
Page 222 of 412

IV. DE FACTO VS DE question. It seeks to protect the public by

insuring the orderly functioning of the
JURE OFFICERS government despite technical defects in title to
office.
1. De Facto Officers
b. Elements of a De Facto Officership
a. Definition 1. There must be a de jure office;
An officer de facto is one who has the 2. There must be a color of right or general
reputation of being the officer he assumes to acquiescence by the public;
be, and yet is not a good officer in point of law 3. There must be actual physical possession
[Torres v. Ribo, G.R. No. L-2051 (1948)]. of the office in good faith [Tuanda v.
Sandiganbayan, G.R. No. 110544 (1995)].
A person is a de facto officer where the duties
of the office are exercised: [Luna v. Rodriguez, De Jure Office
G.R. No. L-12647 (1917)] An appointment or election of one to an office
1. Without a known appointment or that has no legal existence gives no color of
election, but under such circumstances of existence to the office or color of authority to
reputation or acquiescence as were the person so appointed or elected.
calculated to induce people, without
inquiry, to submit to or invoke his action, Examples:
supposing him to be the officer he assumed 1. Where persons assume to act as
to be; or incumbents of offices which have been
2. Under color of a known and valid abolished or under authority of statutes
appointment or election, but where the which have been repealed;
officer has failed to conform to some 2. Where there is no law or ordinance even
precedent requirement or condition, such attempting to create an office;
as to take an oath, give a bond, or the like; 3. Where the de jure officer whom the
or purported de facto officer replaced did not
3. Under color of a known election or resign in the manner required by law, so
appointment, but is VOID that there was no de jure office to be filled;
● because: or
○ the officer was not eligible 4. Where statutory conditions of the creation
○ there was a want of power in the of the office have not been complied with;
electing or appointing body or of some
defect or irregularity in its exercise Color of Title to the Office or General
● such ineligibility, want of power or defect Acquiescence by the Public
being unknown to the public The color of right may consist in an election or
4. Under color of an election or appointment, or in holding over after the
appointment, by or pursuant to a public expiration of one's term, or acquiescence by
unconstitutional law, before the same is the public in the acts of such officer de facto for
adjudged to be such. such a length of time as to raise the
presumption of colorable right by election or
The De Facto Doctrine appointment.
A person who, by the proper authority, is
admitted and sworn into office is deemed to be In all cases, it is necessary that the officer de
rightful in such office until, by judicial facto has some appearance of right to the
declaration in a proper proceeding, his is office. The non-existence of any general
ousted therefrom or his admission thereto is reputation or recognition as a public officer may
declared void [De Leon]. be in itself enough to prevent the courts from
giving such status to one who claims to hold the
Basis of the De Facto Doctrine office.
The doctrine springs from the fear of the chaos
that would result from multiple and repetitious
suits challenging every action taken by every
official whose claim to office could be open to
Page 223 of 412

Actual Physical Possession in Good by the public; chosen to the
Faith office
For a person to be an officer de facto, it is 3. Actual
essentially that he be in physical possession physical 4. He
and control of the office. possession of undertakes to
the office in perform the
Such possession must be in good faith, under good faith duties of the
color of right or title, and accompanied by the office
faithful exercise of the functions of the office
and discharge of its duties. Basis of Rests on Matter of right
Authority reputation
Possession alone makes the person a mere
intruder or usurper who is not an officer at all How Direct Cannot be
for any purpose and whose acts in the office Ousted proceeding of ousted even
are wholly void. quo warranto in a direct
proceeding
2. Officer De Jure vs. Officer De
Validity of Valid as to Valid, subject
Facto Official the public to exceptions
Acts until his title (e.g. acting
Officer De Jure vs. Officer De Facto to the office is beyond his
De Facto De Jure adjudged scope of
insufficient authority,
Definition An officer de An officer de etc.)
facto is one jure is one
who has the who is Compen- Conditionally Rightfully
reputation or exercising the sation entitled to entitled to
appearance office as a receive only compensatio
of being the matter of right when no de n; “no work,
officer he or according jure officer is no pay”
assumes to to law [Luna declared and principle is
be but who, v. Rodriguez, only for inapplicable
under the G.R. No. L- actual to him
law, has no 12647 services
right or title to (1917)] rendered
the office he
assumes to Officer De Facto vs. Usurper
hold [Codilla
v. Martinez, Officer Usurper
G.R. No. L- De Facto
14569
(1960)] Possessio One who One who
n of Office takes takes
possession of possession of
Requisites 1. Existence 1. Existence and exercises an office and
of a de jure of a de jure the powers of undertakes to
office; office; the officer act officially,
under any without any
2. 2. He is circumstance authority,
Assumption legally that confers whether
of office qualified to to him some actual or
under a color the office color of apparent
of right or authority
general 3. He is
acquiescence lawfully Color or Some color of No color of
Authority authority right nor title
Page 224 of 412
Rationale: The doctrine is intended not for
to office
the protection of the public officer, but for
the protection of the public and individuals
Validity of Valid as to Acts are who get involved in the official acts of
Acts the public absolutely persons discharging the duties of a public
until his title void and can office.
to the office is be
adjudged impeached in 5. De Facto Officer’s Official Acts
insufficient any
proceeding at
are Not Subject to Collateral
any time Attack
unless and
until he A de facto officer’s title and the validity of his
continues to acts as such cannot be collaterally questioned
act for so in proceedings where he is not a party, or which
long as to were not instituted to determine the very
afford a question.
presumption
of his right to a. Remedy
act The title to a public office may not be contested
except directly, by quo warranto proceedings;
Compen- May be Not entitled to and it cannot be assailed collaterally, even
sation entitled to compensatio through mandamus or a motion to annul or set
compensatio n under any aside the order [Topacio v. Assoc. Justice of
n for services circumstance the Sandiganbayan Ong, G.R. No. 179895
rendered as a (2008)].
matter of
exception b. Who may institute? [Sections 1 & 5,
Rule 66, Rules of Court]
3. Officer Created Under an 1. The Republic of the Philippines
represented by the Solicitor General or a
Unconstitutional Statute public prosecutor; or
2. A person claiming to be entitled to a public
A person appointed or elected in accordance office unlawfully held or exercised by
with a law later declared to be unconstitutional another.
may be considered de facto, at least before the
declaration of unconstitutionality [Civil Liberties
c. When to institute?
Union v. Executive Secretary, G.R. Nos. 83896
& 83815 (1991)].
General Rule: A quo warranto proceeding
must be commenced within 1 year after the
4. Legal Effects of Acts of De cause of such ouster or the after the right of the
Facto Officers [Monroy v. CA, petitioner to hold such office or position arose
G.R. No. L-23258 (1967)] [Section 11, Rule 66, Rules of Court]
Exception: When the government is the real

a. As regards the officers themselves: A
party in interest and it is proceeding mainly to
party suing or defending in his own right as
assert its rights, there can be no defense on the
a public officer must show that he is a de
ground of laches or prescription.
jure officer. It is not sufficient that he be
merely a de facto officer.
Prescription does not lie against the State
[Republic v. Sereno, G.R. No. 237428 (2018)]
b. As regards the public and third persons:
The acts of a de facto officer are valid as to
third persons and the public until his title to
office is adjudged insufficient.
Page 225 of 412

6. Liability of De Facto Officers [De
Leon]
A de facto officer generally has the same
degree of liability and accountability for official
acts as a de jure officer.
The de facto officer may be liable for all

penalties imposed by law for:
a. usurping or unlawfully holding office;
b. exercising the functions of public office
without lawful right; or
c. exercising functions of public office without
being qualified according to law
A de facto officer cannot excuse responsibility

for crimes committed in his official capacity by
asserting his de facto status.
A de facto office is liable to account to the de

jure officer whatever salary he received during
the period of his wrongful tenure.
7. Right to Compensation of De Facto

Officer
General Rule: The office de facto is not entitled

to compensation.
The rightful incumbent of a public office may

recover from an officer de facto the salary
received by the latter during the time of his
wrongful tenure, even though the officer de
facto entered into the office in good faith and
under color of title.
A de facto officer, not having a good title, takes

the salaries at his risk and must, therefore,
account to the de jure officer for whatever
salary he received during the period of his
wrongful tenure [Monroy v. CA, G.R. No. L-
23258 (1967)].
Exception: In cases where there is no de jure

officer, a de facto officer, who, in good faith,
has had possession of the office and has
discharged the duties pertaining thereto, is
legally entitled to the emoluments of the office,
and may recover the salary, fees, and other
compensations attached to the office [Civil
Liberties Union v. Executive Secretary, supra].
Page 226 of 412

V. THE CIVIL SERVICE exercise control and supervision over the

activities of the Commission;
7. Control, supervise and coordinate Civil
1. Scope Service examinations. Any entity or official
in government may be called upon by the
The Civil Service embraces all branches, Commission to assist in the preparation
subdivisions, instrumentalities and and conduct of said examinations including
agencies of the Government, including security, use of buildings and facilities as
government-owned and controlled well as personnel and transportation of
corporations with original charters [Section examination materials which shall be
2(1), Article IX-B, 1987 Constitution]. exempt from inspection regulations;
8. Prescribe all forms for Civil Service
The Civil Service Commission, as the central examinations, appointments, reports and
personnel agency of the Government, shall such other forms as may be required by
establish a career service and adopt measures law, rules and regulations;
to promote morale, efficiency, integrity, 9. Declare positions in the Civil Service as
responsiveness, progressiveness, and may properly be primarily confidential,
courtesy in the civil service [Section 3, highly technical or policy determining;
Article IX-B, 1987 Constitution]. 10. Formulate, administer and evaluate
programs relative to the development and
a. Powers and Functions [Section 12, retention of qualified and competent work
Chapter 3, Subtitle A, Title I, Book V, force in the public service;
Administrative Code] 11. Hear and decide administrative cases
instituted by or brought before it directly or
The Administrative Code enumerates the on appeal, including contested
following powers and functions of the Civil appointments, and review decisions and
Service Commission: actions of its offices and of the agencies
1. Administer and enforce the constitutional attached to it. Officials and employees who
and statutory provisions on the merit fail to comply with such decisions, orders,
system for all levels and ranks in the Civil or rulings shall be liable for contempt of the
Service; Commission. Its decisions, orders, or
2. Prescribe, amend and enforce rules and rulings shall be final and executory. Such
regulations for carrying into effect the decisions, orders, or rulings may be
provisions of the Civil Service Law and brought to the Supreme Court on certiorari
other pertinent laws; by the aggrieved party within thirty (30)
3. Promulgate policies, standards and days from receipt of a copy thereof;
guidelines for the Civil Service and adopt 12. Issue subpoena and subpoena duces
plans and programs to promote tecum for the production of documents and
economical, efficient and effective records pertinent to investigations and
personnel administration in the inquiries conducted by it in accordance with
government; its authority conferred by the Constitution
4. Formulate policies and regulations for the and pertinent laws;
administration, maintenance and 13. Advise the President on all matters
implementation of position classification involving personnel management in the
and compensation and set standards for government service and submit to the
the establishment, allocation and President an annual report on the
reallocation of pay scales, classes and personnel programs;
positions; 14. Take appropriate action on all
5. Render opinion and rulings on all personnel appointments and other personnel matters
and other Civil Service matters which shall in the Civil Service including extension of
be binding on all heads of departments, Service beyond retirement age;
offices and agencies and which may be 15. Inspect and audit the personnel actions
brought to the Supreme Court on certiorari; and programs of the departments,
6. Appoint and discipline its officials and agencies, bureaus, offices, local
employees in accordance with law and government units and other
instrumentalities of the government
Page 227 of 412
including government-owned or controlled If the decision is appealable to the CSC, the
corporations; conduct periodic review of decision may be appealed first to the
the decisions and actions of offices or department, then to the Commission.
officials to whom authority has been
delegated by the Commission as well as Pending appeal, the decision shall be
the conduct of the officials and the executory except when penalty is removal. If
employees in these offices and apply penalty is removal, it shall only be executory
appropriate sanctions whenever AFTER confirmation by the Secretary
necessary; confirmed.
16. Delegate authority for the performance of
any function to departments, agencies and 3. The Regional Director or similar officials
offices where such function may be may investigate. They shall furnish the
effectively performed; necessary report and recommendation to
17. Administer the retirement program for the chief of bureau or office or department.
government officials and employees, and
accredit government services and evaluate Investigation shall be held not earlier than five
qualifications for retirement; days nor later than ten days from the date of
18. Keep and maintain personnel records of all receipt of respondent’s answer by the
officials and employees in the Civil Service; disciplining authority, and shall be finished
and within thirty days from the filing of the charges,
19. Perform all functions properly belonging to unless the period is extended by the
a central personnel agency and such other Commission in meritorious cases [Section 48,
functions as may be provided by law. Para. 4, Chapter 7, Subtitle A, Title I, Book V,
Administrative Code].
b. Jurisdiction of the Civil Service
Commission over Disciplinary Cases 4. An appeal shall not stop the decision from
[Section 47, Chapter 7, Subtitle A, Title being executory, and in case the penalty is
suspension or removal, the respondent
I, Book V, Admin Code] shall be considered as having been under
preventive suspension during the
1. The CSC has appellate jurisdiction over pendency of the appeal in the event he
administrative disciplinary cases involving: wins an appeal.
● the imposition of a penalty of
suspension for more than thirty
days, OR
c. Jurisdiction of CSC over
● fine in an amount exceeding thirty employment status and qualification
days’ salary OR standards [Section 21, Chapter 5,
● demotion in rank or salary,OR Subtitle A, Title I, Book V,
● Transfer, OR Administrative Code]
● Removal, OR
● Dismissal from office. 1. Each Department or Agency may have
their own screening process which may
The Complaint may be filed directly with the include tests of fitness, in accordance with
CSC by a private citizen against a government standards and guidelines set by the
official or employee. Commission.
2. Promotion boards shall be formed to
2. Secretaries and heads of agencies and formulate criteria for evaluation, conduct
instrumentalities, provinces, cities and tests or interviews, and make systematic
municipalities have jurisdiction to: assessment of training experience.
● investigate and decide matters 3. A qualified next-in-rank employee may
involving disciplinary action against appeal the appointment of another
officers and employees under their employee:
jurisdiction. ● Secretaries or heads of agencies or
● Their decisions shall be FINAL if the instrumentalities including
penalty they impose is suspension for government-owned or controlled
not more then 30 days, or a fine not corporations with original charters,
exceeding 30 days’ salary.
Page 228 of 412
● Then to the Merit System Protection 3. Appointments to the Civil
Board, and
● Finally to the Civil Service Commission. Service
The decision of the CSC may be reviewed on a. Career Service

certiorari only by the Supreme Court within 30
days from receipt of decision by the aggrieved Characterized by:
party. a. Entrance based on merit and fitness to be
determined as far as practicable by
Note: As to the power of the CSC to review an competitive examinations, or based on
appointee’s qualifications: The only function of highly technical qualifications,
the CSC is to review the appointment in the b. Opportunity for advancement to higher
light of the requirements of the Civil Service career positions, and
Law, and when it finds the appointee to be c. Security of tenure.
qualified and all other legal requirements have
been otherwise satisfied, it has no choice but Includes: [Section 7, Para. 2, Chapter 2,
to attest to the appointment [Lapinid v. CSC, Subtitle A, Title I, Book V, Administrative Code]
G.R. No. 96298 (1991)]. a. Open Career positions - Appointment to
which prior qualification in an appropriate
In TIDCORP v. CSC [G.R. No. 182249 (2013)], examination is required;
the Court clarified that the CSC’s rulemaking b. Closed Career positions - Scientific, or
power, albeit constitutionally granted, is still highly technical in nature;
limited to the implementation and c. Positions in the Career Executive Service
interpretation of the laws it is tasked to (CES), all of whom are appointed by the
enforce. Thus, a law which exempts an agency President; namely:
from rules on position classification cannot be i. Undersecretary and Assistant
overridden by a CSC Memorandum Circular. Secretary
ii. Bureau Director and Assistant
Bureau Director
2. Limitations on the CSC’s iii. Regional Director and Assistant
Powers Regional Director
iv. Chief of Department Service and
a. It cannot order the replacement of the other officers of equivalent rank as
appointee simply because it considers may be identified by the Career
another employee to be better qualified Executive Service Board;
[Lapinid v. CSC, supra]. d. Career officers (other than those in the
b. The CSC cannot co-manage or be a Career Executive Service) who are
surrogate administrator of government appointed by the President, such as the
offices and agencies. Foreign Service Officers in the Department
c. It cannot change the nature of the of Foreign Affairs;
appointment extended by the e. Commissioned officers and enlisted men of
appointing officer [Luego v. CSC, G.R. the Armed Forces which shall maintain a
No. L-69136 (1986)]. separate merit system;
f. Personnel of government-owned or
The authority of city or municipal mayors to controlled corporations, whether
exercise administrative supervision over performing governmental or proprietary
city/municipal civil registrars is not exclusive, functions, who do not fall under the non-
but concurrent with the CSC [Mamiscal v. career service; and
Abdullah, A.M. No. SCC-13-18-J (2015)]. g. Permanent laborers, whether skilled, semi-
skilled, or unskilled.
Page 229 of 412

b. Non-Career Service [Section 9, Positions which fall under these 3 exceptions
Chapter 2, Subtitle A, Title I, Book V, are also positions wherein there may be
Administrative Code] removal at the pleasure of the appointing
authority.
Characterized by:
a. Entrance on bases other than usual test of Classes of Positions in the Career
merit and fitness; Service
b. Tenure which is limited either to: Three major levels which require examinations:
i. Period specified by law or
ii. Period which is coterminous with that 1. Clerical, trades, crafts, custodial service
of the appointing power subject to his Involve non-professional or sub
pleasure, or professional work in a non-supervisory or
iii. Duration of a particular project. supervisory capacity requiring less than
four years of college
Includes:
a. Elective officials and their personal or 2. Professional, Technical and Scientific
confidential staff; positions
b. Department heads who hold positions at Involve professional, technical or scientific
the pleasure of the President, including work in a non-supervisory or supervisory
their staff; capacity requiring at least 4 years of
c. Chairmen and members of commissions college
and boards with fixed terms of office,
including their staff; 3. Career Executive Service
d. Contractual personnel; The CES covers presidential appointees
e. Emergency and seasonal personnel only [Office of the Ombudsman v. Civil
Service Commission, 528 SCRA 535
Career Service Appointments — (2007)]. Officials occupying positions in the
Determination of Merit and Fitness third level of the civil service (i.e.,
undersecretary, assistant secretary,
General Rule: Appointments to the Career bureau director, assistant bureau director,
Service shall be made only according to merit chief of department service, and other
and fitness, to be determined as far as officers of equivalent rank as may be
practicable by competitive examination identified by the Career Executive Service
[Section 2(2), Article IX(B), 1987 Constitution]. Board (CESB), all of whom are appointed
by the President) have no security of tenure
Exceptions: Positions which are: and may be removed anytime unless they
a. Policy determining - Where the officer is have secured an eligibility from the CESB
vested with the power of formulating and have been issued the career executive
policies for the government or any of its service officer (CESO) rank by the
agencies, subdivisions, or President upon the recommendation of the
instrumentalities. CESB.
b. Primarily Confidential – Characterized by
the close proximity of positions of the Requirement of Competitive
appointee as well as the high degree of Examinations
trust and confidence inherent in their
relationship [CSC v. Javier, G.R. No. Entrance
173264 (2008)]. ● Entrance to levels (a) and (b) is through
c. Highly Technical – Requires possession competitive examinations, which shall be
of technical skill or training in a superior open to those inside and outside the
degree (e.g. City Legal Officer) service who meet the minimum
qualifications. Entrance to a higher level
Note: It is the nature of the position which does not require previous qualifications.
determines whether a position is policy ● Entrance to € is prescribed by the Career
determining, primarily confidential or highly Executive Service Board.
technical.
Page 230 of 412

Promotion b. A position of equal rank as those
● For promotion within the same level, no enumerated, and identified by the
civil service examination is required, Career Executive Service Board to be
provided he has previously passed the such a position of equal rank.
same for the said level [De Leon; Section 2. Holder of the position must be a
8, Chapter 2, Subtitle A, Title I, Book V, presidential appointee.
d. Approval and Recall of the
1st and 2nd level appointees should be both:
1. Eligible – Person who obtains a passing
CSC
grade in a civil service examination or is
granted a civil service eligibility and whose e. Approval
name is entered in the register of 231ligible
2. Qualified – Meets qualification standards General Rule: Appointments for competitive
positions need approval of the CSC.
If no person eligible applies, but non-
eligibles with qualifications apply, they may For an appointee to a classified position to be
be appointed if: entitled to the protection of the law against
1. Immediate filling is urgently required by unjust removal, his appointment must receive
public interest or the proper approval of the Commissioner of
2. Temporary filling of vacancies [Section Civil Service [Favis v. Rupisan, G.R. No. L-
21(7), Chapter 5, Subtitle A, Title I, Book V, 22823 (1966)]. If the person is qualified, CSC
Administrative Code] has no other power but to affirm.
A non-eligible shall not be appointed to any Fundamental is the rule that appointment is an
position in the civil service whenever there is a essentially discretionary power and must be
civil service eligible actually available for and performed by the officer in whom it is vested
ready to accept appointment [Section 26, according to his best lights, the only condition
Chapter 5, Subtitle A, Title I, Book V, being that the appointee shall possess the
Administrative Code]. qualifications required by law. If he does, then
the appointment cannot be faulted on the
Qualification Standards [Section 22, ground that there are others better qualified
Chapter 5, Subtitle A, Title I, Book V, who should have been preferred. This is a
political question involving considerations of
Administrative Code]:
wisdom which only the appointing authority can
decide [Español v. CSC, G.R. No. 85479
A qualification standard expresses the
(1992)].
minimum requirements for a class of positions
in terms of education, training and experience,
Exceptions: Presidential appointments, AFP,
civil service eligibility, physical fitness, and
police forces, firemen and jail guards [De Leon]
other qualities required for successful
performance.
f. Recall
The establishment, administration and
maintenance of qualification standards shall be Grounds [Section 20, Rule VI, IRR of
the responsibility of the department or agency, Administrative Code; De Rama v. CA, G.R.
with the assistance and approval of the Civil No. 131135 (2001)]
Service Commission and in consultation with 1. Non-compliance with the
the Wage and Position Classification Office. procedures/criteria provided by the
agency’s Merit Promotion Plan
Two elements for a position to be 2. Failure to pass through the agency’s
covered by the CES Selection/Promotion Board
1. Position must either be: 3. Violation of existing collective agreement
a. A position enumerated under Section between management and employees
7(3), Chapter 2, Subsection A, Title I, relative to promotion Violation of other
Book V of the Administrative Code of existing civil service laws, rules and
1987, OR regulations
Page 231 of 412
Note: The above grounds are available despite 6-month Probationary Period
initial approval by the CSC of the appointment. Original appointees in the career service with
permanent status of appointment, shall
Distinguished From Recall Under LGC undergo probationary period for a thorough
Recall under Recall under LGC assessment of his/her performance and
Admin Code character.
The CSC has the Recall under Section
power to recall an 69-75 of the Local A probationer may be dropped from the service
appointment which Government Code is for unsatisfactory conduct or want of capacity
has been initially a mode of removal any time before the expiration of the
approved when it is of a public official by probationary period: Provided, That such
shown that the same the people before action is appealable to the Commission
was issued in the end of his term [Section 26(1), Chapter 5, Subtitle A, Title I,
disregard of of office. Book V, Administrative Code].
pertinent CSC laws,
rules and 2. Promotion
regulations. A promotion is a movement from one position
[Garcia v. COMELEC, G.R. No. 111511 (1993)] to another with an increase in duties and
responsibilities as authorized by law and
g. Personnel Actions usually accompanied by an increase in pay.
Any action denoting the movement or progress The movement may be from one department or
of personnel in the civil service shall be known agency to another or from one organizational
as personnel action. unit to another in the same department or
agency [Section 26(2), Chapter 5, Subtitle A,
Such action shall include appointment through Title I, Book V, Administrative Code].
certification, promotion, transfer,
reinstatement, re-employment, detail, Any upward movement from the non-career
reassignment, demotion, and separation. service to the career service and vice versa
shall not be considered as a promotion but as
All personnel actions shall be in accordance reappointment.
with such rules, standards, and regulations as
may be promulgated by the Commission Within the same level, no civil service
[Section 26, Para. 2, Chapter 5, Subtitle A, Title examination shall be required for promotion to
I, Book V, Administrative Code]. a higher position in one or more related
occupational groups. A candidate for
1. Original Appointment or promotion should, however, have previously
Appointment through passed the examination for that level [Section
8(3), Chapter 2, Subtitle A, Title I, Book V,
Certification
Original The pendency of an administrative case
The initial entry into the career or non-career
against any employee shall not be a bar to
service.
promotion.
Appointment through Certification An employee who has been found guilty of an
An appointment through certification to a administrative offense and imposed the penalty
position in the civil service, except as herein of demotion, suspension or fine shall be
otherwise provided, shall be issued to a person disqualified for promotion for the same period
who has been selected from a list of qualified of suspension or fine [Section 11(b), Rule IV,
persons certified by the Commission from an 2017 Omnibus Rules on Appointments and
appropriate register of 232ligible, and who Other Human Resource Actions].
meets all the other requirements of the
position. Next-In-Rank Rule
When a vacancy occurs in a position in the
second level of the Career Service as defined
in Section 8, the employees in the government
Page 232 of 412
service who occupy the next lower positions in b. All promotional appointments are
the occupational group under which the vacant simultaneously submitted to the
position is classified, qualified and with the Commission for approval
appropriate civil service eligibility shall be c. The Commission disapproves the
considered for promotion. appointment of a person to a higher
position [Divinagracia v. Sto. Tomas, G.R.
Section 4, CSC Resolution No. 83-343: An No. 110954 (1995)].
employee who holds a next-in-rank position
who is deemed the most competent and The disapproval of the appointment of a person
qualified, possesses an appropriate civil proposed to a higher position invalidates the
service eligibility, and meets the other promotion of those in the lower positions and
conditions for promotion shall be promoted to automatically restores them to their former
the higher position when it becomes vacant. positions. However, the affected persons are
However, the appointing authority may entitled to payment of salaries for services
promote an employee who is not next-in-rank actually rendered at a rate fixed in their
but who possesses superior qualifications and promotional appointments.
competence compared to a next-in-rank
employee who merely meets the minimum 3. Transfer
requirements for the position. A transfer is a movement from one position to
another which is of equivalent rank, level, or
The rule neither grants a vested right to the salary without break in service involving the
holder nor imposes a ministerial duty on the issuance of an appointment.
appointing authority to promote such person to
the next higher position. It shall not be considered disciplinary when
made in the interest of public service, in which
A qualified next-in-rank employee shall have case, the employee concerned shall be
the right to appeal initially to the Secretaries or informed of the reasons therefor. If the
heads of agencies or instrumentalities employee believes that there is no justification
including GOCCs with original charters, then to for the transfer, he may appeal his case to the
the Merit System Protection Board, and finally Commission.
to the Civil Service Commission an
appointment made in favor of another The transfer may be from one department or
employee if the appellant is not satisfied with agency to another or from one organizational
the written special reason or reasons given by unit to another in the same department or
the appointing authority for such appointment; agency: Provided, however, That any
Provided, however, that the decision of the Civil movement from the non-career service to the
Service Commission may be reviewed on career service shall not be considered a
certiorari only by the Supreme Court within transfer [Section 26(3), Chapter 5, Subtitle A,
thirty (30) days from receipt of the decision of Title I, Book V, Administrative Code].
the aggrieved party.
While a temporary transfer or assignment of
“Qualified next-in-rank” — An employee personnel is permissible even without the
appointed on a permanent basis to a position employee’s prior consent, it cannot be done
previously determined to be next- in-rank and when the transfer is a preliminary step toward
who meets the requirements for appointment his removal, or a scheme to lure him away from
thereto as previously determined by the his permanent position, or when it is designed
appointing authority and approved by the to indirectly terminate his service, or force his
Commission [Section 21 (b), Chapter 5, resignation. Such a transfer would in effect
Subtitle A, Title I, Book V, Administrative circumvent the provision which safeguards the
Code]. tenure of office of those who are in the Civil
Service [Republic v. Pacheo, G.R. No. 178021
Automatic Reversion Rule (2012)].
Requisites: 4. Reinstatement
a. Series of promotions Any person who has been permanently
appointed to a position in the career service
Page 233 of 412
and who has, through no delinquency or If the employee believes that there is no
misconduct, been separated therefrom, may justification for the detail, he may appeal his
be reinstated to a position in the same level for case to the Commission. Pending appeal, the
which he is qualified [Section 26(4), Chapter 5, decision to detail the employee shall be
Subtitle A, Title I, Book V, Administrative executory unless otherwise ordered by the
Code]. Commission [Section 26(6), Chapter 5, Subtitle
A, Title I, Book V, Administrative Code].
Requisites for validity
a. Any permanent appointee of a career No detail or reassignment whatever shall be
service position made within three (3) months before any
b. No commission of delinquency or election [Section 58, Chapter 8, Subtitle A, Title
misconduct, and is not separated. I, Book V, Administrative Code].
c. The reinstatement is to a position in the
same level for which the officer is qualified. Detail shall be governed by the following
rules:
Note: Pardon does not ipso facto restore a a. The detailed employee shall receive his/her
convicted felon to public office (a new salary only from his/her parent
appointment must be given) department/agency.
b. Detail without consent shall be allowed only
However, when a person is acquitted because for a period of one (1) year.
he did not truly commit the offense he is c. Detail with consent shall be allowed for a
relieved from all punitive consequences of the maximum of three (3) years. The extension
criminal act. He need no longer apply for or renewal of the detail shall be
reinstatement; he is restored to his office ipso discretionary on the part of the parent
facto upon the issuance of the clemency, and agency.
he is entitled to back wages [Garcia v. d. Detail from one dept/ agency to another
Chairman of the Commission on Audit, G.R. shall be covered by an agreement
No. L-75025 (1993)]. manifesting the arrangement between the
agency heads that it shall not result in
Reinstatement to Comparable Position reduction in rank, status, or salary of the
The restoration of a person, as a result of a employee, the duration of the detail, duties
decision, to a career position from which to be assigned to the employee and
he/she has been separated but subject position responsibilities of the parent agency and
is already abolished, requiring the issuance of receiving agency [Section 13(b)(1-4), Rule
an appointment to a comparable position to the IV, 2017 Omnibus Rules].
separated employee [Section 11(f), Para. 1,
Rule IV, 2017 Omnibus Rules]. 7. Reassignment
An employee may be reassigned from one
5. Reemployment organizational unit to another in the same
Names of persons who have been appointed agency: Provided, That such reassignment
permanently to positions in the career service shall not involve a reduction in rank, status or
and who have been separated as a result of salary [Section 26(7), Chapter 5, Subtitle A,
reduction in force or reorganization, shall be Title I, Book V, Administrative Code].
entered in a list from which selection for
reemployment shall be made [Section 26(5), Reassignment shall be governed by the
Chapter 5, Subtitle A, Title I, Book V, following rules:
Administrative Code]. a. Reassignment of employees with state-
specific place of work indicated in their
6. Detail respective appointments within the
A detail is the movement of an employee from geographical location of the agency shall
one agency to another without the issuance of be allowed only for a maximum period of
an appointment and shall be allowed, only for a one (1) year.
limited period in the case of employees i. The restoration or return to the original
occupying professional, technical and scientific post/assignment shall be automatic
positions. without the need of any order of
Page 234 of 412

restoration/revocation of the order of human resource management and
reassignment. provided that the performance rating
ii. An appointment is considered station- of the employee is at least
specific when Satisfactory.
1. The particular office or station c. Personal or coterminous staff of elective
where the position is located is officials, who shall continue to serve in a
specifically indicated on the face of coterminous capacity upon reelection of
the appointment paper; or the said elective officials.
2. The position title already specifies d. In the same manner personal or
the station. coterminous staff of officials whose term of
b. If an appointment is not station-specific, the office ended and are subsequently
one-year maximum period of reassignment absorbed or rehired by the succeeding
within the geographical location of the official without gap in their service shall be
agency shall not apply. issued new appointments, the nature of
i. However, the employee concerned which is reappointment.
may request for a recall of the Reappointment presupposes no gap in the
reassignment citing his/her reasons service [Section 11€, Rule IV, 2017 Omnibus
why he/she wants to go back to his/her Rules].
original station.
ii. The reassignment may also be revoked 9. Demotion
or recalled by the appointing The movement of an employee from a higher
officer/authority or be declared not valid position to a lower position where he/she
by the Civil Service Commission or a qualifies, if a lower position is available. The
competent court, on appeal [Section demotion entails reduction in duties,
13(a)(1-2 & 4-5), Rule IV, 2017 responsibilities, status or rank, which may or
Omnibus Rules]. may not involve a reduction in salary.
Reassignment should not amount to In cases where the demotion is due to

constructive dismissal. reorganization or rationalization, the employee
shall be allowed to continue to receive the
8. Reappointment salary of the higher position,
The issuance of an appointment as a result of
reorganization, devolution, salary In cases where the demotion is voluntary or at
standardization, re-nationalization, the instance of the employee, he/she shall be
recategorization, rationalization or similar allowed to receive the same step of the salary
events, including the following: grade of the position where he/she voluntarily
a. The issuance of appointment from sought to be appointed. A written consent shall
temporary to permanent, career to non- be secured from the demoted employee
career or vice versa, non-career to another [Section 11(g), Rule IV, 2017 Omnibus Rules].
non-career, all of which entails no gap in
the service. 10. Reclassification
i. Non-career employees who are A form of staffing modification and/or position
appointed for the first time in the classification action which is applied only when
career service under permanent there is a substantial change in the regular
status shall be required to undergo duties and responsibilities of the position.
probationary period for six (6) months.
b. The renewal of temporary, contractual and This may result in a change in any or all of the
casual appointment upon the expiration of position attributes: position title, level and/or
the appointment or subsequent salary grade. It generally involves a change in
appointment of substitute teachers, which the position title and may be accompanied by
entails no gap in the service. an upward or downward change in salary.
i. A temporary appointment may be
renewed if there is no qualified eligible Reclassification is the generic term for changes
actually available who is willing to in staff/position classification which includes
accept the appointment, as certified upgrading, downgrading, and recategorization.
by the highest official in charge of
Page 235 of 412
Reclassification of position requires the
issuance of an appointment but the same is
ministerial on the part of the appointing
officer/authority.
The appointment of an incumbent (permanent

employee) whose position was reclassified
shall be approved/validated, regardless of
whether he/she meets the qualification
requirements of the position involved. The
incumbent of the reclassified position has a
vested right to the reclassified position but
he/she shall not be promoted unless he/she
meets the qualification requirements of the next
higher position.
In LGUs, no reclassification shall be allowed

except when the position is actually vacant
[Section 11(h), Rule IV, 2017 Omnibus Rules].
Page 236 of 412

Personnel Description/ Movement Contemplates Needs new

Action Requisites Gap in Appointment
Employment? Papers?
Original Undergoes 6 month Yes

Appointment probationary period
Promotion Increase in duty & Upward; may

pay include:
-within the same
department or
agency
-from one
department or
agency
to another
Transfer Equivalent rank, May include: None Yes

level, salary -within same
department or
agency
-from one
department or
agency
to another
Reinstatement Was separated Same position None No

(Same Position) through no
delinquency,
reinstated to same
position
Reinstatement Was separated Abolished position Yes

(Comparable through no to
Position) delinquency, new position
reinstated to same
position
Reemployment Was separated as a Same position Yes

result of reduction in
force or
reorganization,
reorganization,
retirement, voluntary
resignation,
dropping
from rolls etc.
Detail Limited period; in Same position, one No

case of professional, agency to another
technical and agency
scientific positions
Page 237 of 412
Personnel Description/ Movement Contemplates Needs new

Action Requisites Gap in Appointment
Employment? Papers?
Reassignment No reduction of Different

rank; organizational unit,
1-year period for but within the same
station specific; No agency
1
year period for
nonstation
specific
Reappointment Appointment as a May include: Yes, for

result of -Non-career to coterminous staff
reorganization, career who continue to
devolution, salary and vice versa serve as such
standardization, -Temporary to upon reelection of
renationalization, permanent and official and
recategorization, vice coterminous staff
rationalization etc versa of previous
-Renewal of official rehired by
temporary, succeeding
contractual, casual official
etc
Demotion Reduction in duties, Higher to lower

responsibilities, position
status, rank; May be
voluntary/
involuntary
Reclassification Substantial change May include: Yes (ministerial

in regular duties upgrading, on the part of the
resulting in changes downgrading, appointing
in position attributes recategorization officer)
Page 238 of 412

VI. ACCOUNTABILITY OF 11. Improper or unauthorized solicitation of

contribution from subordinate employees
PUBLIC OFFICERS and by teachers of school officials from
school children
12. Violation of existing Civil Service Law and
A. Discipline rules or reasonable office regulations
13. Falsification of official documents
1. Grounds 14. Frequent unauthorized absences or
tardiness in reporting for duty, loafing or
Grounds for Disciplinary Action under frequent unauthorized absences from duty
the Local Government Code: during regular office hours
1. Disloyalty to the Republic of the Philippines 15. Habitual drunkenness
2. Culpable violation of the Constitution 16. Gambling prohibited by law
3. Dishonesty, oppression, misconduct in 17. Refusal to perform official duty or render
office and neglect of duty overtime service
4. Commission of any offense involving moral 18. Disgraceful, immoral or dishonest conduct
turpitude or an offense punishable by at prior to entering the service
least prision mayor 19. Physical or mental incapacity or disability
5. Abuse of authority due to immoral or vicious habits
6. Unauthorized absence for fifteen (15) 20. Borrowing money by superior officers from
consecutive working days except in the subordinates or lending by subordinates to
case of members of the sangguniang superior officers
panlalawigan, sangguniang panglunsod, 21. Lending money at usurious rates of interest
sangguniang bayan, and sangguniang 22. Willful failure to pay just debts or willful
barangay failure to pay taxes due the government
7. Application for, or acquisition of, foreign 23. Contracting loans of money or other
citizenship or residence or the status of an property from persons with whom the office
immigrant of another country of the employee concerned has business
8. Such other grounds as may be provided by relations
law an elective local official may be 24. Pursuit of private business, vocation or
removed from office on the grounds profession without the permission required
enumerated above by order of the proper by the Civil Service rules and regulations
court 25. Insubordination
26. Engaging, directly or indirectly, in partisan
Grounds for Disciplinary Action Under political activities by one holding
the Civil Service Law (P.D. No. 807) nonpolitical office
1. Dishonesty 27. Conduct prejudicial to the best interest of
2. Oppression the service
3. Neglect of duty 28. Lobbying for personal interest or gain in
4. Misconduct legislative halls and offices without
5. Disgraceful and immoral conduct authority
6. Being notoriously undesirable 29. Promoting the sale of tickets in behalf of
7. Discourtesy in the course of official duties private enterprises that are not intended for
8. Inefficiency and incompetence in the charitable or public welfare purposes and
performance of official duties even in the latter cases if there is no prior
9. Receiving for personal use a fee, gift or authority
other valuable thing in the course of official 30. Nepotism
duties or in connection therewith when
such fee, gift, or other valuable thing is Negligence vs. Dishonesty
given by any person in the hope or Negligence Dishonesty
expectation of receiving a favor or better
treatment than that accorded other In the case of public Dishonesty begins
persons, or committing acts punishable officials, there is when an individual
under the anti-graft laws negligence when intentionally makes
10. Conviction of a crime involving moral there is a breach of a false statement in
turpitude
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established rules are present [NPC v. CSC,
duty or failure to any material fact or
G.R. 152093 (2012)].
perform the practicing or
obligation, and there attempting to
Simple neglect of duty is defined as the
is gross negligence practice any
failure of an employee to give proper attention
when a breach of deception or fraud
to a required task or to discharge a duty due to
duty is flagrant and in order to secure
carelessness or indifference. On the other
palpable his examination,
hand, gross neglect of duty is characterized by
[Presidential Anti- registration,
want of even the slightest care, or by conscious
Graft Commission appointment or
indifference to the consequences, and in cases
and the Office of the promotion. It should
involving public officials, by flagrant and
President v. Pleyto, be emphasized
palpable breach of duty. It is the omission of
G.R. No. 176058 only when the
that care that even inattentive and thoughtless
(2011)]. accumulated
men never fail to take on their own property
wealth becomes
[Land Bank of the Philippines v. San Juan Jr.,
manifestly
G.R. 192890 (2013)].
disproportionate to
the employee's
income or other 2. Jurisdiction
sources of income a. Heads of ministries, agencies and
and his failure to instrumentalities, provinces, cities and
properly account or municipalities have jurisdiction to
explain his other investigate and decide matters involving
sources of income disciplinary action against officers and
does he become employees under their jurisdiction.
susceptible to b. The decision is final in case the penalty
dishonesty imposed is suspension of not more than 30
[Ombudsman v. days or fine in an amount not exceeding
Nieto, G.R. No. 30-days salary.
185685 (2011)] c. In other cases, the decision shall be initially
appealed to the department head and
finally to the Civil Service Commission and
Misconduct in Office pending appeal. It shall be executory
Misconduct in office refers to "any unlawful EXCEPT when the penalty is removal, in
behavior by a public officer in relation to the which case it shall be executory only after
duties of his office, willful in character. The term confirmation by the department head.
embraces acts which the office holder had no d. The Civil Service Commission has
right to perform, acts performed improperly, appellate jurisdiction. Case may be filed
and failure to act in the face of an affirmative directly to it; it may decide on the case or
duty to act." In grave misconduct, as deputize a department or agency.
distinguished from simple misconduct, the
elements of corruption, clear intent to violate 3. Dismissal, Preventive Suspension,
the law, or flagrant disregard of established rule Reinstatement and Back Salaries
must be manifest. Corruption as an element of
grave misconduct consists in the act of an Dismissal - Offices may also become vacant
official or employee who unlawfully or by the removal or dismissal of the incumbent
wrongfully uses his station or character to from the service. It may be arbitrary or for
procure some benefit for himself or for another, cause [De Leon].
contrary to the rights of others [Gabon v.
Merka, A.M. P-11-3000 (2011)]. Removal - The ouster of an incumbent before
the expiration of his term
Grave misconduct consists in a government ● Implies that the office exists after the ouster
official's deliberate violation of a rule of law or ● Another term used is dismissal
standard of behavior. It is regarded as grave
when the elements of corruption, clear intent to What constitutes removal
violate the law, or flagrant disregard of
A removal from office may be expressed or
implied.
Page 240 of 412
1. Appointment of another officer — 5. Constructive removal or dismissal –
Generally, where an officer may be defined as a quitting because continued
removed by a superior officer at the latter’s employment is rendered impossible,
pleasure, the act of removal is unreasonable or unlikely, when there is
accomplished merely by the appointment demotion in rank or of pay.
of another officer in his place, so far as the
officer himself is concerned, but in order to It exists when an act of clear discrimination,
render the removal effective in all cases, insensibility or disdain by an employer (or
the incumbent must be notified superior) becomes unbearable to the
employee, leaving him with no option but to
2. Transfer to another office forego his continued employment [De Leon].
a. The transfer of an officer or employee
without his consent from one office to Legislative regulation of removal
another, whether it results in promotion 1. Where office created by statute –
or demotion, advancement or reduction Ordinarily, where an office is created by
in salary, is equivalent to his illegal statute, it is wholly within the power of
removal or separation from the first Congress, and its legislative power extends
office to the subject of regulating removals from
b. A temporary transfer or assignment of the office.
personnel is permissible even without 2. Where Constitution prescribes method
the employee’s prior consent of and cause for removal – The method
i. However, it cannot be done when and grounds established are exclusive,
the transfer is a preliminary step and it is beyond the power of Congress to
toward his removal, or is a scheme remove incumbents in any other manner,
to lure him away from his or for any other cause.
permanent position, or designed to
indirectly terminate his service, or Removal as incident of right of
force his resignation appointment
ii. An employee cannot be transferred The power to remove is deemed lodged in the
unless for causes provided for by same body or person in which the power to
law and after due process appoint is vested in the following instances:
c. Appointments may be allowed to 1. Where term of office not fixed by law
positions without specification of any a. The general rule is that the power of
particular office or station removal is incident to the power to
appoint
3. Demotion – Movement from one position b. There is no removal involved but
to another involving the issuance of an extinguishment of the right of an officer
appointment with diminution in duties, to hold office by expiration of his term
responsibilities, status or rank which may
or may not involve reduction in salary 2. Where term of office fixed by law
a. Demotion is equivalent to removal if no An individual appointed to a post for a fixed
cause is shown for it term may be removed prior to the term’s
b. Requires the issuance of an expiration only for cause
appointment
3. Where holding of position at pleasure of
4. Reassignment – The movement of an appointing power or subject to some
employee from organization unit to another supervening event
in the department or agency which does a. If the statute does not designate the
not involve a reduction in rank, status, or term of the office, the appointee will
salary hold only during the pleasure of the
a. A reassignment in good faith and in the appointing power, and may be
interest of the service is permissible removed at pleasure at any time
and valid even with(out) the without notice or hearing
employee’s prior consent b. Where a person holds his position at
b. Does not require the issuance of an the pleasure of a superior or subject to
appointment some supervening event, his
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separation from office is not removal 6. Offices created by law, “at pleasure of
but the expiration of his term [De Leon]. the President” – not a removal but
expiration of term. But where it is
Exercise of the power of removal authorized that removal be at pleasure,
The power of removal when conferred may be removal may only be for cause
absolute or conditional. 7. Appointments based on merit and
1. Absolute – The power is vested with the fitness – Tenure coterminous with
unlimited discretion of the removing officer appointing authority, or subject to his
to exercise at such time and for such pleasure
reasons as he may deem proper and 8. Local elective officials
sufficient
2. Conditional – The time, manner, or reason Civil service officers and employees
for removal is placed beyond the mere entitled to security of tenure
discretion of the removing officer [De Leon,
citing Mechem] Security of tenure – An officer or employee in
the Civil Service shall not be suspended or
Power of removal of the President dismissed except for cause as provided by law
The power of removal of the President is and only after due process is accorded
possessed by him, as it is implied from: 1. Ground for suspension or removal –
1. Power to appoint Removal or suspension shall be “for cause
2. The power to remove is executive in nature provided by law.”
[Section 1, Article VII, 1987 Constitution] 2. Substantive aspect
3. Duty to execute the laws [Sections 1 & 5, a. It means for reasons which the law and
Article VII, 1987 Constitution] sound public policy recognize as
4. Control of all departments, bureaus and sufficient ground for removal or
offices [Section 17, Article VII, 1987 suspension or demotion and after due
Constitution] process is accorded the officer or
5. “No officer or employee in the Civil Service employee
shall be removed or suspended except for b. Such cause must relate to and affect
cause provided by law.” [Section 2(3), (as a general rule) the functions or
Article IX-B, 1987 Constitution] administration of the office or be
connected with the performance of his
A presidential appointee who belongs to the official duties and must be restricted to
career service of the Civil Service comes under something of a substantial nature
the direct disciplining authority of the President directly affecting the rights and
interests of the public
Extent of the President’s power of c. The guarantee of security of tenure is
removal meant to prevent capricious exercise of
1. Non-career officers exercising purely the power to dismiss, not a guarantee
executive functions whose tenure not of perpetual employment
fixed by law – Removal with or without 3. Procedural aspect – The guarantee of
cause, Congress may not restrict power procedural due process requires notice
2. Quasi-legislative or quasi-judicial and opportunity to be heard before one is
functions – Removed only on grounds suspended or dismissed
provided by law a. Complaints must be in writing and
3. Constitutional officers removable by subscribed and sworn to by the
impeachment and judges of lower complainant
courts – Not subject to power of removal b. A decision rendered without due
by the President [Section 2, Article XI & process is void ab initio and may be
Section 11, Article VIII, 1987 Constitution] attacked directly or collaterally
4. Civil service officers – Only for cause
[Section 2(3), Article IX-B, 1987 Guarantee extends to both those in career
Constitution] and non-career positions
5. Temporary, provisional or acting All permanent officers and employees in the
appointments – remove at pleasure, with Civil Service, regardless of their status,
or without cause whether career or non-career, are entitled to
Page 242 of 412
the constitutional and statutory guarantee of have the requisite qualifications for a
security of tenure position cannot be appointed to it or, only
as an exemption to the rule, may be
Grounds for removal or suspension appointed to it merely in an acting capacity
under the Constitution in the absence of appropriate eligibles
1. Members of Congress – Each House may 2. Former incumbent illegally removed or
punish its members for disorderly behavior suspended - When an incumbent is
a. With the concurrence of 2/3 of all its illegally removed or suspended, legally
members, the House may suspend or speaking, his position never becomes
expel a member vacant; hence there is no vacancy to which
b. A penalty of suspension shall not another could be permanently appointed In
exceed 60 days [Section 16(3), Article other words, the occupancy or incumbency
VI, 1987 Constitution] of any one so appointed to the said post is
temporary
2. Impeachable Officers - The President, the 3. Term of appointment for a definite
Vice-President, the Members of the period fixed by law
Supreme Court, the Members of the a. Temporary appointments can only be
Constitutional Commissions, and the removed for a just cause
Ombudsman b. The mantle of protection against
a. Culpable violation of the Constitution arbitrary dismissals is accorded to an
b. Treason employee even if he is non-eligible and
c. Bribery holds a temporary appointment.
d. Graft and corruption
e. Other high crimes 2. Preventive Suspension
f. Betrayal of public trust [Section 2, Merely a preventive measure, a preliminary
Article IX, 1987 Constitution] step in an administrative investigation. The
purpose of the suspension order is to prevent
3. Members of the Judiciary the accused from using his position and the
a. They shall hold office during good powers and prerogatives of his office to
behavior until they reach the age of influence potential witnesses or tamper with
seventy (70) years or become records which may be vital in the prosecution
incapacitated to discharge the duties of of the case against him. If after such
their office [Section 11, Article VIII, investigation, the charge is established and the
1987 Constitution] person investigated is found guilty of acts
b. With reference to members of the warranting his suspension or removal, then, as
Supreme Court, it implies that they a penalty, he is suspended, removed or
have no committed any of the offenses dismissed [Villasenor v. Sandiganbayan, G.R.
which are grounds for impeachment No. 180700 (2008)].
c. As regards judges of lower courts, the
determination by the Supreme Court is Kinds of Preventive Suspension
conclusive since it alone has the power Two kinds of preventive suspension of
to order their dismissal [Section 11, government employees charged with offenses
Article VIII, 1987 Constitution] punishable by removal or suspension:
● Preventive suspension pending
4. Civil Service officers or employees – investigation; and
Can only be removed or suspended for ● Preventive suspension pending appeal if
“cause provided by law” [Section 2(3), the penalty imposed by the disciplining
Article IX-B, 1987 Constitution] authority is suspension or dismissal and,
after review, the respondent is exonerated.
Termination of temporary appointments
An appointment which is temporary in nature Prior notice and hearing are not required
can be terminated at pleasure of the appointing in the issuance of a preventive
power, without notice, and regardless of suspension order
grounds or reasons. Settled is the rule that prior notice and hearing
1. Appointee without requisite are not required in the issuance of a preventive
qualifications - A person who does not
Page 243 of 412
suspension order [Carabeo v. CA, G.R. Nos. was so suspended or separated, even if it be
178000 & 178003 (2009)]. subsequently determined that the cause for
which he was suspended was insufficient.
Grounds For Preventive Suspension of
Police Officers [Section 55, R.A. No. 8551] Denial of salary to an employee during the
(Preventive Suspension Pending Criminal period of his suspension if he should be later
Case) found guilty is proper because he had given
ground for his suspension.
The court shall immediately suspend the
accused from office for a period not exceeding b. Where removal or suspension unlawful –
90 days from arraignment: Where an officer entitled to fixed annual salary
1. Upon the filing of a complaint or information was unlawfully removed or suspended and was
sufficient in form and substance against a prevented for a time by no fault of his own from
member of the PNP; performing the duties of the office, it was held
2. For grave felonies where the penalty that he might recover, and that the amount that
imposed by law is 6 years and 1 day or he had earned in other employment during his
more. unlawful removal should not be deducted from
However, if it can be shown by evidence that his unpaid salary.
the accused is harassing the complainant
and/or witnesses, the court may order the What is material is not the nature of the
preventive suspension of the accused PNP appointment but the act of wrongful deprivation
member even if the charge is punishable by a of office. If the illegal dismissal is found to have
penalty lower than 6 years and 1 day. been made in bad faith by the superior officers,
then they will be held PERSONALLY
General Rule: The period of preventive accountable for the back salaries of the illegally
suspension shall not be more than 90 days. dismissed employee.
Exception: If the delay in the disposition of the Award of back wages is limited to a maximum
case is due to the fault, negligence or petitions period of FIVE years. But an officer claiming
of the respondent. back his office is not entitled to salary during
the pendency of the case.
The preventive suspension may be sooner
lifted by the court in the exigency of the service c. Where suspended employee is later
upon recommendation of the chief, PNP. Such found innocent – Backpay may be allowed for
case shall be subject to continuous trial and the period when an employee is not allowed to
shall be terminated within 90 days from work without his fault as when he was
arraignment of the accused. preventively suspended for alleged dishonesty
and gross negligence but later found innocent
3. Right to Reinstatement and Back of the charges causing his suspension.
Salary
To deny an innocent employee his back wages
These are separate reliefs given to an illegally during his suspension would be tantamount to
dismissed official or employee [De Leon]: punishing him after his exoneration from his
charges which caused his dismissal from
Reinstatement – Restoration to a state or service.
condition from which one had been removed or
separated. One who is reinstated assumes the A party’s claim for back wages may be the
position he had occupied prior to the dismissal appropriate subject of an ordinary civil action
Back salary – Form of relief that restores the NOT mandamus.
income that was lost by reason of unlawful
dismissal d. Where employee not completely
exonerated or reinstatement not the result
a. When removal or suspension lawful – of exoneration – if the employee is not
One who has been lawfully separated or completely exonerated of the charges, such as
suspended from his office is NOT entitled to when the penalty of dismissal is reduced to
compensation for the period during which he
Page 244 of 412
mere suspension or to a fine, he would not be An officer who has been lawfully suspended
entitled to the payment of back salaries from his office is not entitled to compensation
for the period during which he was so
e. Where another appointed to position of suspended, even through it be subsequently
illegally dismissed or suspended employee determined that the cause for which he was
– When a regular government employee was suspended was insufficient. The reason given
illegally suspended or dismissed, legally is "that salary and perquisites are the reward of
speaking, his position never became vacant express or implied services, and therefore
and he is considered as not having left his cannot belong to one who could not lawfully
office perform such services."
f. Duty of plaintiff seeking reinstatement to An employee who is exonerated is not entitled

prove his right to the office – he must to the payment of his salaries because his
establish that when dispossessed, he was suspension, being authorized by law, cannot
entitled to the office. In a quo warranto but unjustified. To be entitled to such
proceeding, the person suing must show that compensation, the employee must not only be
he has a clear right to the office allegedly held found innocent of the charges but his
unlawfully by another. Absent such right, the suspension must likewise be unjustified.
lack of qualification or eligibility of the supposed
usurper is immaterial But through an employee is considered under
preventive suspension during the pendency of
g. Right to reinstatement to former or at his appeal in the event he wins, his suspension
least comparable position – when a is unjustified because what the law authorizes
government official or employee has been is preventive suspension for a period not
illegally dismissed, and his reinstatement has exceeding 90 days. Beyond that period the
later been ordered, for all legal purposes he is suspension is illegal. Hence, the employee
considered as not having left his office, so that concerned is entitled to reinstated with full pay.
he is entitled to all the rights and privileges to Under existing jurisprudence, such award
accrue to him by virtue of the office he held should not exceed the equivalent of five years
pay at the rate last received before the
h. Duty to act with reasonable diligence in suspension was imposed [Gloria v. Court of
asserting right to reinstatement - it is not Appeals, G.R. No. 131012 (1999)].
proper that the title to public office should be
subjected to continued uncertainty, and the Back wages may be granted to those who have
people’s interest requires that such right should been illegally dismissed and consequently
be determined as speedily as practicable. The ordered reinstated, or to those acquitted of the
laws aid the vigilant and not those who slumber charge against them. A subsequent finding of
on their rights guilt in a separate case, even if based on the
same facts cannot retroact to the time of
A petition for quo warranto and mandamus commission of the offense, only to the time of
affecting titles to public office must be filed filing of such subsequent case [PAGCOR v.
within 1 year from the date the petitioner is Salas, G.R. No. 138756 (2002)].
ousted from position. The claim for back
salaries and damages is also subject to the 4. Condonation doctrine
prescriptive period of 1 year.
Re-election Operates as Electorate
i. Where pardon extended to convicted Condonation of a Previous Misconduct
employee – A pardon, unless expressly Having been re-elected, an elective official is
grounded on the person’s innocence or unless no longer amenable to administrative sanctions
the right to a public office is expressly restored for infractions allegedly committed during the
by it, does NOT ipso facto restore a convicted preceding term because each term is separate
felon to public office. it merely restores his from other terms. Re-election to office operates
eligibility for appointment to that office, and to as a condonation of the official’s previous
regain his former post, he must re-apply and misconduct to the extent of cutting off the right
undergo the usual procedure required for new to remove him.
appointment [De Leon].
Page 245 of 412
This applies regardless of the date of filing of by impeachment [Section 2, Article XI, 1987
the administrative complaint as long as the Constitution].
wrongdoing was committed prior to the re-
election date. It is an exclusive list. Congress cannot add to
Re-election of a public official extinguishes only the list of impeachable offenses.
the administrative but not the criminal or civil
liability incurred during the previous term of These officers cannot be charged in court with
office. Article 89 of Revised Penal Code offenses that have removal from office as
enumerates the grounds for extinction of penalty. But after an official has been
criminal liability and the list does not include re- impeached, he can be charged with the
election to office [De Leon]. appropriate offense. Resignation by an
impeachable official does not place him beyond
HOWEVER, it is important to note that the the reach of impeachment proceedings; he can
Condonation Doctrine has been still be impeached.
ABANDONED in our jurisdiction.
c. Grounds for Impeachment
That being said, this Court simply finds no legal a. Culpable violation of the Constitution
authority to sustain the condonation doctrine in b. Treason
this jurisdiction. As can be seen from this c. Bribery
discourse, it was a doctrine adopted from one d. Graft and corruption
class of US rulings way back in 1959 and thus, e. Other high crimes, or
out of touch from - and now rendered obsolete f. Betrayal of public trust.
by - the current legal regime. In consequence,
it is high time for this Court to abandon the See Power of Impeachment under Part V. of
condonation doctrine that originated from the Constitutional Law 1 part of the reviewer for
Pascual, and affirmed in the cases following discussion.
the same, such as Aguinaldo, Salalima, Mayor
Garcia, and Governor Garcia, Jr. which were all d. Effects of impeachment
relied upon by the CA [Carpio-Morales v. Court a. Removal from office of the official
of Appeals, G.R. Nos. 217126-27 (2015)]. concerned
b. Disqualification to hold any office
B. Impeachment c. Officer still Liable to prosecution, trial,
and punishment if the impeachable
a. Definition offense committed also constitutes a
It is the power of Congress to remove a public felony or crime.
official for serious crimes or misconduct as
provided in the Constitution [Corona v. Senate, e. Judgment
G.R. No. 200242 (2012)]. Judgment in cases of impeachment shall not
extend further than removal from office and
Purpose: To protect the people from official disqualification to hold any office under the
delinquencies or malfeasances. It is primarily Republic of the Philippines, but the party
intended for the protection of the State, not for convicted shall nevertheless be liable and
the punishment of the offender. subject to prosecution, trial, and punishment,
according to law [Section 3, Article XI, 1987
b. Impeachable Officers Constitution].
a. President
b. Vice-President C. The Ombudsman
c. Members of the Supreme Court
d. Members of the Constitutional Composition
Commissions a. Ombudsman/Tanodbayan
e. Ombudsman b. Overall Deputy (at least one Deputy each
for Luzon, Visayas and Mindanao)
All other public officers and employees may be c. Deputy for military establishment may be
removed from office as provided by law, but not appointed
Page 246 of 412

Qualifications: (Ombudsman and instrumentality, as well as of any
Deputies): government-owned or controlled
a. Natural born citizen of the Philippines corporation with original charter:
b. At least 40 years old at time of appointment i. To perform and expedite any act or
c. Of recognized probity and independence duty required by law, or
d. Member of the Philippine bar ii. To stop, prevent, and correct any
e. Must not have been candidate for any abuse or impropriety in the
elective office in the immediately preceding performance of duties
election c. Direct the officer concerned:
f. For Ombudsman: He must have been for i. To take appropriate action against a
10 years or more: public official or employee at fault, and
i. A judge OR ii. To recommend the latter’s removal,
ii. Engaged in the practice of law suspension, demotion, fine, censure,
or prosecution, and
Disqualifications and Prohibitions: iii. To ensure compliance therewith.
a. Cannot hold any other office or d. Direct the officer concerned, in any
employment during his tenure; appropriate case, and subject to such
b. Cannot engage in the practice of any limitations as may be provided by law, to
profession or in the active management or furnish it with copies of documents relating
control of any business which may be to contracts or transactions entered into by
affected by the functions of his office; his office involving the disbursement or use
c. Cannot be financially interested, directly or of public funds or properties. The
indirectly, in any contract with or in any Ombudsman can also report any
franchise or privilege granted by the irregularity to the Commission on Audit for
Government, any of its subdivisions, appropriate action.
agencies or instrumentalities, including e. Request any government agency for
GOCCs or their subsidiaries. assistance and information necessary in
the discharge of its responsibilities, and to
examine, if necessary, pertinent records
Appointment
and documents.
a. Ombudsman and deputies
f. Publicize matters covered by its
b. By the president from a list of at least 6
investigation when circumstances so
nominees prepared by the Judicial and Bar
warrant and with due prudence.
Council. Vacancies will be filled from a list
g. Determine the causes of inefficiency, red
of 3 nominees.
tape, mismanagement, fraud, and
c. Appointments do NOT require confirmation
corruption in the Government and make
d. All vacancies shall be filled within 3 months
recommendations for their elimination and
after they occur.
the observance of high standards of ethics
e. Appointees have 7-year terms without
and efficiency.
reappointment and are not qualified to run
h. Promulgate its rules of procedure and
for any office in the election succeeding
exercise such other powers or perform
their cessation from office.
such functions or duties as may be
f. Other ombudsman officials and employees
provided by law [Section 13, Article XI,
i. By the Ombudsman
1987 Constitution]
ii. In accordance with Civil Service Law
i. Administer oaths, issue subpoena and
subpoena duces tecum, and take
1. Functions testimony in any investigation or inquiry,
including the power to examine and have
a. Investigate any act or omission of any access to bank accounts and records;
public official, employee, office or agency j. Punish for contempt in accordance with the
which appears to be illegal, unjust, Rules of Court and under the same
improper, or inefficient. This may be done procedure and with the same penalties
by the Ombudsman on its own or upon provided therein;
complaint. k. Delegate to the Deputies, or its
b. Direct any public official or employee, or investigators or representatives such
any government subdivision, agency or authority or duty as shall ensure the
Page 247 of 412
effective exercise or performance of the Exception: When the Ombudsman’s findings
powers, functions, and duties herein or are tainted with grave abuse of discretion
hereinafter provided; [Carpio-Morales v. CA, supra]
l. Investigate and initiate the proper action for
the recovery of ill-gotten and/or a. The Office of the Special
unexplained wealth amassed after Prosecutor
February 25, 1986 and the prosecution of
the parties involved therein Under P.D. No. 1487, as amended by P.D. No.
1607, the Tanodbayan was both prosecutor
2. Judicial review in administrative and Ombudsman. Harmonization of the laws
proceedings left the Special Prosecutor to continue to
exercise powers of the former Tanodbayan
Remedy: Petition for review under Rule 43 of except those specifically passed on to the
the Rules of Court with the Court of Appeals. Ombudsman.
Note: The second paragraph of Section 14, Since the power to investigate has been vested
R.A. No. 6770, which states that “[n]o court 'to the Ombudsman, the Special Prosecutor
shall hear any appeal or application for remedy can only investigate and prosecute if
against the decision or findings of the authorized by the Ombudsman.
Ombudsman, except the Supreme Court, on
pure question of law,” is unconstitutional. Appointment of Special Prosecutor
Effectively, Congress increased the appellate 1. The President selects from a list of at least
jurisdiction of the Supreme Court without its twenty-one (21) nominees prepared by the
advice and concurrence. By confining the Judicial and Bar Council
remedy to a Rule 45 appeal, the provision 2. From a list of three (3) nominees for each
takes away the remedy of certiorari, grounded vacancy thereafter, which shall be filled
on errors of jurisdiction, in denigration of the within three (3) months after it occurs,
judicial power constitutionally vested in courts 3. Each list shall be published in a newspaper
[Carpio- Morales v. CA, G.R. Nos. 217126-27 of general circulation.
(2015)].
In the organization of the Office of the
Decisions or resolutions of the Ombudsman in Ombudsman for filling up of positions therein,
administrative cases absolving the respondent regional, cultural or ethnic considerations shall
of the charge or imposing upon him the penalty be taken into account to the end that the Office
of public censure or reprimand, suspension of shall be as much as possible representative of
not more than one month, or a fine equivalent the regional, ethnic and cultural make-up of the
to one-month salary, is final and unappealable Filipino nation.
[Agpalo].
Qualifications
In all other cases, the decision shall become 1. Natural born citizens of the Philippines,
final after the expiration of 10 days from receipt 2. At least forty (40) years old,
thereof by the respondent, unless a motion for 3. Of recognized probity and independence,
reconsideration or a petition for review is filed 4. Member of the Philippine Bar,
with the CA pursuant to Rule 43 of the Rules of 5. Must not have been candidates for any
Court [Agpalo]. elective national or local office in the
immediately preceding election whether
3. Judicial review in penal regular or special.
proceedings
Term
General Rule: Courts cannot review the The Special Prosecutor shall serve for a term
exercise of discretion of the Ombudsman in of seven (7) years without reappointment.
prosecuting or dismissing a criminal complaint
filed before it [Loquias v. Ombudsman, G.R. Removal; Filling of Vacancy
No. 139396 (2000)]. 1. Grounds for removal: Treason, bribery,
graft and corruption, other high crimes, or
betrayal of public trust.
Page 248 of 412
2. The Special Prosecutor may be removed D. The Sandiganbayan
from office by the President for any of the
grounds provided for the removal of the
a. Nature and Composition
Ombudsman, and after due process.
Prohibitions and Disqualifications The Sandiganbayan was created under P.D.

No. 1606 as amended by R.A. No. 8249. It is a
[Section 9, R.A. No. 6770]
special court, of the same level as the Court of
● The Special Prosecutor shall not, during
Appeals and possessing all the inherent
their tenure, hold any other office or
powers of a court of justice. It is composed of a
employment
presiding justice and fourteen associate
● Shall not, during said tenure, directly or
justices who shall be appointed by the
indirectly practice any other profession,
President.
participate in any business, or be financially
interested in any contract with, or in any
franchise, or special privilege, granted by b. Exclusive Original Jurisdiction
the government or any subdivision, agency
or instrumentality thereof, including 1. Over the following crimes, when committed
government-owned or controlled by public officials and employees classified as
corporations or their subsidiaries. Salary Grade 27 or higher:
● Shall strictly avoid conflict of interest in the a. Violations of R.A. Nos. 3019 and 1379;
conduct of their office. b. Crimes committed by public officers
● Shall not be qualified to run for any office in and employees embraced in Chapter II,
the election immediately following their Section 2, Title VII, Book II of the
cessation from office. Revised Penal Code;
● Shall not be allowed to appear or practice c. Other offenses or felonies, whether
before the Ombudsman for two (2) years simple or complexed with other crimes,
following their cessation from office. committed in relation to their office.
● No spouse or relative by consanguinity or 2. Civil and criminal cases filed pursuant to and
affinity within the fourth civil degree and no in connection with Executive Orders No. 1, 2,
law, business or professional partner or 14, and 14-a issued in 1986
associate the Special Prosecutor within Provided, That the Regional Trial Court shall
one (1) year preceding the appointment have exclusive original jurisdiction where the
may appear as counsel or agent on any information:
matter pending before the Office of the 1. does not allege any damage to the
Ombudsman or transact business directly government or any bribery; or
or indirectly therewith. 2. alleges damage to the government or
○ This disqualification shall apply during bribery arising from the same or closely
the tenure of the official concerned. related transactions or acts in an
This disqualification likewise extends to amount not exceeding One Million
the law, business or professional firm Pesos [R.A. No. 10660].
for the same period.
In the absence of any allegation that the
Authority and Responsibilities offense charged was necessarily connected
● Shall be composed of the Special with the discharge of the duties or functions of
Prosecutor and his prosecution staff. a public officer, the ordinary court, not the
● The Office of the Special Prosecutor shall Sandiganbayan, has jurisdiction to hear and
be under the supervision and control of the decide the case.
Ombudsman.
● It shall have the following powers: What determines the jurisdiction of the
○ To conduct preliminary investigation Sandiganbayan is the specific factual
and prosecute criminal cases within the allegation in the Information that would indicate
jurisdiction of the Sandiganbayan; close intimacy between the discharge of the
○ To enter into plea bargaining accused's official duties and the commission of
agreements; and the offense charged in order to qualify the
○ To perform such other duties assigned crime as having been committed in relation to
to it by the Ombudsman. public office. The relation between the crime
Page 249 of 412
and the office must be direct and not 5. Chairpersons and members of
accidental, that is, the relation has to be such Constitutional Commissions, without
that, in the legal sense, the offense cannot exist prejudice to the provisions of the
without the office. Constitution; and
6. All other national and local officials
c. Officials and Private Individuals classified as Grade "27" and higher under
Subject to its Jurisdiction the Compensation and Position
Classification Act of 1989.
Under Section 4(a) and (b) of P.D. No. 1606,
as amended, the Sandiganbayan shall In case private individuals are charged as co-
exercise exclusive original jurisdiction over the principals, accomplices or accessories with the
cases mentioned in (1) above where one or public officers or employees, including those
more of the accused are officials occupying the employed in government- owned or -controlled
following positions in the government, whether corporations, they shall be tried jointly with said
in a permanent, acting or interim capacity at the public officers and employees in the proper
time of the commission of the offense: courts which shall exercise exclusive
1. Officials of the executive branch occupying jurisdiction over them.
the positions of regional director and
higher, otherwise classified as Grade '27' d. Exclusive Appellate Jurisdiction
and higher, of the Compensation and
Position Classification Act of 1989 (R.A. The Sandiganbayan shall exercise exclusive
No. 6758), specifically including: appellate jurisdiction over final judgments,
a. Provincial governors, vice-governors, resolutions or orders of regional trial courts
members of the sangguniang whether in the exercise of their own original
panlalawigan, and provincial jurisdiction or of their appellate jurisdiction.
treasurers, assessors, engineers, and
other provincial department heads; e. Appellate Jurisdiction of the
b. City mayors, vice-mayors, members of Supreme Court
the sangguniang panlungsod, city
treasurers, assessors, engineers, and The appellate jurisdiction of the Supreme Court
other city department heads; is limited to questions of law over decisions and
c. Officials of the diplomatic service final orders of the Sandiganbayan [Republic v.
occupying the position of consul and Sandiganbayan, G.R. No. 102508 (2002)].
higher;
d. Philippine army and air force colonels,
naval captains, and all officers of higher
rank;
e. Officers of the Philippine National
Police while occupying the position of
provincial director and those holding
the rank of senior superintendent or
higher;
f. City and provincial prosecutors and
their assistants, and officials and
prosecutors in the Office of the
Ombudsman and special prosecutor;
2. Presidents, directors or trustees, or
managers of government-owned or
controlled corporations, state universities
or educational institutions or foundations;
3. Members of Congress and officials thereof
classified as Grade "27" and up under the
Compensation and Position Classification
Act of 1989;
4. Members of the judiciary without prejudice
to the provisions of the Constitution;
Page 250 of 412
ADMINISTRATIVE LAW
POLITICAL LAW
ADMINISTRATIVE LAW POLITICAL LAW
I. GENERAL PRINCIPLES in the exercise of disciplinary power as

provided by law [Sec. 2(1), Book VII,
A. Definition
Administrative agencies are the organs of
1. Administrative Law government, other than a court and other than
Administrative law is that branch of modern law the legislature, which affect the rights of private
under which the executive department of the parties either through adjudication or through
government, acting in a quasi-legislative or rule-making [Nachura].
quasi-judicial capacity, interferes with the
conduct of the individual for the purpose of Administrative agency is the term used
promoting the well-being of the community generally to describe an agency exercising
[Dean Roscoue Pound]. some significant combination of executive,
legislative, and judicial powers. It is a
Administrative law is the law concerning the government body charged with administering
powers and procedures of administrative and implementing particular legislation [De
agencies, including specially the law governing Leon].
judicial review of administrative actions [De
Leon]. However, care must be taken in distinguishing
between the quasi-legislative and quasi-judicial
According to scholars, a broad conception of sets of powers and the purely administrative
administrative law is that it is the amalgamation powers. In contrast to rule-making and
of public laws (i.e., constitutional provisions, adjudication, purely administrative power is
legislative statutes, judicial opinions, executive concerned with the work of applying policies
directives) that addresses the democratic and enforcing orders as determined by proper
legitimacy, control, and performance of governmental organs [Romeo Jalosjos v.
administrative authority and discretion by COMELEC, G.R. No. 205033 (2013)].
specifying the legal structures, procedures,
and standards utilized by government agencies B. Historical and Constitutional
with an emphasis on the role of institutional Considerations
oversight by the courts [Osorio]. This seems to
conform with the understanding of this area of
Why did administrative agencies come
law in the Philippines.
about?
The principle of separation of powers has
2. Administrative Functions adapted to the:
Administrative functions are those which 1. Growing complexities of modern life;
involve the regulation and control over the 2. Multiplication of number of subjects
conduct and affairs of individuals for their own needing government regulation; and
welfare and the promulgation of rules and 3. Increased difficulty of administering
regulations to better carry out the policy of the laws
legislature or such as are devolved upon the
administrative agency by the organic law of its One example is the principle of “subordinate
existence [In Re: Rodolfo v. Manzano, A.M. legislation,” whereby a larger amount of
No. 88-7-1861-RTC (1988)]. discretion is vested in administrative and
executive officials, not only in the execution of
3. Administrative Agencies the laws, but also in the promulgation of certain
“Agency” includes any department, bureau, rules and regulations calculated to promote
office, commission, authority or officer of the public interest [Pangasinan Transportation v.
National Government authorized by law or Public Service Commission, G.R. No. L-47065
executive order to make rules, issue licenses, (1940)].
grant rights or privileges, and adjudicate cases;
research institutions with respect to licensing Why are administrative agencies needed?
functions; government corporations with Because the government lacks:
respect to functions regulating private right, 1. Time;
privileges, occupation or business; and officials 2. Expertise; and
Page 252 of 412
3. Organizational aptitude for effective do it, and what is the scope of his authority.
and continuing regulation of new What it delegates is not the power to make the
developments in society [Stone] laws, but the power to execute the laws that it
makes under and in pursuance of the law [Edu
II. POWERS OF v. Ericta, supra].
ADMINISTRATIVE A. Quasi-Legislative (Rule-

AGENCIES Making) Power
1. Quasi-legislative (rule-making) power The authority delegated by the law-making
2. Quasi-judicial (adjudicatory) power body to the administrative agency to adopt
3. Determinative powers rules and regulations intended to carry out the
a. Enabling powers - Permits the doing provisions of a law and implement a legislative
of an act which the law undertakes to policy [Cruz].
regulate and which would be unlawful
without government approval (e.g., Quasi-legislative or rule-making power is the
issuance of licenses to engage in power to make rules and regulations that
particular business or occupation). results in delegated legislation that is within the
b. Directing powers - Orders the confines of the granting statute and the
performance of particular acts to doctrine of non-delegability and separability of
ensure compliance with the law and powers [The Chairman and Executive Director,
often exercised for corrective Palawan Council for Sustainable Development
purposes. v. Lim, G.R. No. 183173 (2016)].
● Dispensing powers - Allows the
administrative officer to relax the The grant of rule-making is a relaxation of the
general operation of a law or separation of powers principle and is an
exempt from performance of a exception to the non-delegation of legislative
general duty. powers. But such administrative regulations
● Examining powers - Enables the must be consistent with the law and be for the
administrative body to inspect the sole purpose of enforcing its provisions and not
records and premises, and to transcend the limits marked by the law. The
investigate the activities, of details and the manner of carrying out the law
persons or entities coming under are oftentimes left to the administrative agency
its jurisdiction. entrusted with its enforcement [People v.
● Summary powers - Those Maceren, G.R. No. L- 32166 (1977)].
involving use by administrative
authorities of force upon persons or Administrative regulations enacted by
things without necessity of administrative agencies to implement and
previous judicial warrant [Cruz] interpret the law which they are entrusted to
enforce have the force of law and are entitled
Does the grant of such powers to to respect. Such rules and regulations partake
administrative agencies violate the of the nature of a statute and are just as binding
doctrine of separation of powers? as if they have been written in the statute itself.
No. Nondelegation of legislative power comes As such, they have the force and effect of law
from the doctrine of separation of powers which and enjoy the presumption of constitutionality
states that Congress cannot delegate its and legality until they are set aside with finality
legislative power – power to make laws and in an appropriate case by a competent court.
alter and repeal them – to the two other Congress, in the guise of assuming the role of
branches of the government, except when local an overseer, may not pass upon their legality
governments may over local affairs participate by subjecting them to its stamp of approval
in its exercise [Edu v. Ericta, G.R. No. L-32096 without disturbing the calculated balance of
(1970)]. powers established in the Constitution. Hence,
legislative vetoes are unconstitutional
The legislature does not abdicate its function [Abakada Guro Party List v. Hon. Cesar
when it describes the job to be done, who is to Purisima, G.R. No. 166715 (2008)].
Page 253 of 412

Power of Subordinate Legislation Permissible Delegation
The power of subordinate legislation allows In every case of permissible delegation, there
administrative bodies to implement the broad must be a showing that the delegation itself is
policies laid down in a statute by “filling in” the valid.
details. The regulation should be germane to
the objects and purposes of the law and should It is valid only if the law (a) is complete in itself,
not be in contradiction to but in conformity with setting forth therein the policy to be executed,
the standards prescribed by the law [Sigre v. carried out, or implemented by the delegate;
CA, G.R. Nos. 109568 & 113454 (2002)]. and (b) fixes a standard — the limits of which
are sufficiently determinate and determinable
This is effected by the promulgation of — to which the delegate must conform in the
administrative bodies of what are known as performance of his functions [Defensor-
supplementary regulations, such as Santiago v. COMELEC, G.R. No. 127325
implementing rules and regulations which have (1997)].
the force and effect of law [Eastern Shipping
Lines, Inc. v. POEA, G.R. No. 76633 (1988)]. 1. Ascertainment of Facts
The preliminary ascertainment of facts as basis
The power of administrative officials to for the enactment of legislation is not of itself a
promulgate rules and regulations is only limited legislative function but is simply ancillary to
to carrying into effect what is provided in the legislation. Thus, the duty of correlating
legislative enactment [Miners Association of information and making recommendations is
the Philippines, Inc. v. Factoran, Jr., G.R. No. the kind of subsidiary activity which the
98332 (1995)]. legislature may perform through its members,
or which it may delegate to others to perform
Administrative issuances may be distinguished [Abakada v. Ermita, supra].
according to their nature and substance:
legislative and interpretative. A legislative rule The mere fact that an officer is required by law
is in the matter of subordinate legislation, to inquire the existence of certain facts and to
designed to implement a primary legislation by apply the law thereto in order to determine what
providing the details thereof. An interpretative his official conduct shall be and the fact that
rule, on the other hand, is designed to provide these acts may affect private, rights do not
guidelines to the law which the administrative constitute an exercise of judicial powers.
agency is in charge of enforcing [BPI Leasing
Corporation v. Court of Appeals, G.R. No. A statute may:
127624 (2003)]. 1. Give non-judicial officers the power to
declare the existence of facts which
Non-delegation Doctrine call into operation the statute’s
Potestas delegata non delegare potest. provisions, and
What has been delegated cannot be 2. Grant commissioners and other
delegated. subordinate officers the power to
ascertain and determine appropriate
The general rule barring delegation of facts as a basis for procedure in the
legislative powers is subject to the following enforcement of particular laws.
recognized limitations or exceptions:
1. Delegation of tariff powers to the President Such functions are merely incidental to the
[Sec. 28 (2), Art. VI, 1987 Constitution]; exercise of powers conferred by law upon
2. Delegation of emergency powers to the executive officials provided the party affected
President [Sec. 23 (2), Art. VI, 1987 is given the opportunity to be heard [Lovina v.
Constitution]; Montilla, G.R. No. L-17821 (1963)].
3. Delegation to the people at large;
4. Delegation to local governments; and 2. Filling in the Details
5. Delegation to administrative bodies With the power of subordinate legislation,
[Abakada v. Ermita, G.R. No. 168056 administrative bodies may implement the
(2005)]. broad policies laid down in a statute by “filling
in” the details which the Congress may not
Page 254 of 412

have the opportunity or competence to provide delegated to it [People v. Vera, G.R. No. L-
[Eastern Shipping Lines, Inc. v. POEA, supra]. 45685 (1937)].
3. General Rule-making Power The law must be complete in all its terms and
a. Every administrative agency is to file with conditions when it leaves the legislature such
the University of the Philippines Law that when it reaches the delegate the only thing
Center three (3) certified copies of every he will have to do is enforce it [Eastern
rule adopted by it. Shipping Lines, Inc. v. POEA, supra].
b. Each rule shall become effective fifteen
(15) days from the date of filing as above To determine whether there is an undue
provided unless a different date is fixed by delegation of legislative power, the inquiry
law, or specified in the rule in cases of must be directed to the scope and definiteness
imminent danger to public health, safety of the measure enacted. The legislature does
and welfare, the existence of which must not abdicate its functions when it describes
be expressed in a statement what job must be done, who is to do it, and
accompanying the rule. what is the scope of his authority [Edu v. Ericta,
c. Every rule establishing an offense or supra].
defining an act which, pursuant to law, is
punishable as a crime or subject to a 2. Sufficient Standards Test
penalty shall in all cases be published in full The law must fix a standard, the limits of which
text. are sufficiently determinate or determinable, to
d. If not otherwise required by law, an agency which the delegate must conform [Abakada v.
shall, as far as practicable, publish or Ermita, supra].
circulate notices of proposed rules and
afford interested parties the opportunity to The legislature may delegate to executive
submit their views prior to the adoption of officers or bodies the power to determine
any rule. certain facts or conditions, or the happening of
e. In the fixing of rates, no rule or final order contingencies, on which the operation of a
shall be valid unless the proposed rates statute is, by its terms, made to depend, but the
shall have been published in a newspaper legislature must prescribe sufficient standards,
of general circulation at least two (2) weeks policies or limitations on their authority
before the first hearing thereon [Secs. 3, 4, [Abakada v. Ermita, supra].
6, & 9, Chapter 2, Book VII, Administrative
Code]. A sufficient standard is one which:
1. Defines legislative policy, marks its
Requisites for a Valid Delegation limits, maps out its boundaries and
What are needed for a valid delegation are: (1) specifies the public agency to apply it;
the completeness of the statute making the 2. Indicates the circumstances under
delegation; and (2) the presence of a sufficient which the legislative command is to be
standard [Kilusang Mayo Uno v. Aquino III, effected [Abakada v. Ermita, supra].
G.R. No. 210500 (2019)].
Forms of a Sufficient Standard:
Both tests are intended to prevent a total 1. Express;
transference of legislative authority to the 2. Implied from the policy and purpose of the
delegate, who is not allowed to step into the act considered as a whole [Edu v. Ericta,
shoes of the legislature and exercise a power supra]; or
essentially legislative [Abakada v. Ermita, G.R. 3. Embodied in other statutes on the same
No. 168056 (2005)]. matter and not necessarily in the same law
1. Completeness Test being challenged [Chiongbian v. Orbos,
The law must be complete in itself and must set G.R. No. 96754 (1995)].
forth the policy to be executed.
In case of a delegation of rate-fixing power, the
A statute is incomplete if it does not lay down only standard which the legislature is required
any rule or definite standard by which the to prescribe for the guidance of the
administrative officer or board may be guided administrative authority is that the rate be
in the exercise of discretionary powers reasonable and just. However, it has been held
Page 255 of 412
that even in the absence of an express
Legislative Interpretative
requirement as to reasonableness, this
Rules Rules
standard may be implied [PHILCOMSAT v.
Alcuaz, G.R. No. 84818 (1989)]. As to So long as At best
Binding the court merely
The power conferred upon an administrative Effect finds that the advisory; the
agency to issue rules and regulations legislative court may
necessary to carry out its functions has been rules are review the
held to be an adequate source of authority to within the correctness of
delegate a particular function, unless by power of the the
express provision of the Act or by implication it administrativ interpretation
has been withheld [Realty Exchange Venture e agency to of the law
Corp. v. Sendino, G.R. No. 109703 (1994)]. pass, as given by the
seen in the administrative
1. Kinds of Administrative Rules and primary law, body, and
Regulations then the substitute its
rules bind own view of
a. Supplementary Legislation the court. what is
Pertains to rules and regulations that fix details The court correct.
in the execution of a policy in the law; This is cannot
also called a legislative rule or subordinate question the If it is not
legislation. e.g., IRRs of the Labor Code. wisdom or within the
correctness scope of the
b. Interpretative Legislation of the policy administrative
Pertains to rules and regulations construing or contained in agency, the
interpreting the provisions of a statute to be the rules. court may, in
enforced and they are binding on all concerned addition to
until they are changed, e.g., BIR Circulars. invalidating
the same,
Legislative rules v. Interpretative rules also
substitute its
Legislative Interpretative decision or
Rules Rules interpretation
or give its
As to Promulgated Promulgated own set of
Source pursuant to pursuant to its rules.
its quasi- quasi-judicial
legislative/rul capacity. As to Due Procedural Due process
e-making Process due process involves
functions. means that whether the
the body parties were
As to Create a Merely clarify observed the afforded the
Function new law, a the meaning proper opportunity to
new policy, of a procedure in be notified
with the preexisting passing and heard
force and law by rules. before the
effect of law. inferring its Substantive issuance of
implications. due process, the ruling.
on the other
As to Need Need not be
hand, deals
Publication publication. published.
with the
limitations
posed by
constitutional
and
Page 256 of 412

Philippine Racing Commission, G.R. No.
Legislative Interpretative
175220 (2009)].
Rules Rules
fundamental b. Authorized by Law

rights to rule- The rule is that what has been delegated
making. cannot be delegated. The grant of rule-making
power to administrative agencies is a
recognized exception to this rule. They have
been granted by Congress with the authority to
issue rules to regulate the implementation of a
law entrusted to them [Dagan v. Philippine
Restrictions on Interpretative Racing Commission, supra].
Regulations
1. Does not change the character of a The function of promulgating rules and
ministerial duty; regulations may be legitimately exercised only
2. Does not involve unlawful use of legislative for the purpose of carrying the provisions of the
or judicial power. law into effect. The power of administrative
3. May eliminate construction and uncertainty agencies is thus confined to implementing the
in doubtful cases. When laws are law or putting it into effect. Corollary to this is
susceptible of two or more interpretations, that administrative regulations cannot extend
the administrative agency should make the law and amend a legislative enactment
known its official position. [Land Bank of the Philippines v. Court of
4. Administrative construction/interpretation Appeals, G.R. No. 118712 (1995)].
not binding on the court as to the proper
construction of a statute, but generally it is c. Reasonable Relation to the Purposes
given great weight, has a very persuasive If shown to bear no reasonable relation to the
influence and may actually be regarded by purposes [using the means-purpose or rational
the courts as the controlling factor [Lim Hoa relation test] for which they are authorized to be
Ting vs. Central Bank of the Philippines, issued, then they must be held to be invalid
G.R. No. L-10666 (1958)]. [Lupangco v. CA, G.R. No. 77372 (1988)].
5. Administrative interpretations are merely
advisory; the courts determine with finality d. Promulgated in Accordance with
what the law means [Victorias Milling Co., Prescribed Procedure
Inc. v. Social Security Commission, G.R.
No. 16704 (1962)]. Test to Determine Invalidity of
6. Contingent legislation pertains to rules and Administrative Rules
regulations made by an administrative 1. If it exceeds the authority conferred to it;
authority on the existence of certain facts 2. If it conflicts with the governing statute;
or things upon which the enforcement of 3. If it extends or modifies the statute;
the law depends. 4. If it has no reasonable relationship to the
statutory purpose; and
2. Requisites for Validity 5. If it is arbitrary or unreasonable or
a. Within the scope or authority of law unconstitutional.
b. Authorized by law
c. Reasonable relation to the purposes Where a rule or regulation has a provision not
d. Promulgated in accordance with expressly stated or contained in the statute
prescribed procedure being implemented, that provision does not
necessarily contradict the statute. A legislative
a. Within the Scope or Authority of Law rule is in the nature of subordinate legislation,
The administrative body may not make rules designed to implement a primary legislation by
and regulations which are inconsistent with the providing the details thereof. All that is required
provisions of the Constitution or a statute, is that the regulation should be germane to the
particularly the statute it is administering, or objects and purposes of the law; that the
which created it, or which are in derogation of, regulation be not in contradiction to but in
or defeat, the purpose of a statute [Dagan v. conformity with the standards prescribed by the
Page 257 of 412

law [Holy Spirit Homeowners Association, Inc. publication at all, since its purpose is to inform
v. Defensor, G.R. No. 163980 (2006)]. the public of the content of the law [Tañada v.
Tuvera, G.R. No. L-63915 (1986)].
Rule-making power must be confined to details
for regulating the mode or proceedings in order Publication is mandatory for the following to
to carry into effect the law as it has been be effective:
enacted, and it cannot be extended to amend 1. Laws not only of general application, but
or expand the statutory requirements or to also laws of local application, private laws;
embrace matters not covered by the statute. 2. Presidential decrees and executive orders
Administrative regulations must always be in promulgated by the President in the
harmony with the provisions of the law because exercise of legislative powers whenever
any resulting discrepancy between the two will the same are validly delegated by the
always be resolved in favor of the basic law legislature or, at present, directly conferred
[Commissioner v. Fortune Tobacco, G.R. Nos. by the Constitution;
167274-75 (2008)]. 3. Administrative rules and regulations
enforcing or implementing existing law
Accordingly, as the constitutional body pursuant also to a valid delegation;
specifically charged with the enforcement and 4. City charters; and
administration of all laws and regulations 5. Circulars issued by the Monetary Board not
relative to the conduct of an election, plebiscite, merely interpreting but "filling in the details"
initiative, referendum, and recall, the of the Central Bank Act which that body is
COMELEC should be given sufficient leeway in supposed to enforce [Tañada v. Tuvera,
accounting for the exigencies of the upcoming supra].
elections. In fine, its measures therefor should
be respected, unless it is clearly shown that the Publication is not necessary for the following
same are devoid of any reasonable justification to be effective:
[Kabataan Party-list v. COMELEC, G.R. No. 1. Interpretative regulations;
221318 (2015)]. 2. Regulations which are merely internal in
nature (regulating only the personnel of the
In the case at bar, A.O. No. 308 may have been administrative agency need not the
impelled by a worthy purpose, but, it cannot published);
pass constitutional scrutiny for it is not narrowly 3. Letters of instructions issued by
drawn. When the integrity of a fundamental administrative superiors concerning the
right is at stake, this court will give the rules or guidelines to be followed by their
challenged law, administrative order, rule or subordinates in the performance of their
regulation a stricter scrutiny. It will not do for duties;
the authorities to invoke the presumption of 4. Internal instructions issued by an
regularity in the performance of official duties administrative agency; and
[Ople v. Rubed Torres et. al., G.R. No. 127685 5. Municipal ordinances which are governed
(1998)]. by the Local Government Code [Tañada v.
Tuvera, supra].
Rules on Publication
1. Administrative rules and regulations are Filing Requirement
subject to the publication and effectivity Every agency shall file with the University of the
rules of the Administrative Code. Philippines Law Center three (3) certified
2. Publication requirement: E.O. 200 (Art. 2, copes of every rule adopted by it. Rules in force
Civil Code) requires publication of laws in on the date of the effectivity of the
the Official Gazette or in a newspaper of Administrative Code of 1987 which are not filed
general circulation. Publication is within three (3) months from that date shall not
indispensable, especially if the rule is thereafter be the basis of any sanction against
general. any party or persons [Sec. 3, Chapter 1, Book
VII, Admin. Code].
Publication is indispensable in every case, but
the legislature may in its discretion provide that The Administrative Code of 1987, particularly
the usual 15-day period shall be shortened or Section 3 of Book VII thereof, expressly
extended. Publication must be in full or it is no requires each agency to file with the Office of
Page 258 of 412
the National Administrative Register (ONAR) of requirements of publication and filing of
the UP Law Center three (3) certified copies of administrative issuances renders said
every rule adopted by it. Administrative issuances ineffective [Republic v. Pilipinas
issuances which are not published or filed with Shell Petroleum, G.R. No. 173918 (2008)].
the ONAR are ineffective and may not be
enforced [GMA v. MTRCB, G.R. No. 148579 Exceptions:
(2007)]. 1. Different date is fixed by law or specified in
the rule; and
Not all rules and regulations adopted by every 2. In case of imminent danger to public health,
government agency are to be filed with the UP safety and welfare.
Law Center. Only those of general or of
permanent character are to be filed. According Penal rules
to the UP Law Center’s guidelines for receiving Every rule establishing an offense or defining
and publication of rules and regulations, an act which, pursuant to law is punishable as
“interpretative regulations and those merely a crime or subject to a penalty shall in all cases
internal in nature, that is, regulating only the be published in full text [Sec. 6, Chapter 1,
personnel of the administrative agency and not Book VII, Administrative Code].
the public,” need not be filed with the UP Law
Center [Board of Trustees v. Velasco, G.R. No. General Rule: Rules must not provide penal
170463 (2011)]. sanctions.
Effectivity Exception: A violation or infringement of a rule

Effectivity: 15 days after filing AND or regulation validly issued can constitute a
publication crime punishable as provided in the authorizing
statute and by virtue of the latter [People v.
In addition to other rule-making requirements Maceren, G.R. No. L- 32166 (1977)].
provided by law not inconsistent with this Book
[Book VII: Administrative Procedure], each rule For an administrative regulation to have
shall become effective fifteen (15) days from the force of penal law:
the date of filing as above provided unless a 1. The violation of the administrative
different date is fixed by law, or specified in the regulation must be made a crime by the
rule in cases of imminent danger to public delegating statute itself; and
health, safety and welfare, the existence of 2. The penalty for such violation must be
which must be expressed in a statement provided by the statute itself [Perez v. LPG
accompanying the rule. The agency shall take Refillers Association of the Philippines,
appropriate measures to make emergency Inc., G.R. No. 159149 (2006), citing U.S. v.
rules known to persons who may be affected Panlilio, G.R. No. L-9876 (1914)].
by them [Sec. 4, Chap. 1, Book VII,
Administrative Code]. Penal laws and regulations imposing penalties
must be published before it takes effect
Note: [People v. Que Po Lay, G.R. No. 6791 (1954)].
1. The Administrative Code requires filing.
2. The Civil Code requires publication. Can administrative bodies make penal
3. Because the Civil Code does not preclude rules?
other rule-making requirements provided No. A lawmaking body cannot delegate to an
by law (i.e., the Administrative Code), both executive official the power to declare what
publication and filing must be satisfied acts should constitute an offense. Penal
before the 15 day-count begins. statutes are exclusive to the legislature and
cannot be delegated. Administrative rules and
These requirements of publication and filing regulations must not include, prohibit or punish
were put in place as safeguards against acts which the law does not even define as a
abuses on the part of lawmakers and as criminal act [People v. Maceren, G.R. No. L-
guarantees to the constitutional right to due 32166 (1977)].
process and to information on matters of public
concern and, therefore, require strict In a prosecution for a violation of an
compliance. Failure to comply with the administrative order, it must clearly appear that
Page 259 of 412
the order is one within the scope of authority powers exercised, in that such must be
conferred upon the administrative body and the accompanied with certain formalities and
order will be scrutinized with special care safeguards characteristic of the judicial
[People v. Maceren, G.R. No. L-32166 (1977)]. process [De Leon].
Public Participation This is the power of an administrative agency

In the same way that laws must have the to determine questions of fact to which the
benefit of public hearing, it is generally required legislative policy is to apply, in accordance with
that before a legislative rule is adopted there the standards laid down by the law itself [Smart
must be hearing. In this connection, the v. NTC, G.R. No. 151908 (2003)].
Administrative Code of 1987 provides:
An agency is said to be exercising judicial
Public Participation. — function where it has the power to determine
1. If not otherwise required by law, an what the law is and what the legal rights of the
agency shall, as far as practicable, parties are, and then undertakes to determine
publish or circulate notices of proposed these questions and adjudicate upon the rights
rules and afford interested parties the of the parties. Quasi-judicial function is a term
opportunity to submit their views prior which applies to the action, discretion, etc. of
to the adoption of any rule. public administrative officers or bodies, who
2. In the fixing of rates, no rule or final are required to investigate facts or ascertain
order shall be valid unless the the existence of facts, hold hearings, and draw
proposed rates shall have been conclusions from them as a basis for their
published in a newspaper of general official action and to exercise discretion of a
circulation at least two (2) weeks judicial nature [Civil Service Commission v.
before the first hearing thereon. Magoyag, G.R. No. 197792 (2015)].
3. In case of opposition, the rules on
contested cases shall be observed Source
[Misamis Oriental Association of Coco Incidental to the power of regulation but is often
Traders, Inc. v. DOF Secretary, G.R. expressly conferred by the legislature through
No. 108524 (1994)]. specific provisions in the charter of the agency.
Power to Amend, Revise, Alter or Repeal Distinguished from Judicial Power

Rules Judicial power, in the strict sense, is the power
Following the doctrine of necessary to hear, try, and determine all spurts of cases
implication, the grant of express power to at law and equity which are brought before the
formulate implementing rules and regulations Courts. It is the power to make a final
must necessarily include the power to amend, determination of what the law is and to
revise, alter, or repeal the same [Yazaki Torres adjudicate the respective legal rights or
Manufacturing, Inc. v. CA, G.R. No. 130584 liabilities of the parties with respect to a matter
(2006)]. in controversy.
B. Quasi-judicial (Adjudicatory) Administrative adjudicatory power, on the other

hand, is conferred to an agency when the
Power function of the agency is primarily
administrative and the power to hear and
It is the power of an administrative agency to determine controversies is granted as an
hear and determine, or to ascertain facts and incident to the administrative duty [De Leon].
decide by the application of rules to the
ascertained facts. By this power, administrative Extent of Quasi-Judicial Powers of
authorities are enabled to interpret and apply Administrative Agencies
not only implementing rules and regulations Jurisdiction is limited to those matters that are
promulgated by them but also the laws within the special competence of the particular
entrusted to their administration [De Leon]. agency. Given the presumed special
competence of these agencies, Courts will thus
Note: The use of the term quasi-judicial is to generally sustain the decision of these
designate the character of the proceedings or administrative authorities.
Page 260 of 412
Extent of powers to be exercised by the by patient inquiry or observation; to examine
administrative agency is defined by the and inquire into with care and accuracy; to find
enabling act of such agency, meaning the grant out by careful inquisition; examination; the
of quasi-judicial powers cannot be implied. taking of evidence; a legal inquiry."
Investigation being in turn described as "an
Quasi-judicial power involves the interpretation administrative function, the exercise of which
and application of contracts as well as the ordinarily does not require a hearing.”
determination of the rights of the parties to such To 'adjudicate' means to adjudge, arbitrate,
contracts. judge, decide, determine, resolve, rule on,
settle. The dictionary defines the term as "to
When an administrative body or agency is settle finally (the rights and duties of the parties
conferred quasi-judicial powers, all to a court case) on the merits of issues raised:
controversies relating to the subject matter [...] to pass judgment on: settle judicially: [...]
pertaining to its specialization are deemed act as judge." In the legal sense, "adjudicate"
included within its jurisdiction [De Leon]. means: "To settle in the exercise of judicial
authority. To determine finally”.
Distinguished from Judicial Proceedings
Administrat Judicial Fact-finding is not adjudication and it cannot be
ive likened to the judicial function of a court of
Nature of Inquisitorial Adversarial justice, or even a quasi-judicial agency or
Proceedings office. The function of receiving evidence and
Rules of Liberally Follow ascertaining therefrom the facts of a
Procedure applied but technical controversy is not a judicial function. To be
subject to rules in the considered as such, the act of receiving
Ang Tibay Rules of evidence and arriving at factual conclusions in
requirements Court a controversy must be accompanied by the
Nature and Decision Decision authority of applying the law to the factual
Extent of generally includes conclusions to the end that the controversy
Decision limited to matters may be decided or resolved authoritatively,
matters of brought as finally and definitively, subject to appeals or
general issue by the modes of review as may be provided by law
concern, but parties [Louis Biraogo v. Philippine Truth Commission,
also resolves G.R. No. 192935 (2010), citing Hon. Isidro
the issues Carino v. CHR, G.R. No. 96681 (1991)].
raised by the
parties in a
In investigation, nowhere included or intimated
specific
is the notion of settling, deciding or resolving a
dispute
controversy involved in the facts inquired into
Parties The agency Only the
itself may be private
by application of the law to the facts
a party to the parties established by the inquiry [Cariño v. CHR, G.R.
proceedings No. 96681 (1991)].
before it
Distinguished from Legislative or Rule-
Distinguished from Investigative Power Making Power [De Leon]
[De Leon] 1. Quasi-judicial action involves an
To 'investigate' means to examine, explore, investigation, declaration, and the
inquire or delve or probe into, research on, enforcement of liabilities as they stand on
study. The purpose of an investigation is to present or past facts and under laws
discover, find out, learn, obtain information. It supposed to exist, while quasi-legislation
does not involve deciding or resolving looks to the future and changes existing
controversies in the facts inquired into by conditions by making a new rule to be
application of the law to the facts established applied prospectively.
by the inquiry. 2. Adjudication applies to named persons or
to specific situations while the legislation
The legal meaning of "investigate" is lays down general regulations that apply to
essentially the same: "to follow up step by step classes of persons or situations.
Page 261 of 412
3. In exercising quasi-judicial functions, due An administrative agency may not itself be
process (prior notice and hearing) are empowered to compel the attendance and
necessary as it involves the determination testimony of witnesses, as such must be
of facts and the applicable law as the basis exerted through judicial process. Hence, it is
for the exercise of discretion, but such is common for the enabling act of an agency to
not necessary with respect to the exercise provide for application to a court to enforce
of rule-making power as there is no obedience to a subpoena of an administrative
determination of past events or facts which agency [De Leon].
must be established.
Administrative agencies may enforce
Requisites for a Valid Exercise: subpoenas issued in the course of
1. Jurisdiction investigations, whether or not adjudication is
2. Due process involved, and whether or not probable cause is
shown and even before the issuance of a
General Rule: A tribunal, board or officer complaint. The purpose of the subpoena is to
exercising judicial functions acts without discover evidence, not to prove a pending
jurisdiction if no authority has been conferred charge. When investigative and accusatory
to it by law to hear and decide cases. duties are delegated by statute to an
administrative body, it, too may take steps to
Jurisdiction to hear must be explicit or by inform itself as to whether there is probable
necessary implication, conferred through the violation of the law.
terms of the enabling statute.
A subpoena meets the requirements for
Effect of Administrative Acts Outside enforcement if the inquiry is:
Jurisdiction — VOID [Radio Communications 1. Within the authority of the agency;
of the Phil., Inc. vs. Board of Communications, 2. The demand is not too indefinite; and
G.R. No. 43653 (1977) citing Batangas Laguna 3. The information is reasonably relevant
Tayabas Bus Co. vs. PSC, G.R. Nos. 25994 & [Evangelista v. Jarencio, G.R. No. L-29274
26004-26046 (1966)]. (1975)].
Rationale: They are mere creatures of law and 2. Contempt Power

have no general powers but only such as have General Rule: Exercised through the order
been conferred upon them by law. and assistance of RTC.
Powers included in Quasi-Judicial Exception: When the law gives agency

Functions contempt power.
1. Subpoena power
2. Contempt power The exercise of this power [to punish for
3. Power to issue search warrant or warrant contempt] has always been regarded as a
of arrest necessary incident and attribute of courts. Its
exercise by administrative bodies has been
1. Subpoena Power invariably limited to making effective the power
In any contested case, the agency shall have to elicit testimony, and the exercise of that
the power to require the attendance of power by an administrative body in furtherance
witnesses or the production of books, papers, of its administrative function has been held
documents and other pertinent data, upon invalid [Guevara v. Comelec, G.R. No. L-12596
request of any party before or during the (1958)].
hearing upon showing of general relevance.
Unless otherwise provided by law, the agency 3. Power to Issue Search Warrant or
may, in case of disobedience, invoke the aid of Warrant of Arrest
the Regional Trial Court within whose General Rule: Only judges may issue.
jurisdiction the contested case being heard
falls. The Court may punish contumacy or Under the express terms of our Constitution, it
refusal as contempt [Sec. 13, Chapter 3, Book is doubtful whether the arrest of an individual
VII, Administrative Code]. may be ordered by any authority other than the
judge if the purpose is merely to determine the
Page 262 of 412
existence of a probable cause, leading to an fundamental and essential requirements of due
administrative investigation [Qua Chee Gan v. process in trials and investigations of an
Deportation Board, G.R. No. L-10280 (1963), administrative character [Ang Tibay v. CIR,
decided under the 1935 Constitution. Note that G.R. No. L-46496 (1940)].
the 1987 and 1935 Constitutions are the same
in limiting the issuance of warrants of arrest to Administrative due process cannot be fully
a judge]. equated with due process in its strict judicial
sense, as in the former a formal trial-type
Under Article III, Section 2, of the 1987 hearing is not always necessary and technical
Constitution, only judges, and no other, may rules of procedure are not strictly applied [Vivo
issue warrants of arrest and search. The v. PACGOR, supra].
exception is in cases of deportation of illegal
and undesirable aliens, whom the President or Due process is satisfied when a person is
the Commissioner of Immigration may order notified of the charge against him and given an
arrested, following a final order of deportation, opportunity to explain or defend himself. The
for the purpose of deportation [Salazar v. essence of due process is simply to be heard,
Achacoso, G.R. No. 81510 (1990)]. or as applied to administrative proceedings, an
opportunity to explain one’s side, or an
Board of Commissioners v. De La Rosa [G.R. opportunity to seek a reconsideration of the
Nos. 95122 (1991)] reiterates the rule that for a action or ruling complained of [NAPOLCOM
warrant of arrest issued by the Commissioner National Appellate Board v. Bernabe, G.R. No.
of Immigration to be valid, it must be for the 129914 (2000)].
sole purpose of executing a final order of
deportation. A warrant of arrest issued by the a. Effect of Decisions Rendered Without
Commissioner of Immigration for purposes of Due Process
investigation only is null and void for being A decision rendered without due process is
unconstitutional. void ab initio the apparent lack of such may be
raised at any time since due process is a
Exception: A warrant may be issued by the jurisdictional requisite that all tribunals,
administrative agency following a final order. including administrative ones are bound to
serve [Apo Cement Corporation v. Mingson
It is different if the order of arrest is issued to Mining Industries Corporation, G.R. No.
carry out a final finding of a violation, either by 206728 (2014)].
an executive or legislative officer or agency
duly authorized for the purpose, as then the Decisions rendered without due process may
warrant is not that mentioned in the likewise be attacked directly or collaterally by
Constitution which is issuable only on probable means of a separate action or proceeding
cause. Such for example, would be a warrant where it is invoked [Salva v. Valle, G.R. No.
of arrest to carry out a final order of deportation, 193773 (2013)].
or to effect compliance of an order of contempt
[Qua Chee Gan v. Deportation Board, supra]. Cardinal Primary Rights
Ang Tibay v. CIR, supra, lays down the cardinal
Note: In Harvey v. Defensor-Santiago [G.R. primary rights:
No. L-82544 (1988)], there was no final order 1. Right to a hearing (includes the right of a
of deportation. The executive officials were the party to present his own case and submit
ones who made a finding of probable cause, evidence in support thereof)
not the judge. As such, this case seems to 2. The tribunal must consider the evidence
carve out another exception (in addition to presented.
warrant of arrest to enforce an order of 3. Decision must be supported by evidence.
deportation) - upon showing of probable cause 4. Evidence must be substantial.
and the filing of a charge. 5. Decision must be rendered on the
evidence presented at the hearing or at
1. Administrative Due Process least contained in the record and disclosed
While administrative agencies are free from the to the parties affected.
rigidity of certain procedural requirements, they 6. The judge must act on its or his own
cannot entirely ignore or disregard the independent consideration of the law and
Page 263 of 412
facts of the controversy (not simply accept The actual exercise of the disciplining
the views of a subordinate in arriving at a authority’s prerogative requires a prior
decision). independent consideration of the law and the
7. Decision must be rendered in such a facts. Failure to comply with this requirement
manner as to let the parties know the results in an invalid decision. The disciplining
various issues involved and the reasons for authority should not merely and solely rely on
the decision rendered. an investigator's recommendation, but must
personally weigh and assess the evidence
The 1st right mentioned above pertains to the gathered [DOH v. Camposano, G.R. No.
substantive rights of a party at the hearing 157684 (2005)].
stage of the proceedings, while the 2nd to 6th
requirements are those rights applicable at the Quantum of Proof
deliberative stage. These thus set the guiding
considerations in deliberating on the case and Quantum of proof required – substantial
are the material and substantial components of evidence
decision making. Lastly, the 7th requirement is In administrative cases, only substantial
similar to the constitutional requirement that a evidence is required [Paredes v. CA, G.R. No.
decision of a court must state distinctly the 169534 (2007)].
facts and the law upon which it is based
[Magcamit v. Internal Affairs Service-Philippine Substantial evidence is defined as evidence
Drug Enforcement Agency, G.R. NO. 198140 which is more than a mere scintilla, meaning
(2016). the amount of relevant evidence which a
reasonable mind might accept as adequate to
In administrative proceedings, procedural due justify a conclusion [Sec. 5, Rule 133, Rules of
process has been recognized to include the Court; Reyes v. Nieva, A.C. No. 8560 (2016)].
following:
1. The right to actual or constructive notice of An administrative proceeding is different from
the institution of proceedings which may a criminal case and may proceed
affect a respondent’s legal rights; independently thereof. The quantum of proof in
2. A real opportunity to be heard personally or the latter is different (proof beyond reasonable
with the assistance of counsel, to present doubt), such that the verdict in one need not
witnesses and evidence in one’s favor, and necessarily be the same as in the other. A
to defend one’s rights; finding of guilt in the criminal case will not
3. A tribunal vested with competent necessarily result in a finding of liability in the
jurisdiction and so constituted as to afford administrative case [Miralles v. Go, G.R. No.
a person charged administratively a 139943 (2001)].
reasonable guarantee of honesty as well
as impartiality; and b. Right to Counsel
4. A finding by said tribunal which is The right to counsel is not imperative in
supported by substantial evidence administrative investigations because such
submitted for consideration during the inquiries are conducted merely to determine
hearing or contained in the records or whether there are facts that merit disciplinary
made known to the parties affected [Vivo v. measures against erring public officers and
Pagcor, supra]. employees, with the purpose of maintaining the
dignity of government service [Lumiqued v.
Due process does not require that actual taking Exevea, G.R. No. 117565 (1997)].
of testimony be before the same officer who will
decide the case. As long as a party is not c. Opportunity to be Heard
deprived of his right to present his own case “To be heard” does not mean only verbal
and submit evidence in support thereof, and arguments in court as one may be heard
the decision is supported by the evidence in the through pleadings. Defects in procedural due
record, there is no question that the process may be cured when the party is given
requirements of due process and fair trial are the opportunity to appeal. Hence, when one is
fully met [American Tobacco Co. v. Director of given the opportunity to be heard either
Patents, G.R. No. L-26803 (1975)]. through oral arguments or pleadings, then
Page 264 of 412

there can be no denial of due process [Ebdane Right to Cross-examine
v. Aporillo, G.R. No. 204172 (2015)]. Under Sec. 12 (3), Chapter 3, Book VII of the
Administrative Code, it is provided that in
The principle that a person cannot be contested cases, every party has the right to
prejudiced by a ruling rendered in an action or cross-examine witnesses presented against
proceeding in which he was not made a party him and to submit rebuttal evidence.
conforms to the constitutional guarantee of due
process of law. Since respondent was not The right of a party to confront and cross-
impleaded in the HLURB case, he could not be examine an opposing witness is a fundamental
bound by the decision rendered therein. right which is part of due process. If without his
Because he was not impleaded in said case, fault, this right is violated, he is entitled to have
he was not given the opportunity to present his the direct examination stricken off the record
case therein [Aguilar v. O’Pallick, G.R. No. for such is considered an incomplete testimony
182280 (2013)]. which is considered incompetent [Bachrach
Motor Co., Inc. v. CIR, G.R. No. L-26136
Any seeming defect in the observance of due (1978)].
process is cured by the filing of a motion for
reconsideration. Denial of due process cannot While the right to cross-examine is a vital
be successfully invoked by a party who has had element of procedural due process, the right
the opportunity to be heard on his motion for does not necessarily require an actual cross
reconsideration [A.Z. Arnaiz Realty Inc. v. examination but merely an opportunity to
Office of the President, G.R. No. 170623 exercise this right if desired by the party entitled
(2010)]. to it [Gannapao v. CSC, G.R. No. 180141
(2011)].
Is a trial necessary?
No. Due process does not necessarily mean or Evidence on record must be fully disclosed to
require a trial-type hearing, but simply an the parties [American Inter-Fashion v. Office of
opportunity or a right to be heard [Vinta the President, G.R. No. 92422 (1991)], but
Maritime Co., Inc. v. NLRC, G.R. No. 113911 respondents in administrative cases are not
(1978)]. entitled to be informed of findings of
investigative committees but only of the
The presence of a party at a trial is not always decision of the administrative body [Pefianco v.
the essence of due process. All that the law Moral, G.R. No. 132248 (2000)].
requires to satisfy adherence to this
constitutional precept is that the parties be On Decisions Rendered
given notice of the trial, an opportunity to be Section 14, Article VIII of the 1987 Constitution
heard. Where the defendant failed to appear on (i.e., “No decision shall be rendered by any
the date set for the trial, of which he was court without expressing therein clearly and
previously notified, he is deemed to have distinctly the facts and the law on which it is
forfeited his right to be heard in his defense based.”) need not apply to decisions rendered
[Asprec v. Itchon, G.R. No. L- 21685 (1966)]. in administrative proceedings. Said section
applies only to decisions rendered in judicial
Even a trial is not always necessary for proceedings. The constitutional mandate does
administrative due process to be satisfied not preclude the validity of “memorandum
given that its essence is simply an opportunity decisions,” which adopt by reference the
or a right to be heard [Vinta Maritime Co., Inc. findings of fact and conclusions of law
v. NLRC, supra]. contained in the decisions of inferior tribunals
[Solid Homes, Inc. v. Laserna, G.R. No.
The requirements [of notice and hearing] are 166051 (2008)].
followed where parties are given fair
opportunity to explain their side. Such cases There is no requirement in Ang Tibay v. CIR
may be resolved based solely on documentary that the decision must express clearly and
evidence submitted by parties as affidavits may distinctly the facts and the law on which it is
take the place of their direct testimony [Samalio based for as long as the administrative
v. CA, G.R. No. 140079 (2005)]. decision is grounded on evidence and
expressed in a manner that sufficiently informs
Page 265 of 412
the parties of the factual and legal bases of the 3. Imputation of a violation and imposition of
decision, the due process requirement is a fine despite absence of due notice and
satisfied [Solid Homes, Inc. v. Laserna, G.R. hearing [Globe Telecom v. NTC, G.R. No.
No. 166051 (2008)]. This is not understood as 143964 (2004)]
abandoning the requirement in the Constitution
and the Administrative Code with respecting d. Notice and Hearing
explaining the factual and legal bases of The essence of procedural due process is
judgment, only that the decision is sufficient embodied in the basic requirement of notice
even if it is not written in the same extended and a real opportunity to be heard. In
manner as in judicial decisions. administrative proceedings, procedural due
process simply means the opportunity to
The order, it is true, does not make its own explain one’s side or the opportunity to seek a
discussion of the evidence or its own findings reconsideration of the action or ruling
of fact, but such is not necessary if the court is complained of [Vivo vs. PAGCOR, G.R. No.
satisfied with the report of its examiner or 187854 (2013)].
referee which already contains a full discussion
of the evidence and the findings of fact based Notice is necessary as this gives parties the
thereon. The situation differs if the court opportunity to be heard and to present
disagrees with the report in which case it evidence, and such is not a mere technicality
should state the reasons for its disagreement. but is an indispensable ingredient of due
If it is in full accord with the report, it is process [Uy, et al., v. COA, G.R. No. 130685
purposeless to repeat what the examiner has (2000)].
already found in it [Indias v. Philippine Iron
Mines, G.R. No. L-9987 (1957)]. Aside from that prescribed by statute, the
necessity of notice and hearing in an
Note: In Indias, the “court” being referred to administrative proceeding would depend on
was the Court of Industrial Relations which was the character of the proceeding and the
an administrative agency circumstances involved [De Leon].
However, in the Administrative Code, it is When Required

provided that: 1. When the law specifically requires it [Sec.
Decision – Every decision rendered by the 11, Chap. 3, Book VII, Administrative
agency in a contested case shall be in writing Code]; or
and shall state clearly and distinctly the facts 2. When provided for by the rules and
and the law on which it is based. The agency regulations of the administrative
shall decide each case within thirty (30) days body/agency [Bautista vs. Workmen’s
following its submission. The parties shall be Compensation Commission, G.R. No. L-
notified of the decision personally or by 43027 (1979)]
registered mail addressed to their counsel of 3. When it affects a person’s status, rights, or
record, if any, or to them [Sec. 14, Chap. 1, property by the action of an administrative
Book VII, Administrative Code]. body [Central Bank vs. Cloribel, G.R. No.
L-26971 (1972)] such as in cases where an
Further note that in Magcamit v. Internal Affairs administrative body acts in a judicial or
Service-Philippine Drug Enforcement Agency quasi-judicial matter. Here, notice and
[G.R. No. 198140 (2016)], the Court hearing does not connote full adversarial
characterized the 7th requirement in Ang Tibay proceedings provided that the parties are
as one “similar in substance to the given a fair and reasonable opportunity to
constitutional requirement that a decision of a explain their side of the controversy [De
court must state distinctly the facts and the law Leon].
upon which it is based”.
When Not Required
Due Process is Violated When: 1. When an administrative agency merely
1. There is failure to sufficiently explain the passed upon the sufficiency of the
reason for the decision rendered; or evidence presented before an office under
2. If not supported by substantial evidence; or it in which the petitioner was heard [Arocha
vs. Vivo, L-24844 (1967)];
Page 266 of 412
2. When there is urgent need for immediate 3. All licensing procedures, when a license is
action [Secretary of Justice v. Lantion, G.R. withdrawn, suspended, revoked or
No. 139465 (2000)]; annulled [Sec. 17(2), Chap. 3, Book VII,
3. Discretion is exercised by an officer vested Administrative Code]
with it upon an undisputed fact [Suntay v.
People, G.R. No. L-9430 (1957)] and there Exceptions
is no grave abuse; Notice and hearing not required in cases of:
4. When it involves rules to govern future 1. Willful violation of pertinent laws, rules
conduct of persons or enterprises, unless and regulations; or
law provides otherwise; 2. When public security, health, or safety
5. When there is tentativeness of require otherwise [Sec. 17(2), Chap. 3,
administrative action, i.e., the person Book. VII, Administrative Code].
affected is not precluded from enjoying the
right to notice and hearing at a later time e. Application of Rules of Evidence in
without prejudice to them such as when an Administrative Proceedings
ex parte order issued is contested and a In administrative proceedings, technical rules
public hearing is held where the of procedure and evidence are not strictly
opportunity to be heard may be exercised applied; administrative due process cannot be
[Pollution Adjudication Board v. CA, G.R. fully equated with due process in its strict
No. 93891 (1991)]; or judicial sense [Vinta Maritime Co., Inc. v.
6. When action is necessary to protect vital NLRC, supra].
public interests, through the exercise of
police power [Pollution Adjudication Board Administrative rules of procedure are
v. CA, supra]. construed liberally to promote their objective
and to assist parties in obtaining just, speedy
Meetings in the nature of consultation and and inexpensive determination of their
conferences may not be valid substitutes for respective claims and defenses. As a general
the proper observance of notice and hearing rule, a finding of guilt in administrative cases, if
[Equitable Bank v. NLRC, G.R. No. 102467 supported by substantial evidence will be
(1997)]. sustained by the Court [Civil Service
Commission v. Colanggo, G.R. No. 174935
Where the establishment affected by an ex (2008)].
parte cease and desist order contests the
correctness of the prima facie findings of the 2. Administrative Appeal and Review
[Pollution Adjudication Board], the Board must In administrative appeal and review, there is a
hold a public hearing where such hierarchy of authorities, meaning by express
establishment would have an opportunity to provision of statute or otherwise:
controvert the basis of such ex parte order. a. A review may be had within the
That such an opportunity is subsequently administrative system itself of the action of
available is really all that is required by the due lower administrative authorities by their
process clause of the Constitution [Pollution superiors; or
Adjudication Board v. CA, supra]. b. A particular administrative body is
authorized to hear and decide appeals
Required Notice and Hearing under the from, and review the determinations of,
Administrative Code certain other administrative bodies or
1. Contested cases [Sec. 11, Chap. 3, Book officers [De Leon].
VII, Administrative Code]
2. Insofar as practicable, to certain licensing Note: To be entitled to appeal and review by an
procedures, involving grant, renewal, appellate administrative body of the
denial or cancellation of a license; i.e., determination of a subordinate or another
when the grant, renewal, denial or administrative body, a party must prove that it
cancellation of a license is required to be has been affected or aggrieved by the decision
preceded by notice and hearing [Sec. issued by the subordinate/other administrative
17(1), Chap. 3, Book VII, Administrative body [De Leon].
Code]
Page 267 of 412

Unless otherwise provided by law or executive 3. That in which the statute attempts to make
order, an appeal from a final decision of an a court a part of the administrative scheme
agency may be taken to the Department Head by providing in terms or effect that the
[Sec. 19, Chap. 4, Book VIII, of the court, on review of the action of an
Administrative Code]. administrative agency, shall exercise
powers of such extent that they differ from
To avail of the above: ordinary judicial functions and involve a
● Who files: Party adversely affected by the trial de novo of matters of fact or discretion
decision complained of. and application of the independent
● Where to file: With the agency which judgment of the court;
adjudicated the case 4. That in which the statute provides that an
● What should be filed: A notice of appeal order made by a division of a Commission
● When: Within 15 days from the receipt of a or Board has the same force and effect as
copy of the decision complained of if made by the Commission subject to a
● Other procedural matters: Copies of rehearing by the full Commission, for the
such notice must be served upon the ‘rehearing’ is practically an appeal to
prevailing party AND the appellate agency, another administrative tribunal;
and paying the required fees [Sec. 20, 5. That in which the statute provides for an
Chap. 3, Book VII, of the Administrative appeal to an officer on an intermediate
Code]. level with subsequent appeal to the head of
the department or agency; and
An agency’s administrative process must 6. That embraced in statutes which provide
always be exhausted before external remedies for appeal at the highest level, namely, the
can be applied, meaning that even if a President.
governmental entity committed a grave abuse
of discretion, litigants must first ask for The appellate administrative agency may
reconsideration or a review from the body itself conduct additional hearings in the appealed
or the agency concerned. This is to ensure that case, if deemed necessary [Reyes v. Zamora,
when the issue reaches the Court, the G.R. No. L-46732 (1979)].
administrative agency has already fully
exercised its jurisdiction and the Court may In order that the review of the decision of a
thus focus on the questions of law presented subordinate officer might not turn out to be a
before it [Kilusang Mayo Uno v. Aquino III, farce, the reviewing officer must perforce be
supra]. other than the officer whose decision is under
review; otherwise, there could be no different
Effect of appeal view or there would be no real review of the
The appeal shall stay the decision appealed case [Zambales Chromite Mining v. CA, G.R.
from unless otherwise provided by law, or the No. L-49711 (1979)].
appellate agency directs execution pending
appeal, as it may deem just, considering the The law, in prescribing a process of appeal to
nature and circumstances of the case [Sec. 21, a higher level, contemplates that the reviewing
Chap. 3, Book VII, of the Administrative Code]. officer is a person different from the one who
issued the appealed decision. Otherwise, the
Different kinds of administrative appeal review becomes a farce; it is rendered
and review [De Leon]: meaningless [Rivera v. CSC, G.R. No. 115147
1. That which inheres in the relation of (1995)].
administrative superior to administrative
subordinate where determinations are Doctrine of Qualified Political Agency
made at lower levels of the same Under the doctrine of qualified political agency
administrative system; [Villena v. Secretary of Interior, G.R. No. L-
2. That embraced in statutes which provide 46570 (1939)], a decision of the department
for a determination to be made by a head generally need not be appealed to the
particular officer of body subject to appeal, Office of the President, since the department
review, or redetermination by another head (e.g., Secretary) is the alter ego of the
officer or body in the same agency or in the President, and the former’s acts are
same administrative system;
Page 268 of 412
presumably the President’s. However, the 4. There must be identity of parties, subject
doctrine does not apply when: matter and cause of action [Ipekdijan
1. The act is repudiated by the President; Merchandising v. CTA, G.R. No. L-14791
or (1963)].
2. The act is required (by law) to be
performed specifically by the Res judicata is not defeated by a minor
department head. difference of parties, as it does not require
absolute but only substantial identity of parties
3. Administrative Res Judicata [Manila Electric Co. v. Phil. Consumers
Res judicata lays the rule that an existing final Foundation, G.R. No. 101783 (2002)].
judgment or decree rendered on the merits,
without fraud or collusion, by a court of Concepts
competent jurisdiction, upon any matter within Res judicata has two (2) concepts:
its jurisdiction, is conclusive of the rights of the 1. Bar by prior judgment
parties or their privies, in all other actions or 2. Conclusiveness of judgment
suits in the same or any other judicial tribunal
of concurrent jurisdiction on the points and 1. Bar by Prior Judgment
matters in issue in the first suit [Civil Bar by prior judgment exists when, as between
Aeronautics Administration v. Yu, G.R. No. the first case where the judgment was
157557 (2006)]. rendered and the second case that is sought to
be barred, there is identity of parties, subject
Nothing is more settled in law than that once a matter, and causes of action.
judgment attains finality it thereby becomes
immutable and unalterable [Civil Service This is enunciated in Rule 39, Section 47(b) of
Commission v. Magoyag, G.R. No. 197792 the Rules of Civil Procedure:
(2015)]. “(b) In other cases, the judgment or final order
is, with respect to the matter directly adjudged
Scope of application or as to any other matter that could have been
The doctrine of res judicata does not apply raised in relation thereto, conclusive between
exclusively to courts but may be extended to the parties and their successors in interest by
decisions of bodies upon whom judicial powers the title subsequent to the commencement of
have been conferred [Ipekdijan Merchandising the action or special proceeding, litigating for
v. CTA, G.R. No. L-14791 (1963)]. the same thing and under the same title and in
the same capacity”
It applies only to judicial or quasi-judicial
proceedings and not to the exercise of purely 2. Conclusiveness of Judgment
administrative in nature. When the Conclusiveness of judgment applies when a
administrative proceedings take on an fact or question has been squarely put in issue,
adversary character, the doctrine of res judicially passed upon, and adjudged in a
judicata applies [Heirs of Maximo Derla v. Heirs former suit by a court of competent jurisdiction.
of Catalina Derla vda. De Hipolito, G.R. No. This only requires identity of parties and issues
157717 (2011)]. to apply [Emerald Garment Manufacturing
Corp., G.R. No. 210693 (2017)].
It may not be invoked in labor relations
proceedings considering that such Under the doctrine of conclusiveness of
proceedings are non-litigious and summary in judgment, facts and issues actually and directly
nature without regard to legal technicalities resolved in a former suit cannot again be raised
obtaining in courts of law [Nasipit Lumber Co. in any future case between the same parties,
v. NLRC, G.R. No. L-54424 (1989)]. even if the latter suit may involve a different
claim or cause of action. The identity of causes
Requisites of action is not required but merely identity of
1. The former judgment must be final; issues [Civil Aeronautics Administration v. Yu,
2. It must have been rendered by a court supra].
having jurisdiction over the subject matter
and the parties; This is enunciated in Rule 39, Section 47(c) of
3. It must be a judgment on the merits; and the Rules of Civil Procedure:
Page 269 of 412
“(c) In any other litigation between the same Forum shopping
parties or their successors in interest, that only There is forum shopping whenever, as a result
is deemed to have been adjudged in a former of an adverse opinion in one forum, a party
judgment or final order which appears upon its seeks a favorable opinion (other than by
face to have been so adjudged, or which was appeal or certiorari) in another. The principle
actually and necessarily included therein or applies not only with respect to suits filed in the
necessary thereto” courts but also in connection with litigation
commenced in the courts while an
Effect of res judicata administrative proceeding is pending, in order
The doctrine of res judicata provides that a final to defeat administrative processes and in
judgment on the merits rendered by a court of anticipation of an unfavorable administrative
competent jurisdiction, is conclusive as to the ruling and a favorable court ruling.
rights of the parties and their privies and
constitutes an absolute bar to subsequent The test for determining whether a party has
actions involving the same claim, demand, or violated the rule against forum shopping is
cause of action [Civil Aeronautics where a final judgment in one case will amount
Administration v. Yu, supra]. to res judicata in the action under consideration
[Fortich v. Corona, G.R. No. 131457 (1998),
Decisions and orders of administrative citing First Philippine International Bank v. CA
agencies rendered pursuant to their quasi- (1996)].
judicial authority, have, upon their finality, the
force and binding effect of a final judgment The rule against forum shopping applies only
within the purview of the doctrine of res to judicial cases or proceedings, not to
judicata, which forbids the reopening of a administrative cases [Office of the
matter once judicially determined by competent Ombudsman v. Rodriguez, G.R. No. 172700
authority [Dulay v. Minister of Natural (2010)].
Resources, G.R. No. L-48766 (1993)].
B. Fact-Finding, Investigative,
For res judicata to be applied in cases of
citizenship, the following must be present: Licensing, and Rate-Fixing
1. A person's citizenship must be raised Powers
as a material issue in a controversy
where said person is a party; 1. Ascertainment of Fact
2. The Solicitor General or his authorized
representative took active part in the A statute may:
resolution thereof; and a. Give non-judicial officers the power to
3. The finding or citizenship is affirmed by declare the existence of facts which
SC [Board of Commissioners v. De la call into operation the statute’s
Rosa, G.R. Nos. 95122 (1991)]. provisions, and
b. Grant commissioners and other
Due to the difference between the quantum of subordinate officers the power to
evidence, procedure, and sanctions imposed in ascertain and determine appropriate
criminal and administrative proceedings, the facts as a basis for procedure in the
findings and conclusions in one should not enforcement of particular laws.
necessarily be binding on the other [Ocampo v.
Office of the Ombudsman, G.R. No.114683 Such functions are merely incidental to the
(2000)]. exercise of powers conferred by law upon
executive officials provided the party affected
The basis of administrative liability differs from is given the opportunity to be heard [Lovina vs.
criminal liability. The purpose of administrative Montilla, G.R. No. L-17821 (1963)].
proceedings is mainly to protect the public
service, based on the time-honored principle
that a public office is a public trust. On the other 2. Investigative Powers
hand, the purpose of criminal prosecution is the Administrative agencies’ power to conduct
punishment of crime [Ferrer v. Sandiganbayan, investigations and hearings, and make findings
G.R. No. 161067 (2008)].
Page 270 of 412
and recommendations thereon is inherent in sovereignty and the licensee, and is not a
their functions as administrative agencies. property in any constitutional sense.
The investigative powers of an administrative A license granted by the State is always

agency must be exercised within the limits revocable. As a necessary consequence of its
prescribed and bear a reasonable and main power to grant license or permit, the State
legitimate relationship to the general powers or its instrumentalities have the correlative
granted, which includes the authority to obtain power to revoke or recall the same. This power
information necessary to discharge its proper can only be restrained by an explicit contract
functions [De Leon]. upon good consideration to that effect
[Gonzalo Sy Trading v. Central Bank, G.R. No.
General Rule: Findings of fact by L-41480 (1976)].
administrative agencies and quasi-judicial
bodies, which have acquired expertise Definition of License
because of their jurisdiction is confined to “License” includes the whole or any part of any
specific matters, are generally accorded not agency permit, certificate, passport, clearance,
only great respect but even finality, absent a approval, registration, charter, membership,
showing of grave abuse of discretion [Marlow statutory exemption or other form of
Navigation Philippines Inc. vs. Heirs of Ricardo permission, or regulation of the exercise of a
S. Ganal, G.R. No. 220168 (2017)]. right or privilege [Sec. 2, Chap. 1, Book VII,
Exception: One of the exceptions to the above
rule is when the factual findings of the quasi- Definition of Licensing
judicial agencies concerned are conflicting or “Licensing” includes agency process involving
contrary with those of the CA. the grant, renewal, denial, revocation,
suspension, annulment, withdrawal, limitation,
“Investigate” means to examine, explore, amendment, modification or conditioning of a
inquire or delve or probe into, research on, license [Sec. 2, Chap. 1, Book VII,
study. The purpose of investigation is to Administrative Code].
discover, to find out, to learn, obtain
information. Nowhere included or intimated is Procedure
the notion of settling, deciding or resolving a 1. When the grant, renewal, denial or
controversy involved in the facts inquired into cancellation of a license is required to
by application of the law to the facts be preceded by notice and hearing, the
established by the inquiry [Cariño v. CHR, G.R. provisions concerning contested cases
No. 96681 (1991)]. shall apply insofar as practicable.
2. Except in cases of willful violation of
Investigate Adjudicate pertinent laws, rules and regulations or
when public security, health, or safety
To follow up step by To settle in the require otherwise, no license may be
step by patient exercise of judicial withdrawn, suspended, revoked or
inquiry or authority or to annulled without notice or hearing [Sec.
observation determine with finality 17, Chap. 3 , Book VII, Administrative
Code].
Purpose is to Implies a judicial
discover and obtain determination of a fact Non-expiration
information [Cariño and the entry of a Where the licensee has made timely and
v. CHR, supra] judgment [Cariño v. sufficient application for the renewal of a
CHR, supra] license with reference to any activity of a
continuing nature, the existing license shall not
expire until the application shall have been
3. Licensing Function finally determined by the agency [Sec. 18,
A license is in the nature of a special privilege, Chap. 3, Book VII, Administrative Code].
of a permission or authority to do what is within
its terms. It is not any way vested, permanent, The absence of an expiry date in a license does
or absolute. It is not a contract between the not make it perpetual. Notwithstanding that
Page 271 of 412
absence, the license cannot last beyond the life Note: The old doctrine is if the rate-fixing power
of the basic authority under which it was issued is quasi-legislative, it need not be accompanied
[Gonzalo Sy Trading v. Central Bank, G.R. No. by prior notice and hearing. Under the Admin
L-41480 (1976)]. Code, the distinction seems to have been
disregarded, since the provision did not qualify
Notice and hearing; when required the character of the rate-fixing, and now
Notice and hearing are required if it is a requires prior notice (via publication) before the
contested case. Otherwise, it can be dispensed hearing.
with (e.g., driver’s licenses).
Definition of Rate
“Contested case” means any proceeding, “Rate” means any charge to the public for a
including licensing, in which the legal rights, service open to all and upon the same terms,
duties or privileges asserted by specific parties including individual or joint rates, tolls,
as required by the Constitution or by law are to classifications, or schedules thereof, as well as
be determined after hearing [Sec. 2, Chap. 1, commutation, mileage, kilometerage and other
Book VII, Administrative Code]. special rates which shall be imposed by law or
regulation to be observed and followed by any
When discretion is exercised by an officer person [Sec. 2, Chap. 1, Book VII,
vested with it upon are undisputed fact, hearing Administrative Code].
may be dispensed with by such officer; lack of
such hearing does not violate the due process Publication requirement
clause and the exercise of the discretion In the fixing of rates, no rule or final order shall
vested in him cannot be deemed whimsical and be valid unless the proposed rates shall have
capricious because of the absence of such been published in a newspaper of general
hearing [Suntay v. People, G.R. No. L-9430 circulation at least two (2) weeks before the first
(1957)]. hearing thereon [Sec. 9, Chap. 2, Book VII,
4. Fixing of Rates, Wages, and
Factors considered in fixing of rates
Prices In the fixing of rates, the only standard which
Generally, the power to fix rates is a quasi- the legislature is required to prescribe for the
legislative function, i.e., it is meant to apply to guidance of the administrative authority is that
all. However, it becomes quasi-judicial when the rate be reasonable and just. Even in the
the rate is applicable only to a particular party, absence of an express requirement as to
predicated upon a finding of fact reasonableness, this standard may be implied.
[PHILCOMSAT v. Alcuaz, supra, citing Vigan
Electric Light Co. v. Public Service What is a just and reasonable rate is a question
Commission, G.R. No. L-19850 (1964)]. of fact calling for the exercise of discretion,
good sense, and a fair, enlightened and
Where the determination of the issue independent judgment [Republic v. Meralco,
complained of partakes of the nature of a G.R. No. 141314 (2002)].
quasi-judicial function, previous notice and A rate should not be confiscatory as would
hearing is required [Vigan Electric Light Co. v. place an operator in a situation where he will
Public Service Commission, supra]. continue to operate at a loss. It is essential also
to consider the given situation, requirements
However, an administrative agency may be and opportunities of the utility [KMU Labor
empowered by law to approve rates of public Center v. Garcia, G.R. No. 115381 (1994);
utilities provisionally without a hearing when Republic v. Meralco, G.R. No. 141314 (2002)].
demanded by urgent public need [Padua v.
Ranada, G.R. No. 141949 (2002)]. A rate must be reasonable and fair and must
be affordable to the end user who will utilize the
If the fixing of rates were a legislative function, services. The purpose of a hearing is to
the giving of prior notice and hearing to the determine what a just and reasonable rate is
affected parties is not a requirement, except [KMU Labor Center v. Garcia, supra].
where the legislature itself requires it [De
Leon].
Page 272 of 412

In fixing the rate, it would not be fair to the
public to base it upon a peak cost, and it would
not be fair to the owner of the property to place
it upon a minimum cost [Ynchausti Steamship
Co. v. Public Utility Commissioner, G.R. No.
17665 (1922)].
Nowhere under law are the regulatory bodies,
the Public Service Commission and LTFRB
alike, authorized to delegate the power of
route-fixing and rate-making for the transport
sector to a common carrier, a transport
operator, or other public service [KMU Labor
Center v. Garcia, supra].
Republic v. Meralco, supra, laid down three (3)

major factors considered in the fixing of rates:
1. Rate of return
2. Rate base
3. The return itself
1. Rate of Return
The rate of return is a judgment percentage
prescribed by administrative and judicial
pronouncements. The Court has consistently
adopted a 12% rate of return for public utilities.
2. Rate Base
The rate base is an evaluation of the property
devoted by the utility to the public service or the
value of invested capital or property which the
utility is entitled to a return.
3. The Return Itself

The return itself is the computed revenue to be
earned by the public utility, achieved by
multiplying the rate of return with the rate base.
Page 273 of 412

III. DOCTRINES OF Note: Rule 43 of the Rules of Court provides

that the Court of Appeals shall have appellate
PRIMARY JURISDICTION jurisdiction over awards, judgments, final
orders or resolutions of or authorized by any
AND EXHAUSTION OF quasi-judicial agency in the exercise of its
ADMINISTRATIVE quasi-judicial functions.
REMEDIES Extent of Judicial Review
Judicial Review 1. Questions of Law
Judicial review may embrace any form of a. Constitutionality of the law creating the
judicial scrutiny of a matter which arises when agency and granting it powers
such action is brought into question before a b. Validity of agency action if these
court. It is ordinarily available only for final transcend limits established by law
administrative action [De Leon]. c. Correctness of interpretation or
application of the law
General Rule
Judicial review may be granted or withheld as A decision of an administrative agency on a
Congress chooses, except when the question of law is in no sense conclusive upon
Constitution requires or allows it. Thus, a law the courts, but is subject to review [Ortua v.
may provide that the decision of an Encarnacion, G.R. No. 39919 (1934)].
administrative agency shall be final and not
reviewable and it would still not offend due 2. Questions of Fact
process. Review shall be made on the basis of the
record taken as a whole. The findings of fact of
However, Sec. 1, para. 2, Art. VIII of the the agency when supported by substantial
Constitution provides that judicial review of evidence shall be final except when specifically
administrative decisions cannot be denied provided otherwise by law [Sec. 25, Chap. 4,
when there is an allegation of grave abuse of Book VII, Administrative Code].
discretion [Nachura].
General Rule: Findings of fact by the agency
It is generally understood that as to are final when supported by substantial
administrative agencies exercising quasi- evidence.
judicial or legislative power, there is an
underlying power in the courts to scrutinize the Exceptions
acts of such agencies on questions of law and 1. Specifically allowed otherwise by law
jurisdiction even though no right of review is 2. Fraud, imposition, mistake, or other
given by statute. Judicial review is proper in error of judgment in evaluating the
case of lack of jurisdiction, grave abuse of evidence [Ortua v. Singson
discretion, error of law, fraud or collusion [San Encarnacion, G.R. No. L-39919 (1934)]
Miguel Corp. v. NLRC, G.R. No. L-39195 3. Error in appreciation of pleadings and
(1975), citing Timbancaya v. Vicente, G.R. No. interpretation of the documentary
L-19100 (1963)]. evidence presented by the parties [Tan
Tiong Teck v. SEC, G.R. No. L-46471
Rationale (1940)]
The purpose of judicial review is to keep the 4. Decision of the agency was rendered by
administrative agency within its jurisdiction and an almost divided agency and that the
protect the substantial rights of the parties. division was precisely on the facts as
borne out by the evidence [Gonzales v.
It is that part of the checks and balances which Victory Labor Union, G.R. No. L-2256
restricts the separation of powers and forestalls (1969)]
arbitrary and unjust adjudications [St. Martin’s
Funeral Homes v. NLRC, G.R. No. 130866
(1998)].
Page 274 of 412

3. Questions of Discretion It can only occur where there is a concurrence
of jurisdiction between the court and the
General Rule: Administrative and administrative agency.
discretionary functions may not be interfered
with by the courts. It is a question of the court yielding to the
agency because of the latter’s expertise, and
Rationale: Courts have none of the technical does not amount to ouster of the court [Texas
and economic or financial competence which & Pacific Railway v. Abilene, 204 U.S. 426
specialized administrative agencies have at (1907)].
their disposal, and in particular must be wary of
intervening in matters which are at their core It may occur that the Court has jurisdiction to
technical and economic in nature [PLDT v. take cognizance of a particular case, which
National Telecommunications Commission, means that the matter involved is also judicial
G.R. No. 94374 (1995)]. in character. However, if the determination of
the case requires the expertise, specialized
Exceptions skills and knowledge of the proper
1. When there is a grave abuse of administrative bodies because technical
discretion; matters or intricate questions of facts are
2. Where the power is exercised in an involved, then relief must first be obtained in an
arbitrary or despotic manner [Banco administrative proceeding before a remedy will
Filipino Savings and Mortgage Bank v. be supplied by the courts even though the
Monetary Board, G.R. No. 70054 matter is within the proper jurisdiction of a court
(1991)]; [Industrial Enterprises, Inc. v. CA, G.R. No.
3. If without reasonable support in the 88550 (1990)].
evidence;
4. Rendered against law, or Administrative agencies are given a wide
5. Issued without jurisdiction [Laguna latitude in the evaluation of evidence and in the
Tayabas Bus Company v. Public exercise of their adjudicative functions, latitude
Service Commission, G.R. No. 10903 which includes the authority to take judicial
(1957)]. notice of facts within their special competence
[Quiambao v. CA, G.R. No. 128305 (2005)].
A. Doctrine of Primary
The doctrine of primary jurisdiction applies
Jurisdiction (or Prior Resort) where a claim is originally cognizable in the
courts, and comes into play whenever
The doctrine of primary jurisdiction applies only enforcement of the claim requires the
where the administrative agency exercises its resolution of issues which, under a regulatory
quasi-judicial or adjudicatory function. Thus, in scheme, have been placed within the special
cases involving specialized disputes, the competence of an administrative body; in such
practice has been to refer the same to an case, the judicial process is suspended
administrative agency of special competence pending referral of such issues to the
pursuant to the doctrine of primary jurisdiction. administrative body for its view [Industrial
The courts will not determine a controversy Enterprises, Inc. v. CA, supra].
involving a question which is within the
jurisdiction of the administrative tribunal prior to The doctrine of primary jurisdiction does not
the resolution of that question by the warrant a court to arrogate unto itself authority
administrative tribunal, where the question to resolve a controversy the jurisdiction over
demands the exercise of sound administrative which is initially lodged with an administrative
discretion requiring the special knowledge, body of special competence [Vidad v. RTC,
experience and services of the administrative G.R. No. 98084 (1993)].
tribunal to determine technical and intricate
matters of fact, and a uniformity of ruling is Rationale
essential to comply with the premises of the Two (2) reasons have been given for the rule:
regulatory statute administered [Smart 1. To take full advantage of administrative
Communications v. NTC, supra]. expertness; and
Page 275 of 412

2. To attain uniformity of application of its action on the cases before it pending the
regulatory laws which can be secured final outcome of the administrative proceedings
only if determination of the issue is left [Vidad v. RTC, supra].
to the administrative body [De Leon].
Note: The court may raise the issue of primary
In this era of clogged docket courts, the need jurisdiction sua sponte and its invocation
for specialized administrative boards with the cannot be waived by the failure of the parties to
special knowledge and capability to hear and argue it as the doctrine exists for the proper
determine promptly disputes on technical distribution of power between judicial and
matters has become well-nigh indispensable. administrative bodies and not for the
Between the power lodged in an administrative convenience of the parties [Euro-Med
body and a court, the unmistakable trend has Laboratories Phil., Inc. v. Province of
been to refer it to the former [GMA v. ABS CBN, Batangas, G.R. No. 148106 (2006)].
G.R. No. 160703 (2005)].
When applicable
The objective of the doctrine of primary The doctrine applies only where the
jurisdiction is to guide a court in determining administrative agency exercises its quasi-
whether it should refrain from exercising its judicial or adjudicatory function [Smart v. NTC,
jurisdiction until after an administrative agency supra].
has determined some question or some aspect
of some question arising in the proceeding When not applicable
before the court [Smart v. NTC, supra]. a. When the issue is not within the
competence of the administrative body to
Requisites act on (e.g., pure questions of law, over
1. An administrative body and a regular court which the expertise is with the courts);
have concurrent and original jurisdiction.
2. Question to be resolved requires expertise Regular courts have jurisdiction in cases
of administrative agency. where what is assailed is the validity or
3. Legislative intent on the matter is to have constitutionality of a rule or regulation
uniformity in rulings. issued by the administrative agency in the
4. Administrative agency is performing a performance of its quasi-legislative
quasi-judicial or adjudicatory function (not function [Smart v. NTC, supra].
rulemaking or quasi-legislative function)
[Smart v. NTC, supra]. b. When the issue involved is clearly a
factual question that does not require
Effect specialized skills and knowledge for
The judicial process is suspended pending resolution to justify the exercise of primary
referral of such issues to the administrative jurisdiction.
body for its view [Smart v. NTC, supra].
B. Doctrine of Exhaustion of
All the proceedings of the court in violation of
the doctrine and all orders and decisions Administrative Remedies
rendered thereby are null and void [Province of
Aklan v. Jody King Construction and General Rule
Development Corp., G.R. No. 197592 (2013)]. Recourse through court action cannot prosper
until after all such administrative remedies
Does not per se have the effect of restraining have first been exhausted. If remedy is
or preventing the courts from the exercise of available within the administrative machinery,
their lawfully conferred jurisdiction. A contrary this should be resorted to before resort can be
rule would unduly expand the doctrine of made to courts [Teotico v. Baer, G.R. No.
primary jurisdiction [Conrad and Co., Inc. v. 147464 (2006)].
CA, G.R. No. 115115 (1995)].
While no prejudicial question strictly arises Where the law has delineated the procedure by
where one is a civil case and the other is an which administrative appeal or remedy could
administrative proceeding, in the interest of be effected, the same should be followed
good order, it behooves the court to suspend before recourse to judicial action can be
Page 276 of 412
initiated [Pascual v. Provincial Board, G.R. No. This list has been expanded by case law to
L-11959 (1959)]. include:
1. Purely legal questions [Castro v.
Requisites Secretary, G.R. No. 132174 (2001)]
1. The administrative agency is 2. There is grave doubt as to the
performing a quasi-judicial function; availability of the administrative
2. Judicial review is available; and remedy [Pascual v. Provincial Board,
3. The court acts in its appellate supra].
jurisdiction. 3. Steps to be taken are merely matters of
form [Pascual v. Provincial Board,
Rationale supra].
One of the reasons for exhaustion of 4. The administrative remedy not
administrative remedies is the well-entrenched exclusive but merely cumulative or
doctrine on separation of powers, which concurrent to a judicial remedy
enjoins upon the Judiciary a policy of non- [Pascual v. Provincial Board, supra].
interference with matters falling primarily (albeit 5. There are circumstances indicating
not exclusively) within the competence of other urgency of judicial intervention [DAR v.
departments. Courts, for reasons of law, comity Apex Investment, G.R. No. 149422
and convenience, should not entertain suits (2003)].
unless the available administrative remedies 6. The rule does not provide plain,
have first been resorted to and the proper speedy, adequate remedy [Information
authorities have been given an appropriate Technology Foundation v. COMELEC,
opportunity to act and correct their alleged G.R. No. 159139 (2004)].
errors, if any, committed in the administrative 7. Resort to exhaustion will only be
forum [Antolin v. Domondon, G.R. No. 165036 oppressive and patently unreasonable
(2010)]. [Cipriano v. Marcelino, G.R. No. L-
27793 (1972)].
1. Legal Reason 8. Where the administrative remedy is
The law prescribes a procedure. only permissive or voluntary and not a
prerequisite to the institution of judicial
proceedings [Corpus v. Cuaderno, Sr.,
2. Practical Reason G.R. No. L-17860 (1962)].
To ensure that disputes involving technical and 9. Application of the doctrine will only
specialized matters are first resolved by the cause great and irreparable damage
body which has the expertise and competence which cannot be prevented except by
to resolve them, and, in most cases, to give the taking the appropriate court action [De
agency a chance to correct its own errors and Lara, Jr. v. Cloribel, G.R. No. L-21653
prevent unnecessary and premature resort to (1965)].
the courts. It also entails lesser expenses and 10. When it involves the rule-making or
provides for a speedier disposition of quasi-legislative functions of an
controversies. administrative agency [Smart v. NTC,
supra]
3. Reasons of Comity 11. When the administrative agency is in
Expedience, courtesy, convenience. estoppel [Republic v. Sandiganbayan,
4. Separation of Powers supra]
Enjoins upon the Judiciary a policy of non- 12. Doctrine of qualified political agency
interference with matters falling primarily (albeit (respondent is a department secretary
not exclusively) within the competence of other whose acts as an alter ego of the
departments. President bears the implied and
assumed approval of the latter)
[Demaisip v. CA, G.R. No. L-13000
Exceptions
(1959); Pagara v. CA, G.R. No. 96882
The exceptions may be condensed into three:
(1996)]
1. Grave abuse of discretion;
13. The subject of controversy is private
2. Pure question of law; or
land in land case proceedings [Soto v.
3. No other plain, speedy, and adequate
Jareno, G.R. No. L-38962 (1986)].
remedy.
Page 277 of 412
14. Violation of due process [Pagara v. CA, one's cause of action. Accordingly, absent any
supra] finding of waiver or estoppel the case is
15. Where there is unreasonable delay or susceptible of dismissal for lack of cause of
official inaction that will irretrievably action [Montanez v. Provincial Agrarian Reform
prejudice the complainant [Republic v. Adjudicator et. al., G.R. No. 183142 (2009)].
Sandiganbayan, supra]
16. Administrative action is patently illegal Failure to observe the doctrine of exhaustion of
amounting to lack or excess of administrative remedies does not affect the
jurisdiction [DAR v. Apex Investment, Court’s jurisdiction.
supra].
17. Resort to administrative remedy will Must be raised at the earliest time
amount to a nullification of a claim possible
[Paat v. CA, G.R. No. 111107 (1997); Exhaustion must be raised at the earliest time
Alzate v. Aldana, G.R. No. L- 14407 possible [Calub v. Court of Appeals, G.R. No.
(1960)]. 115634 (2000)]. If not invoked at the proper
18. There is no administrative review time, this ground is deemed waived and the
provided for by law [Estrada v. CA, court can take cognizance of the case and try
G.R. No. 137862 (2004)]. it [Republic v. Sandiganbayan, G.R. Nos.
19. The issue of non-exhaustion of 112708-09 (1996)].
administrative remedies has been
rendered moot [included in the When appeals to the Office of the
enumeration in Estrada v. CA, supra]. President are required
20. When the claim involved is small A decision or order issued by a department or
21. When strong public interest is involved agency need not be appealed to the Office of
22. In quo warranto proceedings [included the President (OP) when there is a special law
in the enumeration in Lopez v. City of that provides for a different mode of appeal. If
Manila [G.R. No. 127139 (1999)] the law does not provide for a specific relief,
23. The law expressly provides for a appeals may be taken to the Office of the
different review procedure [Samahang President [Moran v. Office of the President,
Magbubukid v. CA, G.R. No. 103953 G.R. No. 192957 (2014)].
(1999)].
24. When there is no express legal
provision requiring such administrative
step as a condition precedent to taking
action in court [CSC v. DBM, G.R. No.
158791 (2005)].
Effect of failure to exhaust administrative

remedies
A direct action in court without prior exhaustion
of administrative remedies, when required, is
premature, warranting its dismissal on a motion
to dismiss grounded on lack of cause of action.
Before a party is allowed to seek the

intervention of the court, it is a pre-condition
that he should have availed of all the means of
administrative processes afforded him. Hence,
if a remedy within the administrative machinery
can still be resorted to by giving the
administrative officer concerned every
opportunity to decide on a matter that comes
within his jurisdiction then such remedy should
be exhausted first before the court's judicial
power can be sought. The premature
invocation of court's intervention is fatal to
Page 278 of 412
When OP is not exercising quasi-judicial
functions
When the OP itself represents a party, i.e., the
Republic, to a contract, it merely exercises a
contractual right by cancelling/revoking said
agreement—a purely administrative action
which should not be considered quasi-judicial
in nature. Thus, absent the OP's proper
exercise of a quasi-judicial function, the CA has
no appellate jurisdiction over the case [Narra
Nickel Mining and Development Corp. v.
Redmont Consolidated Mines Corp., G.R. No.
202877 (2015)].
Doctrine of Doctrine of
Exhaustion Primary
of Adminis-
Adminis- trative
trative Jurisdiction
Remedies
Jurisdiction Appellate Concurrent

of Court original
jurisdiction
with admin
body
Ground for Exhaustion The court

Non- of adminis- yields to the
exercise trative jurisdiction of
of remedy is a the
Jurisdiction condition administrativ
precedent. e agency
because of
its
specialized
knowledge or
expertise.
Court Action Dismiss Suspend

judicial action
Waivability Waivable Cannot be

waived
Note: Both do not apply where the issue

involves purely a question of law there being no
question of fact and no question requiring
expert judgment [De Leon].
Page 279 of 412

ELECTION LAW
POLITICAL LAW
ELECTION LAW POLITICAL LAW
I. SUFFRAGE of which every legislative district must be

represented by at least three per centum of the
registered voters therein. No amendment
A. Concept under this section shall be authorized within
five years following the ratification of this
1. Definition Constitution nor oftener than once every five
Suffrage is the right to vote in the election of years thereafter.
officers chosen by the people and in the
determination of questions submitted to the The Congress shall provide for the
people. implementation of the exercise of this right
[Sec. 2, Art. XVII, 1987 Constitution].
2. Scope The constitutional provision on people’s
a. Election initiative to amend the Constitution can only be
The means by which the people choose their implemented by law to be passed by Congress.
officials for a definite and fixed period and to No such law has been passed. R.A. No. 6735
whom they entrust for the time being the is incomplete, inadequate, or wanting in
exercise of the powers of government. essential terms and conditions insofar as
initiative on amendments to the Constitution is
Elections may either be: concerned [Defensor-Santiago v. COMELEC,
a. Regular: One provided by law for the G.R. No. 127325 (1997)].
election of officers either nationwide or
in certain subdivisions thereof, after the Sec. 2, Art. XVII of the Constitution is limited to
expiration of the full term of the former proposals to amend—not to revise—the
officers. Constitution [Lambino v. COMELEC, G.R. No.
b. Special: One held to fill a vacancy 174153 (2006)].
before the expiration of the term for
which the incumbent was elected. ii. Initiative on statutes which refers to a
petition proposing to enact a national
Note: The SK election is not a regular election legislation
(whether national or local) because it is
participated in by the youth with ages ranging iii. Initiative on local legislation which refers
from 15 to 21, many of whom are not qualified to a petition proposing to enact a regional,
to vote in a regular election [Paras v. provincial, city, municipal, or barangay law,
COMELEC, G.R. No. 123169 (1996)]. resolution, or ordinance
b. Plebiscite d. Referendum
The electoral process by which an initiative on The power of the electorate to approve or reject
the Constitution is approved or rejected by the a legislation through an election called for the
people [Sec. 3(e), R.A. 6735]. purpose. It may be of two classes.
c. Initiative i. Referendum on statutes which refers to a
The power of the people to propose petition to approve or reject an act or law,
amendments to the Constitution or to propose or part thereof, passed by Congress
and enact legislations through an election
called for the purpose. There are three (3) ii. Referendum on local law which refers to
systems of initiative [Sec. 3(a), R.A. 6735]. a petition to approve or reject a law,
resolution or ordinance enacted by regional
i. Initiative on the Constitution which refers assemblies and local legislative bodies
to a petition proposing amendments to the [Sec. 3(c), R.A. No. 6735]
Constitution
e. Recall
Amendments to this Constitution may likewise The termination of the official relationship of a
be directly proposed by the people through local elective official for loss of confidence prior
initiative upon a petition of at least twelve per to the expiration of his term through the will of
centum of the total number of registered voters, the electorate [Sec. 69, LGC].
Page 281 of 412
B. Qualification and doubt regarding citizenship must be resolved in
favor of the State [Go v. Ramos, G.R. No.
Disqualification of Voters 167569 (2009)].
1. Under Sec. 1, Art. V, 1987 b. At least 18 years of age at the time of

Constitution the election
Suffrage may be exercised by all citizens of the Any person, who, on the day of registration
Philippines, not otherwise disqualified by law, may not have reached the required age or
who are at least eighteen years of age, and period of residence but, who, on the day of the
who shall have resided in the Philippines for at election shall possess such qualifications, may
least one year and in the place wherein they register as a voter [Sec. 9, R.A. No. 8189].
propose to vote, for at least six months
immediately preceding the election. No c. Resident of the Philippines for at
literacy, property, or other substantive least one (1) year
requirement shall be imposed on the exercise
of suffrage [Sec. 1, Art. V, 1987 Constitution]. d. Resident of the place wherein they
propose to vote for at least six (6)
The Congress is prohibited by the Constitution months immediately preceding the
to impose additional substantive requirements election
for voting like education, sex, and taxpaying Any person who temporarily resides in another
ability, but Congress may add procedural city, municipality, or country solely by any of the
requirements by promulgation of the necessary following reasons shall not be deemed to have
laws. lost his original residence:
i. Occupation, profession, employment in
Congress may impose limitations on the private or public service
statutory right of suffrage. The provision under ii. Educational activities
Sec. 1, Art. V, 1987 Constitution (that no iii. Work in the military or naval reservations
literacy, property, or other substantive within the Philippines
requirement shall be imposed on the exercise iv. Service in the Armed Forces of the
of suffrage) is merely “geared towards the Philippines or the National Police Forces
elimination of irrelevant standards that are v. Confinement or detention in government
purely based on socio-economic institutions in accordance with law [Sec.
considerations that have no bearing on the 9, R.A. No. 8189]
right of a citizen to intelligently cast his vote and
to further the public good” [Kabataan Partylist It is not necessary that a person should have a
v. COMELEC, G.R. No. 221318 (2015)]. house in order to establish his residence or
domicile in a municipality. It is enough that he
Biometrics validation requirement is not an should live there, provided that his stay is
unconstitutional substantive requirement. Even accompanied by his intention to reside therein
if failure to comply with the biometrics permanently [Romualdez-Marcos v.
validation requirement will result in the COMELEC, G.R. No. 119976 (1995)].
deactivation of the voter’s registration (under
R.A. No. 10367 or the Biometrics Law of 2013), In election cases, the Court treats domicile and
it is not unconstitutional. The requirement is a residence as synonymous terms. Both import
“mere aspect of the registration procedure, of not only an intention to reside in a fixed place
which the State has the right to reasonably but also personal presence in that place,
regulate” [Kabataan Partylist v. COMELEC, coupled with conduct indicative of such
supra]. intention [Pundaodaya v. COMELEC, G.R. No.
179313 (2009)].
2. Qualifications in General
There is nothing wrong in an individual
a. Filipino citizen by birth or changing residence so he could run for an
naturalization elective post, for as long as he is able to prove
No presumption can be indulged in favor of the that he has effected a change of residence for
claimant of Philippine citizenship, and any
Page 282 of 412
the period required by law [Aquino v. the same in the book of registered voters upon
COMELEC, G.R. No. 120265 (1995)]. approval by the Election Registration Board
[Sec. 3(a), R.A. No. 8189].
A candidate does not automatically regain his
residence after the retention or reacquisition of It is essential to the exercise of the right of
Philippine citizenship under R.A. No. 9225. He suffrage, not the possession thereof. It is part
must still establish the fact of residence of the right to vote and an indispensable
[Caballero v. COMELEC, G.R. No. 209835 element in the election process.
(2015)].
Condition Precedent
e. Not otherwise disqualified by law Registration does not confer the right to vote
but it is a condition precedent to the exercise of
3. Disqualifications in General the right [Yra v. Abano, G.R. No. L-30187
The following shall be disqualified from (1928)].
registering [Sec. 11, R.A. No. 8189]:
Registered voter
i. Any person who has been sentenced by final In order that a qualified elector may vote in any
judgment to suffer imprisonment of not less election, plebiscite, or referendum, he must be
than one (1) year, such disability not having registered in the Permanent List of Voters for
been removed by plenary pardon or amnesty. the city or municipality in which he resides
[Sec. 115, B.P. Blg. 881].
Note: The right to vote shall be automatically
reacquired upon expiration of five (5) years Rationale for registration requirements,
after service of sentence. qualifications, and disqualifications
The right to vote is a right created by law.
ii. Any person who has been adjudged by final Suffrage is a privilege granted by the State to
judgment by a competent court or tribunal of such persons or classes as are most likely to
having committed any crime: exercise it for the public good [People v. Corral,
a. Involving disloyalty to the duly G.R. No. L-42300 (1936)].
constituted government such as
rebellion, sedition, violation of the Proceeding from the significance of registration
firearms laws; or as a necessary requisite to the right to vote, the
b. Against national security State undoubtedly, in the exercise of its
inherent police power, may then enact laws to
Exception: Unless restored to his full civil and safeguard and regulate the act of voter's
political rights in accordance with law. registration for the ultimate purpose of
conducting honest, orderly and peaceful
Note: The right to vote shall be automatically election [Akbayan-Youth v. COMELEC, G.R.
reacquired upon expiration of five (5) years No. 147066 (2001)].
after service of sentence.
Qualification must be distinguished from
iii. Insane or incompetent persons declared as registration
such by competent authority Registration regulates the exercise of the right
of suffrage and is not a qualification for such
Exception: Unless subsequently declared by right. Registration is only one step towards
proper authority that such person is no longer voting, and it is not one of the elements that
insane or incompetent. makes a citizen a qualified voter. Thus,
although one is deemed to be a “qualified
C. Registration and Deactivation elector,” he must nonetheless still comply with
the registration procedure in order to vote
[Kabataan Party List v. COMELEC, G.R. No.
1. Registration of Voters 221318 (2015)].
The act of accomplishing and filing of a sworn
application for registration by a qualified voter a. Election Registration Board (ERB)
before the election officer of the city or The body constituted to act on all applications
municipality wherein he resides and including for registration [Sec. 3(g), R.A. No. 8189].
Page 283 of 412
There shall be in each city and municipality as election and 90 days before a special election.
many ERBs as there are election officers COMELEC Resolution 8585, which set the
therein [Sec. 15, R.A. No. 8189]. deadline for voter registration to Oct. 31, 2009
(election was May 10, 2010, or more than 120
Composition of the ERB [Sec. 15, R.A. No. days), was declared null and void because
8189] Sec. 8 of R.A. 8189 has determined that the
1. Election Officer, who serves as the period of 120 days before a regular election
Chairman. If disqualified, COMELEC and 90 days before a special election is enough
shall designate an acting Election time for the COMELEC to make all the
Officer; necessary preparations with respect to the
2. Public school official most senior in rank; coming elections. COMELEC is granted the
and power to fix other periods and dates for pre-
3. Local civil registrar, or in his absence, the election activities only if the same cannot be
city or municipal treasurer. If neither are reasonably held within the period provided by
available, any other appointive civil law. There is no ground to hold that the
service official from the same locality as mandate of continuing voter registration cannot
designated by the COMELEC [Sec. 15, be reasonably held within the period provided
R.A. No. 8189]. by Sec. 8 of R.A. 8189 [Palatino v. COMELEC,
G.R. No. 189868 (2009)].
In case of disqualification of the Election
Officer, the Commission shall designate an c. Validation
acting Election Officer who shall serve as The process of taking the biometrics of
Chairman of the Election Registration Board. In registered voters whose biometrics have not
case of disqualification or non-availability of the yet been captured [Sec. 2(d), R.A. No. 10367,
Local Registrar or the Municipal Treasurer, the An Act Providing for Mandatory Biometrics
Commission shall designate any other Voter Registration].
appointive civil service official from the same
locality as substitute. Voters who fail to submit for validation on or
before the last day of filing of application for
No member of the Board shall be related to registration for purposes of the May 2016
each other or to any incumbent city or elections shall be deactivated [Sec. 7, R.A. No.
municipal elective official within the fourth civil 10367].
degree of consanguinity or affinity. If in
succeeding elections, any of the newly elected Those deactivated may apply for reactivation
city or municipal officials is related to a member after the May 2016 elections following the
of the board within the fourth civil degree of procedure provided in Sec. 28 of R.A. No. 8189
consanguinity or affinity, such member is [Sec. 8, R.A. No. 10367].
automatically disqualified to preserve the
integrity of the Election Registration Board d. Manner of Registration for Illiterate or
[Sec. 15, R.A. No. 8189]. Disabled Voters [Sec. 14, R.A. No. 8189]
Board of Election Inspectors Illiterate Persons
The body which conducts the election in the With the assistance of the Election Officer or
polling place of the precinct usually composed any member of an accredited citizen’s arms.
of three (3) public school teachers appointed
by the Commission [Sec. 3(o), R.A. No. 8189]. Physically Disabled Persons
Application for registration may be prepared
b. System of Continuing Registration of by:
Voters 1. Any relative within the 4th civil degree of
The personal filing of application of registration consanguinity or affinity
of voters shall be conducted daily in the office 2. The Election Officer, or
of the Election Officer during regular office 3. Any member of an accredited citizen’s
hours [Sec. 8, R.A. No. 8189]. arm
Exception (when registration is Note: Definition of disabled voter under the

prohibited): Within 120 days before a regular Automated Election System (AES): A person
Page 284 of 412
with impaired capacity to use the AES [Sec. The application for reactivation may be filed
2(11), R.A. No. 9369]. any time but not later than one hundred twenty
(120) days before a regular election and ninety
Book of Voters (90) days before a special election.
The compilation of all registration records in a
precinct [Sec. 3(c), R.A. No. 8189]. The Election Officer shall submit said
application to the Election Registration Board
List of Voters for appropriate action.
An enumeration of names of registered voters
in a precinct duly certified by the Election In case the application is approved, the
Registration Board for use in the election [Sec. Election Officer shall retrieve the registration
3(c), R.A. No. 8189]. record from the inactive file and include the
same in the corresponding precinct book of
The ERB shall prepare and post a certified list voters. Local heads or representatives of
of voters 90 days before a regular election and political parties shall be properly notified on
60 days before a special election [Sec. 30, R.A. approved applications.
No. 8189].
Ground for Specific Mode of
Copies of the certified list along with a certified Deactivation Reactivation
list of deactivated voters categorized by
precinct per barangay, within the same period Sec. 27, R.A. No. 8189
shall be posted in the office of the Election
Officer and in the bulletin board of each Any person who has Right to vote is
city/municipal hall. Upon payment of the fees been sentenced by automatically
as fixed by the Commission, the candidates final judgment to reacquired upon
and heads shall also be furnished copies suffer imprisonment expiration of five (5)
thereof [Sec. 30, R.A. No. 8189]. for not less than one years after service of
(1) year sentence as certified
e. When the List of Voters will be Altered by the clerks of
1. Deactivation/Reactivation [Secs. 27- Except: If such courts of the
28, R.A. No. 8189] disability is removed Municipal, Municipal
2. Exclusion/Inclusion [Secs. 34-35, R.A. by plenary pardon Circuit, Metropolitan,
No. 8189] or amnesty Regional Trial
3. Cancellation of Registration [Sec. 29, Courts, and the
R.A. No. 8189] Sandiganbayan
4. Annulment of Book of Voters [Sec. 39,
R.A. No. 8189] Any person who has General mode of
5. New voters [Sec. 10, R.A. No. 8189] been adjudged by reactivation
6. Transfer of Residence [Sec. 12-13, final judgment by a
R.A. No. 8189] competent court or
tribunal of having
1. Deactivation caused/committed:
Process of deactivating the registration of
certain persons, removing their registration (i) any crime
records from the corresponding precinct book involving disloyalty
of voters and placing the same in the inactive to the duly
file, properly marked “deactivated” and dated in constituted
indelible ink [Sec. 27, R.A. 8189]. government such as
rebellion, sedition,
2. Reactivation [Sec. 28, R.A. 8189] violation of the anti-
Any voter whose registration has been subversion and
deactivated may file with the Election Officer a firearms laws, or
sworn application for reactivation of his
registration in the form of an affidavit stating
that the grounds for the deactivation no longer
exist.
Page 285 of 412
Ground for Specific Mode of 3. Cancellation of Registration

Deactivation Reactivation The Board shall cancel the registration records
of those who have died as certified by the Local
(ii) any crime Civil Registrar [Sec. 29, R.A. No. 8189].
against national
security The Local Civil Registrar shall:
i. Submit each month a certified list of
Except: If full civil persons who died during the previous
and political rights is month to the Election Officer of the place
restored in where the deceased are registered or in
accordance with the absence of information thereof, to the
law. Election Officer of the city or municipality
of the deceased's residence as
Any person appearing in his death certificate.
declared by ii. Furnish a copy of this list to the national
competent authority central file and the proper provincial file.
to be insane or
incompetent The Election Officer shall:
i. Post in the bulletin board of his office a
Exception: If such list of those persons who died whose
disqualification has registrations were cancelled
been subsequently ii. Furnish copies thereof to the local heads
removed by a of the political parties, the national
declaration of a central file, and the provincial file
proper authority that
such person is no 4. Annulment of Book of Voters
longer insane or The COMELEC shall, upon verified petition of
incompetent any voter or election officer or duly registered
political party, and after notice and hearing,
Any person who did annul any book of voters that is:
not vote in the two 2. Not prepared in accordance with R.A. 8189
(2) successive or the Voters’ Registration Act of 1996
preceding regular 3. Prepared through fraud, bribery, forgery,
elections as shown impersonation, intimidation, force, or any
by their voting
similar irregularity; or
records
4. Contains data that are statistically
Note: For this improbable
purpose, regular
elections do not No order, ruling or decision annulling a book of
include the voters shall be executed within 90 days before
Sangguniang an election [Sec. 39, R.A. No. 8189].
Kabataan (SK)
elections 5. New Voters
A qualified voter shall be registered in the
Any person whose permanent list of voters in a precinct of the city
registration has or municipality wherein he resides to be able to
been ordered vote in any election [Sec. 10, R.A. No. 8189].
excluded by the
Court 6. Transfer of Residence
The precinct assignment of a voter in the
Any person who has permanent list of voters shall not be
lost his Filipino changed/altered/transferred to another
citizenship precinct without the express written consent of
the voter. Provided, however, that the voter
shall not unreasonably withhold such consent.
Page 286 of 412
Any violation thereof shall constitute an Election Period
election offense [Sec. 4, R.A. No. 8189]. Shall commence 90 days before the day of the
election and shall end 30 days thereafter [Sec.
In case of change of residence to another city 9, Art. IX-C, 1987 Constitution].
or municipality, the registered voter may apply
with the Election Officer of his new residence Exception: Special cases, when otherwise
for the transfer of his registration records. The fixed by the COMELEC.
application for transfer of registration shall be
subject to the requirements of notice and Precinct
hearing and the approval of the Election The basic unit of territory established by the
Registration Board. Upon approval, the Commission for the purpose of voting [Sec.
Election Officer of the former residence of the 3(j), R.A. No. 8189].
voter shall transmit by registered mail the
voter's registration record to the Election Polling Place
Officer of the voter's new residence [Sec. 12, The place where the Board of Election
R.A. No. 8189]. Inspectors conducts its proceeding and where
the voters cast their votes [Sec. 3(l), R.A. No.
In case of change of address in the same 8189].
municipality or city, the voter shall immediately
notify the Election Officer in writing. If the Voting Center
change of address involves a change in The building or place where the polling place is
precinct, the Board shall transfer his located [Sec. 3(m), R.A. No. 8189].
registration record to the precinct book of
voters of his new precinct and notify the voter
of his new precinct [Sec. 13, R.A. No. 8189].
D. Inclusion and Exclusion
Proceedings
Challenges to Right to Register
Oppositions to contest a registrant's 1. Jurisdiction in Inclusion and
application for inclusion in the voter's list [Sec. Exclusion Case [Sec. 33, R.A.
13, R.A. No. 8189].
No. 8189]
By: Any voter, candidate, or representative of
a registered political party The Municipal and Metropolitan Trial Courts
shall have original and exclusive jurisdiction
Form: over all cases of inclusion and exclusion of
i. In writing, stating the grounds therefor voters in their respective cities or
ii. Under oath municipalities.
iii. Attached to the application, together with
the proof of notice of hearing to the Decisions of the Municipal or Metropolitan Trial
challenger and the applicant Courts may be appealed by the aggrieved
party to the Regional Trial Court within five (5)
When filed: Not later than the second Monday days from receipt of notice thereof. Otherwise,
of the month in which the application is said decision shall become final and executory.
scheduled to be heard or processed by the
Election Registration Board. Should the The regional trial court shall decide the appeal
second Monday of the month fall on a non- within ten (10) days from the time it is received,
working holiday, oppositions may be filed on and the decision shall immediately become
the next following working day. final and executory. No motion for
reconsideration shall be entertained.
The hearing on the challenge shall be heard on
the third Monday of the month and the decision The nature of the MTC’s jurisdiction is limited.
shall be rendered before the end of the month. The jurisdiction of the MTC “over exclusion
cases is limited only to determining the right of
the voter to (a) remain in the list of voters or (b)
to declare that the challenged voter is not
qualified to vote in the precinct in which he is
Page 287 of 412
registered, specifying the ground of the voters’
Petition for Petition for
disqualification.” Hence, the trial court has no
Inclusion of Voters Exclusion of Voters
power to order the change or transfer of
in the List [Sec. 34, in the List [Sec. 35,
registration from one place of residence to
R.A. No. 8189] R.A. No. 8189]
another for it is the function of the ERB as
provided under Section 12 of R.A. No. 8189 voters in his permanent list of
[Domino v. COMELEC, G.R. No. 134015 precinct, supported voters giving the
(1999)]. by a certificate of name, address and
disapproval of his the precinct of the
Generally, no res judicata: A decision in an application and challenged voter,
exclusion or inclusion proceeding, even if final proof of service of accompanied by
and unappealable, does not acquire the nature notice of his petition proof of notice to the
of res judicata [Domino v. COMELEC, supra]. upon the Board. Board and to the
challenged voter.
Exception: The decision is res judicata as to
the right to remain in the list of voters or for Period to Decide
being excluded therefrom for the particular
election in relation to which the proceedings Within fifteen (15) Within ten (10) days
had been held had been held [Domino v. days after its filing from its filing
COMELEC, supra].
Procedure if Petition is Approved
2. Petition for Inclusion and The Board shall The Board shall,
Exclusion of Voters in the List place the application upon receipt of the
[Secs. 34-35, R.A. No. 8189] for registration final decision,
previously remove the voter's
Petition for Petition for disapproved in the registration record
Inclusion of Voters Exclusion of Voters corresponding book from the
in the List [Sec. 34, in the List [Sec. 35, of voters and corresponding book
R.A. No. 8189] R.A. No. 8189] indicate in the of voters, enter the
application for order of exclusion
When to file
registration the date therein, and
Any time except one Any time except one of the order of thereafter place the
hundred five (105) hundred (100) days inclusion and the record in the inactive
days prior to a prior to a regular court which issued file.
regular election or election or sixty-five the same.
seventy-five (75) (65) days before a
days prior to a special election 3. Special Rules on Overseas
special election
Absentee Voters [Sec. 9.3, R.A.
Who may file No. 9189 as inserted by R.A.
Any person whose Any registered 10590; Sec. 9.1, R.A. 9189 as
application for voters, inserted by R.A. 10590]
registration has representative of a
Petition for Petition for
been disapproved political party or the
Inclusion of Voters Exclusion of Voters
by the Board or Election Officer
in the List [Sec. in the List [Sec. 9.1,
whose name has
9.3, R.A. 9189 as R.A. 9189 as
been stricken out
inserted by R.A. inserted by R.A.
from the list
10590] 10590]
Form
When to file
A petition to include A sworn petition for
Within ten (10) days Not later than one
his name in the the exclusion of a
from receipt of hundred eighty (180)
permanent list of voter from the
Page 288 of 412

Petition for Petition for Petition for Petition for

Inclusion of Voters Exclusion of Voters Inclusion of Voters Exclusion of Voters
in the List [Sec. in the List [Sec. 9.1, in the List [Sec. in the List [Sec. 9.1,
9.3, R.A. 9189 as R.A. 9189 as 9.3, R.A. 9189 as R.A. 9189 as
inserted by R.A. inserted by R.A. inserted by R.A. inserted by R.A.
10590] 10590] 10590] 10590]
notice denying the days before the start Within 15 days after Within 15 days after
MR, with the proper of the overseas its filing, but not its filing, but not later
MTC in the City of voting period with the later than 120 days than 120 days before
Manila or where the proper MTC in the before the start of the start of the
overseas voter City of Manila or the overseas voting overseas voting
resides in the where the overseas period. period.
Philippines, at the voter resides in the
petitioner’s option Philippines, at the Should the Court fail Should the Court fail
petitioner’s option. to render a decision to render a decision
Note: If the within the within the prescribed
application has prescribed period, period, the ruling of
been disapproved, the RERB ruling the RERB shall be
the applicant or his shall be considered considered affirmed.
authorized affirmed.
representative may
file a Motion for
Reconsideration
(MR) before the
Resident Election
Registration Board
(RERB) within a
period of five (5)
days from receipt of
the notice of
disapproval. The
MR shall be decided
within five (5) days
after its filing but not
later than one
hundred twenty
(120) days before
the start of the
overseas voting
period. The
resolution of the
Resident Election
Registration Board
(RERB) shall be
immediately
executory, unless
reversed or set
aside by the Court.
Who may file
Applicant Any interested

person
Period to Decide
Page 289 of 412
E. Local and Overseas Overseas Voter
Citizen of the Philippines who is qualified to
Absentee Voting [Sec. 3(a), R.A. register and vote under this Act, not otherwise
No. 9189, The Overseas disqualified by law, who is abroad on the day of
Absentee Voting Act, as elections [Sec. 3(f), R.A. No. 9189, as
amended by Sec. 2, R.A. No. 10590].
amended by R.A. No. 10590, The
Overseas Voting Act of 2013] An overseas voter is presumed to be abroad
until she/he applies for transfer of her/his
1. General Rule registration records or requests that her/his
A person must be physically present in the name be cancelled from the NROV [Sec. 12,
polling place whereof he is a registered voter to R.A. No. 9189, as amended by Sec. 11, R.A.
be able to vote. No. 10590].
Covered Elections
2. Exceptions Elections for president, vice-president,
a. Members of the Board of Election senators and party-list representatives, as well
Inspectors [Sec. 169, Omnibus Election as in all national referenda and plebiscites
Code] [Sec. 4, R.A. No. 9189, as amended by R.A.
b. Government officials and employees, No. 10590].
including members of AFP and PNP, who,
by reason of public functions and duties,
Personal Overseas Registration and/or
are not in his/her place of registration on
Certification
election day, may vote in the
Registration and/or certification as an overseas
city/municipality where he/she is assigned
voter shall be done in person at any post
on election day. Provided, that he/she is a
abroad or at designated registration centers
duly registered voter [Sec. 1, E.O. No. 157
outside the post or in the Philippines approved
or the Absentee Voting by Officers and
by the Commission [Sec. 6, R.A. No. 9189, as
Employees of Government]
amended by R.A. No. 10590].
c. Members of media, media practitioners,
including the technical and support staff
who are duly registered voters and who, on
National Registry of Overseas Voters
election day, may not be able to vote due (NROV)
to the performance of their functions in The consolidated list prepared, approved and
covering and reporting on the elections. maintained by the COMELEC, of overseas
Provided, that they shall be allowed to vote voters whose applications for registration as
only for the positions of President, Vice absentee voters, including those registered
President, Senators, and Party-List voters under R.A. No. 8189 who have applied
Representative [Sec. 2, R.A. No. 10380 or to be certified as absentee voters, have been
An Act Providing for Local Absentee Voting approved by the Election Registered Board,
for Media] indicating the post where the overseas voter is
d. All citizens of the Philippines abroad, who registered [Sec. 3(e), R.A. No. 9189, as
are not otherwise disqualified by law, at amended by R.A. No. 10590].
least eighteen (18) years of age on the day
of elections, may vote for President, Vice- Resident Election Registration Board
President, Senators and Party-List (RERB)
Representatives, as well as in all national The in-house Election Registration Board in
referenda and plebiscites [Sec. 3, R.A. No. every post and in the Office for Overseas
10590]. Voting, which processes, approves or
disapproves all applications for registration
Overseas Voting and/or certification as overseas voters,
Process by which qualified citizens of the including the deactivation, reactivation and
Philippines abroad exercise their right to vote cancellation of registration records [Sec. 3(m),
[Sec. 3(a), R.A. No. 9189, The Overseas R.A. No. 9189, as amended by R.A. No. 10590]
Absentee Voting Act, as amended by R.A. No.
10590, The Overseas Voting Act of 2013]
Page 290 of 412

3. Qualifications a. He/she shall resume actual physical
a. Filipino citizen permanent residence in the Philippines
b. Abroad on the day of the election not later than three (3) years from
c. At least 18 years of age on the day of approval of his/her registration; and
the election b. He/she has not applied for citizenship in
d. Not otherwise disqualified by law [Secs. another country.
3(f)-4, R.A. No. 9189, as amended by
R.A. No. 10590] F. Detainee Voting
Detainee voting (either through the special
4. Disqualifications polling place inside jails or escorted voting)
a. Lost their Filipino citizenship in may be availed of by any registered detainee
accordance with Philippine laws whose registration record is not transferred /
b. Expressly renounced their Philippine deactivated / cancelled / deleted [Sec. 1, Rule
citizenship and who have pledged 1, COMELEC Resolution No. 9371 (2012)].
allegiance to a foreign country [Sec. 5,
R.A. No. 9189, as amended by R.A. No. Detainee
10590] Any person:
a. Confined in jail, formally charged for any
Exception: Those who have reacquired crime/s and awaiting/undergoing trial;
or retained their Philippine citizenship b. Serving a sentence of imprisonment for
under Republic Act No. 9225, otherwise less than one (1) year; or
known as the 'Citizenship Retention and c. Whose conviction of a crime involving
Reacquisition Act of 2003′ disloyalty to the duly constituted
government such as rebellion, sedition,
c. Committed and are convicted in a final violation of the firearms laws or any
judgment by a Philippine court or crime against national security or for
tribunal of an offense punishable by any other crime is on appeal [Sec. 2,
imprisonment of not less than one (1) Rule 1, COMELEC Resolution No. 9371
year (2012)].
Exception: If such disability has been Detainees who shall be eighteen years of age
removed by plenary pardon or amnesty on the day of election and/or are committed
Provided that: the right to vote shall be inside the detention centers for at least six (6)
automatically reacquired upon the months immediately preceding the election day
expiration of five (5) years after service may be registered as a voter.
of sentence
Detainees who are already registered voters
d. Citizen previously declared insane or may apply for transfer of registration records as
incompetent by competent authority in warranted by the circumstances [Sec. 3, Rule
the Philippines or abroad, as verified by 2, COMELEC Resolution No. 9371 (2012)].
the Philippine embassies, consulates or
Foreign Service establishments Special Polling Place Inside Jail
concerned The polling places established in jails where
detainee voters cast their votes [Sec. 2, Rule 1,
Exception: if such competent authority COMELEC Resolution No. 9371 (2012)].
subsequently certifies that such person
is no longer insane or incompetent
Note: R.A. No. 10590 removed the

disqualification under RA No. 9189 of an
immigrant or a permanent resident who is
recognized as such in the host country unless
he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission
declaring that:
Page 291 of 412

G. Escorted Voting
Voting Mechanism:
1. For detainee voters who are residents/
registered voters of municipalities/cities
other than the town/city of incarceration;
and/or
2. For detainee voters in jail facilities
where no special polling places are
established [Sec. 2, Rule 1, COMELEC
Resolution No. 9371 (2012)]
Requirements for Escorted Voting

1. Detainee voters obtained court orders
allowing them to vote in the polling place
where they are registered.
2. It is logistically feasible on the part of the
jail/prison administration to escort the
detainee voter to the polling place
where he is registered.
3. Reasonable measures shall be
undertaken by the jail/prison
administration to secure the safety of
detainee voters, prevent their escape
and ensure public safety [Sec. 1, Rule
7, COMELEC Resolution No. 9371
(2012)].
Page 292 of 412

II. CANDIDACY 5. Resident of the Philippines for at least two

(2) years immediately preceding election
day
A. Qualifications and
Disqualifications of Candidates c. For Members of the House of
Representatives [Sec. 6, Art. VI, 1987
Candidate Constitution]
Any person who files his certificate of 1. Natural-born citizen
candidacy within the prescribed period shall 2. 25 years old on election day
only be considered as a candidate at the start 3. Able to read and write
of the campaign period for which he filed his 4. Registered voter in district in which he
certificate of candidacy [Sec. 15, R.A. No. shall be elected
9369]. 5. Resident thereof for not less than one
year immediately preceding election day
This includes any registered national, regional,
or sectoral party, organization or coalition d. Local Elective [Sec. 39, LGC]
thereof that has filed a manifestation to i. Citizen of the Philippines
participate under the party-list system which ii. Registered voter in the Barangay,
has not withdrawn, or which has not been municipality, city or province, or district
disqualified before the start of the campaign where he intends to be elected
period [COMELEC Res. 8758 (2010)]. iii. Resident therein for at least one year
immediately preceding election day
iv. Able to read and write Filipino or any
1. Qualifications other local language or dialect
Qualifications prescribed by law are v. Age requirement: [See table below]
continuing requirements and must be
possessed for the duration of the officer's
On Citizenship
active tenure [Frivaldo v. COMELEC, supra;
The law does not specify any particular date or
Labo v. COMELEC, supra].
time when the candidate must possess
citizenship unlike that for residence and age. It
Constitutional Officers
must be possessed upon proclamation or on
a. For President and Vice-President [Secs.
the day that the rem begins [Frivaldo v.
2-3 Art. VII, 1987 Constitution]
COMELEC, supra].
1. Natural-born citizen
2. Registered voter
On Residency
3. Able to read and write
There is no hard and fast rule to determine a
4. At least 40 years old on day of election
candidate’s compliance with residency
5. Resident of the Philippines for at least ten
requirement since the question of residence is
(10) years immediately preceding election
a question of intention. Still, jurisprudence has
day
laid down the following guidelines: (a) every
person has a domicile or residence
b. For Senator [Sec. 3, Art. VI, 1987
somewhere; (b) where once established, that
Constitution]
domicile remains until he acquires a new one;
1. Natural-born citizen
and (c) a person can have but one domicile at
2. 35 years old on election day
a time [Jalosjos v. COMELEC, G.R. No.
3. Able to read and write
191970 (2012)].
4. Registered voter
Page 293 of 412

President VP Senate House Local
Citizenship Natural-born citizen Citizen
Registration Registered voter Registered where he intends to be

elected
Age 40 y.o. 35 y.o. 25 y.o. Gov/VG Mayor Sang. SK

/Sang. / Panlung
Panlala- VM sod
wigan/ (ICC, (ICC,
Mayor CC, CC,
(HUC)/ Mun.) Mun)/
VM Sang.
(HUC)/ Bayan/
Sang. P.Brgy./
Panlung Sang.
sod Brgy.
(HUC)
23 y.o. 21 18 y.o. 18-

y.o. 24
y.o.
Residence 10 years 2 years 1 year
Qualifications Able to read and write
Term 6 years 3 years
No. of Terms None 2 2 3
Page 294 of 412

2. Disqualifications 4. Violated election rules and
regulations on election propaganda
Under the Omnibus Election Code (B.P. through mass media [Sec. 86];
Blg. 881) 5. Threatened, intimidated, caused,
inflicted or produced any violence,
injury, punishment, damage, loss or
Sec. 12. Disqualifications to be a
disadvantage upon any person or of
candidate and to hold any office
the immediate members of his
Any person who has been:
family, his honor or property, or used
1. Declared by competent authority insane
fraud to compel, induce or prevent
or incompetent, or (2) Has been
the registration of any voter, or the
sentenced by final judgment
participation in any campaign, or the
a. For subversion, insurrection,
casting of any vote, or any promise
rebellion;
of such registration, campaign, vote,
b. For any offense for which he has
or omission therefrom [Sec. 261(e)];
been sentenced to a penalty of more
6. Unlawful electioneering [Sec.
than eighteen months; or
261(k)];
c. For a crime involving moral turpitude
7. Violated the prohibition against
release, disbursement or
Note: As to disqualifications under Sec. 12:
expenditure of public funds 45 days
● These will not apply if the person has
before a regular election or 30 days
been given plenary pardon or amnesty.
before a special election [Sec.
● These are deemed removed upon
261(v)];
declaration by competent authority that
8. Solicited votes or undertook
the insanity/incompetence has been
propaganda on election day for or
removed, or after the expiration of a
against any candidate or any political
period of 5 years from service of
party within the polling place or within
sentence.
a 30m radius [Sec. 261];
f. Is a permanent resident of or an
Sec. 68. Disqualifications from continuing immigrant to a foreign country [unless
as a candidate, or if he has been elected, he has waived such status in
from holding the office accordance with the residency
Any candidate who, in an action or protest in requirement for the concerned position
which he is a party is declared by final decision
of a competent court guilty of, or found by the Under the Local Government Code [Sec.
Commission of: 40, R.A. No. 7160]
a. Having given money or other material a. Sentenced by final judgment for an
consideration to influence, induce or offense:
corrupt voters or public officials 1. Involving moral turpitude or
performing electoral functions; 2. Punishable by at least 1-year
b. Committed acts of terrorism to enhance imprisonment.
his candidacy;
c. Spent in his election campaign an The disqualification lasts for two years after
amount in excess of that allowed; service of sentence. The provision “within 2
d. Solicited, received or made prohibited years after serving sentence” applies to both
contributions; scenarios. Those who have not served their
e. Violated provisions of the Omnibus sentence by reason of the grant of probation
Election Code, specifically: should not be disqualified from running for a
1. Engaged in election campaign or local elective office because the 2-year period
partisan political activity outside the of ineligibility does not even begin to run
campaign period and not pursuant to [Moreno v. COMELEC, G.R. No. 168550
a political party nomination [Sec. 80]; (2006)].
2. Removed, destroyed, defaced lawful
election propaganda [Sec. 83];
3. Engaged in prohibited forms of
election propaganda [Sec. 85];
Page 295 of 412

b. Removed from office as a result of an knowledge by the fleeing subject of
administrative case either an already instituted indictment
This disqualification does not retroactively or of a promulgated judgment of
apply to those who were removed from office conviction [Rodriquez v. COMELEC,
as a result of an administrative case before the G.R. No. 120099 (1996)].
effectivity of the LGC [Grego v. COMELEC,
G.R. No. 125955 (1997)]. f. Permanent residents in a foreign country
or those who have acquired the right to
c. Convicted by final judgment for violating reside abroad and continue to avail of the
the oath of allegiance to the Republic of the same right after the effectivity of this Code
Philippines
g. Insane or feeble-minded
d. Dual citizenship
Dual citizenship as a disqualification must refer Disqualification in Special Election
to citizens with dual allegiance. For candidates In addition to the disqualifications mentioned in
with mere dual citizenship, the filing of Secs. 12 and 68 of the Omnibus Election Code
certificate of candidacy is considered as an and Sec. 40 of R.A. No. 7160, otherwise known
election of Filipino citizenship and renunciation as the Local Government Code, whenever the
of foreign citizenship [Mercado v. Manzano, evidence of guilt is strong, the following
supra]. persons are disqualified to run in a special
election called to fill the vacancy in an elective
For a natural born Filipino, who reacquired or office, to wit:
retained his Philippine citizenship under R.A. i. Any elective official who has resigned
No. 9225, to run for public office, he must: from his office by accepting an
1. Meet the qualifications for holding such appointive office or for whatever reason
public office as required by the which he previously occupied but has
Constitution and existing laws; and caused to become vacant due to his
2. Make a personal and sworn resignation; and
renunciation of any and all foreign ii. Any person who, directly or indirectly,
citizenships before any public officer coerces, bribes, threatens, harasses,
authorized to administer oath [Japzon intimidates, or actually causes, inflicts or
v. COMELEC, G.R. No. 180088 produces any violence, injury,
(2009)] punishment, torture, damage, loss or
disadvantage to any person or persons
Based on jurisprudence, the mere filing of aspiring to become a candidate or that
certificate of candidacy is a sufficient form of of the immediate member of his family,
renunciation for dual citizens but not for those his honor or property that is meant to
who reacquired/retained Filipino citizenship eliminate all other potential candidate
under R.A. No. 9225. [Sec. 4, R.A. No. 8295]
While the act of using a foreign passport is not B. Filing of Certificates of

one of the acts constituting renunciation and
loss of Philippine citizenship, it is nevertheless Candidacy
an act which repudiates the very oath of No person shall be eligible for any elective
renunciation required for a former Filipino public office unless he files a sworn certificate
citizen who is also a citizen of another country of candidacy within the period fixed herein
to be qualified to run for a local elective position [Sec. 73, B.P. Blg. 881].
[Maquiling v. COMELEC, G.R. 195649 (2013)].
Certificate of Candidacy
e. Fugitive from justice in criminal and non- A certificate of candidacy is in the nature of a
political cases here and abroad formal manifestation to the whole world of the
“Fugitive from justice” includes: candidate's political creed or lack of political
1. Those who flee after conviction to creed. It is a statement of a person seeking to
avoid punishment; and run for a public office certifying that he
2. Those who, after being charged, flee to announces his candidacy for the office
avoid prosecution. This presupposes mentioned and that he is eligible for the office,
Page 296 of 412
the name of the political party to which he If he files a certificate of candidacy for more
belongs, if he belongs to any, and his post- than one office he shall not be eligible for
office address for all election purposes being either.
as well stated [Engle v. COMELEC, G.R. No.
215995 (2016)]. Exception: Before the expiration of the period
for the filing of certificates of candidacy, the
By who: The certificate of candidacy shall be person who has filed more than one certificate
filed by the candidate (a) personally or (b) by of candidacy, may:
his duly authorized representative. i. Declare under oath the office for which he
desires to be eligible before the deadline for
When: Any day from the commencement of filing of certificates of candidacy; and
the election period but not later than the day ii. Cancel the certificate of candidacy for the
before the beginning of the campaign period. In other office/s [Sec. 73, B.P. Blg. 881]
cases of postponement or failure of election, no
additional certificate of candidacy shall be Ministerial Duty of COMELEC
accepted except in cases of substitution of General Rule: The COMELEC shall have the
candidates ministerial duty to receive and acknowledge
receipt of the certificates of candidacy provided
1. Effect of Filing said certificates are: under oath and contain all
the required data and in the form prescribed by
a. Appointive Officials the Commission [Sec. 76, B.P. Blg. 881].
Officials holding appointive offices including
active members of the AFP and officers of COMELEC has no discretion to give or not to
GOCCs shall be considered ipso facto give due course to a certificate of candidacy
resigned upon the filing of his certificate of filed in due form [Abcede v. Imperial, G.R. No.
candidacy [Sec. 66, B.P. Blg. 881]. L-13001 (1958)].
b. Elective Officials Exception: COMELEC may go beyond the

Any person holding an elective office or face of the certificate of candidacy:
position shall not be considered resigned upon i. Nuisance candidates
the filing of his certificate of candidacy for the ii. Petition to deny due course to or cancel a
same or any other elective office or position certificate of candidacy [See Romualdez-
[Sec. 4, Comelec Resolution No. 8678, Marcos v. COMELEC, supra]
Guidelines on the Filing of Certificates of
Candidacy and Nomination of Official The Court also held that even without a petition
Candidates of Registered Political Parties in to deny course to or cancel a certificate of
Connection with the May 10, 2010 National and candidacy, the COMELEC is under a legal duty
Local Elections]. to cancel the COC of anyone suffering from the
accessory penalty of perpetual special
The SC upheld the validity of the COMELEC disqualification to run for public office by virtue
Resolution in Sec. 67, B.P. Blg. 881. The Court of a final judgment of conviction. The final
deemed the rule that elective officials judgment of conviction is notice to the
automatically resigned from office upon filing of COMELEC of the disqualification of the convict
their certificate of candidacy, repealed by Sec. from running for public office [Jalosjos v.
14 R.A 9006, Fair Election Act. On the COMELEC, G.R. No. 193237 (2012)].
allegation that the rule was violative of equal
protection, the Court found substantial Lone Candidate in a Special Election
distinctions among appointive and elective Upon the expiration of the deadline for the filing
officials [Quinto v. COMELEC, G.R. No. of the certificates of candidacy in a special
189698 (2010)]. election called to fill a vacancy in an elective
position other than for President and Vice
Effect of Filing of Two (2) Certificates of President, when there is only one (1) qualified
Candidacy (COC) candidate for such position, the lone candidate
No person shall be eligible for more than one shall be proclaimed elected to the position by
office to be filled in the same election. proper proclaiming body of the Commission on
Elections without holding the special election
Page 297 of 412
upon certification by the Commission on c. The withdrawal of a certificate of
Elections that he is the only candidate for the candidacy does not necessarily render
office and is thereby deemed elected [Sec. 2, the certificate void ab initio. Once filed,
R.A. No. 8295]. the permanent legal effects produced
thereby remain even if the certificate
In the absence of any lawful ground to deny itself be subsequently withdrawn
due course or cancel the certificate of [Monroy v. CA, G.R. No. L-23258
candidacy in order to prevent such (1967)].
proclamation, as provided for under Secs. 69
and 78 of Batas Pambansa Blg. 881 also Substitution
known as the Omnibus Election Code of the Grounds: If after the last day for filing of the
Philippines, the candidate referred to in the certificates of candidacy, an official candidate
preceding paragraph shall assume office not of a registered political party
earlier than the scheduled election day… [Sec. a. Dies
3, R.A. No. 8295] b. Withdraws, or
c. Is disqualified for any cause
2. Substitution and Withdrawal of
Candidates He may be substituted by a candidate
belonging to and nominated by the same
Withdrawal of Certificate of Candidacy political party.
A person who has filed a certificate of
candidacy may, prior to the election, withdraw When:
the same by submitting to the office concerned a. The substitute candidate nominated by
a written declaration under oath [Sec. 73, B.P. the political party concerned may file his
Blg. 881]. certificate of candidacy for the office
affected in accordance with the
Procedure preceding sections not later than mid-
a. File a Statement of Withdrawal under day of the day of the election.
oath in 5 legible copies, with the office b. If the death, withdrawal or
where the Certificate of Candidacy was disqualification should occur between
filed at any time before Election Day the day before the election and mid-day
b. The statement shall be accepted if filed of election day said certificate may be
by a person other than the candidate filed with any board of election
himself or if filed by mail, electronic mail, inspectors in the political subdivision
telegram, or facsimile [Sec. 14, where he is a candidate, or, in the case
Comelec Resolution No. 9518 (2012)]. of candidates to be voted for by the
entire electorate of the country, with the
Any person who withdraws shall not be eligible Commission [Sec. 77, B.P. Blg. 881].
whether as a substitute candidate or not, for
any other position. Note: For there to be a valid substitution of a
candidate, the latter must have filed a valid
Effects of Filing or Withdrawal of a certificate of candidacy.
Certificate of Candidacy
a. Filing or withdrawal shall not affect A person who is disqualified under Sec. 68
whatever civil, criminal or administrative OEC is only prohibited from continuing as a
liabilities which a candidate may have candidate, but his COC remains valid. He may
incurred [Sec. 73, B.P. Blg. 881]. therefore be substituted.
b. If the candidate who withdraws is the
official candidate of a registered or On the other hand, a person whose COC is
accredited political party, “the same cancelled or denied due course under Sec. 78
political party may file a certificate of for false material representation is considered
candidacy to replace the candidate.” to have a COC that is void ab initio. Thus, he
The substitute must file his COC not cannot be validly substituted [Talaga v.
later than mid-day of election day [Sec. COMELEC, G.R. No. 196804 (2012)].
77, B.P. Blg. 881].
Page 298 of 412

No substitute shall be allowed for any to the respondent candidate together with a
independent candidate [Recabo, Jr. v. copy of the petition and its enclosures, if any.
COMELEC, G.R. No. 134293 (1999); Comelec
Resolution No. 10430]. 3. The respondent shall be given three (3) days
from receipt of the summons within which to file
3. Nuisance Candidates his verified answer to the petition, serving copy
The Commission may motu proprio or upon a thereof upon the petitioner.
verified petition of an interested party, refuse to
give due course to or cancel a certificate of Grounds for a motion to dismiss may be raised
candidacy if it is shown that said certificate has as affirmative defenses.
been filed to put the election process in
mockery or disrepute or to cause confusion 4. The Commission may designate any of its
among the voters by the similarity of the names officials who are lawyers to hear the case and
of the registered candidates or by other receive evidence. The proceeding shall be
circumstances or acts which clearly summary in nature.
demonstrate that the candidate has no bona a. In lieu of oral testimonies, the parties
fide intention to run for the office for which the may be required to submit position
certificate of candidacy has been filed and thus papers together with affidavits or
prevent a faithful determination of the true will counter-affidavits and other
of the electorate [Sec. 69, B.P Blg. 881]. documentary evidence.
b. The hearing officer shall immediately
Grounds submit to the Commission his findings,
The Certificate of Candidacy has been filed: reports, and recommendations within
1. To put the election process in mockery, five (5) days from the completion of such
or disrepute; submission of evidence.
2. To cause confusion among the voters by c. The Commission shall render its
the similarity of the names of the decision within five (5) days from receipt
registered candidates; or thereof.
3. Clearly demonstrate that the candidate
has no bona fide intention to run for the 5. The decision, order, or ruling of the
office for which the certificate of Commission shall, after five (5) days from
candidacy has been filed and thus receipt of a copy thereof by the parties, be final
prevent a faithful determination of the and executory unless stayed by the Supreme
true will of the electorate [Sec. 69, B.P. Court.
Blg. 881].
6. The Commission shall within twenty-four
Procedure [R.A. No. 6646 or The Electoral hours, through the fastest available means,
Reforms Law of 1987] disseminate its decision or the decision of the
Supreme Court to the city or municipal election
Sec. 5. Procedure in Cases of Nuisance registrars, boards of election inspectors and
Candidates the general public in the political subdivision
concerned.
1. A verified petition to declare a duly registered
candidate as a nuisance candidate under Who May Initiate:
Section 69 of Batas Pambansa Blg. 881: 1. Comelec motu proprio
a. Filed personally or through duly 2. Any interested party
authorized representative with the 3. Any registered candidate for the same
Commission by any registered office
candidate for the same office
b. Within five (5) days from the last day for The denial or cancellation of COCs of nuisance
the filing of certificates of candidacy candidates may be "motu proprio or upon a
c. Filing by mail shall not be allowed. verified petition of an interested party, subject
to an opportunity to be heard" [Timbol v.
2. Within three (3) days from the filing of the COMELEC, G.R. No. 206004 (2015)].
petition, the Commission shall issue summons
Page 299 of 412

Rules on Counting Votes Cast for ii. the votes cast for him shall not be
Nuisance Candidates counted.
1. If the person declared as a nuisance
candidate and whose certificate of candidacy b. Hence, generally, if Candidate X has
has been cancelled or denied due course does already been disqualified before election
not have the same name and/or surname as a day but still garnered the highest number
bona fide candidate for the same office - the of votes, those votes are considered as
votes cast for such nuisance candidate shall be stray votes. The candidate with the next
deemed stray pursuant to Section 9 of Rule 23. highest number of votes will be
proclaimed [See Codilla v. De Venecia,
2. If the person declared as a nuisance G.R. No. 150605 (2002)].
candidate and whose certificate of candidacy
has been cancelled or denied due course has 2. If the disqualification is not yet final on
the same name and/or surname as a bona fide election day:
candidate for the same office - the votes cast a. If a candidate is not declared by final
shall not be considered stray but shall be judgment before any election to be
counted and tallied for the bona fide candidate. disqualified and he is voted for and
receives the winning number of votes
3. However, if there are two or more bona fide in such election:
candidates with the same name and/or i. the Court or COMELEC shall
surname as the nuisance candidate - the votes continue with the trial and hearing
cast for the nuisance candidate shall be of the action, inquiry, or protest;
considered as stray votes [Comelec Resolution and
No. 9599, amending Sec. 5 of Rule 24 of the ii. upon motion of the complainant or
Comelec Rules of Procedure, as amended by any intervenor, may during the
Comelec Resolution No. 9523]. pendency thereof, order the
suspension of the proclamation of
A petition to cancel or deny a COC under such candidate whenever the
Section 69 of the OEC should be distinguished evidence of his guilt is strong [Sec.
from a petition to disqualify under Section 68. 6, R.A. No. 6646].
Hence, the legal effect of such cancellation of
a COC of a nuisance candidate cannot be 3. If the disqualification is adjudged and
equated with a candidate disqualified on becomes final after election day:
grounds provided in the OEC and Local a. The second-placer in the vote count is
Government Code. actually the first placer among the
qualified candidates, if disqualified due
4. Effect of Disqualification to Sec. 75 or 78 (COC void ab initio).
Disqualification under Sec. 68 differs from Maquiling v. COMELEC [G.R. No. 195649
grounds for Petition to Deny or Cancel under (2013)] abandoned the rule in Labo, Jr. v.
Sec. 78. COMELEC, supra, that when the voters are
well aware within the realm of notoriety of a
Disqualification (under Sec. 68, among others) candidate’s disqualification and still cast their
does not void a certificate of candidacy (COC), votes in favor said candidate, then the eligible
i.e., the candidate is merely prohibited from candidate obtaining the next higher number of
continuing as a candidate. In contrast, votes may be deemed elected.
Cancellation (under Sec. 78) results in the
COC being void ab initio, i.e., the person was The electorate’s awareness of the candidate’s
never a valid candidate. disqualification is not a prerequisite for the
disqualification to attach to the candidate. The
Rules if the Candidate is Disqualified very existence of a disqualifying circumstance
1. If the disqualification becomes final before makes the candidate ineligible. Knowledge by
election day: the electorate of a candidate’s disqualification
a. Any candidate who has been declared is not necessary before a qualified candidate
by final judgment to be disqualified: who placed second to a disqualified one can be
i. shall not be voted for, and proclaimed as the winner.
Page 300 of 412
That the disqualified candidate has already
been proclaimed and has assumed office is of
no moment. The subsequent disqualification
based on a substantive ground that existed
prior to the filing of the certificate of candidacy
voids not only the COC but also the
proclamation.
Note: The purpose of a disqualification

proceeding is to prevent the candidate (a) from
running or, if elected, (b) from serving, or (c) to
prosecute him for violation of the election laws
[Ejercito v. COMELEC, G.R. No. 212398
(2014)].
Rule if the COC is Cancelled

A cancelled certificate of candidacy cannot
give rise to a valid candidacy, and much less to
valid votes. Whether the CoC is cancelled
before or after the elections is immaterial
because the cancellation on such ground
means he was never a candidate from the very
beginning, his certificate of candidacy being
void ab initio [Aratea v. COMELEC, G.R. No.
195229 (2012); Jalosjos, Jr. v. COMELEC,
supra].
Decisions of the Court holding that the second-

placer cannot be proclaimed winner if the first-
placer is disqualified or declared ineligible
should be limited to situations where the
certificate of candidacy of the first-placer was
valid at the time of filing but subsequently had
to be cancelled because of a violation of law
that took place, or a legal impediment that took
effect, after the filing of the certificate of
candidacy.
If the certificate of candidacy is void ab initio,

then legally the person who filed such a void
certificate of candidacy was never a candidate
in the elections at any time. All votes for such a
noncandidate are stray votes and should not
be counted. Thus, such noncandidate can
never be a first-placer in the elections
[Jalosjos, Jr. v. COMELEC, supra].
Page 301 of 412

III. CAMPAIGN 2. Regulations

Regulation of Speech in the Context of
Electoral Campaigns [The Diocese of
A. Concept Bacolod v. COMELEC, G.R. No. 205728
(2015)]
1. Definition
The term "election campaign" or "partisan a. If made by candidates or the members of
political activity" refers to an act designed to their political parties or their political parties it
promote the election or defeat of a particular may be regulated as to time, place, and
candidate or candidates to a public office [Sec. manner.
79, B.P. Blg. 881].
b. If made by persons who are not candidates
It includes: or who do not speak as members of a political
a. Forming organizations, associations, party which are, taken as a whole, principally
clubs, committees or other groups of advocacies of a social issue that the public
persons for the purpose of soliciting must consider during elections, such regulation
votes and/or undertaking any campaign is unconstitutional.
for or against a candidate;
b. Holding political caucuses, conferences, Regulation of election paraphernalia will still be
meetings, rallies, parades, or other constitutionally valid if it reaches into speech of
similar assemblies, for the purpose of persons who are not candidates or who do not
soliciting votes and/or undertaking any speak as members of a political party if they are
campaign or propaganda for or against a not candidates, only if what is regulated is
candidate; declarative speech that, taken as a whole, has
c. Making speeches, announcements or for its principal object the endorsement of a
commentaries, or holding interviews for candidate only.
or against the election of any candidate
for public office; The regulation:
d. Publishing or distributing campaign i. Should be provided by law
literature or materials designed to ii. Reasonable
support or oppose the election of any iii. Narrowly tailored to meet the objective
candidate; or of enhancing the opportunity of all
e. Directly or indirectly soliciting votes, candidates to be heard and considering
pledges or support for or against a the primacy of the guarantee of free
candidate. expression, and
iv. Demonstrably the least restrictive
Campaign does not include: means to achieve that object
a. Acts performed for the purpose of
enhancing the chances of aspirants for 3. Prohibitions
nomination for candidacy to a public a. Members of the board of election
office by a political party, aggroupment, inspections [Sec. 173, B.P. Blg. 881]
or coalition of parties [e.g. primaries, b. Civil service officers or employees
conventions]; [Sec. 2 (4), Art. IX-B, 1987
b. Public expressions of opinions or Constitution]
discussions of probable issues in a c. Members of the military [Sec. 5 (3), Art.
forthcoming election or on attributes or XVI, 1987 Constitution]
criticisms of probable candidates d. Foreigners, whether juridical or natural
proposed to be nominated in a persons [Sec. 81, B.P. Blg. 881]
forthcoming political party convention
[Sec. 79, B.P. Blg. 881]
4. Period
Campaign Periods [Sec. 5, R.A. No. 7166]
a. President, Vice- President, Senators (i.e.
offices with national constituencies): 90
days before the day of the election
Page 302 of 412
b. Members of the House of 6. Right to Reply
Representatives, Elective Local All registered parties and bona fide candidates
Government Officials: 45 days before the day shall have the right to reply to charges
of election published against them. The reply shall be
c. Barangay Election: 15 days before the day given publicity by the newspaper, television
of election and/or radio station which first printed or aired
the charges with the same prominence or in the
In the preparation of the election calendar, the same page or section or in the same time slot
Commission may exclude the day before the as the first statement [Sec. 10, R.A. No. 9006].
day of the election itself, Maundy Thursday and
Good Friday. Note: The airtime rules are applied on a per
station basis. COMELEC Resolution No. 9615,
Note: Election period is not the same with which adopts the "aggregate-based" airtime
campaign period. The former includes the 30 limits (i.e. applying the limits to all TV and radio
days after election while the latter can only stations taken as a whole) unreasonably
include the 90 days prior to election day [De restricts the guaranteed freedom of speech
Leon]. and of the press [GMA Network, Inc. v.
COMELEC, G.R. No. 205357 (2014)].
5. Equal Access to Media, Time,
and Space 7. Required Submissions to the
COMELEC [Sec. 6.2 and 6.3, R.A.
a. Print advertisements [Sec. 6.1, R.A.
No. 9006]
No. 9006]
i. Shall not exceed 1/4 page, in broad
1. Broadcast stations or entities - Copies of
sheet and 1/2 page in tabloids thrice a
their broadcast logs and certificates of
week per newspaper, magazine or
performance for the review and verification of
other publications.
the frequency, date, time and duration of
advertisement broadcast for any candidate or
b. TV advertisements [Sec. 6.2, R.A. No. political party.
9006]
i. Shall not exceed 120 mins for bona fide 2. All mass media entities - Copy of all
candidates and registered political contracts for advertising, promoting or
parties running for nationally elective opposing any political party or the candidacy of
office, whether by purchase or any person for public office within 5 days after
donation its signing.
ii. Shall not exceed 60 mins for bona fide
candidates and registered political No franchise or permit to operate a radio or TV
parties running for locally elective station shall be granted or issued, suspended
office, whether by purchase or or cancelled during the election period [Sec.
donation 6.4, R.A. No. 9006].
c. Radio advertisements [Sec. 6.2, R.A. Any mass media columnist, commentator,
No. 9006] announcer, reporter, on-air correspondent or
i. Shall not exceed 180 mins for bona fide personality who is a candidate for any elective
candidates and registered political public office or is a campaign volunteer for or
parties running for nationally elective employed or retained in any capacity by any
office, whether by purchase or candidate or political party shall:
donation a. Be deemed resigned, if so required by
ii. Shall not exceed 90 mins for bona fide their employer; or
candidates and registered political b. Take a leave of absence from his/her
parties running for locally elective work as such during the campaign
office, whether by purchase or period [Sec. 6.6, R.A. No. 9006]
donation
No movie, cinematograph or documentary
shall be publicly exhibited in a theater,
Page 303 of 412
television station or any public forum during the The holding of exit polls and the dissemination
campaign period which: of their results through mass media constitute
a. Portrays the life or biography of a an essential part of the freedoms of speech and
candidate [Sec. 6.7, R.A. No. 9006]; of the press. Hence, the COMELEC cannot
b. Is portrayed by an actor or media ban them totally in the guise of promoting
personality who is himself a candidate clean, honest, orderly and credible elections
[Sec. 6.8, R.A. No. 9006]. [ABS-CBN Broadcasting Corp. v. COMELEC,
G.R. No. 133486 (2000)].
Election Surveys
The measurement of opinions and perceptions 8. Application for Rallies,
of the voters as regards a candidate's
popularity, qualifications, platforms or a matter
Meetings and Other Political
of public discussion in relation to the election, Activity
including voters' preference for candidates or All applications for permits must immediately
publicly discussed issues during the campaign be posted in a conspicuous place in the city or
period. municipal building, and the receipt thereof
acknowledged in writing.
Note: Sec. 5.4 of R.A. No. 9006 providing that
surveys affecting national candidates shall not Applications must be acted upon in writing by
be published 15 days before an election and local authorities concerned within 3 days after
surveys affecting local candidates shall not be their filing. If not acted upon within said period,
published 7 days before an election is they are deemed approved.
unconstitutional because:
a. It imposes a prior restraint on the The only justifiable ground for denial of the
freedom of expression; application is when a prior written application
b. It is a direct and total suppression of a by any candidate or political party for the same
category of expression even though purpose has been approved.
such suppression is only for a limited
period; Denial of any application for said permit is
c. The governmental interest sought to be appealable to the provincial election supervisor
promoted can be achieved by means or to the COMELEC whose decision shall be
other than the suppression of the made within 48 hours and which shall be final
freedom of expression [Social Weather and executory [Sec. 87, B.P. Blg. 881].
Stations, Inc. v. COMELEC, G.R. No.
147571 (2001)]. B. Premature Campaigning
5.
Exit polls may only be taken subject to the General Rule: Any election campaign or
following requirements: partisan political activity for or against any
a. Pollsters shall not conduct their candidate outside of the campaign period is
surveys within 50m from the polling prohibited and shall be considered as an
place, whether said survey is taken in election offense [Sec. 80, B.P. Blg. 881].
a home, dwelling place and other
places; Exception: Political parties may hold political
b. Pollsters shall wear distinctive clothing; conventions to nominate their official
c. Pollsters shall inform the voters that candidates within 30 days before the start of
they may refuse to answer; and the period for filing a certificate of candidacy
d. The result of the exit polls may be [Sec. 15, R.A. No. 9369].
announced after the closing of the polls
on election day and must clearly In Penera v. COMELEC [G.R. No. 181613
identify the total number of (2009)], at the time the supposed premature
respondents, and the places where campaigning took place, Penera was not
they were taken. Said announcement officially a “candidate” although she already led
shall state that the same is unofficial her certificate of candidacy. Under Section 15
and does not represent a trend [Sec. 5, of R.A. No. 9369, a person who files his
R.A. No. 9006]. certificate of candidacy is considered a
candidate only at the start of the campaign
Page 304 of 412
period, and unlawful acts applicable to such any of its divisions, subdivisions or
candidate take effect only at the start of such instrumentalities, including GOCCs;
campaign period. Thus, a candidate is liable for e. Grantees, within 1 year prior to the date of
an election offense only for acts done during the election, of loans or other
the campaign period, not before. Before the accommodations in excess of P100,000 by
start of the campaign period, such election the government or any of its divisions,
offenses cannot be committed and any subdivisions or instrumentalities including
partisan political activity is lawful. GOCCs;
f. Educational institutions which have
C. Contributions received grants of public funds amounting
Gift, donation, subscription, loan, advance or to no less than PHP 100,000;
deposit of money or anything of value, or a g. Officials or employees in the Civil Service,
contract, promise or agreement to contribute or members of the Armed Forces of the
(1) whether or not legally enforceable, (2) Philippines;
made for influencing the results of the h. Foreigners and foreign corporations,
elections. including foreign governments
Definition [Sec. 94, B.P. Blg. 881] N.B. The underlying commonality is conflict of
i. Excludes services rendered without interest in sensitive government operations, or
compensation by individuals areas where government grants licenses and
volunteering their time in behalf of a special permits.
candidate or political party
ii. Includes the use of facilities voluntarily 2. Prohibited Fund-Raising
donated by other persons, the money Activities [Sec. 97, B.P. Blg. 881]
value of which can be assessed based
on the rates prevailing in the area a. The following are prohibited if held for raising
campaign funds or for the support of any
1. Prohibited Contributions candidate from the start of the election period
No contribution for purposes of partisan up to and including election day:
political activity shall be made directly or i. Dances
indirectly by any of the following [Sec. 95 and ii. Lotteries
96, B.P. Blg. 881]: iii. Cockfights
iv. Games
From Public or private financial institutions v. Boxing bouts
provided, however, that nothing herein shall vi. Bingo
prevent the making of any loan: vii. Beauty contests
a. By financial institutions which are legally in viii. Entertainments, or cinematographic,
the business of lending money; theatrical or other performances
i. The loan is made in
accordance with laws and b. For any person or organization, civic or
regulations; and religious, directly or indirectly, to solicit and/or
ii. The loan is made in the accept from
ordinary course of business. i. Any candidate, or
b. Natural and juridical persons operating a ii. From his campaign manager, agent or
public utility or in possession of or representative, or
exploiting any natural resources of the iii. Any person acting in their behalf, any
nation; gift, food, transportation, contribution or
c. Natural and juridical persons who hold donation in cash or in kind from the
contracts or subcontracts to supply the start of the election period up to and
government or any of its divisions, including election day.
subdivisions or instrumentalities, with
goods or services or to perform Exception: Normal and customary religious
construction or other works; stipends, tithes, or collections on Sundays
d. Grantees of exemptions, incentives, or and/or other designated collection days
similar concessions by the government or
Page 305 of 412

3. Prohibited Donations [Sec. i. Bear and be identified by the
reasonably legible or audible
104. B.P. Blg. 881] words “political advertisement
paid for” followed by the true and
Whether made directly or indirectly: correct name and address of the
i. Donations, contribution or gift in cash candidate or party for whose
or in kind; benefit the election propaganda
ii. Undertaking or contribution to the was printed or aired [Sec. 4(1),
construction or repair of roads, bridges, R.A.No. 9006].
school buses, puericulture centers, ii. If the broadcast is given free of
medical clinics and hospitals, churches charge by the radio or TV station,
or chapels, cement pavements, or any identified by the words "airtime for
structure for public use or for the use of this broadcast was provided free
any religious or civic organization. of charge by" followed by the true
and correct name and address of
Made by a candidate, spouse, relative within the broadcast entity [Sec. 4(2),
2nd civil degree of consanguinity or affinity, R.A. No. 9006].
campaign manager, agent or representative; iii. Print, broadcast or outdoor
treasurers, agents or representatives of advertisements donated to the
political party candidate or political party shall
not be printed, published,
During campaign period, day before and day of broadcast or exhibited without the
the election written acceptance by said
candidate or political party.
Exceptions: Written acceptance must be
i. Normal and customary religious dues attached to the advertising
or contributions contract and submitted to the
ii. Periodic payments for legitimate COMELEC within 5 days after its
scholarships established and school signing [Sec. 4.3, R.A. No. 9006,
contributions habitually made before cf. Sec. 6.3, R.A. No. 9006].
the prohibited period f. All other forms of election propaganda
not prohibited by the Omnibus Election
D. Lawful and Prohibited Code or the Fair Election Act of 2001
Election Propaganda [Sec. 3, R.A. No. 9006]
1. Lawful Election Propaganda 2. Prohibited Acts
a. Pamphlets, leaflets, cards, decals, a. For any foreigner: [Sec. 81, B.P. Blg.
stickers, or other written or printed 881]
materials not larger than 8.5x14 inches i. Aid any candidate or political
b. Handwritten or printed letters urging party, directly or indirectly
voters to vote for or against any political ii. Take part or influence in any
party or candidate manner in any election
c. Cloth, paper or cardboard posters, iii. Contribute or make any
framed or posted, not larger than 2x3 expenditure in connection with
feet any election campaign or
d. Streamers not larger than 3x8 feet are partisan political activity
allowed at a public meeting or rally or b. For any person during the campaign
in announcing the holding of such. May period: [Sec. 83, B.P. Blg. 881]
be displayed 5 days before the meeting i. Remove, destroy, obliterate or
or rally and shall be removed within 24 in any manner deface or
hours after such tamper with lawful election
e. Paid advertisements in print or propaganda
broadcast media ii. Prevent the distribution of
lawful election propaganda
Page 306 of 412

c. For any candidate, political party, Note: The cost of (i), (j), (k) shall not be taken
organization or any person: [Sec. 89, into account in the computation of the
B.P. Blg. 881] candidate’s allowable limit of election
i. Give or accept, directly or expenses [Sec. 102, B.P. Blg. 881].
indirectly, free of charge,
transportation, food or drinks or The amount contributed by a donor shall be
things of value during the five included in the computation of the candidate’s
hours before and after a public allowable limit of election expenses [Ejercito v.
meeting, on the day preceding Comelec, G.R. No. 212398 (2014)].
the election, and on the day of
the election; 2. For Candidates [Sec. 13, R.A.
ii. Give or contribute, directly or
indirectly, money or things of No. 7166]
value for such purpose a. President and VP: PHP 10 for every voter
currently registered
Note: Sec. 85 “Prohibited Election
Propaganda” of B.P. Blg. 881 was repealed by b. Other candidates: PHP 3 for every voter
Sec. 14 of R.A. No. 9006. currently registered in the constituency where
he filed his certificate of candidacy
E. Limitations on Expenses Exception: A candidate without any political
party and without support from any political
1. Lawful Expenditures party may be allowed to spend PHP 5 for every
a. For travelling expenses of the such voter
candidates and campaign personnel in
the course of the campaign and for 3. For Political Parties
personal expenses incident thereto; PHP 5 for every voter currently registered in the
b. For compensation of campaigners, constituency or constituencies where it has
clerks, stenographers, messengers, official candidates
and other persons actually employed in
the campaign;
c. For telegraph and telephone tolls, F. Statement of Contributions
postage, freight and express delivery and Expenses (SOCE) [Sec. 14,
charges; R.A. No. 7166]
d. For stationery, printing and distribution
of printed matters relative to candidacy; The SOCE shall:
e. For employment of watchers at the a. Contain the full, true and itemized
polls; statement of all contributions and
f. For rent, maintenance and furnishing of expenditures in connection with the
campaign headquarters, office or place election
of meetings; b. Filed by every candidate and treasurer of
g. For political meetings and rallies and the political party
the use of sound systems, lights and c. Filed with the COMELEC in duplicate within
decorations during said meetings and 30 days after the day of the election
rallies;
h. For newspaper, radio, television and Section 14 of R.A. No. 7166 states that "every
other public advertisements; candidate" has the obligation to file his
i. For employment of counsel statement of contributions and expenditures.
j. For copying and classifying list of … The term "every candidate" must be deemed
voters, investigating and challenging to refer not only to a candidate who pursued his
the right to vote of persons registered campaign, but also to one who withdrew his
in the lists; candidacy [Pilar v. COMELEC, G.R. No.
k. For printing sample ballots in such 115245 (1995)].
color, size and maximum number as
may be authorized by the Commission Effect of Failure to File Statement [Sec. 14,
[Sec. 102, BP Blg 881] R.A. No. 7166]
Page 307 of 412
1. The person elected to any public office
cannot enter upon the duties of his office
Note: The same prohibition applies if the
political party which nominated the winning
candidate fails to file the statements.
2. Imposition of administrative fines (except

candidates for elective barangay office)
i. 1st offense
PHP 1,000 to 30,000 in the discretion of the
Commission
To be paid within 30 days from receipt of

notice of failure to file; Otherwise, it shall be
enforceable by a writ of execution issued by
the Commission against the properties of
the offender
ii. 2nd or subsequent offense

PHP 2,000 to 60,000 in the discretion of the
Commission
Perpetual disqualification to hold public

office
It shall be the duty of every city or municipal

election registrar to advise in writing, by
personal delivery or registered mail, within five
(5) days from the date of election all candidates
residing in his jurisdiction to comply with their
obligation to file their statements of
contributions and expenditures.
Page 308 of 412

IV. REMEDIES AND has been filed and thus prevent a

faithful determination of the true will of
JURISDICTION the electorate
A. Petition Not to Give Due B. Petition for Disqualification

Course or Cancel a Certificate An action or protest filed against any candidate
where he/she may be declared by final
of Candidacy decision of a competent court guilty of, or found
by the Commission of being disqualified based
1. For any False Material on the grounds below. In effect, he/she shall be
Representation [Sec. 78, OEC] disqualified from continuing as a candidate, or
A verified petition to deny due course or to if he/she has been elected, from holding the
cancel a certificate of candidacy. office.
Grounds: Any material representation 1. Grounds under Par. 1, Sec. 68,

contained in the COC as required under OEC
Section 74 hereof is false. a. Given money or other material
consideration to influence, induce or corrupt
The material misrepresentation contemplated the voters or public officials performing
by Section 78 of the Code refer to qualifications electoral functions;
for elective office. b. Committed acts of terrorism to enhance his
candidacy;
Aside from the requirement of materiality, a c. Spent in his election campaign an amount
false representation under Section 78 must in excess of that allowed by this Code;
consist of a "deliberate attempt to mislead, d. Solicited, received or made any contribution
misinform, or hide a fact which would otherwise prohibited under Sections 89, 95, 96, 97 and
render a candidate ineligible." In other words, it 104; or
must be made with an intention to deceive the e. Violated any of Sections 80, 83, 85, 86, and
electorate as to one’s qualifications for public 261, paragraphs d, e, k, v, and cc,
office [Villafuerte v. COMELEC, G.R. No. subparagraph 6
206698 (2014)].
When to file: Any time not later than 25 days

2. Grounds under Par. 2, Sec. 68,
from the time of the filing of the certificate of OEC
candidacy Any person who is a permanent resident of or
an immigrant to a foreign country, unless said
How decided: After due notice and hearing, person has waived his status as permanent
not later than fifteen days before the election resident or immigrant of a foreign country in
accordance with the residence requirement
2. For Nuisance Candidates provided for in the election laws.
[Sec. 69, OEC]
A verified petition of an interested party or a
3. Grounds under Sec. 12, OEC
motu proprio decision of the Commission to a. Any person who has been declared by
deny due course or cancel a certificate of competent authority insane or Incompetent
candidacy if it is shown that said certificate has b. Any person who has been sentenced by
been filed: final judgment for:
a. To put the election process in mockery i. Subversion;
or disrepute ii. Insurrection;
b. To cause confusion among the voters iii. Rebellion;
by the similarity of the names of the iv. Any offense for which he has been
registered candidates or by other sentenced to a penalty of more
circumstances or acts which clearly than 18 months; or
demonstrate that the candidate has no v. A crime involving moral turpitude.
bona fide intention to run for the office
for which the certificate of candidacy
Page 309 of 412
Exception: if the person has been given Note: In Francisco v. COMELEC, supra, the
plenary pardon or granted amnesty court rectified its ruling in Poe-Llamanzares v.
COMELEC [G.R. Nos. 221697 & 221698-700
Note: The disqualifications to be a candidate (2016)] where it held that to disqualify a
under this section shall be deemed removed: candidate there must be a declaration by a final
1. Upon the declaration by competent judgment of a competent court and that the
authority that said insanity or COMELEC has no jurisdiction to determine the
incompetence had been removed; or qualification of a candidate.
2. After the expiration of a period of 5 years
from his service of sentence, unless
Petition for Petition to Deny
within the same period he again
Disqualification Due Course or
becomes disqualified.
[Sec. 68] Cancel COC [Sec.
69 and 78]
4. Grounds under Sec. 40, LGC
for Local Elective Positions Grounds
a. Sentenced by final judgment for an offense
i. Sec. 12, OEC i. False material
involving moral turpitude or for an offense
representation in the
punishable by one (1) year or more of
ii. Sec. 68, OEC COC
imprisonment, within two (2) years after
serving sentence;
iii. Sec. 40, LGC ii. Nuisance
b. Removed from office as a result of an
candidate
administrative case;
c. Convicted by final judgment for violating the Effect
oath of allegiance to the Republic;
d. With dual citizenship; Person is prohibited Person is not treated
e. Fugitives from justice in criminal or non- to continue as a as a candidate at all,
political cases here or abroad; candidate or if as if he/she never
f. Permanent residents in a foreign country or he/she has been filed a COC.
those who have acquired the right to reside elected, he is
abroad and continue to avail of the same prohibited from
right after the effectivity of the LGC; and holding the office.
g. Insane or feeble-minded.
Substitution
A prior court judgment is not required before
the remedy under Sec. 68 of the OEC can
prosper. This is highlighted by the provision Allowed (Rule of Not allowed
itself, which contemplates two scenarios: first, succession shall be (Candidate with the
there is a final decision by a competent court observed) second highest
that the candidate is guilty of an election number of votes shall
offense and second, it is the Commission itself assume office)
that found that the candidate committed any of
the enumerated prohibited acts. Noteworthy is
that in the second scenario, it is not required Period for Filing
that there be a prior final judgment; it is
sufficient that the Commission itself made the Any time before i. For false material
determination. The conjunction "or" separating proclamation of representation in the
"competent court" and "the Commission" could the winning COC: within 25 days
only mean that the legislative intent was for candidate from filing of COC
both bodies to be clothed with authority to
ascertain whether or not there is evidence that ii. For nuisance
the respondent candidate ought to be candidates: within 5
disqualified [Francisco v. COMELEC, G.R. No. days from the last
230249 (2018)]. day of filing COCs
Page 310 of 412

C. Failure of Election Versus 2 days from receipt of the notice of
hearing, any interested party may file
Annulment of Election Results an opposition with the Law Department
of the COMELEC.
1. Failure of Election 4. The COMELEC proceeds to hear the
petition. The COMELEC may delegate
Declaration of failure of election the hearing of the case and the
It is neither an election case nor a pre- reception of evidence to any of its
proclamation controversy [Borja v. COMELEC, officials who are members of the
G.R. No. 133495 (1996)]. Philippine Bar.
5. The COMELEC then decides whether
The COMELEC does not exercise its quasi- to grant or deny the petition. This lies
judicial functions when it declares a failure of within the exclusive prerogative of the
elections pursuant to R.A. No. 7166. Rather, COMELEC.
the COMELEC performs its administrative
function when it exercises such power [Abayon Postponement of Election [Sec. 5, OEC]
v. HRET, G.R. No. 222236 & 223032 (2016)]. The Commission, motu proprio or upon a
verified petition by any interested party, after
The grounds for failure of election clearly due notice and hearing, whereby all interested
involve questions of fact. It is for this reason parties are afforded equal opportunity to be
that they can only be determined by the heard postpones the election upon a finding
COMELEC en banc after due notice and that:
hearing to the parties [Loong v. COMELEC,
G.R. No. 133676 (1999)]. 1. The following grounds are present:
a. Violence
Jurisdiction b. Terrorism
The postponement, declaration of failure of c. Loss or destruction of election
election and the calling of special elections paraphernalia or records
shall be decided by the Commission sitting en d. Force majeure
banc by a majority vote of its members. The
causes for the declaration of a failure of Any serious cause analogous to the foregoing
election may occur before or after the casting
of votes or on the day of the election [Sec. 4, 2. As a result of the above grounds, the holding
R.A. No. 7166]. of a free, orderly and honest election should
become impossible in any political subdivision
Conditions
The following must concur: Instances when there is Failure of
a. No voting has taken place in the Election [Sec. 6, OEC]
precincts concerned on the date fixed There is failure of elections when:
by law, or even if there was voting, the 1. The following grounds are present:
election nonetheless resulted in a a. Force majeure
failure to elect; and b. Violence
b. The votes not cast would affect the c. Terrorism
results of the election. d. Fraud
e. Other analogous causes
Procedure 2. The grounds resulted in any of the following:
1. Petitioner files verified petition with the a. Election has not been held on the date
Law Department of the COMELEC. fixed;
2. Unless a shorter period is deemed b. Election had been suspended before
necessary by circumstances, within 24 the hour fixed by law for the closing of
hours, the Clerk of Court concerned the voting; or
serves notices to all interested parties, c. Election had been suspended after the
indicating therein the date of hearing, voting and during the preparation and
through the fastest means available. the transmission of the election returns
3. Unless a shorter period is deemed or in the custody or canvass thereof.
necessary by the circumstances, within
Page 311 of 412
3. In any of such cases, the failure or who had induced or actually perpetuated the
suspension would affect the result of the commission of the acts complained of and
election. demonstrated (2) that those incidents were part
of a scheme to frustrate the free expression of
Instances when Special Elections may be the will of the electorate [Abayon v. HRET,
Called [Sec. 7, OEC] supra].
Any interested party may file a verified petition
to call for special elections. In case of Failure of Election vs. Annulment of
postponement, the Commission may take Election Results [Abayon v. HRET, supra]
action motu proprio. In both cases, there shall Failure of Election Annulment of
be due notice and hearing. After which, the Election Results
Commission shall call for the holding or
continuation of the election not held, Who Exercises
suspended or which resulted in a failure to
elect. Exercise of Incident of the
COMELEC’s judicial function of
Special Elections may also be Called in administrative electoral tribunals
the Following Cases [Sec. 7, OEC] function
1. In case a vacancy arises in the Batasang
Pambansa 18 months or more before a regular Scope
election
i. The Commission shall call a special
election to be held within 60 days after the Relates to the entire Only extends to
vacancy occurs to elect the Member to election in the election results
serve the unexpired term. concerned precinct connected with the
2. In case of the dissolution of the Batasang or political unit election contest
Pambansa before the electoral
i. The President shall call an election which tribunal
shall not be held earlier than 45 nor later
than 60 days from the date of such Objective
dissolution.
To hold or continue To determine who
The date of the special election shall be the elections, which among the
reasonably close to the date of the election not were not held or candidates garnered
held, suspended or which resulted in a failure were suspended, or a majority of the legal
to elect. The date shall not be later than 30 if there was one, votes cast
days after the cessation of the cause of such resulted in a failure
postponement or suspension of the election or to elect
failure to elect.
2. Annulment of Election Results D. Pre-Proclamation

Controversy
Requisites [Abayon v. HRET, supra] Any question pertaining to or affecting the
1. The illegality of the ballots must affect more proceedings of the board of canvassers which
than 50% of the votes cast on the specific may be raised by any candidate or by any
precinct or precincts sought to be annulled, registered political party or coalition of political
or in case of the entire municipality, more parties before the board or directly with the
than 50% of its total precinct and the votes Commission, or any matter raised under the
cast therein; and following sections in relation to the preparation,
2. It is impossible to distinguish with transmission, receipt, custody and appreciation
reasonable certainty between the lawful and of the election returns [Sec. 241, B.P. Blg. 881]:
unlawful ballots. 1. Sec. 233 (delayed, lost, or destroyed
election returns);
Note: It must be concretely and directly 2. Sec. 234 (material defects in the
established (1) that the protestee was the one election results);
Page 312 of 412
3. Sec. 235 (tampered with or falsified Commission, the verified petition shall be filed
election returns); and immediately when the board begins to act
4. Sec. 236 (discrepancies in election illegally, or at the time of the appointment of the
returns). member of the board whose capacity to sit as
such is objected to.
Issues that May be Raised in a Pre-
Proclamation Controversy Nature of Proceedings
The following shall be proper issues that may Heard summarily by the COMELEC after due
be raised in a pre-proclamation controversy: notice and hearing. This is because canvass
1. Illegal composition or proceedings of and proclamation should be delayed as little as
the board of canvassers; possible.
2. The canvassed election returns are
incomplete, contain material defects, When Not Allowed [Sec. 15, R.A. No. 7166
appear to be tampered with or falsified, as revised by R.A. No. 9369]
or contain discrepancies in the same For the positions of President, Vice-President,
returns or in other authentic copies Senator, and Member of the House of
thereof as mentioned in Sections 233, Representatives.
234, 235 and 236 of this Code;
3. The election returns were prepared Exceptions
under duress, threats, coercion, or However, this does not preclude the authority
intimidation, or they are obviously of the appropriate canvassing body motu
manufactured or not authentic; and propio or upon written complaint of an
4. When substitute or fraudulent returns interested person to correct manifest errors in
in controverted polling places were the certificate of canvass or election returns
canvassed, the results of which before it [Sec. 15, R.A. No. 7166 as revised by
materially affected the standing of the R.A. No. 9369].
aggrieved candidate or candidates
[Sec. 243, B.P. Blg. 881] Questions affecting the composition or
proceedings of the board of canvassers may
In Rule 3, Sec. 1 of COMELEC Resolution No. be initiated in the board or directly with the
8804 (2010) there are only two issues covered Commission in accordance with Section 19
in a pre-proclamation controversy: hereof [Sec. 15, R.A. No. 7166 as revised by
1. Illegal composition of the BOC, and R.A. No. 9369].
2. Illegal proceedings of the BOC.
The procedure on pre-proclamation
Jurisdiction [Sec. 2, Rule 3, COMELEC controversies shall be adopted when it appears
Resolution No. 8804] that any certificate of canvass or supporting
COMELEC has exclusive jurisdiction in pre- statement of votes by city/municipality or by
proclamation controversies arising from precinct bears erasures or alterations which
national, regional or local elections. may cast doubt as to the veracity of the number
of votes stated herein and may affect the result
A pre-proclamation controversy may be raised of the election [Sec. 30, R.A. No. 7166 as
by any candidate or by any registered political revised by R.A. No. 9369].
party, organization, or coalition of political 1. Upon request of the presidential, vice-
parties before the BOC, or directly with the presidential or senatorial candidate
Commission. concerned or his party
2. Congress or the Commission en banc,
Issues affecting the composition or as the case may be, shall, for the sole
proceedings of the Boards may be initiated by purpose of verifying the actual number
filing a verified petition before the Board or of votes cast for President and Vice-
directly with the Commission. President or senator, count the votes
as they appear in the copies of the
If the petition is filed directly with the Board, its election returns submitted to it
decision may be appealed to the Commission
within three (3) days from issuance thereof. It is clear from Section 15 of R.A. No. 7166 that
However, if commenced directly with the "pre-proclamation cases are not allowed in
Page 313 of 412
elections for President, Vice-President, 1. Illegal Composition of the
Senator and Member of the House of
Representatives.'' What is allowed is the Board of Canvassers
correction of "manifest errors in the certificate There is illegal composition of the BOC when,
of canvass or election returns." To be manifest, among other similar circumstances, any of the
the errors must appear on the face of the members do not possess legal qualifications
certificates of canvass or election returns and appointments. The information technology
sought to be corrected and/or objections capable person required to assist the BOC by
thereto must have been made before the board R.A. No. 9369 shall be included as among
of canvassers and specifically noted in the those whose lack of qualifications may be
minutes of their respective proceedings questioned [Sec. 1, Rule 4, COMELEC
[Chavez v. COMELEC, G.R. No. 105323 Resolution No. 8804].
(1992), but note that the correction of manifest
errors is no longer part of the grounds for pre- 2. Illegal Proceedings of the
proclamation controversy as per COMELEC Board of Canvassers
Reso 8804 (2010)]. There are illegal proceedings of the BOC when
the canvassing is a sham or mere ceremony,
A pre-proclamation case under Sec. 30 is the results of which are pre- determined and
allowed only as an exception to the prohibition manipulated as when any of the following
under Section 15 of R.A. No. 7166, as circumstances are present:
amended by R.A. No. 9369. xxx And, in this a. Precipitate canvassing;
case, the exception applies only to Congress b. Terrorism;
or the COMELEC en banc acting as the NBC, c. Lack of sufficient notice to the
and not to local boards of canvassers who must members of the BOCs;
still be deemed covered by the prohibition on d. Improper venue [Sec. 2, Rule 4,
pre- proclamation controversies [Pimentel III v. COMELEC Resolution No. 8804]
COMELEC, G.R. No. 178413 (2008)].
Issues that Cannot be Raised 3. When and Where to File Pre-

1. Appreciation of ballots, as this is performed Proclamation Controversy
by the BEI at the precinct level and is not
part of the proceedings of the BOC Ground: Composition or Proceedings of the
[Sanchez v. COMELEC, G.R. No. 78461 Board of Canvassers
(1987)]
2. Technical examination of the signatures Where to File: In the BOC or directly with the
and thumb marks of voters [Matalam v. Commission, with a verified petition, clearly
COMELEC, G.R. No. 123230 (1997)] stating the specific ground/s for the illegality of
3. Prayer for re-opening of ballot boxes the composition and/or proceedings of the
[Alfonso v. COMELEC, G.R. No. 107847 board [Sec. 3, Rule 4, COMELEC Resolution
(1994)] No. 8804].
4. Padding of the Registry List of Voters of a
municipality, massive fraud and terrorism When to File: The petition questioning the
[Ututalum v. COMELEC, G.R. No. 84843-44 illegality, or the composition and/or
(1990), citing Espaldon v. COMELEC, G.R. proceedings of the BOC shall be filed
No. L-78987 (1987)] immediately when the BOC begins to act as
5. Challenges directed against the Board of such, or at the time of the appointment of the
Election Inspectors [Ututalum v. member whose capacity to sit as such is
COMELEC, supra] objected to, if it comes after the canvassing of
6. Fraud, terrorism and other illegal electoral the Board, or immediately when the
practices. These are properly within the proceedings become illegal [Sec. 4, Rule 4,
office of election contests over which COMELEC Resolution No. 8804].
electoral tribunals have sole, exclusive
jurisdiction [Loong v. COMELEC, G.R. No. No law provides for a reglementary period
133676 (1996)]. within which to file a petition for the annulment
of an election if there is as yet no proclamation
[Loong v. COMELEC, supra].
Page 314 of 412
Procedure for Contested 9. Within five (5) days therefrom the
COMELEC en banc shall render its
Composition or Proceedings of decision on the appeal.
the Board [Rule 4, Sec. 5, b. If filed directly with the Commission:
COMELEC Resolution No. 8804] The petition shall be heard by the COMELEC
en banc under the following procedures. Upon
a. In case the petition is filed before the receipt of the petition by the COMELEC, the
BOC: Clerk of the Commission shall docket the same
1. Upon receipt of the verified petition, the and forthwith send summons to the BOC
BOC shall immediately announce the concerned with an order directing it to submit,
fact of the filing of said petition and the through the fastest verifiable means available,
ground/s raised therein. its answer within forty- eight (48) hours.
2. The BOC shall immediately deliberate
on the petition, and within a period of The COMELEC en banc shall resolve the
twenty-four (24) hours, make a prompt petition within five (5) days from the filing of the
resolution thereon, which resolution answer, or upon the expiration of the period to
shall be reduced into writing. file the same.
3. Should the BOC decide in favor of the
petition, it shall immediately inform the 4. Effect of Filing of Pre-
Commission of its resolution. Proclamation Controversy
Thereafter, the Commission shall make The filing with the Commission of a petition to
the appropriate action thereon. annual or to suspend the proclamation of any
4. In no case shall the receipt by the BOC candidate shall suspend the running of the
of the electronically transmitted period within which to file an election protest or
precinct, municipal, city, or provincial quo warranto proceedings [Sec. 248, B.P. Blg.
results, be suspended by the filing of 881].
said petition.
5. The petitioner may appeal an adverse The recourse by certiorari to the Supreme
resolution by the BOC to the Court, which is a right secured to the defeated
COMELEC, by notifying the BOC of his party under Section 7, Title A, Article IX of the
or her intent to appeal, through a verbal, 1987 Constitution, is part of the annulment
and a written and verified Notice of proceeding. The case is not over until the
Appeal. The notice on the BOC shall not Supreme Court has given its verdict, hence,
suspend the formal proclamation of the the computation of the ten-day-period for filing
official results of the election, until the an election contest does not begin until that
final resolution of the appeal. verdict has been handed down by the Supreme
6. Within forty-eight (48) hours from such Court [Gallardo v. Rimando, G.R. No. 91718
notice to the BOC, the petitioner shall (1990)].
submit before the Board a
Memorandum on Appeal stating the The right of the prevailing party in the pre-
reasons why the resolution being proclamation contest to the execution of
questioned is erroneous and should be COMELEC’s decision does not bar the losing
reversed. party from filing an election contest [Gallardo v.
7. Upon receipt by the BOC of the Rimando, supra].
petitioner's memorandum on appeal,
the Board shall forward the entire Partial Proclamation
records of the petition at the expense of Despite the pendency of a pre-proclamation
the petitioner. contest, the COMELEC may, motu proprio or
8. Upon receipt of the records herein upon the filing of a verified petition and after
referred to, the petition shall be due notice and hearing order the proclamation
docketed by the Clerk of Commission of other winning candidates whose election will
and submitted to the COMELEC en not be affected by the outcome of the
banc for consideration and decision. controversy [Sec. 247, B.P. Blg. 881].
Page 315 of 412

Effect of Proclamation of Winning the plurality of the legal votes and therefore is
Candidate entitled to hold the office [Samad v.
A pre-proclamation controversy shall no longer COMELEC, G.R. No. 107854 (1993)].
be viable after the proclamation and
assumption into office by the candidate whose General Rule
election is contested. The remedy is an The filing of an election protest or a petition for
election protest before the proper forum. quo warranto precludes the subsequent filing
of a pre-proclamation controversy, or amounts
However, the prevailing candidate may still be to the abandonment of one earlier filed, thus
unseated even though he has been proclaimed depriving the COMELEC of the authority to
and installed in office if: inquire into and pass upon the title of the
a. The opponent is adjudged the true protestee or the validity of his proclamation.
winner of the election by final judgment
of court in an election contest; The reason is that once the competent tribunal
b. The prevailing party is declared has acquired jurisdiction of an election protest
ineligible or disqualified by final or a petition for quo warranto, all questions
judgment of a court in a quo warranto relative thereto will have to be decided in the
case; or case itself and not in another proceeding
c. The incumbent is removed from office [Samad v. COMELEC, supra].
for cause.
Exceptions:
When the proclamation is null and void, since 1. The board of canvassers was improperly
the proclamation is no proclamation at all and constituted;
the proclaimed candidate's assumption of 2. Quo warranto was not the proper
office cannot deprive the COMELEC of the remedy;
power to declare such nullity and annul the 3. What was filed was not really a petition
proclamation. for quo warranto or an election protest
but a petition to annul a proclamation;
Illegal Proceedings Discovered After a. The filing of a quo warranto petition or
Proclamation [Sec. 4, Rule 4, COMELEC an election protest was expressly
Resolution No. 8804] made without prejudice to the pre-
If the illegality of the proceedings of the BOC is proclamation controversy or was
discovered after the official proclamation of the made ad cautelam; and
supposed results, a verified petition to annul b. The proclamation was null and void
the proclamation may be filed before the [Samad v. COMELEC, supra]
COMELEC within ten (10) days after the day of
proclamation. Nature
Summary proceeding of a political character
Upon receipt of the verified petition, the Clerk [Gardiner v. Romulo, G.R. No. L-8921 (1914)]
of the Commission shall have the same
docketed and forthwith issue summons to the Purpose
parties to be affected by the petition, with a To ascertain the candidate lawfully elected to
directive for the latter to file their answer within office [De Castro v. Ginete, G.R. No. L-30058
five (5) days from receipt. (1969)]
Thereafter the case shall be deemed submitted Laws governing election contests must be
for resolution, which shall not be later than liberally construed to the end that the will of the
seven (7) days from receipt of the answer. people in the choice of public officials may not
be defeated by mere technical objections
[Saquilayan v. COMELEC, G.R. No. 157249
E. Election Contest (2003)].
A contest between the defeated and winning
candidates on the ground of frauds or
irregularities in the casting and counting of the
ballots, or in the preparation of the returns. It
raises the question of who actually obtained
Page 316 of 412

Kinds of Election Contest In a quo warranto proceeding, the petitioner is
not occupying the position in dispute [Samad v.
1. Election Protest COMELEC, supra].
A petition contesting the elections or returns of .
an elective regional, provincial, or city official Who May File: Any voter
shall be filed with the Commission by any
candidate who was voted for in the same office When to File: Within 10 days after the
and who Commission by any candidate who proclamation of the results of the election
was voted for in the same office and who Grounds
received the second or third highest number of 1. Ineligibility
votes or, in a multi-slot position, was among the 2. Disloyalty to the Republic
next four candidates following the last ranked
winner duly proclaimed, as reflected in the In quo warranto proceedings referring to offices
official results of the election contained in the filled by election, what is to be determined is
Statement of Votes. The party filing the protest the eligibility of the candidate elect, while in quo
shall be designated as the protestant; the warranto proceedings referring to offices filled
adverse party shall be known as the protestee by appointment, what is determined is the
[Rule 6, COMELEC Reso 8804]. legality of the appointment. In the first case
when the person elected is ineligible, the court
Who May File: A candidate who has duly filed cannot declare that the candidate occupying
a certificate of candidacy and has been voted the second place has been elected, even if he
for the same office were eligible, since the law only authorizes a
declaration of election in favor of the person
When: Within 10 days after the proclamation of who has obtained a plurality of votes, and has
the results of the election presented his certificate of candidacy. In the
second case, the court determines who has
Note: This prescriptive period is suspended been legally appointed and can and ought to
during the pendency of a pre-proclamation declare who is entitled to occupy the office
controversy between the same parties [Nuval v. Guray, G.R. No. L-30241 (1928)].
Grounds Distinction between Election Protest and

1. Fraud Quo Warranto [Lokin v. COMELEC, G.R. No.
2. Terrorism 179431-32 and G.R. No. 180443 (2010)]
3. Irregularities
4. Illegal acts committed before, during, or
Election Protest Quo Warranto
after the casting and counting of votes
Strictly a contest Refers to questions
Payment of Docket fee between the of disloyalty or
Protestant has to pay a docket fee of P300 and defeated and ineligibility of the
an additional docket fee if there is a claim for winning candidates winning candidate
damages. Failure to pay the basic docket fee based on grounds of
shall result to the dismissal of the protest election frauds or It is a proceeding to
[Soller v. COMELEC, G.R. No. 139853 (2000)]. irregularities as to unseat the ineligible
who actually person from office,
2. Quo Warranto obtained the but not to install the
A sworn petition that can be filed by any voter majority of the legal protestant in place
to contest the election of any member of votes and therefore
Congress or local government official on the is entitled to hold
ground of ineligibility or of disloyalty to the the office
Republic of the Philippines [Sec. 253, B.P. Blg.
881]. Can only be filed by Can be filed by any
a candidate who voter
It is a proceeding to unseat the respondent has duly filed a
from office but not necessarily to install the certificate of It is not considered a
petitioner in his place [Samad v. COMELEC, contest where the
supra].
Page 317 of 412
Jurisdiction
candidacy and has parties strive for
1. SC (acting as PET): Over all contests
been voted for supremacy
relating to the election, returns, and
A protestee may be While the respondent qualifications of the President or Vice President
ousted and the may be unseated, [Sec. 4, Art VII, 1987 Constitution]
protestant seated in the petitioner will not
the office vacated be seated 2. HRET/SET: Over all contests relating to the
election, returns, and qualifications of their
respective Members [Sec. 17, Art VI, 1987
Execution Pending Appeal Constitution]
COMELEC Rules of Procedure, Section 2,
Rule 39 of the Rules of Court allows Regional 3. COMELEC: Over all contests relating to the
Trial Courts to order execution pending appeal elections, returns and qualifications of all
upon good reasons stated in a special order elective regional, provincial and city officials
which may be made to apply suppletorily or by [Sec. 250, B.P. Blg. 881]
analogy to election cases decided by them.
While execution pending appeal may be 4. RTC: Over contests involving municipal
allowed under the foregoing rule, the said officials [Sec. 251, B.P. Blg. 881]
provision must be strictly construed against the i. The RTC decision may be appealed to the
movant as it is an exception to the general rule COMELEC within 5 days from promulgation
on execution of judgments. Following civil law or receipt of a copy thereof by the aggrieved
jurisprudence, the reason allowing for party [Sec. 22, R.A. No. 7166]
immediate execution must be of such urgency ii. The COMELEC shall decide the appeal
as to outweigh the injury or damage of the within 60 days after it is submitted for
losing party should it secure a reversal of the decision, but not later than 6 months after
judgment on appeal [Camilian v. COMELEC, the filing of the appeal, which decision shall
G.R. No. 124169 (1997)]. be final, unappealable and executory [Sec.
22, R.A. No. 7166].
The trial court may grant a motion for execution
pending appeal based on “valid and special 5. MTC: Over election contests involving
reasons.” barangay officials [Sec. 252, B.P. Blg. 881]
a. The public interest is involved or the will i. The MTC should decide within 15 days
of the electorate; after the filing
b. The shortness of the remaining portion ii. The MTC decision may be appealed to
of the term; the RTC within 10 days from receipt of a
c. The length of time that the election copy thereof by the aggrieved party
contest has been pending [Santos v. iii. The RTC should decide the appeal within
COMELEC, G.R. No. 155618 (2003)] 30 days after filing
Actual or Compensatory Damages

Actual or compensatory damages may be
granted in all election contests or in quo
warranto proceedings in accordance with law
[Sec. 259, B.P. Blg. 881].
Effect of Filing Petition to Annul or to

Suspend the Proclamation
The filing with the Commission of a petition to
annul or to suspend the proclamation of any
candidate shall suspend the running of the
period within which to file an election protest or
quo warranto proceedings [Sec. 248, B.P. Blg.
881].
Page 318 of 412

Summary of Rules on Jurisdiction
Elective Election Appeal Certiorari
Position Protest or
Quo
Warranto
President PET N/A SC

and Vice
President
Senators SET N/A SC
Members HRET N/A SC

of the
House of
Reps
Regional/ COMELE N/A SC

Provincial C
/
City
Officials
Municipal RTC COMELE SC

Officials C
Barangay MTC COMELE SC

Officials C
Page 319 of 412

LOCAL GOVERNMENTS
POLITICAL LAW
LOCAL GOVERNMENTS POLITICAL LAW
I. PRINCIPLES OF LOCAL Decentralization of Decentralization of

Administration Power
AUTONOMY
powers to political making the latter no
A. Declaration of Policy subdivision in order longer accountable
to make it more to the National
1987 Constitution, Section 2, Article X. The
responsive [Limbona government, but to
territorial and political subdivisions shall enjoy local v. Mangellin, G.R. its constituency
autonomy. No. 80391 (1989)]. [Ganzon v. CA, G.R.
No. 93252 (1991)].
Relieves the central
Local Government Code of 1991 (LGC), Section government of the
2. Declaration of Policy. burden of managing
(a) It is hereby declared the policy of the State that local affairs and
the territorial and political subdivisions of the State
shall enjoy genuine and meaningful local autonomy
enables it to
to enable them to attain their fullest development as concentrate on
self-reliant communities and make them more national concerns.
effective partners in the attainment of national goals.
Toward this end, the State shall provide for a more The President
responsive and accountable local government exercises "general
structure instituted through a system of
decentralization whereby local government units
supervision" over
shall be given more powers, authority, them
responsibilities, and resources. The process of only to "ensure that
decentralization shall proceed from the national local affairs are
government to the local government units. administered
according to law." He
(b) It is also the policy of the State to ensure the
accountability of local government units through the
has no control over
institution of effective mechanisms of recall, initiative their acts in the
and referendum. sense that he can
substitute their
(c) It is likewise the policy of the State to require all judgments with his
national agencies and offices to conduct periodic own [Ganzon v. CA ,
consultations with appropriate local government
units, nongovernmental and people's organizations,
supra]
and other concerned sectors of the community
before any project or program is implemented in Devolution is the act by which the national
their respective jurisdictions.
government confers power and authority upon
the various local government units to perform
1. Autonomy & Decentralization; specific functions and responsibilities [Sec. 17,
LGC].
Devolution
The principle of local autonomy under the 1987
a. Decentralization v. Devolution Constitution simply means decentralization
[Basco v. PAGCOR, G.R. No. 91649 (1991)].
Decentralization refers to either
● Decentralization of administration Note: Basco was decided prior to the LGC.
(deconcentration) or; Basco holds that the Constitution guarantees
● Decentralization of power (devolution). decentralization but says nothing which
precludes devolution. The Court later
Decentralization of Decentralization of recognized that “the centerpiece of LGC is the
Administration Power system of decentralization. Indispensable
thereto is devolution and the LGC expressly
Occurs when the Abdication of political provides that “any provision on a power of a
central government power in favor of local government unit shall be liberally
delegates LGUs declared to be interpreted in its favor, and in case of doubt,
administrative autonomous regions, any question thereon shall be resolved in favor
Page 321 of 412
of devolution of powers and of the lower local supervision over local governments. Provinces with
government unit’” [Tano v. Socrates, G.R. No. respect to component cities and municipalities, and
110249 (1997), citing Sec. 5(a), LGC]. cities and municipalities with respect to component
barangays, shall ensure that the acts of their
The Constitution provides for political component units are within the scope of their
autonomy (and not merely administrative prescribed powers and functions.
autonomy) for autonomous regions [Cordillera
Broad Coalition v. COA, G.R. No. 79956 The Constitution confines the President's
(1990)]. power over local governments to one of
general supervision.
Local Autonomy and National
Accountability
Supervision Control
Where there is no express power in the charter
of a municipality authorizing it to adopt Overseeing; the Power of an officer
ordinances regulating certain matters which power or authority of to alter or modify or
are specifically covered by a general statute, a an officer to see that nullify or set aside
municipal ordinance, insofar as it attempts to subordinate officers what a subordinate
regulate the subject which is completely perform their duties officer has done in
covered by a general statute of the legislature, the performance of
may be rendered invalid. Where the subject is his duties
of statewide concern, and the legislature has
appropriated the field and declared the rule, its If a subordinate fails, If a subordinate fails,
declaration is binding throughout the State. A the superior may take the superior may
reason advanced for this view is that such such action or step substitute the
ordinances are in excess of the powers granted as prescribed by law judgment of the latter
to the municipal corporation [Batangas CATV to make them for that of the former
Inc. v. CA, G.R. No. 138810 (2004)]. perform their duties.
Local Autonomy and Decision Making Supervising officials Officers in control lay
Police power is the power to prescribe merely see to it that down the rules in the
regulations to promote the health, morals, the rules are performance or
peace, education, good order, safety, and followed, but they accomplishment of
general welfare of the people. As an inherent themselves do not an act. If these rules
attribute of sovereignty, police power primarily lay down such rules, are not followed,
rests with the State. In furtherance of the nor do they have the they may, in their
State's policy to foster genuine and meaningful discretion to modify discretion, order the
local autonomy, the national legislature or replace them. If act undone or
delegated the exercise of police power to local the rules are not redone by their
government units (LGUs) as agents of the observed, they may subordinates or even
State. Such delegation can be found in Section order the work done decide to do it
16 of the LGC, which embodies the general or redone, but only to themselves
welfare clause. Since LGUs exercise conform to such
delegated police power as agents of the State, rules. They may not
it is incumbent upon them to act in conformity prescribe their own
to the will of their principal, the State. manner of execution
Necessarily, therefore, ordinances enacted of the act.
pursuant to the general welfare clause may not
[Pimentel v. Aguirre, G.R. No.132988 (2000)]
subvert the State's will by contradicting national
statutes [City of Batangas v. Phil. Shell
Petroleum Corp., G.R. No. 195003 (2017)]. c. Local Fiscal Autonomy
1987 Constitution, Section 5, Article X. Each
b. Power of supervision v. Power of local government unit shall have the power to create
its own sources of revenues and to levy taxes, fees,
control and charges subject to such guidelines and
1987 Constitution, Section 4, Article X. The limitations as the Congress may provide, consistent
President of the Philippines shall exercise general with the basic policy of local autonomy. Such taxes,
Page 322 of 412

fees, and charges shall accrue exclusively to the b. Just share in national taxes which shall be
local governments. automatically and directly released to them
c. Equitable share in the proceeds from
utilization and development of national
Fiscal Autonomy and Self–Reliance: In order wealth and resources within their territorial
to fully secure to the LGUs the genuine and jurisdiction [Sec. 18, LGC]
meaningful autonomy that would develop them
into self-reliant communities and effective 2. Internal Revenue Allotments
partners in the attainment of national goals,
Section 17 of the Local Government Code 1987 Constitution, Section 6, Article X. Local
government units shall have a just share, as
vested upon the LGUs the duties and functions determined by law, in the national taxes which shall
pertaining to the delivery of basic services and be automatically released to them.
facilities. Paragraph (c) of the same provision
provides a categorical exception of cases
involving nationally funded projects, facilities, General Rule
programs and services. LGUs shall have a 40% share in the national
internal revenue taxes based on the collection
The essence of this express reservation of of the third fiscal year preceding the current
power by the national government is that, fiscal year [Sec. 284(c), LGC].
unless an LGU is particularly designated as the
implementing agency, it has no power over a Exception
program for which funding has been provided When the national government incurs an
by the national government under the annual unmanageable public sector deficit, the
general appropriations act, even if the program President is authorized to reduce the IRA to
involves the delivery of basic services within 30% [Sec. 284, LGC].
the jurisdiction of the LGU [Pimentel Jr. v.
Executive Secretary, G.R. No. 195770 (2012)]. Requisites for the Exception
1. Unmanageable public sector deficit;
Under existing laws, LGUs enjoy not only 2. Recommendation of the Secretaries of
administrative autonomy, but also local fiscal a. Finance,
autonomy. b. Internal and Local Government, and
c. Budget and Management; and
This means that LGUs have the power to 3. Consultation with
create their own sources of revenue in addition a. Heads of both Houses of Congress,
to their equitable share in the national taxes and
released by the national government, as well b. Presidents of the Liga [Sec. 284, LGC]
as the power to allocate their resources in
accordance with their own priorities. Automatic Release
The share of each LGU shall be released,
It extends to the preparation of their budgets, without need of any further action, directly to
and local officials in turn have to work within the the respective treasurer on a quarterly basis
constraints thereof. They are not formulated at within 5 days after the end of each quarter, and
the national level and imposed on local which shall not be subject to any lien or
governments, whether they are relevant to holdback that may be imposed by the national
local needs and resources or not. government for whatever purpose [Sec.
286(a), LGC].
Local fiscal autonomy does not rule out any
manner of national government intervention by Sec. 4 of A.O. 372, withholding 10% of the
way of supervision, to ensure that local LGUs' IRA "pending the assessment and
programs, fiscal and otherwise, are consistent evaluation by the Development Budget
with national goals [Pimentel v. Aguirre, supra]. Coordinating Committee of the emerging fiscal
situation" is invalid and unconstitutional. The
1. Sources of LGU Funds “temporary” nature of the retention by the
a. Taxes, fees, and charges which accrue national government does not matter. Any
exclusively for their use and disposition retention is prohibited [Pimentel v. Aguirre,
supra].
Page 323 of 412

Since under Sec. 6, Art X of the Constitution, prerogatives of the SBMA. Under R.A. No.
only the just share of local governments is 7227, the power to approve or disapprove
qualified by the words “as determined by law,” projects within the SSEZ is one such power
and not the release thereof, the plain over which the SBMA’s authority prevails over
implication is that Congress is not authorized the LGU’s authority [Paje v. Casiño, G.R. No.
by the Constitution to hinder or impede the 207257 (2015)].
automatic release of the IRA [ACORD v.
Zamora, G.R. No. 144256 (2005)]. 3. Accountability
LGC, Section 2 (b). It is also the policy of the State
2. Consultation to ensure the accountability of local government
LGC, Section 26. Duty of National Government units through the institution of effective mechanisms
Agencies in the Maintenance of Ecological of recall, initiative and referendum.
Balance. It shall be the duty of every national
agency or GOCC authorizing or involved in the
planning and implementation of any project or B. Basic Principles
program that may cause pollution, climatic change,
depletion of non-renewable resources, loss of
cropland, rangeland, or forest cover, and extinction 1. Under the 1987 Constitution
of animal or plant species, to consult with the LGUs, 1987 Constitution, Article X.
NGOs, and other sectors concerned and explain the
goals and objectives of the project or program, its Section 1. The territorial and political subdivisions of
impact upon the people and the community in terms the Republic of the Philippines are the provinces,
of environmental or ecological balance, and the cities, municipalities, and barangays. There shall be
measures that will be undertaken to prevent or autonomous regions in Muslim Mindanao and the
minimize the adverse effects thereof. Cordilleras as hereinafter provided.
Section 3. The Congress shall enact a local

LGC, Section 27. Prior Consultations Required. government code which shall provide for a more
– No project or program shall be implemented by responsive and accountable local government
government authorities unless the consultations in structure instituted through a system of
Sections 2(c) and 26 hereof are complied with, and decentralization with effective mechanisms of recall,
prior approval of the Sanggunian concerned is initiative, and referendum, allocate among the
obtained. different local government units their powers,
responsibilities, and resources, and provide for the
qualifications, election, appointment and removal,
Section 27 of the Code should be read in term, salaries, powers and functions and duties of
conjunction with Section 26 thereof. Thus, the local officials, and all other matters relating to the
projects and programs mentioned in Section 27 organization and operation of the local units.
should be interpreted to mean projects and
Section 11. The Congress may, by law, create
programs whose effects are among those special metropolitan political subdivisions, subject to
enumerated in Sections 26 and 27, to wit, those a plebiscite as set forth in Section 10 hereof. The
that: (1) may cause pollution; (2) may bring component cities and municipalities shall retain their
about climatic change; (3) may cause the basic autonomy and shall be entitled to their own
depletion of non-renewable resources; (4) may local executives and legislative assemblies. The
jurisdiction of the metropolitan authority that will
result in loss of crop land, rangeland, or forest
hereby be created shall be limited to basic services
cover; (5) may eradicate certain animal or plant requiring coordination.
species; and (6) other projects or programs
that may call for the eviction of a particular Section 12. Cities that are highly urbanized, as
group of people residing in the locality where determined by law, and component cities whose
these will be implemented [Bangus Fry charters prohibit their voters from voting for
provincial elective officials, shall be independent of
fisherfolk v. Lanzanas, G.R. No. 131442
the province. The voters of component cities within
(2003)]. a province, whose charters contain no such
prohibition, shall not be deprived of their right to vote
As to Subic Special Economic Zone (SSEZ): for elective provincial officials.
Consultations are not required when the very
law unambiguously provides that the LGUs do
not retain their basic autonomy and identity
when it comes to matters specified by the law
as falling under the powers, functions and
Page 324 of 412
2. Under the LGC respective constituents shall be strengthened in
order to upgrade continually the quality of local
LGC, Section 3. Operative Principles of
leadership;
Decentralization. The formulation and
implementation of policies and measures on local
(k) The realization of local autonomy shall be
autonomy shall be guided by the following operative
facilitated through improved coordination of national
principles:
government policies and programs and extension of
adequate technical and material assistance to less
(a) There shall be an effective allocation among the
developed and deserving local government units;
different local government units of their respective
powers, functions, responsibilities, and resources;
(l) The participation of the private sector in local
governance, particularly in the delivery of basic
(b) There shall be established in every local
services, shall be encouraged to ensure the viability
government unit an accountable, efficient, and
of local autonomy as an alternative strategy for
dynamic organizational structure and operating
sustainable development; and
mechanism that will meet the priority needs and
service requirements of its communities;
(m) The national government shall ensure that
decentralization contributes to the continuing
(c) Subject to civil service law, rules and regulations,
improvement of the performance of local
local officials and employees paid wholly or mainly
government units and the quality of community life.
from local funds shall be appointed or removed,
according to merit and fitness, by the appropriate
appointing authority;
C. Rules of Interpretation
(d) The vesting of duty, responsibility, and
accountability in local government units shall be Rules of Interpretation of the provisions of
accompanied with provision for reasonably the LGC [Sec. 5, LGC]
adequate resources to discharge their powers and 1. Any provision on a power of a local
effectively carry out their functions; hence, they shall
have the power to create and broaden their own
government unit shall be liberally
sources of revenue and the right to a just share in interpreted in its favor.
national taxes and an equitable share in the ● In case of doubt, any question thereon
proceeds of the utilization and development of the shall be resolved in favor of devolution
national wealth within their respective areas; of powers and of the lower local
government unit.
(e) Provinces with respect to component cities and
municipalities, and cities and municipalities with
● Any fair and reasonable doubt as to the
respect to component barangays, shall ensure that existence of the power shall be
the acts of their component units are within the interpreted in favor of the local
scope of their prescribed powers and functions; government unit concerned.
2. In case of doubt, any tax ordinance or
(f) Local government units may group themselves, revenue measure shall be construed
consolidate or coordinate their efforts, services, and
resources for purposes commonly beneficial to
strictly against the local government unit
them; enacting it, and liberally in favor of the
taxpayer.
(g) The capabilities of local government units, ● Any tax exemption, incentive or relief
especially the municipalities and barangays, shall be granted by any local government unit
enhanced by providing them with opportunities to pursuant to the provisions of this Code
participate actively in the implementation of national
programs and projects;
shall be construed strictly against the
person claiming it.
(h) There shall be a continuing mechanism to 3. The general welfare provisions in this Code
enhance local autonomy not only by legislative shall be liberally interpreted to give more
enabling acts but also by administrative and powers to local government units in
organizational reforms; accelerating economic development and
(i) Local government units shall share with the
upgrading the quality of life for the people
national government the responsibility in the in the community.
management and maintenance of ecological 4. Rights and obligations existing on the date
balance within their territorial jurisdiction, subject to of effectivity of this Code and arising out of
the provisions of this Code and national policies; contracts or any other source of prestation
involving a local government unit shall be
(j) Effective mechanisms for ensuring the
accountability of local government units to their
governed by the original terms and
conditions of said contracts or the law in
Page 325 of 412
force at the time such rights were vested; D. Effectivity of LGC
and
5. In the resolution of controversies arising
under this Code where no legal provision LGC, Section 5 (d). Rights and obligations existing
on the date of effectivity of this Code and arising out
or jurisprudence applies, resort may be had of contracts or any other source of prestation
to the customs and traditions in the place involving a local government unit shall be governed
where the controversies take place. by the original terms and conditions of said contracts
or the law in force at the time such rights were
vested; and
LGC, Sec. 536. Effectivity Clause. This Code shall

take effect on January first, Nineteen Hundred
Ninety-Two, unless otherwise provided herein, after
its complete publication in at least one (1)
newspaper of general circulation.
Date of Effectivity of the Local Government

Code: January 01, 1992
Page 326 of 412

II. AUTONOMOUS REGIONS participation of the regional consultative

commission. The organic act shall:
AND THEIR RELATION TO 1. Define the basic structure of government
for the region consisting of the executive
THE NATIONAL department and legislative assemblies,
GOVERNMENT both of which shall be elective and
representative of the constituent political
A. Provisions units; and,
2. Provides for special courts with personal,
1987 Constitution, Article X. family, and property law jurisdiction [Sec.
18, Art. X, 1987 Constitution].
Section 11. The Congress may, by law, create
special metropolitan political subdivisions, subject to
a plebiscite as set forth in Section 10 hereof. The An autonomous region is considered a
component cities and municipalities shall retain their form of local government in Section 1,
basic autonomy and shall be entitled to their own Article X of the Constitution.
local executive and legislative assemblies. The
jurisdiction of the metropolitan authority that will
thereby be created shall be limited to basic services
From the perspective of the Constitution,
requiring coordination. autonomous regions are considered one of the
forms of local governments, as evident from
Section 15. There shall be created autonomous Article X of the Constitution entitled “Local
regions in Muslim Mindanao and in the Cordilleras Government.” Autonomous regions are
consisting of provinces, cities, municipalities, and established and discussed under Sections 15
geographical areas sharing common and distinctive
historical and cultural heritage, economic and social to 21 of this Article—the article wholly devoted
structures, and other relevant characteristics within to Local Government. That an autonomous
the framework of this Constitution and the national region is considered a form of local
sovereignty as well as territorial integrity of the government is also reflected in Section 1,
Republic of the Philippines. Article X of the Constitution [Kida v. Senate,
G.R. No. 196271 (2011)].
The autonomous regions must consist of
provinces, cities, municipalities and The organic act of autonomous regions shall
geographical areas sharing: provide for legislative powers over:
1. Common and distinctive historical and 1. Administrative organization;
cultural heritage 2. Creation of sources of revenues;
2. Economic and social structures 3. Ancestral domain and natural resources;
3. Other relevant characteristics 4. Personal, family, and property relations;
5. Regional urban and rural planning
development;
1987 Constitution, Article X. 6. Economic, social, and tourism
Section 16. The President shall exercise general
development;
supervision over autonomous regions to ensure that 7. Educational policies;
laws are faithfully executed. 8. Preservation and development of cultural
heritage; and
Section 17. All powers, functions, and 9. Such other matters as may be authorized
responsibilities not granted by this Constitution or by by law for the promotion of the general
law to the autonomous regions shall be vested in the
National Government. welfare of the people of the region [Sec. 20,
Art. X, 1987 Constitution].
Section 21, Article X. The preservation of peace
and order within the regions shall be the Note: The autonomous governments of
responsibility of the local police agencies which shall Mindanao are subject to the jurisdiction of our
be organized, maintained, supervised, and utilized national courts [Limbona v. Mangellin, G.R. No.
in accordance with applicable laws. The defense
and security of the regions shall be the responsibility 80391 (1989)].
of the National Government.
An autonomous region is created via the

enactment of an organic act by Congress with
Page 327 of 412
B. Plebiscite Required
1987 Constitution, Section 18(2), Article X. The

creation of autonomous region shall be effective
when approved by a majority of the votes cast by the
constituent units in a plebiscite called for the
purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite
shall be included in the autonomous region.
Majority Requirement: What is required by

the Constitution is a simple majority of votes
approving the Organic Act in individual
constituent units.
A double majority in (1) all constituent units put

together, (2) as well as in the individual
constituent units] is not required [Abbas v.
COMELEC, supra].
Sole province cannot validly constitute an

autonomous region: An autonomous region
cannot be created if only one province
approved of its creation in the plebiscite called
for the purpose [Ordillo v. COMELEC, G.R. No.
93054 (1990), on the plebiscite concerning the
Cordilleras].
Not all amendments require plebiscite: Only

amendments to, or revisions of, the Organic
Act constitutionally essential to the
creation of autonomous regions—those
aspects specifically mentioned in the
Constitution which Congress must provide for
in the Organic Act—require ratification through
a plebiscite.
Rationale: If all amendments to the Organic

Act have to undergo the plebiscite requirement
before becoming effective, this would hamper
the ARMM’s progress by impeding Congress
from enacting laws that timely address
problems as they arise in the region, as well as
weighing down the ARMM government with the
costs that unavoidably follow the holding of a
plebiscite [Kida v. Senate, G.R. No. 196271
(2011)].
Page 328 of 412

III. LOCAL GOVERNMENT appropriate and self-reliant scientific and

technological capabilities, improve public morals,
UNITS enhance economic prosperity and social justice,
promote full employment among their residents,
maintain peace and order, and preserve the comfort
A. Powers and convenience of their inhabitants.
Sources of Power
1. 1987 Constitution Nature
2. Local Government Code and special The police power of a municipal corporation
laws extends to all great public needs, and includes
3. Charter of the LGU all legislation and functions of the municipal
government. The drift is towards social welfare
Four Categories of Powers Exercised by legislation geared towards state policies to
LGUs provide adequate social services, the
1. Powers expressly granted promotion of general welfare, and social justice
2. Powers necessarily implied therefrom [Binay v. Domingo, G.R. No. 92389 (1991)].
3. Powers necessary, appropriate, or
incidental for efficient and effective Two Branches of the General Welfare
governance Clause
4. Powers essential to the promotion of the a. General legislative power – Authorizes
general welfare [Sec. 16, LGC] municipal councils to enact ordinances and
make regulations not repugnant to law and
Within their respective territorial may be necessary to carry into effect and
jurisdictions, LGUs shall ensure and discharge the powers and duties conferred
support upon it by law.
1. Preservation and enrichment of culture b. Police power proper – Authorizes the
2. Promotion of health and safety municipality to enact ordinances as may be
3. Enhancement of the right of the people proper and necessary for the health and
to a balanced ecology safety, prosperity, morals, peace, good
4. Development of self-reliant scientific order, comfort and convenience of the
and technological capabilities municipality and its inhabitants, and for the
5. Improvement of public morals protection of their property [Fernando v. St.
6. Enhancement of economic prosperity Scholastica’s College, G.R. No. 161107
and social justice (2013)].
7. Promotion of full employment among
residents Limitations
8. Maintenance of peace and order a. The General Welfare clause cannot be
9. Preservation of the comfort and used to justify an act not authorized by law.
convenience of its inhabitants [Sec. 16, b. The exercise must pass the test of a valid
LGC] ordinance [Rural Bank of Makati v.
Municipality of Makati, G.R. No. 150763
1. Police Power (General Welfare (2004)].
Clause)
Requisites for Exercise of Police Power
[Mosqueda v. Pilipino Banana Growers &
LGC, Section 16. General Welfare. Every local Exporters Association, Inc., G.R. No. 189185
government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well
(2016)]
as powers necessary, appropriate, or incidental for
its efficient and effective governance, and those a. Lawful Subject (Equal Protection) - The
which are essential to the promotion of the general interests of the public generally, as
welfare. Within their respective territorial distinguished from those of a particular class,
jurisdictions, local government units shall ensure require its exercise
and support, among other things, the preservation
and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced b. Lawful Means (Due Process) - The means
ecology, encourage and support the development of employed are reasonably necessary for the
Page 329 of 412

accomplishment of the purpose and not unduly 2. Eminent Domain
oppressive on individuals
Nature
Two-Pronged Test for an Ordinance to be It is the government's right to appropriate, in
Considered a Valid Police Power Measure the nature of a compulsory sale to the State,
[Mosqueda v. Pilipino Banana Growers & private property for public use or purpose.
Exporters Association, Inc., G.R. No. 189185 Inherently possessed by the national
(2016)] legislature, the power of eminent domain may
be validly delegated to local governments,
a. Formal other public entities and public utilities [Moday
1. Enacted within the corporate powers v. CA, G.R. No. 107916 (1993)].
of the local government unit, and
2. Passed according to procedure Requisites for the Exercise of Eminent
prescribed by law Domain by an LGU
b. Substantive 1. An ordinance is enacted by the local
1. It must not contravene the legislative council authorizing the local
Constitution or any statute; chief executive, in behalf of the local
2. It must be fair and not oppressive; government unit, to exercise the power of
3. It must not be partial or discriminatory; eminent domain or pursue expropriation
4. It must not prohibit but may regulate proceedings over a particular private
trade property;
5. It must be general and consistent with 2. The power is exercised for public use,
public policy purpose or welfare, or for the benefit of the
6. It must not be unreasonable poor and the landless;
3. There is payment of just compensation
Illustrations of Valid Exercise of Police based on the fair market value of the
Power property at the time of taking; and
● Prescribing zoning and classification of 4. A valid and definite offer was previously
merchandise sold in the public market made to the owner of the property, but the
● Condemnation and demolition of buildings offer was not accepted [Heirs of Suguitan
found to be in dangerous or ruinous v. City of Mandaluyong, G.R. No. 135087
condition; (2000)].
● Regulation of operation of tricycles
● Zoning regulations [Patalinghug v. CA, Jurisdiction
G.R. No. 104786 (1994)] An expropriation suit falls under the jurisdiction
● Providing burial assistance to the poor of the RTCs. The subject of an expropriation
[Binay v. Domingo, G.R. No. 92389 (1991)] suit is the government’s exercise of eminent
● Enforcement of fishery laws within LGU domain, a matter that is incapable of pecuniary
waters [Tano v. Socrates, G.R. No. 110249 estimation [Barangay San Roque v. Heirs of
(1997)]. Pastor, G.R. No. 138896 (2000)].
Illustrations of Invalid Exercise of Police

Power
● Prohibition of operation of night clubs, as it
is a lawful trade or pursuit of occupation
[Dela Cruz v. Paras, G.R. No. L-42571-72
(1983)]
● Rescinding of mayor's permits based on
arbitrary grounds [Greater Balanga Dev’t
Corp. v. Mun. of Balanga, G.R. No. 83987
(1994)]
● Setting aside 6% of the total area of private
memorial type cemetery for charity burial of
deceased persons who are paupers [City
Government of Quezon City v. Ericta, G.R.
No. L-34915 (1983)].
Page 330 of 412
Public Use, Purpose, or Welfare Valid and Definite Offer
The very foundation of the right to exercise The offer must be complete, indicating with
eminent domain is a genuine necessity and sufficient clearness the kind of contract
that necessity must be of a public character. intended and definitely stating the essential
Moreover, the ascertainment of the necessity conditions of the proposed contract. An offer
must precede or accompany and not follow, the would require, among other things, a clear
taking of the land. Necessity does not mean an certainty on both the object and the cause or
absolute, but only a reasonable or practical consideration of the envisioned contract [Jesus
necessity, such as would combine the greatest is Lord Christian School Foundation Inc. v.
benefit to the public with the least Municipality of Pasig, G.R. No. 152230 (2005)].
inconvenience and expense to the condemning
party and the property owner consistent with The offer to buy shall be in writing, and must
such benefit [Masikip v. City of Pasig, G.R. No. specify the property sought to be acquired, the
136349 (2006)]. reasons for its acquisition, and the price offered
[Sec 35(a), LGC IRR].
Modernly, there has been a shift from the literal
to a broader interpretation of "public purpose" Requisites for the Immediate Entry by the
or "public use" for which the power of eminent LGU
domain may be exercised. The old concept a. Filing of the complaint for expropriation
was that the condemned property must actually sufficient in form and substance; and
be used by the general public (e.g. roads, b. Deposit of an amount equivalent to 15% of
bridges, public plazas, etc.) before the taking the fair market value of the property to be
thereof could satisfy the constitutional expropriated based on the current tax
requirement of "public use". Under the new declaration [Sec. 19, LGC].
concept, "public use" means public advantage,
convenience, or benefit, which tends to Upon compliance with the requisites, the
contribute to the general welfare and the issuance of a writ of possession becomes
prosperity of the whole community, like a resort ministerial. There is no need for a hearing for
complex for tourists or housing project [Heirs of the writ to issue [City of Iloilo v. Legaspi, G.R.
Juancho Ardano v. Reyes, G.R. Nos. L-60549, No. 154614 (2004)].
60553 to 60555 (1983)].
Returning the Property
Ordinance Requirement When private land is expropriated for a
LGUs must pass an ordinance, not a mere particular public use and that purpose is
resolution, to initiate an expropriation abandoned, there is no “implied contract” that
proceeding [Sps Yusay v. CA, G.R. No. the properties will be used only for the public
156684 (2011)]. purpose for which they were acquired.
Just Compensation Property is to be returned only when it is

"Compensation" means an equivalent for the expropriated with the condition that when said
value of the land (property) taken. The word purpose is ended or abandoned, the former
"just" is used to intensify the meaning of the owner reacquires the property so expropriated,
word "compensation;" to convey the idea that and not when the expropriation decree gives to
the equivalent to be rendered for the property the entity a fee simple which makes the land
taken shall be real, substantial, full, and ample. the expropriator the absolute owner of the
"Just compensation," therefore, means a fair property [Air Transportation Office v. Gopuco,
and full equivalent for the loss sustained [The G.R. No. 158563 (2005)].
City of Manila v. Estrada, G.R. No. 7749
(1913)].
Just compensation is determined as of the time

of taking [Sec. 19, LGC]. It is based on the fair
market value of the property at the time of the
taking of the property.
Page 331 of 412

National Government v. LGU “Small-property owners” are defined by two
elements:
National Local Government
a. They are owners of real property which
Government Unit
consists of residential lands with an
Inherent Power Delegated Power area of not more than 300 sq. meters in
highly urbanized cities, and 800 sq.
No law is needed An ordinance is meters in other urban cities; and
always required b. They do not own real property other
than the same [Sec. 3(q), R.A. No.
Fair Market Value FMV determined at 7279].
(FMV) determined at the time of taking
the time of filing of 3. Taxing Power
the expropriation (see discussion under D. Local Taxation)
case or the taking of
property, whichever 4. Closure and Opening of Roads
comes first [Sec. 21, LGC]
Assessed value of 15% FMV required
Scope of LGU’s power to close
property required to to be deposited in
be deposited in order to take Road, alley, park or square is
order to take immediate
immediate possession
NATIONAL LOCAL
possession
Temporary closure Temporary or
No formal and A formal and definite
only Permanent closure
definite offer offer is required
required
Requisites for Temporary Closure
1. Via ordinance;
Socialized Housing (Urban Development 2. May be done due to:
and Housing Act, R.A. No. 7279) i. Actual emergency;
Under the Urban Development and Housing ii. Fiesta celebrations;
Act, expropriation by an LGU for purposes of iii. Public rallies;
urban land reform and socialized housing shall iv. Agricultural or industrial fairs; or
occur only as a last resort. It must be shown by v. Undertaking of public works and
the LGU that other methods of acquisition highways, telecommunications, and
(community mortgage, land swapping, land waterworks projects;
assembly or consolidation, land banking, 3. Duration of closure must be specified by
donation to the Government, joint venture the local chief executive in a written order;
agreements, and negotiated purchase) have and
been exhausted [Sec. 10, R.A. No. 7279]. 4. If for the purpose of athletic, cultural, or civil
activities, these must be officially
If all the other methods have been exhausted sponsored, recognized, or approved by the
and expropriation to continue, the LGU shall local government [Sec. 21, LGC].
acquire lands for socialized housing in the
following order: A City, Municipality, or Barangay may also
a. Government lands temporarily close and regulate the use of any
b. Alienable lands of the public domain local street, road, thoroughfare or any other
c. Unregistered or abandoned and idle lands public place where shopping malls, Sunday,
d. Lands within Areas for Priority flea or night markets, or shopping areas may
Development be established for the general public [Sec.
e. Unacquired BLISS sites 21(d), LGC].
f. Private lands [Sec. 9, R.A. No. 7279]
Requisites for Permanent Closure
Furthermore, lands of small-property owners 1. Via ordinance approved by at least 2/3 of
are exempt from expropriation for purposes of all members of the Sanggunian;
socialized housing.
Page 332 of 412
2. When necessary, an adequate substitute
Ordinance Resolution
for the public facility that is subject to
closure should be provided; As a general rule, GR: Third reading is
3. Such ordinance must have provisions for must undergo three not necessary
the maintenance of public safety therein; readings
and EXC: Unless
4. If a freedom park is permanently closed, decided otherwise
there must be a provision for its transfer or by majority of all
relocation to a new site [Sec. 21(a),(b, Sanggunian
LGC)]. members
5. Such property permanently withdrawn from
public use may be used or conveyed for All ordinances are Only some
any purpose for Which other real property subject to veto/ resolutions are
belonging to the LGU may be lawfully used review subject to
or conveyed [Sec. 21(b), LGC]. veto/review (i.e.,
local development
Public Roads are Outside the Commerce plan and public
of Man investment program)
A public road may not be the subject of lease
or contract, as public roads are properties for E.g., expropriation, E.g., congratulatory
public use outside the commerce of man tax, curfew, messages,
[Dacanay v. Asistio, G.R. No. 93654 (1992)]. appropriations, authorizing local
exercise of police chief executive to
As long as a property owner has reasonable power sign an agreement
access to the general system of streets, he has [Garcia v. COMELEC, G.R. No. 111230
no right to compensation for the closure of a (1994)]
public street. The Constitution does not
undertake to guarantee to a property owner the
a. Requisites for valid ordinance
public maintenance of the most convenient
See: Two-Pronged Test under Police Power
route to his door [Cabrera v. CA, G.R. No.
78573 (1991)].
1. Formal
a. Enacted within the corporate powers
5. Legislative Power of the local government unit, and
b. Passed according to procedure
Local legislative power is the power of LGUs prescribed by law
through their local legislative councils to enact, 2. Substantive
repeal, amend, modify ordinances and issue a. It must not contravene the
resolutions. Constitution or any statute;
b. It must be fair, not oppressive;
Ordinance vs. Resolution c. It must not be partial or discriminatory;
Ordinance Resolution d. It must not prohibit but may regulate
trade
Has the force and Mere declaration of e. It must be general and consistent with
effect of law sentiment or opinion public policy
of a lawmaking body f. It must not be unreasonable [Legaspi
v. City of Cebu, G.R. No. 159110
On matters applying On a specific matter (2013)]
to persons or things
in general Ordinances are inferior in status and
subordinate to the laws of the state. An
Possesses a general Temporary in nature ordinance in conflict with a state law of general
and permanent character and statewide application is
character universally held to be invalid. In every power to
pass ordinances given to a municipality, there
is an implied restriction that the ordinances
Page 333 of 412

shall be consistent with general law [Batangas Internal Rules of Procedure
CATV v. CA, G.R. No. 138810 (2004)]. On the first regular session following the
election of its members and within 90 days
The power to enact ordinances carries with it thereafter, the Sanggunian shall adopt or
the power to repeal them, provided that vested update its existing rules of procedure [Sec. 50,
rights are not thereby impaired. LGC].
Local legislative power shall be exercised LGC, Sec. 50 does not mandate that no other
by: business may be transacted on the first regular
1. Sangguniang Panlalawigan for the session [Malonzo v. Zamora, G.R. No. 137718
province; (2000)].
2. Sangguniang Panlungsod for the city;
3. Sangguniang Bayan for the municipality; The rules of procedure shall provide for:
and 1. Organization of the Sanggunian and the
4. Sangguniang Barangay for the barangay election of its officers
[Sec. 48, LGC] 2. Creation of Standing Committees
3. Order and calendar of business for each
Presiding Officer session
4. The legislative process
Legislative Body Presiding Officer
5. Parliamentary procedures
Sangguniang Vice-Governor 6. Disciplinary rules for members for
Panlalawigan disorderly behavior and absences without
justifiable cause for four (4) consecutive
Sangguniang Vice-Mayor sessions, for which they may be censured,
Panlungsod reprimanded, or excluded from the
session, suspended for not more than sixty
Sangguniang Vice-Mayor (60) days, or expelled: Provided, That the
Bayan penalty of suspension or expulsion shall
require the concurrence of at least two-
Sangguniang Punong Barangay thirds (2/3) vote of all the Sanggunian
Barangay members: Provided, further, That a
member convicted by final judgment to
imprisonment of at least one (1) year for
The presiding officer shall vote only to break a
any crime involving moral turpitude shall be
tie [Sec. 49(a), LGC].
automatically expelled from the
Sanggunian; and
In the event of the inability of the regular
7. Such other rules as the Sanggunian may
Presiding officer to preside at a Sanggunian
adopt [Sec. 50, LGC]
session, the members present and constituting
a quorum shall elect from among themselves a
temporary presiding officer. He shall certify
Quorum
The presence of a quorum is required to
within ten (10) days from the passage of
ordinances enacted and resolutions adopted transact official business. A majority of all
by the Sanggunian in the session over which members of the Sanggunian who have been
elected and qualified shall constitute a quorum
he temporarily presided [Sec. 49(b), LGC].
[Sec. 53, LGC].
Non-membership of Acting Governor: A
Vice Governor who is concurrently an Acting The presence of the presiding officer is
Governor is actually a quasi-Governor. He is considered in determining the presence of a
quorum since a presiding officer is considered
deemed a nonmember of the Sanggunian for
the time being and so cannot preside over its a “member” of the sanggunian [La Carlota City
sessions. The procedure for the election of a v. Rojo, G.R. No. 181367 (2012)].
temporary presiding officer in case of inability
of the regular presiding officer shall apply in Quorum shall be based on the total number of
such case [Gamboa v. Aguirre, G.R. No. members elected and qualified. The filing of a
leave of absence does not affect a member's
134213 (1999)].
election to, and qualification as member of, a
Page 334 of 412
local legislative body [Zamora v. Caballero, No two sessions, regular or special, may be
G.R. No. 147767 (2004)]. held in a single day.
General Rule: A majority of the members General Rule: All sessions shall be open to the
present, there being a quorum is required for public.
the valid enactment of an ordinance or
resolution [Art. 107(g), LGC IRR]. Exception: Closed-door session is ordered by
majority of the members present, there being a
Exception: When otherwise provided by the quorum, in the public interest or for reasons of
LGC: security, decency or morality.
● Any ordinance or resolution authorizing
or directing the payment of money or Special Sessions
creating a liability requires the approval May be called by the local chief executive or by
of the majority of all the Sanggunian majority of the Sanggunian.
members [Rule VII, Sec. 14 (g), LGC
IRR]. Written notice to the members shall be served
● It is legally permissible for the personally at their usual place of residence at
Sanggunian to provide for a higher least 24 hours before the special session is
voting requirement for the enactment held.
or amendment of a particular ordinance
[Casiño v. CA, G.R. No. 91192 (1991)]. No other matters may be considered except
those stated in the notice unless otherwise
When there is no quorum concurred in by 2/3 vote of those present, there
The presiding officer may declare a recess until being a quorum.
such time as a quorum is constituted or a
majority of the members present may also No Subpoena and Contempt Powers
adjourn from day to day and may compel the Local legislative bodies do not have the power
attendance of any member absent without to subpoena witnesses and the power to
justifiable cause by designating a member of punish nonmembers for contempt in the
the Sanggunian to arrest the absent member exercise of their legislative powers. They may
and present him at the session. only invite resource persons who are willing to
supply information which may be relevant to
The member designated shall be assisted by a the proposed ordinance [Negros Oriental II
member or members of the police force in the Electric Cooperative, Inc. v. Sangguniang
territorial jurisdiction of the LGU concerned. Panlungsod of Dumaguete, G.R. No. L-72492
(1987)]
If there is still no quorum, no business shall be
transacted. The presiding officer, upon proper 2. Approval and Veto of Ordinances
motion duly approved by the members present,
shall then declare the session adjourned for Approval
lack of quorum [Sec. 53, LGC]. The local chief executive shall affix his
signature on each and every page of the
1. Sangguniang Sessions ordinance [Sec. 54(a), LGC].
Regular Sessions The signature of the local chief executive in the

During the first session following the election, approval of an ordinance or resolution is not a
the Sanggunian shall, by resolution, fix the day, mere ministerial act, as it requires the exercise
time, and place of its regular sessions. of analysis and judgment. This is part of the
legislative process [De Los Reyes v.
Minimum Number of Regular Sessions: Sandiganbayan, G.R. No. 121215 (1997)].
● Sangguniang Panlalawigan, Panlungsod,
and Bayan Disapproval (Veto)
○ Once a week The local chief executive may veto the
● Sangguniang Barangay ordinance, stating his reasons in writing. The
○ Twice a month local chief executive may veto an ordinance or
resolution only once [Sec. 55(a & c), LGC].
Page 335 of 412
Grounds for Disapproval Publication Effectivity
Under the LGC, there are only two grounds:
1. Ultra vires; or General Rule [Sec. 59(a), LGC]
2. Prejudicial to public welfare [Sec. 55(a),
LGC]
Posted: 10 days after
Periods (1) In a bulletin posting, unless
The ordinance is returned with objections to the board at the otherwise stated in
Sanggunian within 15 days in the case of entrance of the the ordinance
Sangguniang Panlalawigan, or within 10 days provincial capitol or
in the case of Sangguniang city, municipal, or
Panlungsod/Bayan; otherwise, the ordinance barangay hall, as the
shall be deemed approved [Sec. 54, LGC]. case may be; and
(2) In at least 2 other
Override conspicuous places
The veto may be overridden by the
Sanggunian upon a 2/3 vote of all its members Highly Urbanized and Independent
[Sec. 54, LGC]. Component Cities [Sec. 59 (d), LGC]
In addition to 10 days after

Item Veto posting, main posting, unless
The local chief executive, except the Punong features of the otherwise stated in
Barangay, shall have the power to veto any ordinance shall be the ordinance
particular item or items of an: published once:
1. Appropriations ordinance; or (a) In a local
2. Ordinance or resolution adopting the newspaper of
local development plan or public general circulation;
investment program; or or if none,
3. Ordinance directing the payment of (b) In any
money or creating liability newspaper of
general circulation
In case of an item veto, the veto shall not affect
the items not objected to. If the veto is not All Ordinances with Penal Sanctions
overridden, the items in the appropriations [Secs. 511 & 59(c), LGC]
ordinance of the previous year corresponding
to those vetoed shall be deemed re-enacted (1) Posted at Unless otherwise
[Sec. 55(b), LGC]. prominent places in provided therein, the
the provincial capitol ordinance shall take
Note: There is no veto for barangays. The veto or city, municipal or effect on the day
power cannot be exercised by the Punong barangay hall for a following its
Barangay since he is a member of the minimum period of 3 publication, or at the
Sangguniang Barangay. The Punong consecutive weeks; end of the period of
Barangay signs the ordinances enacted by the posting, whichever
Sangguniang Barangay upon their approval (2) Gist of such occurs later
[Sec. 54(c), LGC]. penal ordinance
shall be published in
3. Publication and Effectivity of a newspaper of
Ordinances general circulation
within the province
The following rules apply to: where the local
1. Ordinances; and legislative body
2. Resolutions approving the local belongs; if none,
government plan and public investment posting shall be
programs made in all
municipalities and
Page 336 of 412

Publication Effectivity Sanggunian of Sangguniang

Component Cities Barangay
cities of the said and Municipalities
province
When
Tax Ordinances and Revenue Measures
[Sec. 188, LGC]
Within 3 days from Within 10 days from
Within 10 days after 10 days after approval, forwarded approval, forwarded
their approval, publication or by the Secretary of by the Sangguniang
certified true copies posting, unless the Sanggunian Barangay
shall be published in otherwise stated in
full for 3 consecutive the ordinance How
days
Sangguniang The concerned
(a) in a newspaper
Panlalawigan shall Sanggunian shall
of local circulation,
examine the examine the
or, (b) if none, the
documents or ordinance
same may be posted
transmit them first to
in at least two
the Provincial
conspicuous publicly
Attorney (if none, to
places and
Provincial
accessible
Prosecutor) for
Note: Prior Hearing Requirement for Tax comments and
and Revenue Measures: Public hearings recommendations
must be conducted prior to the enactment of
Grounds
a tax ordinance or revenue measure [Secs.
187 & 188, LGC] If beyond the power Whether consistent
conferred upon the with law and the city
4. Review of Ordinances & Resolutions Sanggunian and municipal
(approving local development plans and public concerned ordinances
investment programs) [Secs. 56 & 57, LGC]
Effect if Grounds are Present
Sanggunian of Sangguniang Reviewing Reviewing
Component Cities Barangay Sanggunian shall Sanggunian shall
and Municipalities declare such return the ordinance
ordinance or with its comments
What resolution invalid in for adjustment,
whole or in part amendment, or
(1) Ordinances All barangay modification, in
(2) Resolutions ordinances which case, the
approving effectivity of the
programs barangay ordinance
local is suspended
development
plans and Period
public
30 days; if no action 30 days; if no action
By Whom after 30 days, after 30 days,
presumed consistent deemed approved
Sangguniang Sangguniang with law and valid
Panlalawigan Panlungsod or
Sangguniang Bayan Note: Any attempt to enforce any ordinance or
resolution approving the local development
Page 337 of 412
plan or public investment program, after the
Effectivity 15 days after Certification
disapproval thereof, shall be sufficient ground
by the COMELEC that the
for the suspension or dismissal of the official or
proposition is approved by
employee concerned [Sec. 58, LGC].
a majority of the votes cast
[Sec. 123, LGC]
5. Review of Tax Ordinances by the
Secretary of Justice [Sec. 187, LGC] Limitations 1. Local initiative shall not
on Power of be exercised more than
Within 30 days from the effectivity of tax Initiative once a year.
ordinances or revenue measures, questions on 2. Initiative shall extend
their constitutionality or legality may be raised only to subjects or matters
on appeal to the Secretary of Justice. which are within the legal
powers of the sanggunians
The SOJ shall render a decision within 60 days to enact.
from receipt of appeal. 3. If at any time before the
initiative is held, the
The appeal shall not have the effect of Sanggunian adopts in toto
suspending the effectivity of the ordinance and the proposition presented
the accrual of the tax, fee or charge. and the local chief
executive approves the
Within 30 days from receipt of the SOJ’s same, the initiative shall be
decision or the lapse of the 60-day period cancelled. However, those
without the SOJ taking action, the aggrieved against such action may, if
party may file action with a competent court. they so desire, apply for
initiative in the manner
Sec. 187, LGC is valid as it is merely an provided by law [Sec. 124,
exercise of the power of supervision [Drilon v. LGC].
Lim, G.R. No. 112497 (1994)].
Note: The Court dismissed
b. Local Initiative and Referendum an initiative petition, which
proposed the creation of a
Local Initiative separate local legislative
Initiative has been described as an instrument body, for being ultra vires
of direct democracy whereby the citizens [Marmeto v. COMELEC,
directly propose and legislate laws as it is the G.R. No. 213953 (2017)].
citizens themselves who legislate the laws,
direct legislation through initiative (along with Limitations Any proposition or
referendum) is considered as an exercise of upon ordinance approved
original legislative power, as opposed to that of Sanggunians through the system of
derivative legislative power which has been initiative and referendum:
delegated by the sovereign people to 1. Shall not be repealed,
legislative bodies such as the congress modified, or amended by
[Marmeto v. COMELEC, G.R. No. 213953 the sanggunian concerned
(2017)]. within six (6) months from
the date of its approval;
and
Definition Legal process whereby the
2. May be amended,
registered voters of an
modified, or repealed by
LGU may directly propose,
the sanggunian within
enact, or amend an
three (3) years thereafter
ordinance [Sec. 120, LGC]
by a vote of three-fourths
Exercised by All registered voters of the (3/4) of all its members.
provinces, cities,
municipalities, and In case of barangays, the
barangays [Sec. 121, LGC] period shall be eighteen
Page 338 of 412

(18) months [Sec. 125, Initiative Referendum

LGC].
and against COMELEC,
the wishes of G.R. No.
Local Referendum their elected 125416
Legal process whereby the registered voters of representa- (1996)].
the local government unit may approve, tives
amend, or reject any ordinance enacted by the
Sanggunian. It shall be held under the direction Effect in The process Voters will
of COMELEC within 60 days in case of Process and the simply write
provinces and cities, 45 days in case of voting in an either "Yes"
municipalities and 30 days in case of initiative are of "No" in the
barangays [Sec. 126, LGC]. more ballot
complex than [Gatmaytan].
Initiative vs. Referendum in a
Initiative Referendum referendum.
[Gatmaytan]
How Initiated by Law-making
Initiated the people body submits
directly matter to the
registered Procedure [Sec. 122, LGC]
voters of its 1. File a petition with local legislature.
territorial Registered voters must file a petition
jurisdiction with the Sanggunian concerned
proposing the adoption, enactment,
Objective To legislate, To approve or
repeal or amendment of an ordinance
or because the reject any
a. Not less than 1,000 registered
Purpose lawmaking ordinance or
voters in provinces and cities;
body fails or resolution
b. Not less than 100 registered voters
refuses to which is duly
in municipalities;
enact the enacted or
c. Not less than 50 registered voters in
ordinance or approved by
barangays.
resolution such
that they lawmaking
2. Invoke initiative by giving notice. If no
desire or authority
favorable action thereon is made by the
because they
local legislative body within 30 days
want to
from its presentation, the proponents
amend or
through their duly authorized and
modify one
registered representatives may invoke
already
their power of initiative, giving notice to
existing
the local legislative body concerned.
Role of No role Legislative. A
Legislatur except for referendum Two or more propositions may be submitted in
e unfavorable consists an initiative. COMELEC shall extend
action on the merely of the assistance in the formulation of the proposition.
petition electorate
submitted to approving or 3. Collection of signatures. Proponents
it. Initiative is rejecting what shall have 90 days in case of provinces
a process of has been and cities, 60 days in case of
lawmaking by drawn up or municipalities, and 30 days in case of
the people enacted by a barangays, from notice to collect the
themselves legislative required number of signatures.
without the body [SBMA
participation v. The petition shall be signed before the Election
Registrar or his representative, in the presence
Page 339 of 412
of a representative of the proponent and a content, where the proposals or parts thereof
representative of the local legislative body are patently and clearly outside the “capacity of
concerned in a public place in the LGU. the local legislative body to enact” [SBMA v.
COMELEC, G.R. No. 125416 (1996)].
4. Certification of COMELEC and
setting of date of vote. The COMELEC d. Power of the Courts to declare null
shall certify that the required number of and void any proposition
signatures has been obtained. Failure to The power of the courts to nullify propositions
obtain the required number defeats the for being ultra vires extends only to those
proposition already approved, i.e. those which have been
Otherwise, the COMELEC shall set a date for approved by a majority of the votes cast in the
approval of the proposition within 60 days from initiative election called for the purpose. In
the date of certification in case of provinces and other words, the courts can review the terms
cities, 45 days in case of municipalities, and 30 only of an approved ordinance [Marmeto v.
days in case of barangays. COMELEC, G.R. No. 213953 (2017)].
5. Voting and Results. The results of the 6. Corporate Powers

initiative shall be certified and
proclaimed by the COMELEC. a. To Sue and Be Sued
Under Sec. 22 of the LGC, all local government
6. Effectivity of Local Propositions. If units may be sued. Paragraph 2 is a
the proposition is approved by a Congressional grant of consent to be sued
majority of the votes cast, it shall take [Gatmaytan].
effect 15 days after certification by the
COMELEC. Suability v. Liability
The fact that they are suable does not
Initiative Covers Both Ordinances and necessarily mean that they are liable.
Resolutions: Sec. 124 of the LGC clearly does Reference must be had to the applicable law
not limit the application of local initiatives to and established facts to determine their liability
ordinances, but to all “subjects or matters [San Fernando, La Union v. Firme, G.R. No.
which are within the legal powers of the 52179 (1991)].
Sanggunians to enact,” which undoubtedly
includes resolutions. This interpretation is Consent to be sued only means that the State
supported by section 125 of the same Code gives up its immunity from suit. This does not
[Garcia v. COMELEC, G.R. No. 111230 concede liability, but merely allows the plaintiff
(1994)]. a chance to prove, if it can, that the State or its
officials are liable [USA v. Guinto, G.R. No.
RA 6735 (The Initiative and Referendum 76607 (1990)].
Act does not cover the system of initiative
on amendments to the Constitution The legal officer shall represent the LGU as
Under Sec. 2 of R.A. 6735, the people are not counsel in civil and special proceedings [Sec
accorded the power to directly propose, enact, 481(3)(i), LGC].
approve or reject, in whole or in part, the
Constitution through the system of initiative. b. To Acquire and Sell Property
They can only do so with respect to national
and local laws, ordinances or resolutions Nature and Control
[Santiago v. COMELEC, G.R. No. 127325 The municipality owns property in two
(1997)]. capacities:
1. In its public and governmental capacity
c. Power of COMELEC to review the • The property is public and Congress
substance of the initiative provisions has absolute control over it
The COMELEC in the exercise of its quasi- 2. In its private or proprietary capacity
judicial and administrative powers, may • It is patrimonial and Congress has no
adjudicate and pass upon such proposals absolute control.
insofar as their form and language are
concerned, and it may be added, even as to
Page 340 of 412
The municipality cannot be deprived of it under Sec. 22(c) of the LGC. After all, an
without due process and payment of just appropriation is an authorization made by
compensation [Province of Zamboanga del ordinance, directing the payment of goods and
Norte v. City of Zamboanga, G.R. No. L-24440 services from local government funds under
(1968)]. specified conditions or for specific purposes.
To be considered public property: It is Separate Sanggunian Authorization

enough that the property be held and devoted
for governmental purposes like local i. When required
administration, public education and public When the appropriation ordinance describes
health [Province of Zamboanga del Norte v. the projects in generic terms there is an
City of Zamboanga, G.R. No. L-24440 (1968)]. obvious need for a covering contract for every
specific project that in turn requires approval by
Property held in trust by the LGU for the the Sanggunian.
National Government
Regardless of the source or classification of Specific Sanggunian approval may also be
land in the possession of a municipality, required for the purchase of goods and
excepting those acquired with its own funds in services which are neither specified in the
its private or corporate capacity, such property appropriation ordinance nor encompassed
is held in trust for the State for the benefit of its within the regular personal services and
inhabitants, whether it be for governmental or maintenance operating expenses [Quisumbing
proprietary purposes. It holds such lands v. Garcia, G.R. No. 175527 (2008)].
subject to the paramount power of the
legislature to dispose of the same, for after all ii. When not required
it owes its creation to it as an agent for the No further authorization is required if the
performance of a part of its public work appropriation ordinance already contains in
[Rabuco v. Villegas, G.R. No. L24661 (1974)]. sufficient detail the project and cost of a capital
outlay such that all the local chief executive
c. To Enter into Contracts needs to do after undergoing the requisite
public bidding is to execute the contract.
Requisites
1. Entered into by the local chief executive 7. Ultra Vires Acts
on behalf of the LGU;
2. Prior authorization by Sanggunian Ultra Vires Contracts
concerned; and Every local government unit only derives its
3. A legible copy of contract must be legislative authority from Congress. In no
posted at a conspicuous place in the instance can the local government unit rise
provincial capitol or city, municipal or above its source of authority. As such, its
barangay hall [Sec. 22, LGC]. ordinance cannot run against or contravene
existing laws, precisely because its authority is
The authorization need not be in the form only by virtue of the valid delegation from
of an ordinance Congress [Mosqueda v. Pilipino Banana
A careful perusal of Section 444(b)(1)(vi) of the Growers & Exporters Association, Inc., G.R.
LGC shows that the obligation which the said No. 189185 (2016)].
local executive is authorized to enter into must
be made pursuant to a law or ordinance [Land Types of Ultra Vires Acts [Land Bank of the
Bank of the Philippines v. Cacayuran, G.R. No. PH v. Cacayuran, G.R. No. 191667 (2013)]
191667 (2013)].
Void Ultra Vires Ultra Vires Acts
Acts (Primary Subject to
Appropriation ordinance as prior Sense) Ratification/Validati
authorization on (Secondary
Where the local government unit operates Sense)
under an annual as opposed to a re-enacted
budget, it should be acknowledged that the Act is utterly beyond Act is attended only
appropriation passed by the Sanggunian may the jurisdiction of a by an irregularity but
validly serve as the authorization required
Page 341 of 412
● A loan contract entered into by a
Void Ultra Vires Ultra Vires Acts
municipality for the purpose of funding the
Acts (Primary Subject to
conversion of the Agoo Plaza into a
Sense) Ratification/Validati
commercial plaza, the former being a
on (Secondary
property for public use, hence part of the
Sense)
public dominion [Land Bank of the
municipal remains within Philippines v. Cacayuran, G.R. No. 191667
corporation of law municipality’s (2013)].
powers
Liability of public officials for ultra vires
1. Municipal 1. Municipal acts
Contracts entered Contracts entered While a municipality cannot be bound by a
into beyond the into by the improper contract which is void for being ultra vires,
express, implied, or department, board, “case law states that the [officers] who
powers of the LGU; officer, or agent; and authorized the same can be held personally
and accountable for acts claimed to have been
2. Do not comply performed in connection with official duties
2. Do not comply with the Formal where they have acted ultra vires” [See Land
with substantive requirements of a Bank v. Cacayuran, G.R. No. 191667 (2013)].
requirement (e.g. if it written contract (e.g.
involves Statute of Frauds) B. Liability of Local Government
expenditure of public Units
funds, there must be
an actual
appropriation and 1. Statutory Liability
certificate of Section 24, LGC, Liability for Damages. Local
availability of funds) government units and their officials are not exempt
from liability for death or injury to persons or damage
to property.
Examples of void ultra vires municipal
contracts
● A public street is property for public use; 2. Liability Under the Civil Code
hence, outside the commerce of man. Civil Code of the Philippines
Being outside the commerce of man, it may
not be the subject of lease or other Article 34. When a member of a city or municipal
contract. The city government, contrary to police force refuses or fails to render aid or
law, has been leasing portions of the protection to any person in case of danger to life or
streets. Such lease or license is null and property, such peace officer shall be primarily liable
for damages, and the city or municipality shall be
void for being contrary to law [Dacanay v. subsidiarily responsible therefor. xxx
Asistio, G.R. No. 93654 (1992)].
Article 2180. xxx The State is responsible in like
Note: The Dacanay case was decided before manner when it acts through a special agent; but not
the enactment of the LGC. If the LGC would be when the damage has been caused by the official to
applied, flea markets may be allowed subject whom the task done properly pertains; in which case
what is provided in Article 2176 shall be applicable.
to compliance with Sec. 21 in that there must xxx
be an ordinance.
Article 2189. Provinces, cities and municipalities
shall be liable for damages for the death of, or
Section 21 (d), LGC. Any city, municipality, or
injuries suffered by, any person of the defective
barangay may, by a duly enacted ordinance,
condition of roads, streets, bridges, public buildings,
temporarily close and regulate the use of any local
and other public works under their control or
street, road, thoroughfare, or any other public place
supervision.
where shopping malls, Sunday, flea or night
markets, or shopping areas may be established and
where goods, merchandise, foodstuffs,
commodities, or articles of commerce may be sold
and dispensed to the general public.
Page 342 of 412

Liability under Art. 2189 based on control Political/ Corporate/
or supervision Government Proprietary
For liability to arise under Art. 2189 of the Civil al Acts Acts
Code, ownership of the roads, streets, bridges,
public buildings, and other public works, is not Respondeat [Mendoza v.
a controlling factor, it being sufficient that a Superior de Leon,
province, city or municipality has control or supra]
supervision thereof [Municipality of San Juan v.
CA, G.R. No. 121920 (2005)]. Note: The distinction in jurisprudence between
governmental and proprietary acts may not be
Although the drainage hole which caused the applicable after the enactment of the LGC
accident was located on a national road, the 1991. Under Sec. 24 of the LGC 1991, there is
City was still liable because their City Engineer a general withdrawal of exemption.
exercises control and supervision over said
national road [Guilatco v. City of Dagupan,
G.R. No. 61516 (1989)]. 3. Contractual Liability
General Rule: The LGU is liable only for
Political/ Corporate/ contracts that are validly entered in to.
Government Proprietary
al Acts Acts
Exception: The Doctrine of Implied
Liability LGU Can be held
Municipal Liability provides that an LGU may
generally not liable ex become obligated upon an implied contract to
liable unless contractu or pay reasonable value of the benefits accepted
a statute ex delicto by it as to which it has the general power to
provides contract [Province of Cebu v. IAC, G.R. No.
otherwise 72841 (1987)] on the hiring of a private counsel
by the governor which was not repudiated by
Defense No valid Defense of the provincial board].
defense for due diligence
non- in the 4. Torts Liability
performance selection and
supervision of
its officers
Under jurisprudence, liability of the LGU would
depend on the nature of the act.
Personal Officers or Officers and If in the performance of a governmental

Liability of agents acting agents are function
Officers within official like a) The LGU is not liable [Palafox v. Province of
duties are not individuals; or Ilocos Norte, G.R. No. L-10659 (1958)].
liable unless b) the
they acted directors and
willfully and officers of a If in the performance of a proprietary
maliciously private function
[Mendoza v. corporation The LGU is liable, such as in the following
de Leon, (i.e. they are instances:
G.R. No. liable if they
● The improper grant of a ferry service
9596 (1916); acted in bad
franchise [Mendoza v. de Leon, supra]
but see Sec. faith or with
24, LGC] gross ● Deaths caused by a collapsed stage in
negligence.) a town fiesta [Torio v. Fontanilla, supra]
Liability for back pay of employees

LGUs may be held liable for the back pay or
Application Respondent Respondent wages of employees or laborers illegally
of superior does Superior separated from the service [Guillergan v.
not apply applies Ganzon, G.R. No. L-20818 (1966)].
Page 343 of 412

5. Personal Liability of the Public 2 or more Same Sangguniang
Official municipalitie province Panlalawigan
s
The public official is personally liable for
Municipalitie Different Jointly
damages:
s or provinces referred to
1. In contracts and torts, if he acts:
component Sanggunians
a. Beyond the scope of his powers; or cities of the
b. With bad faith [Rivera v. Maclang, G.R. provinces
No. L-15948 (1963)]; and concerned
2. For his refusal or neglect, without justifiable
cause, to perform his official duty [Art. 27, Component N/A Jointly
Civil Code]. city or referred to
3. Municipal Mayor and Vice Mayor were held municipality respective
liable for back wages for illegally v. highly Sanggunians
dismissing a Sanggunian Secretary urbanized of the parties
[Campol v. Balao-as and Sianen, G.R. No. city
197634 (2016)].
Between 2
Liability of public officials for ultra vires or more
acts: While a municipality cannot be bound by highly
a contract which is void for being ultra vires, urbanized
“case law states that the officers who cities
authorized the same can be held personally
accountable for acts claimed to have been Note: The power of provincial boards to settle
performed in connection with official duties boundary disputes is limited to implementing
where they have acted ultra vires” [See Land the law creating a municipality. Thus, provincial
Bank v. Cacayuran, G.R. No. 191667 (2013)]. boards do not have the authority to approve
agreements which in effect amend the
C. Settlement of Boundary boundary stated in the creating statute
[Municipality of Jimenez v. Baz, G.R. No.
Disputes 105746 (1996)].
1. Amicable Settlement
2. Formal Trial
Boundary disputes between and among local
government units shall, as much as possible, a. Trial by Sanggunian
be settled amicably [Sec. 118, LGC]. In the event the Sanggunian fails to effect an
amicable settlement within 60 days from
There is a boundary dispute when a portion or referral of the dispute:
the whole of the territorial area of an LGU is a. It shall issue a certification to that
claimed by two or more LGUs [Sec. 15, LGC effect; and
IRR]. b. The dispute shall be formally tried by
the Sanggunian concerned, which shall
decide the issue within 60 days from
Boundary Where Amicably the date of the certification referred to
Dispute Settled By
above [Sec. 118(e), LGC].
Between
2 or more Same city or Sangguniang b. Trial by RTC

barangays municipality Panlungsod When the dispute between the LGUs do not fall
or under those enumerated in Sec. 118, LGC, the
Sangguniang RTC shall exercise original jurisdiction over the
Bayan settlement of the boundary dispute
[Municipality of Kananga v. Madrona, G.R. No.
141375 (2003), applying Sec. 19(6), B.P. Blg.
129].
Page 344 of 412

3. Appeal D. Vacancies and Succession
Appeal of the Sanggunian Decision 1. Permanent Vacancy
● When: Within the time and manner
prescribed by the Rules of Court Occurs when an Elective Local Official:
● Where: Proper RTC having jurisdiction a. Fills a higher vacant office;
over the area in dispute [Sec. 119, LGC]. b. Refuses to assume office;
c. Fails to qualify;
Maintenance of the Status Quo d. Dies;
Pending final resolution of the dispute, the e. Is removed from office;
status of the affected area prior to the dispute f. Voluntarily resigns; or
shall be maintained and continued for all g. Is otherwise permanently incapacitated
purposes [Art. 18, LGC IRR]. from discharging the functions of his office
[Sec. 44(2), LGC]
The conduct of a plebiscite on the creation of a
barangay should be suspended or cancelled in a. Permanent Vacancy in the Local
view of a pending boundary dispute between
Chief Executive [Sec. 44, LGC]
two local governments involving an area
covered by the proposed barangay. A requisite
for the creation of a barangay is for its territorial Vacant Positions Successors
jurisdiction to be properly identified by metes
and bounds or by more or less permanent Governor Vice governor
natural boundaries. Precisely because
territorial jurisdiction is an issue raised in the Mayor Vice mayor
pending boundary dispute, until and unless
Vice governor or vice Highest-ranking
such issue is resolved with finality, to define the
mayor Sanggunian member
territorial jurisdiction of the proposed barangay
would only be an exercise in futility [City of Governor and vice Mayor; Second
Pasig v. COMELEC, G.R. No. 125646 (1999)]. governor OR Mayor highest ranking
and vice mayor Sanggunian member
Evidence Given More Weight to become Vice
It is undisputed that the Land Management governor/ Vice mayor
Bureau is the principal government agency Subsequent
tasked with the survey of lands, and thus, more vacancies filled
weight should be given to the documents according to their
relating to its official tasks which are presumed rank.
to be done in the ordinary course of business.
Between a geodetic engineer and a tax
Punong Barangay Highest-ranking
assessor, it is the former’s certification as to the
Sangguniang
location of properties in dispute that is
Barangay Member
controlling, absent any finding of abuse of
discretion. The duty of provincial and municipal
assessors is primarily the assessment of taxes Ranking in the Sanggunian
and not the survey of lands [Barangay Determined on the basis of the proportion of
Sangalang v. Barangay Maguihan, G.R. No, votes obtained by each winning candidate to
159792 (2009)]. the total number of registered voters in each
district in the immediately preceding local
election [Sec. 44(d), LGC].
Resolution of Ties
A tie between or among highest ranking
sanggunian members shall be resolved by the
drawing of lots [Sec. 44(c), LGC].
Page 345 of 412

b. Permanent Vacancies in the Sanggunian [Fariñas v. Barba, G.R. No. 116763 (1996);
Sec. 45, LGC]
Position Appointing Authority If member who If member who
caused vacancy was caused vacancy not
member of a political a member of any
party political party
Sangguniang President through the Nomination and Recommendation of

Panlalawigan Executive Secretary Certification of the the Sangguniang
political party of the Panlalawigan
member who caused
Sangguniang the vacancy issued by Recommendation of
Panlungsod (of highly the highest official of the Sangguniang
urbanized and the political party Panlungsod
independent Rationale: To maintain
component cities) party representation
as willed by the people
in the election
[Navarro v. CA, G.R.
No. 141307 (2001)]
Sangguniang Governor Nomination and Recommendation of

Panlungsod (of Certification of the Sangguniang
component cities) political party of the Panglungsod
member who caused
Sangguniang Bayan the vacancy issued by Recommendation of
the highest official of Sangguniang Bayan
the political party
Sangguniang City Sangguniang N/A Recommendation of

Barangay Barangay Municipal Sangguniang
Mayor There is no right to Barangay
nominate because the
members of the
Sangguniang
Barangay are not
allowed to have party
affiliations
Page 346 of 412

Appointment without nomination and
Barangay officials City or municipal
certification mayor
Such is null and void ab initio and is a ground
for administrative action against the
responsible official [Sec. 45(b), LGC]. Exceptions
Resignation is deemed accepted when:
Power of appointment a. Not acted upon: The resignation shall
The appointing authority is not bound to be deemed accepted if not acted upon
appoint anyone recommended to him by the by the authority concerned within 15
Sanggunian concerned. working days from the receipt thereof
[Sec. 82, LGC].
On the other hand, neither is the appointing b. Irrevocable resignations by
authority vested with so large a discretion that sanggunian members: Deemed
he can disregard the recommendation of the accepted upon presentation before an
sanggunian concerned. Since the open session of the sanggunian
recommendation takes the place of nomination concerned and duly entered in its
by political party, the recommendation must records [Sec. 82, LGC].
likewise be considered a condition sine qua
non for the validity of the appointment [Fariñas When law is silent as to who approves
v. Barba, supra]. resignation
Under established jurisprudence, resignations,
Term of office of the appointee in the absence of statutory provisions as to
The appointee under Sec. 45 serves the whom they should be submitted, should be
unexpired term of the vacant office [Sec. 44(d), tendered to the appointing person or body
LGC]. [Sangguniang Bayan of San Andres v. CA,
G.R. No. 118883 (1998)].
Vacancy in the barangay or youth
representation in the Sanggunian: The Resignation not allowed in recall
vacancy is automatically filled by the official The elective local official sought to be recalled
next in rank of the organization concerned shall not be allowed to resign while the recall
[Sec. 45(d), LGC] process is in progress [Sec. 73, LGC].
c. Resignation of Elective Officials d. Abandonment

Abandonment is the “voluntary relinquishment
General Rule: Deemed effective only upon of an office by the holder, with the intention of
acceptance of the resignation by the following terminating his possession and control thereof”
authorities: [Sec. 82, LGC] [Sangguniang Bayan of San Andres v. CA,
G.R. No. 118883 (1998)].
Resignation by: Approved by:
Resignation v. Abandonment
Although a resignation is not complete without
Governors and vice President an acceptance thereof by the proper authority,
governors; mayors an office may still be deemed relinquished
and vice mayors of through voluntary abandonment which needs
HUCs and ICCs no acceptance.
Mayors and vice Governors Abandonment of office is a species of

mayors of resignation. While resignation in general is a
component cities formal relinquishment, abandonment is a
and municipalities voluntary relinquishment through nonuser.
Nonuser refers to a neglect to use a privilege
Sanggunian Sanggunian or a right or to exercise an easement or an
members concerned office
Page 347 of 412

Requisites for Essential Elements designate a

Resignation of Abandonment successor
1. Intention to 1 Intent to Abandon

relinquish part of a Extent of Duty Exercised by Temporary
term relinquishment; 2. Overt act by Successor
which the intention is
2. Act of to be carried into General Rule: The successor shall
relinquishment effect automatically exercise the powers and perform
the duties and functions of the local chief
3. Acceptance by executive.
the proper authority
Exception: If the local chief executive is
traveling within the country but outside his
2. Temporary Vacancy territorial jurisdiction for a period not exceeding
3 consecutive days, he may designate in
Succession In Temporary Vacancies writing the officer-in-charge.
Temporary vacancy occurs when the local
chief executive is temporarily incapacitated to Termination of Temporary Incapacity
perform his duties for physical or legal reasons Temporary incapacity is terminated upon
such as, but not limited to: submission by the local chief executive to the
a. Leave of absence; Sanggunian of a written declaration that he has
b. Traveling abroad; or reported back to office
c. Suspension from office [Sec. 46, LGC]
If the temporary incapacity is due to legal
causes, the local chief executive must also
Office where Who temporarily submit the necessary documents showing that
temporary vacancy succeeds in to the legal causes no longer exist [Sec. 46(b),
occurs office LGC].
Governor Vice governor,
automatically 4. Leaves of Absence
Local Official LOA approved by
Mayor Vice mayor,
automatically
Governors and The President or his
Punong Barangay Highest-ranking mayors of HUCs or duly authorized
Sanggunian ICCs representative
Member,
automatically Vice-Governors, The Local Chief
City/ Municipal Vice Executive
Local Chief 1. The designated mayors
Executive is person in writing by
traveling within the the local chief City/Municipal The Governor
country but is executive; OR Mayors of
outside his territorial component cities
jurisdiction for a 2. Vice governor, and municipalities
period not exceeding Vice mayor, or
three consecutive highest ranking Sanggunian The Vice governor
days Sangguniang Panlalawigan, or Vice mayor
Barangay Member, Panglungsod, and
on the 4th day of Bayan Members and
absence, if local their employees
chief executive fails
or refuses to Punong Barangays The City/Municipal
Mayor
Page 348 of 412

Sanggunian The Punong from completion [Sec. 71,

Barangay Members Barangay LGC]
Effects Automatically considered as

If the application for LOA is not acted upon on official candidate and is entitled to be
within 5 working days after receipt, the sought to voted upon [Sec. 71, LGC] Not
application is deemed approved [Sec. 47(b), be allowed to resign while recall
LGC]. recalled process is in progress [Sec.
73, LGC]
E. Recall
Effectivity Upon election and
LGC, Section 69. By Whom exercised. - The
of recall proclamation of a successor or
power of recall for loss of confidence shall be the candidate receiving the
exercised by the registered voters of a local highest number of votes cast
government unit to which the local elective office during the election on recall
subject to such belongs. [Sec. 72, LGC]
1. Grounds 2. Signature Requirement
Ground Loss of confidence [Sec. 69, The law states “upon petition of at least 25% of
for recall LGC] registered voters” and not “signed by 25% of
the registered voters.” The petition must be
Right Registered voters of a LGU to filed not by one person but at least by 25% of
given to which the local elective official the total number of registered voters. While the
subject to recall belongs [Sec. initiatory recall petition may not yet contain the
69, LGC] signatures of at least 25% of the total number
of registered voters, the petition must contain
Initiation By a petition of a registered the names of at least 25% of the total number
of recall voter supported by: of registered voters in whose behalf only one
process ● 25% of registered voters if person may sign the petition in the meantime
LGU has a voting population of [Angobung v. COMELEC, G.R. No. 126576
not more than 20,000. (1997)].
● 20% of registered voters if
LGU has a voting population of Note: The Angobung decision is likely no
20,000 to 75,000. In no case longer good law as it was decided under the
shall petitioners be less than LGC’s original provisions on recall. As
5,000. amended by R.A. No. 9244, Sec. 70 of the LGC
● 15% of registered voters if seems to require that the petition already
LGU has a voting population of contains the required number of signatures
75,000 to 300,000. In no case upon the filing thereof [Gatmaytan].
shall petitioners be less than
15,000. 3. Procedure [Sec. 70, LGC, as
● 10% of registered voters if
LGU has a voting population of
amended by R.A. No. 9244]
more than 300,000. In no case
shall petitioners be less than a. Petition filed by a registered voter in the
LGU concerned to the COMELEC,
45,000 [Sec. 70, LGC, as
supported by the necessary number of
amended by R.A. No. 9244]
registered voters.
When Barangay, city, or municipal
recall officials: not later than 30 days b. COMELEC’s Certification of Sufficiency.
election from completion Provincial 1. Within 15 days from filing of the
is held officials: not later than 45 days petition, the COMELEC must certify the
sufficiency of the required number of
signatures.
Page 349 of 412
2. Failure to obtain the required number proceedings may be initiated within 1 year from
shall result in the automatic nullification the official’s assumption of office as long as the
of the petition. recall election is set outside such period
[Claudio v. COMELEC, G.R. No. 140560
c. Notice, Publication, and Posting. (2000)].
1. Within 3 days from certification of
sufficiency, COMELEC shall: F. Term Limits
i. Provide the official subject of recall
with a copy of the petition;
ii. Cause the publication of the petition 1. Length of Term
for 3 weeks in a national newspaper 1987 Constitution, Section 8, Article X. The term
and a local newspaper of general of office of local elective officials, except barangay
circulation; and officials, which shall be determined by law, shall be
three years xxx
iii. Cause its posting for 10 to 20 days
at conspicuous places.
R.A. No. 9164: Synchronized Barangay
d. Verification and Authentication of And Sangguniang Kabataan Elections
Signatures (2002)
1. COMELEC verifies and authenticates
the signatures. Term of office of barangay and
sangguniang kabataan officials: 3 years
e. Filing of Candidacies. [Sec. 2, R.A. No. 9164]
1. COMELEC announces the acceptance
of candidates for the recall election, the No barangay elective official shall serve
official subject of the recall being for more than 3 consecutive terms in the
automatically included in the list [Sec. same position
71, LGC] 1. The term of office shall be reckoned from
the 1994 barangay elections
f. Setting of Election. 2. Voluntary renunciation of office for any
1. COMELEC shall set the election within length of time shall not be considered as an
30 days upon completion of the above interruption [Sec. 2, R.A. No. 9164].
procedure in barangays, cities, and
municipalities; or within 45 days in A Sangguniang Kabataan official who, during
provinces [Sec. 71, LGC] his or her term of office, shall have passed the
age of twenty-four (24) years shall be allowed
Limitations to serve the remaining portion of the term for
1. Any local elective official may be the which he or she was elected [Sec. 11 (c), R.A.
subject of recall election only once during No. 10742].
his term of office for loss of confidence
[Sec. 74(a), LGC]. R.A. No. 9006: Fair Elections Act
2. No recall election shall take place within No “deemed resigned” rule for elective
one (1) year from the date of the official’s officials: An elective official running for any
assumption to office or one (1) year office other than the one which he is holding in
immediately preceding a regular local a permanent capacity, is no longer considered
election [Sec. 74(b), LGC]. ipso facto resigned from his office upon the
filing of his certificate of candidacy because of
The phrase “regular local election” refers to an Sec. 14 of R.A. No. 9006.
election where the office held by the local
elective official sought to be recalled will be Note: Sec. 14 of R.A. No. 9006 expressly
contested and be filled by the electorate [Paras repealed Sec. 67 of B.P. Blg. 881 or the
v. COMELEC, G.R. No. 123169 (1996)]. Omnibus Election Code which states that “any
elective official, whether national or local,
As used in Sec. 74(b) of the LGC, “recall” refers running for any office other than the one which
to the election itself by means of which voters he is holding in a permanent capacity, except
decide whether they should retain their local for President and Vice-President, shall be
official or elect his replacement. Hence, recall
Page 350 of 412
considered ipso facto resigned from his office Prevailing doctrines on issues affecting
upon the filing of his certificate of candidacy.” consecutiveness of terms and/or
involuntary interruption [Abundo, Sr. v.
The “deemed resigned” rule is retained for COMELEC, G.R. No. 201716 (2013)]
appointive officials. Sec. 14 of R.A. No. 9006
did not repeal Sec. 66 of the Omnibus Election a. Assumption of Office by Operation of
Code, which imposes a limitation to appointive Law:
officials and considers them ipso facto When a permanent vacancy occurs in an
resigned from office upon filing of their elective position pursuant to the rules of
certificate of candidacy. succession under the LGC:
The classification justifying Sec. 14 of R.A. No. For the office assumed: The successor’s
9006, i.e., elected officials vis-à-vis appointive service for the unexpired portion of the term of
officials, is anchored upon material and the replaced official is not treated as one full
significant distinctions (e.g. elective officials term and is not counted in the application of
occupy their office by virtue of the mandate of any term limit [Borja v. COMELEC, supra].
the electorate, appointive officials are
prohibited from engaging in partisan political For the office held before succession: The
activity except to vote) [Fariñas v. Executive successor’s assumption by operation of law to
Secretary, G.R. No. 147387 (2003)]. the higher office (e.g. vice-mayor) is
considered an involuntary severance or
2. Limitation of Consecutive interruption of the office he previously held
Terms (e.g. councilor), i.e. it is not counted in the
application of any term limit [Montebon v.
COMELEC, G.R. No. 180444 (2008)].
What constitutes a term of office
The term limit for elective officials must be
taken to refer to the right to be elected as well b. Recall Elections
as the right to serve in the same elective An elective official, who has served for three
position. Consequently, it is not enough that an consecutive terms and who did not seek the
individual has served three consecutive terms elective position for what could be his fourth
in an elective local office, he must also have term, but later won in a recall election, had an
been elected to the same position for the same interruption in the continuity of his service. For,
number of times before the disqualification can he had become in the interim [i.e. from the end
apply [Borja v. COMELEC, G.R. No. 133495 of the 3rd term up to the recall election] a
(1998)]. private citizen [Adormeo v. COMELEC, G.R.
No. 147927 (2002); Socrates v. COMELEC,
The interruption of a term that would prevent G.R. No. 154512 (2002)].
the operation of the three-term rule involves
“no less than the involuntary loss of title to c. Conversion
office [or the right to hold on to an office]” or “at The abolition of an elective local office due to
least an effective break from holding office” the conversion of a municipality to a city does
[Aldovino, Jr. v. COMELEC, G.R. No. 184836 not, by itself, work to interrupt the incumbent
(2009)]. official’s continuity of service [Latasa v.
COMELEC, G.R. No. 154829 (2003)].
Two conditions for the application of the
disqualification d. Preventive Suspension
1. Elected for three consecutive times for the Preventive suspension is not a term-
same position; and interrupting event as the elective officer’s
2. Fully served three consecutive terms [Borja continued stay and entitlement to the office
v. COMELEC, supra] remain unaffected during the period of
suspension, although he is barred from
exercising the functions of his office [Aldovino,
Jr. v. COMELEC, supra].
Page 351 of 412

e. Losing in an Election Protest
When a candidate is proclaimed a winner for
an elective office and assumes office, his term
is interrupted when he loses in an election
protest and is ousted from office, thus
disenabling him from serving what would
otherwise be the unexpired portion of his term
of office had the protest been dismissed
[Lonzanida v. COMELEC, G.R. No. 135150
(1999); Dizon v. COMELEC, G.R. No. 182088
(2009)].
However, when an official loses in an election

protest and said decision becomes final after
said official had served the full term for said
office, then his loss in the election contest does
not constitute an interruption since he
managed to serve the term from start to finish.
His full service should be counted in the
application of the term limits [Ong v. Alegre,
G.R. No. 163295 (2006); Rivera III v.
COMELEC, G.R. No. 167591 (2007)].
f. Effect of Winning in an Election

Protest
The period during which the winner of an
election protest is unable to assume office as it
was occupied by his opponent is considered to
be an involuntary interruption in the service of
his term and therefore bars the application of
the three-term limit rule [Abundo, Sr. v.
COMELEC, supra].
Page 352 of 412

IV. LOCAL TAXATION b. Be levied and collected only for public

purposes;
c. Not be unjust, excessive, oppressive,
A. Fundamental Principles of or confiscatory;
Local and Real Property d. Not be contrary to law, public policy,
national economic policy, or in the
Taxation restraint of trade;
3. The collection of local taxes, fees, charges
1. Power to Create Revenues and other impositions shall in no case be
let to any private person;
1987 Constitution, Section 5, Article X. - Each 4. The revenue collected pursuant to the
local government unit shall have the power to create provisions of this Code shall inure solely to
its own sources of revenues and to levy taxes, fees, the benefit of, and be subject to the
and charges subject to such guidelines and disposition by, the local government unit
limitations as the Congress may provide, consistent levying the tax, fee, charge or other
with the basic policy of local autonomy. Such taxes,
fees, and charges shall accrue exclusively to the
imposition unless otherwise specifically
local governments. provided herein; and,
5. Each local government unit shall, as far as
practicable, evolve a progressive system of
LGUs have the power to create their own taxation.
sources of revenues and to levy taxes, fees,
and charges which shall accrue exclusively for
their use and disposition and which shall be B. Common Limitations on the
retained by them [Sec. 18, LGC]. Taxing Power of the LGU
The grant of taxing powers to LGUs under the Generally, LGUs cannot impose taxes that are
Constitution and the LGC does not affect the already imposed by the National Government
power of Congress to grant exemptions to such as:
certain persons, pursuant to a declared 1. Income tax, except when levied on banks
national policy. The legal effect of the and other financial institutions;
constitutional grant to local governments 2. Documentary stamp tax;
simply means that in interpreting statutory 3. Taxes on estates, inheritance, gifts,
provisions on municipal taxing powers, doubts legacies and other acquisitions mortis
must be resolved in favor of municipal causa, except as otherwise provided
corporations [PLDT v. City of Davao, G.R. No. herein;
143867 (2001)]. 4. Customs duties, registration fees of vessel
and wharfage on wharves, tonnage dues,
2. Fundamental Principles on and all other kinds of customs fees,
charges and dues except wharfage on
Taxation by an LGU wharves constructed and maintained by
the local government unit concerned;
Local Taxing Authority [Sec. 132, LGC] 5. Taxes, fees, and charges and other
The power to impose a tax, fee, or charge or to impositions upon goods carried into or out
generate revenue under this Code shall be of, or passing through, the territorial
exercised by the sanggunian of the local jurisdictions of local government units in
government unit concerned through an the guise of charges for wharfage, tolls for
appropriate ordinance. bridges or otherwise, or other taxes, fees,
or charges in any form whatsoever upon
Fundamental Principles [Sec. 130, LGC] such goods or merchandise;
1. Taxation shall be uniform in each local 6. Taxes, fees or charges on agricultural and
government unit; aquatic products when sold by marginal
2. Taxes, fees, charges and other impositions farmers or fishermen;
shall: 7. Taxes on business enterprises certified to
a. Be equitable and based as far as by the Board of Investments as pioneer or
practicable on the taxpayer's ability to non-pioneer for a period of six (6) and four
pay;
Page 353 of 412

(4) years, respectively from the date of exempt from local taxation [MIAA v. CA, G.R.
registration; No. 155650 (2006)].
8. Excise taxes on articles enumerated under
the National Internal Revenue Code, as However, GOCCs are [generally] not exempt
amended, and taxes, fees or charges on from local taxation [MIAA v. CA, supra]
petroleum products;
9. Percentage or value-added tax (VAT) on C. Requirements for a Valid Tax
sales, barters or exchanges or similar
transactions on goods or services except Ordinance
as otherwise provided herein; LGC, SEC. 186. Power To Levy Other Taxes,
10. Taxes on the gross receipts of Fees or Charges. Local government units may
transportation contractors and persons exercise the power to levy taxes, fees or charges on
any base or subject not otherwise specifically
engaged in the transportation of
enumerated herein or taxed under the provisions of
passengers or freight by hire and common the National Internal Revenue Code, as amended,
carriers by air, land or water, except as or other applicable laws: Provided, That the taxes,
provided in this Code; fees, or charges shall not be unjust, excessive,
11. Taxes on premiums paid by way or oppressive, confiscatory or contrary to declared
reinsurance or retrocession; national policy: Provided, further, That the ordinance
levying such taxes, fees or charges shall not be
12. Taxes, fees or charges for the registration
enacted without any prior public hearing conducted
of motor vehicles and for the issuance of all for the purpose.
kinds of licenses or permits for the driving
thereof, except tricycles; LGC, SEC. 186. Procedure for Approval and
13. Taxes, fees, or other charges on Philippine Effectivity of Tax, Ordinances and Revenue
products actually exported, except as Measures; Mandatory Public Hearings. The
procedure for approval of local tax ordinances and
otherwise provided herein;
revenue measures shall be in accordance with the
14. Taxes, fees, or charges, on Countryside provisions of this Code: Provided, That public
and Barangay Business Enterprises and hearings shall be conducted for the purpose prior to
cooperatives duly registered under R.A. the enactment thereof: Provided, further, That any
No. 6810 and Republic Act Numbered question on the constitutionality or legality of tax
Sixty-nine hundred thirty-eight (R.A. No. ordinances or revenue measures may be raised on
appeal within thirty (30) days from the effectivity
6938) otherwise known as the
thereof to the Secretary of Justice who shall render
"Cooperative Code of the Philippines" a decision within sixty (60) days from the date of
respectively; and receipt of the appeal: Provided, however, That such
15. Taxes, fees or charges of any kind on the appeal shall not have the effect of suspending the
National Government, its agencies and effectivity of the ordinance and the accrual and
instrumentalities, and local government payment of the tax, fee, or charge levied therein:
Provided, finally, That within thirty (30) days after
units [Sec. 133, LGC]
receipt of the decision or the lapse of the sixty-day
period without the Secretary of Justice acting upon
Persons Exempted from LGU’s taxing the appeal, the aggrieved party may file appropriate
power. LGUs cannot impose taxes, fees, and proceedings with a court of competent jurisdiction.
charges on
1. Countryside and barangay business
The power to impose a tax, fee, or charge or to
enterprises;
generate revenue under the LGC shall be
2. Cooperatives duly registered under the
exercised by the Sanggunian concerned
Cooperative Code; and
through an appropriate ordinance [Sec. 132,
3. The National Government, its agencies
LGC].
and instrumentalities, and local
government units [Sec. 133(n) to (o),
LGC].
Tests of a Valid Ordinance:
1. It must not contravene the Constitution or
An instrumentality of the State or National any statute;
2. It must not be unfair or oppressive;
Government is exempt from local taxation
[Sec. 133(o), LGC]. Hence, the Manila 3. It must not be partial or discriminatory;
International Airport Authority, being such an 4. It must not prohibit but may regulate trade;
5. It must be general and consistent with
instrumentality and not being a GOCC, is
public policy; and
Page 354 of 412

6. It must not be unreasonable [Magtajas v. 6. The sanggunian may override the veto
Pryce Properties, G.R. No. 111097 (1994)] of the LCE by 2/3 vote of all its members,
thereby making the ordinance effective
Note: An ordinance is presumed valid unless [Art. 109(c), LGC IRR],
declared otherwise by a court in an appropriate 7. Once approved, the ordinance shall be
proceeding [Rural Bank of Makati v. transmitted to the higher level sanggunian
Municipality of Makati, G.R. No. 150763 for review. If no action is taken by the latter
(2004)]. within 30 days after submission, the same
shall be deemed approved [Arts. 110 and
D. Procedure for Approval and 111, LGC IRR].
8. Within 10 days after the approval of the
Effectivity of Tax Ordinances ordinance, certified true copies of all tax
ordinances or revenue measures shall be
Procedure for Approval of Tax Ordinances published in full for 3 consecutive days in a
1. Publication - Within 10 days from the filing newspaper of local circulation.
of the proposed tax ordinance, the same
shall be published for 3 consecutive days Where there are no newspapers of local
in a newspaper of local circulation or circulation, it must be posted in at least 2
posted simultaneously in at least 4 conspicuous and publicly accessible
conspicuous public places within the places [Art. 276, LGC IRR].
territorial jurisdiction of the LGU [Art.
276(b)(1), LGC IRR]. Withdrawal of Local Tax Exemption
2. Notices - The Sanggunian shall send Privileges
written notices, specifying the date and Unless otherwise provided in the LGC, tax
venue of public hearing, to the interested or exemptions or incentives granted to, or
affected parties operating or doing enjoyed by all persons, whether natural or
business within the concerned LGU [Art. juridical, including government-owned or -
276(b)(2), (3), LGC IRR]. controlled corporations were withdrawn upon
3. Public hearing - The public hearing must the effectivity of the LGC [Sec. 193, LGC].
be held not earlier than 10 days from
sending the notices, or the last day of Tax exemption privileges of the following were
publication, or date of posting, whichever is not withdrawn by the LGC:
later [Art. 276(b)(3), LGC IRR]. a. Local water districts;
4. Approval - An ordinance must be b. Cooperatives duly registered under R.A.
approved on third reading by a majority of No. 6938;
the sanggunian members present, there c. Non-stock and non-profit hospitals; and
being a quorum [Art. 107(g), LGC IRR]. d. Educational institutions [Secs. 193 & 234,
5. The enacted ordinance shall be presented LGC].
to the local chief executive (LCE), who
may:
a. Approve the same by affixing his E. Exemptions from Real
signature; or Property Taxes
b. Veto and return the same with his
objections to the Sanggunian within 15 Real Property Taxation
days in case of a province, and 10 days Annual ad valorem tax on real property may be
in case of a city or municipality; levied by a:
otherwise, the ordinance shall be a. Province;
deemed approved [Art. 108, LGC IRR]. b. City; or
Note: The LCE, except the Punong c. Municipality within the Metropolitan Manila
Barangay, may veto any ordinance on Area [Sec. 232, LGC]
the ground that it is ultra vires or
prejudicial to public welfare. His The following are exempted from payment
reasons shall be stated in writing. The of the real property tax:
LCE may veto an ordinance only once 1. Real property owned by the Republic of the
[Art. 109, LGC IRR]. Philippines or any of its political
subdivisions EXCEPT when the beneficial
Page 355 of 412
use thereof has been granted, for
consideration or otherwise, to a taxable
person;
2. Charitable institutions, churches,
parsonages or convents appurtenant
thereto, mosques, nonprofit or religious
cemeteries and all lands, buildings, and
improvements actually, directly, and
exclusively used for religious, charitable, or
educational purposes;
3. All machineries and equipment that are
actually, directly and exclusively used by
local water districts and government-
owned or -controlled corporations engaged
in the supply and distribution of water
and/or generation and transmission of
electric power;
4. All real property owned by duly registered
cooperatives as provided for under R.A.
No. 6938; and
5. Machinery and equipment used for
pollution control and environmental
protection [Sec. 234, LGC].
The exemption from real property taxes given

to cooperatives applies regardless of whether
or not the land owned is leased. This
exemption benefits the cooperative's lessee as
well. The characterization of machinery as real
property is governed by the Local Government
Code and not the Civil Code [Provincial
Assessor of Agusan Del Sur v. Filipinas Palm
Oil Plantation, Inc., G.R. No. 183416 (2016)].
Page 356 of 412

PUBLIC
INTERNATIONAL LAW
POLITICAL LAW
PUBLIC INTERNATIONAL LAW POLITICAL LAW
I. CONCEPTS ● Obligations relating to self-determination

[see also East Timor Case, ICJ (1995);
Palestinian Wall Advisory Opinion, ICJ
Public International Law is a body of
(2004)];
principles, norms and processes which
● Obligations relating to the environment of
regulate the relations of States and other
common spaces [Resolution on
international persons and governs their
Obligations erga omnes in International
conduct affecting the interests of the
Law, Institut de Droit International (IDI),
international community of States as a whole
(2005) (IDI Resolution)].
[Magallona].
Standing to Bring Suit: Other States have
Public Private standing to bring a claim to the International
International International Court of Justice (ICJ) or other international
Law Law judicial institutions in relation to a dispute
concerning compliance with that obligation [Art.
Nature International in National or 4, IDI Resolution].
nature municipal in
character 2. Jus Cogens
Sources 1. Treaties and Domestic A jus cogens is a norm accepted and
recognized by the international community of
international laws for legal
conventions issues States as a whole as a norm from which no
derogation is permitted and which can be
2. Customary containing
modified only by a subsequent norm of general
international foreign
law elements international law having the same character
[Art. 53, Vienna Convention on the Law of
3. General
principles of Treaties (VCLT)].
law [Art. 38(1),
Jus Cogens is also known as a peremptory
ICJ Statute]
norm of general international law.
Subjects 1. States Individuals
2. International (private Examples
organizations persons) ● The prohibition against the use of force
3. Individuals under the UN Charter [Nicaragua Case,
ICJ (1986)];
● Law on genocide;
A. Two Special Types of ● Prohibition against apartheid;
Obligations under Public ● Self-determination;
● Crimes against humanity;
International Law ● Prohibition against slavery and slave trade;
● Piracy [Brownlie; Magallona]
1. Obligations Erga Omnes
Obligations Erga Omnes are “obligations of a Erga Omnes Jus Cogens
State towards the international community as a
whole,” which are the “concern of all States” As a Pertains to Pertains to
and for whose protection all States have a concept the non- the legal
“legal interest” [Barcelona Traction Case, ICJ derogability interest of a
(2007)]. of a norm and State in the
the validity of violation of a
Erga Omnes literally means “flowing to all.” rules and norm
acts that
Examples conflict with it
● Prohibition of acts of aggression;
● Prohibition of genocide; Effect All States It is an
● Obligations concerning the protection of have obligation
basic human rights [see also Barcelona standing to that cannot
Traction Case, ICJ (1970)];
Page 358 of 412
Erga Omnes Jus Cogens Erga Omnes Jus Cogens
bring a suit to be standing to practice and

enforce that contravened bring suit. opinion juris.
obligation. in any matter.
It can be that
A treaty will there is a jus
be void: if, cogens norm
when that is also
concluded, it erga omnes.
conflicts with Jus Cogens
a peremptory norms give
norm of rise to erga
general omnes
international obligations.
law [Art. 53,
VCLT] or, 2. Erga
during its Omnes
existence, a Partes: From
new a multilateral
peremptory of Treaty. All
general parties to the
international treaty have
law emerges standing to
and conflicts bring suit
with the
treaty [Art.
64, VCLT]. Caveat on examples of the two special
types of obligations:
It does not There is no authoritative listing of jus cogens
confer norms and erga omnes obligations. Only the
jurisdiction. prohibition on the use of force has been
The fact that declared by the ICJ as a jus cogens norm [See
a rule has the Conclusion 23 of the ILC Draft Conclusions on
status of jus Peremptory norms of general international law
cogens does (Jus cogens) in relation to the Nicaragua Case
not confer (ICJ, 1986)].
upon the
Court a Concept of Ex Aequo et Bono (From the
jurisdiction Article 38 (2) of the ICJ Statute)
which it This literally means “what is equitable and
would not good.” It denotes that a court may decide a
otherwise case on the basis of justice and equity, and not
possess be bound by technical legal rules [Pellet].
[Armed
Activities on
The court may apply this standard to decide a
the Territory
of the Congo,
case when the parties to the dispute agree
ICJ (2002)]. thereto [Art. 38(2), ICJ Statute]. However, this
should not be confused with the ability of the
Sources 1. Erga From ICJ to apply equitable principles in a case.
Omnium: customary
From custom, international
it is one that law.
is owed to all.
All States There must
have the be state
Page 359 of 412

II. RELATIONSHIP International Domestic

Law Law
BETWEEN INTERNATIONAL
AND PHILIPPINE Settlement By means of By means of
of Disputes State-to- local
DOMESTIC LAW State administrativ
transactions e and
A. International Law vs. National judicial
(Municipal) Law processes
Responsibil Collective Generally

International Domestic i-ty for responsibility entails
Law Law Wrongful because it individual
Acts attaches responsibilit
Scope The conduct Applies to a directly to the y in case of
of States and single State and not breach
international country or to its
organization, nation, nationals
their relations within a
with each determined
other and, in territory and B. Different Theories of the
certain its Relationship Between
circumstance inhabitants
s, their International Law and Domestic
relations with Law
persons,
natural or 1. Monist View
juridical [ALI, International and municipal legal systems
Third are fundamentally part of one legal order.
Restatement] This view considers international law to be
superior, with municipal law being a mere
How made Through Issued by a subset of international law. International
consent, political norms are thus applicable within municipal
adopted by superior for systems even without some positive act of
States as a observance the state.
common rule
of action
2. Dualist View
Relations Regulates Regulates International law and municipal law are
Regulated relations of relations of separate systems. Only those issues
States and individuals affecting international relations are within
other among the scope of international law.
international themselves
persons or with their Before an international norm can have an
own States effect within a municipal legal system, that
norm must be transformed, or adopted into
Sources Derived Consists the municipal system through a positive act
principally mainly of by a state organ. However, customary
from treaties, enactments international law and general principles of
international from the international law need not be transformed
custom and lawmaking or adopted.
general authority of
principles of each State a. Monism vs. Dualism
law [Art. Monism sees all laws, international and
38(1), ICJ municipal, as part of one and the same system.
Statute]
Page 360 of 412
If there is conflict between the two, Special case for the presence of certain
international law prevails. foreign troops in the Philippines [Sec. 25,
Art. XVIII, 1987 Constitution]
Dualism sees international law and municipal After the expiration in 1991 of the Agreement
law as separate and independent of each between the Republic of the Philippines and
other. Neither international law nor municipal the United States of America concerning
law can alter or repeal each other and for Military Bases, foreign military bases, troops,
international law to be binding within a State, it or facilities shall not be allowed in the
must be transformed or incorporated into Philippines except under a treaty duly
municipal law. concurred in by the Senate and, when the
Congress so requires, ratified by a majority of
b. How International Law Becomes part the votes cast by the people in a national
of Philippine Law referendum held for that purpose, and
recognized as a treaty by the other contracting
1. Doctrine of Incorporation: The Philippines State.
adopts the “generally accepted principles of
international law” (customary international Philippine Domestic Law in Public
law) as part of the law of the land [Sec. 2, International Law
Art. II, 1987 Constitution]. They are deemed General Rule: A party may not invoke the
as national law whether they are enacted as provisions of its internal law as justification for
statutory or legislative rules [Magallona]. its failure to perform a treaty. This rule is
without prejudice to Article 46 [Art. 27, VCLT;
By the doctrine of incorporation, the country Art. 32, Articles on State Responsibility (ASR)].
is bound by generally accepted principles of
international law, which are considered to Exception: A State may invoke the fact that its
be automatically part of our own laws consent to be bound by a treaty has been
[Tañada v. Angara, G.R. No. 118295 expressed in violation of a provision of its
(1997)]. internal law regarding competence to conclude
treaties as invalidating its consent if that
2. Doctrine of Transformation: Treaties or violation was manifest and concerned a rule of
international agreements shall become its internal law of fundamental importance [Art.
valid and effective upon concurrence by at 46, VCLT].
least two-thirds of all the Members of the
Senate [Sec. 21, Art. VII, 1987 Constitution]. A violation is manifest if it would be objectively
These rules of international law are not part evident to any State conducting itself in the
of municipal law unless they are matter in accordance with normal practice and
transformed via legislation [Magallona]. in good faith [Art. 47, VCLT].
Treaties become part of the law of the land

through transformation pursuant to Article
VII, Section 21 of the Constitution which
provides that “no treaty or international
agreement shall be valid and effective
unless concurred in by at least two-thirds of
all the members of the Senate.” Thus,
treaties or conventional international law
must go through a process prescribed by
the Constitution for it to be transformed into
municipal law that can be applied to
domestic conflicts [Pharmaceutical & Health
Care Assn. of the Phil. v. Health Secretary
Duque, et al., G.R. No. 173034 (2007)].
Page 361 of 412

III. SOURCES OF 3. The Relation Between the

OBLIGATIONS IN Primary Sources and the
INTERNATIONAL LAW Subsidiary Sources
a. Primary sources create law (what is the
Article 38 of the ICJ Statute
law) while subsidiary sources are
merely evidence of what the law is (tell
1. The Court, whose function is to decide in us what is in the law).
accordance with international law such disputes as b. There is no stare decisis in
are submitted to it, shall apply: international law, i.e. no binding
a. International conventions, whether general precedent. All decisions of the ICJ are
or particular, establishing rules expressly
only binding as between the parties.
recognized by the contesting states;
b. International custom, as evidence of a Therefore, the decisions of the ICJ only
general practice accepted as law; serve as subsidiary sources of
c. The general principles of law recognized international law.
by civilized nations ;
d. Subject to the provisions of Article 59, The decision of the Court has no
judicial decisions and the teachings of the
binding force except between the
most highly qualified publicists of the
various nations, as subsidiary means for parties and in respect of that particular
the determination of rules of law. case [Article 59, ICJ Statute].
2. This provision shall not prejudice the power of the

Court to decide a case ex aequo et bono, if the
4. Relation Between the Three
parties agree thereto. Substantive Sources of
International Law
Shorthand Terms for sources of There is no established hierarchy between the
international law: three. However, it is recognized that
● 1(a) refers to CONVENTIONAL Conventional and Customary international law
INTERNATIONAL LAW apply first, and GPL is resorted to in the
● 1(b) refers to CUSTOMARY absence of Conventional or Customary
INTERNATIONAL LAW (hereinafter International Law.
referred to as CIL)
● 1(c) refers to GENERAL PRINCIPLES OF
LAW (hereinafter referred to as GPL) B. Primary Sources
● 1(d) refers to JUDICIAL DECISIONS and
TEACHINGS of the most highly qualified 1. Conventional International
publicists Law
A. Types of Sources of a. Definition of Treaty
International Law It is an international agreement concluded
between States in written form and governed
by international law, whether embodied in a
1. Primary Sources single instrument or in two or more related
a. Conventional International Law instruments and whatever its particular
b. Customary International Law designation [Art. 2(1)(a), VCLT].
c. General Principles of Law
b. Requisites
2. Subsidiary Sources 1. Written Form
a. Judicial Decisions ● No specific form required, as long as it
b. Teachings of the most highly qualified is written [See Maritime Delimitations
publicists and Territorial Questions between
Qatar and Bahrain, Qatar v. Bahrain,
ICJ (1994)].
● May be embodied in a single
instrument or in two or more related
instrument
Page 362 of 412
2. Between States date of entry into force of the treaty [Art. 28,
3. Governed by international Law VCLT].
c. Basic Principles of Treaties Exceptions: A different intention appears from

the treaty or is otherwise established [Art. 28,
1. Vienna Convention on the Law of VCLT].
Treaties
d. Reservations to Treaties
The primary body of law governing treaties is A reservation is a unilateral statement,
the Vienna Convention on the Law of Treaties, however phrased or named, made by a State,
which is considered binding as CIL. when signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to
2. Consent-based exclude or to modify the legal effect of certain
provisions of the treaty in their application to
Treaty obligation is based on consent. No state that State [Art. 2(d), VCLT].
may be bound by a treaty obligation unless it
has so consented [Art. 34, VCLT]. General Principles on Reservations
1. Generally, reservations are allowed when
How manifested: Signature, exchange of the State is signing, ratifying, accepting,
instruments constituting a treaty, ratification, approving or acceding to a treaty, unless
acceptance, approval or accession, or by any they are:
other means if so agreed [Art. 11, VCLT, but a. Prohibited by the treaty;
see Article 12-14 of VCLT for specific rules b. Only specified reservations are allowed
governing giving consent by exchange of by the treaty; or
instruments, signature, or ratification]. c. The reservation is incompatible with
the object and purpose of the treaty
3. Pacta Sunt Servanda [Art. 19, VCLT].
Every treaty in force is binding upon the parties 2. A reservation expressly authorized by a
to it and must be performed by them in good treaty does not require any subsequent
faith [Art. 26, VCLT]. acceptance by the other contracting States
• Exception: When the treaty provides
Note: This is considered as CIL and it applies otherwise
to all obligations contained in a treaty.
3. When do reservations require the consent
4. Generally Not Binding on Third States, of a party?
i.e. non-contracting parties. a. When it appears from the negotiating
States and the object and purpose of a
General Rule: A treaty does not create either treaty that the application of the treaty
obligations or rights for a third State without its in its entirety between all the parties is
consent [Art. 34, VCLT]. an essential condition of the consent of
each one to be bound by the treaty
Exceptions: i. Then a reservation requires
a. When the third party accepts a provision acceptance by all the parties.
establishing an obligation for that third b. When a treaty is a constituent
party [Art. 35, VCLT] instrument of an international
b. When the third party accepts a right organization
provided for and exercises such right in i. Then a reservation requires the
accordance with the conditions established acceptance of the competent organ
in the treaty. Art. 36, VCLT] of that organization.
• Exception: When the treaty provides
5. Treaties are Non-Retroactive otherwise
General Rule: A treaty does not bind a party in 4. Acceptance of a reservation

relation to any act or fact which took place or • Acceptance by another contracting
any situation which ceased to exist before the State of a reservation constitutes the
Page 363 of 412
reserving State a party to the treaty in x. Supervening Impossibility of
relation to that other State if or when Performance [Art. 61]
the treaty is in force for those States. xi. Fundamental Change of
Circumstances [Art. 62]
5. Objection to a reservation
• General Rule: An objection to a 2. Customary International Law
reservation does not preclude entry
into force of the treaty between the
(CIL)
objecting and reserving States.
• Exception: Unless a contrary intention Definition
is definitely expressed by the objecting It is a general practice accepted as law [Art. 38
State (1)(b), ICJ Statute].
6. An act expressing a State’s consent to be Elements

bound by the treaty and containing a 1. State Practice
reservation is effective as soon as at least a. Duration and consistency of
one other contracting State has accepted practice
the reservation b. Generality of practice
2. Opinio Juris
7. For the purposes of paragraphs 2
(reservation expressly authorized by Before a norm may become customary
treaty) and 4 (reservation in a treaty international law binding on all States, there
constituent of an international must be state practice and opinio juris sive
organization), a reservation is considered necessitatis [North Sea Continental Shelf
to have been accepted by a State, on the Cases, ICJ (1969)].
following date, whichever is later:
a. By the end of a period of twelve months State Practice
after it was notified of the reservation, if The practice must be consistent and general.
it shall have raised no objection to the Consistency requires substantial uniformity
reservation; or and not necessarily complete uniformity in
b. By the date on which it expressed its practice [Asylum Case, ICJ (1950)]. Generality
consent to be bound by the treaty [Art. does not require complete consistency
20, VCLT]. [Brownlie].
• Exception: The treaty provides This means that the practice is virtually uniform
otherwise and extensive and established, widespread,
consistent and representative (good number of
e. Grounds for Terminating a Treaty states) [Thirlway].
(Articles 46-53 and 60-62 of VCLT)
State practice means that it pertains to the
i. Provisions of Internal Law Regarding
actions of a State only, not of individuals.
Competence to Conclude Treaties [Art.
46]
The following acts may evidence state practice
ii. Specific Restrictions on Authority to
[Harris]:
Express Consent of a State [Art. 47]
1. Diplomatic correspondence;
iii. Error [Art. 48]
2. Policy statements;
iv. Fraud [Art. 49]
3. Press releases;
v. Corruption of a Representative of a
4. Opinions of official legal advisers;
State [Art. 50]
5. Official manuals on legal decisions
vi. Coercion of a Representative [Art. 51]
(executive decisions and practices, and
vii. Coercion of a State by Threat or Use of
government comments on drafts by the
Force [Art. 52]
ILC);
viii. Treaties Conflicting with Jus Cogens
6. International and national judicial
[Art. 53]
decisions;
ix. Termination or Suspension of a Treaty
7. Recitals in treaties and international
as a Consequence of its Breach [Art.
instruments;
60]
Page 364 of 412
8. Practice of international organs b. A treaty provision constitutes evidence of
custom; or
Opinio Juris c. A treaty provision crystallizes into a
This refers to the belief on the part of states that customary norm.
a particular practice is required by law, and not
because of courtesy or political expediency For a treaty provision to crystallize into custom,
(i.e. the State acts in such a manner because it the provision must be norm-creating or law-
believes it is obligated to do so) [North Sea making, creating legal obligations which are
Continental Shelf Cases (ICJ, 1969)]. not dissolved by their fulfillment [North Sea
Continental Shelf Cases, ICJ (1969)].
Binding Effect of CIL
General Rule: Customary International Law is The customary norm retains a separate identity
binding on all states. even if its content is identical with that of a
treaty norm. Thus, a State that cannot hold
Exceptions: another State responsible for a breach of a
Persistent Objector - When a State has treaty obligation can still hold the erring state
continuously objected to a new customary responsible for the breach of the identical
norm at the time when it is yet in the process of customary norm [Nicaragua Case, ICJ (1986)].
formation, by such persistent objection, the
norm will not be applicable as against that Philippine Practice
State [Magallona and Asylum Case, ICJ The Supreme Court has identified the following
(1950)]. customary norms:
a. Rules and principles of land warfare and of
Subsequent Objector - The method of humanitarian law under the Hague
straight lines, established in the Norwegian Convention and the Geneva Convention
system (argued by UK to be contrary to [Kuroda v. Jalandoni, G.R. No. L-2662
international but which Norway persistently (1949)];
objected to); that even before the dispute b. Pacta sunt servanda [La Chemise Lacoste
arose, this method had been consolidated by a v. Fernandez, G.R. No. L-63796-97
constant and sufficiently long practice, in the (1984)];
face of which the attitude of governments bears c. Human rights as defined under the
witness to the fact that they did not consider it Universal Declaration of Human Rights
to be contrary to international law [Fisheries [Reyes v. Bagatsing, G.R. No. L-65366
Case (ICJ, 1951)] (1983)];
d. The principle of restrictive sovereign
Note: A Subsequent Objector may be held immunity [Sanders v. Veridiano, G.R. No.
liable for a violation of international law [Art. 2, L-46930 (1988)];
ARSIWA]. e. The principle in diplomatic law that the
receiving state has the special duty to
Regional / Bilateral Custom - The ICJ has protect the premises of the diplomatic
recognized the possibility of a regional mission of the sending state [Reyes v.
custom in the Asylum Case (ICJ, 1950) and of Bagatsing, G.R. No. L-65366 (1983)];
a bilateral custom in the Right of Passage f. The right of a citizen to return to his own
over Indian Territory Case (ICJ, 1960). country [Marcos v. Manglapus, G.R. No.
88211 (1989)];
Duality of Norms g. The principle that “a foreign army allowed
It is possible for a norm of international law to to march through friendly country or to be
exist both as a customary norm and a stationed in it, by permission of its
conventional norm (e.g. prohibition against the government or sovereign, is exempt from
use of force). Such norms are said to be of dual criminal jurisdiction of the place” [Raquiza
character. v. Bradford, G.R. No. L-44 (1945)];
h. The principle that judicial acts, not of a
Norms of dual character come into being when: political complexion of a de facto
a. A treaty provision simply restates a government established by the military
customary norm; occupant in an enemy territory, are valid
under international law [Montebon v.
Page 365 of 412
Director of Prisons, G.R. No. L-1352 C. Subsidiary Sources
(1947)];
i. The principle that private property seized
and used by the enemy in times of war
1. Judicial Decisions and
under circumstances not constituting valid Teachings of Highly Qualified
requisition does not become enemy Publicists
property and its private ownership is
retained, the enemy having acquired only Function
its temporary use [Noceda v. Escobar, These two sources listed in Article 38(1)(d) of
G.R. No. L-2939 (1950)]; the ICJ Statute tell us what the law is. They are
j. The principle that a State has the right to evidence of what international law is.
protect itself and its revenues, a right not
limited to its own territory but extending to Judicial Decisions
the high seas [Asaali v. Commissioner, These include decisions of international
G.R. No. L-24170 (1968)]. tribunals and those of municipal courts. There
is no binding precedent in international law
3. General Principles of Law pursuant to Article 59 of the ICJ Statute.
(GPL)
ICJ decisions have no binding force except as
Definition between the parties and in respect of that
These refer to those general principles in particular case [Art. 59, ICJ Statute].
municipal law (particularly those of private law)
that may be appropriated to apply to the Highly Qualified Publicists
relations of states [Oppenheim]. No clear definition of what is a highly qualified
publicist.
Function of GPL
To avoid a non liquet, i.e. when a court does The phrase ‘most highly qualified’ is not given
not have a treaty or customary norm to decide a restrictive effect [Brownlie].
on.
A highly qualified publicist is a scholar of public
international law and the term usually refers to
Examples of General Principles of Law
legal scholars or "academic writers” [Bayan
1. Estoppel [Temple of Preah Vihear Case,
Muna v. Romulo, G.R. No. 159618 (2011)].
(1962)]
2. Res Judicata
3. Res Inter Alios Acta The Difference between Judicial
4. Prescription Decisions and Writings of Highly
5. Duty to Make Reparations [Chorzow Qualified Publicists
Factory Case, PCIJ (1927)] It is not so much that judicial decisions
6. Abuse of Rights necessarily possess a higher intrinsic value
7. Good Faith than the teachings of publicists, but that they
8. Principle of Reciprocity have ‘a more direct and immediate impact on
9. Circumstantial Evidence the realities of international life [Borda].
Circumstantial evidence is admitted as indirect 2. United Nations Declaration

evidence in all systems of law and its use is General Rule: General Assembly resolutions
recognized by international decisions. Such are not binding on member States.
circumstantial evidence, however, must consist
of a series of facts or events that lead to a But when they are concerned with general
single conclusion [Corfu Channel Case, ICJ norms of international law, acceptance by all or
(1949)]. most members constitutes evidence of the
opinions of governments in what is the widest
forum for the expression of such opinions.
Resolutions may satisfy the subjective element

of opinio juris by expressly articulating a belief
Page 366 of 412
concerning the existence of principles and 4. Actions of Organs of
rules of international law [Harris].
International Organizations
General Assembly resolutions may contribute Created by Treaty
to the formation of custom as a kind of The treaty constituting an international
collective state practice. These resolutions can organization may entrust a body of the
be considered the collective equivalent of organization to adopt binding legal standards
unilateral general statements. The rules enacted shall be binding only to the
member states of the organization. It cannot
State practice may also be evidenced either in bind third states [Cassesse].
declarations of general principle or in
resolutions dealing with particular cases. D. Other Sources
In some cases, a resolution may have the
effect of an authoritative interpretation and 1. Unilateral Declarations
application of the principles of the UN Charter Declarations that are publicly made and which
[Crawford]. manifest the State’s will to be bound, and these
may have the effect of creating legal
The General Assembly may recommend obligations [GP 1, Guiding Principles
measures for the peaceful adjustment of any Applicable to Unilateral Declarations of States
situation, regardless of origin, which it deems Capable of Creating Legal Obligations
likely to impair the general welfare or friendly (GPUDS)].
relations among nations, including situations
resulting from a violation of the provisions of Good faith
the present Charter setting forth the Purposes When the conditions for this are met, the
and Principles of the United Nations [Art. 14, binding character of such declarations is based
UN Charter]. on good faith. States concerned may then take
them into consideration and rely on them. Such
Exception: Certain UN organizational matters States are entitled to require that such
obligations be respected.
3. Security Council Resolutions
The Security Council is empowered to issue Authority
binding legal standards when acting under Unilateral declarations bind the State
Chapter VII of the UN Charter concerning internationally only if it is made by an authority
action with respect to threats to peace, vested with the power to do so [GP 4, GPUDS].
breaches of the peace, and acts of aggression. By virtue of their functions, Heads of States,
Heads of Government and Ministers for
The Security Council may decide what Foreign Affairs are competent to formulate
measures involving the use of armed force are declarations. Other persons representing the
to be employed to give effect to its decisions. State in specified areas may be authorized to
bind it.
When the Security Council decides not to
resort to recommendations but to issue Binding effect
decisions, these are binding on the strength of Even without any explicit acceptance, the
Article 25 of the UN Charter. moment when one of the addressees of the
unilateral declaration seeks to rely on the legal
The Members of the United Nations agree to obligation indicated in it, this will constitute the
accept and carry out the decisions of the acceptance needed to convert it into a bilateral
Security Council in accordance with the and conventional relationship [GP 9, GPUDS].
present Charter [Art. 25, UN Charter].
They may have the effect of creating legal
obligations when it is the intention of the State
making the declaration that it should become
bound according to its terms [GP 1, GPUDS].
Page 367 of 412

Legal basis for binding effect Elements of Jus Cogens: [Draft Conclusion
• Principle of good faith [GP 1, GPUDS] 4, DCJC]
• Just as the rule of pacta sunt servanda in 1. The norm must be a norm of general
the law of treaties is based on good faith, international law;
so is also the binding character of an 2. The norm must be accepted and
international obligation assumed by recognized by the international community
unilateral declaration [Nuclear Tests of States as a whole; and
Cases, ICJ (1974)]. 3. The norms must be one from which no
derogation is permitted and which can be
Can the unilateral declarations of one modified only by a subsequent norm of
State bind other States? general international law of the same
General Rule: No obligation may result for character.
other States from the unilateral declarations of
a State [GP 9, GPUDS]. Acceptance and Recognition [Draft
Conclusion 6, DCJC]
Exception: The other State/s concerned may “Acceptance and recognition” as a criterion for
incur obligations in relation to such a unilateral identifying a peremptory norm of general
declaration to the extent that they clearly international law (jus cogens) is distinct from
accepted such a declaration [GP 9, GPUDS] acceptance and recognition as a norm of
general international law. To identify a norm as
jus cogens, there must be evidence that such
2. Obligations Erga Omnes a norm is accepted and recognized as one from
Erga omnes obligations refer to the obligations which no derogation is permitted, and which
of a State towards the international community can only be modified by a subsequent norm of
as a whole, which, by their very nature, are the general international law having the same
concern of all States [Barcelona Traction character.
(Belgium v. Sain), ICJ Report (1970)].
Evidence of acceptance and recognition
3. Jus Cogens Norms [Draft Conclusion 8, DCJC]
A peremptory norm of general international law Evidence of acceptance and recognition that a
(jus cogens) is a norm accepted and norm of general international law is a
recognized by the international community of peremptory norm (jus cogens) may take a wide
States as a whole as a norm from which no range of forms. These include, but are not
derogation is permitted and which can be limited to:
modified only by a subsequent norm of general ● Public statements made on behalf of
international law having the same character States
[Draft Conclusion 1, Peremptory Norms of ● Official publications
General International Law (DCJC)]. ● Government legal opinions
● Diplomatic correspondence
General Nature of jus cogens [Draft ● Legislative and administrative acts
Conclusion 3, DCJC] ● Decisions of national courts
Peremptory norms of general international law ● Treaty provisions
(jus cogens) reflect and protect fundamental ● Resolutions adopted by an international
values of the international community. These organization or at an intergovernmental
are hierarchically superior to other rules of conference
international law and are universally
applicable. Subsidiary means for the determination of
peremptory character of norms of general
Bases for jus cogens [Draft Conclusion 5, international law (jus cogens) [Draft
DCJC] Conclusion 9, DCJC]
1. CIL is the most common basis for a. Decisions of international courts and
peremptory norms of general international tribunals, in particular of ICJ, are a
law (jus cogens). subsidiary means for determining the
2. Treaty provisions and general principles of peremptory character of norms of general
law international law (jus cogens).
Page 368 of 412

b. The works of expert bodies established systematic failure by the responsible State to
by States or international organizations fulfill that obligation.
and the teachings of the most highly
qualified publicists of the various nations States shall cooperate to bring to an end
may also serve as subsidiary means through lawful means any serious breach by a
c. There must be showing of practice of such State of an obligation arising under a
kind as to show a conviction that the peremptory norm of general international law
developing rule was of that specific nature. (jus cogens). No State shall recognize as lawful
(superior opinio juris) a situation created by a serious breach, nor
i. Example: If the universal reaction of a render aid or assistance in maintaining that
breach of treaty was to assert that no situation.
derogation was permitted, this is opinio
juris. 4. Soft Law
ii. If a State not directly affected by the
These are non-legally binding instruments
breach took counter-measures against
used in contemporary international relations by
the offending State, and that State
states and international organizations [Boyle].
conceded its right to do so, this is
They are negotiated and signed, but they have
opinio that an obligation erga omnes
no binding effect. They are not treaties.
was involved.
Examples: Universal Declaration of Human
Effects of Jus Cogens
Rights, UN General Assembly Resolutions,
1. Treaties to the contrary are void [Art. 53,
Copenhagen Accord
VCLT].
a. Eliminates as far as possible the
Connection between soft law and treaties
consequences of any act performed in
a. Soft law instruments provide the detailed
reliance on any provision which
rules and technical standards required for
conflicts with the peremptory norm of
implementation of some treaties
general international law; and
b. Some non-binding soft law instruments are
b. Brings their mutual relations into
significant because they are the first step in
conformity with the peremptory norm of
a process eventually leading to the
general international law [Art. 71,
conclusion of a multilateral treaty. They are
VCLT].
used as mechanisms for authoritative
2. If a jus cogens norm arises, any existing
interpretation or amplification of the terms
treaty to the contrary becomes void [Art.
of a treaty.
64, VCLT].
c. Soft law instruments may operate in
a. Releases the parties from any
conjunction with with a treaty to provide
obligation further to perform the treaty
evidence of opinio juris for the possible
b. Does not affect any right, obligation or
emergence of a rule of customary
legal situation of the parties created
international law
through the execution of the treaty prior
to its termination, provided that those
Why soft law is more attractive than treaties
rights, obligations or situations may
[Boyle]
thereafter be maintained only to the
a. It is easier to reach an agreement when
extent that their maintenance is not in
the form is non-binding.
itself in conflict with the new
b. States can avoid the domestic treaty
peremptory norm of general
ratification process.
international law [Art. 71, VCLT]
c. They are flexible and are easy to
amend, supplement or replace.
There are consequences for serious
breaches of peremptory norms of general
Can treaty provisions be soft law?
international law (jus cogens) [Draft
Yes. Another perspective on soft law is that it
Conclusion 19, DCJC]
involves “norms and principles” which are
A breach of an obligation arising under a
usually considered general in their content and
peremptory norm of general international law
wording, while ‘hard law’ involves clear and
(jus cogens) is serious if it involves a gross or
reasonably specific commitments. Some
treaties are soft law because they impose no
Page 369 of 412
real obligations on its parties because it subject. They are not directly governed by the
articulates ‘principles’ rather than ‘rules’ or rules of international law. Their rights (e.g.
‘obligations’ but is nevertheless potentially human rights of individuals) may be asserted
normative. and their responsibilities imposed indirectly,
through the instrumentality of an intermediate
Connection between soft law and custom agency (e.g. State).
a. Soft law facilitates progressive evolution of
customary law. This distinction between objects and subjects
b. Clearly articulated expression of opinio of International Law has been criticized as
juris through a non-binding resolution or unhelpful, as non-state actors already have
declaration may be enough, without further standing to bring suits in the fields of
State practice, to afford evidence of a new international criminal law and international
rule of customary or general international human rights law.
law.
c. Adoption of non-binding resolutions or The United Nations has an objective
declarations can also lead to changes in international personality [Reparations for
existing law. Injuries Advisory Opinion, ICJ, (1949)].
IV. SUBJECTS OF A. States

INTERNATIONAL LAW A State exists when it complies with the four (4)
requisites listed in the Montevideo Convention,
Definition which is considered as CIL for defining the
Subjects are entities which are: requisites of statehood.
1. Capable of possessing international rights
and duties; and
2. Having the capacity to maintain these
Requisites of Statehood
rights by bringing international claims Montevideo Convention, Article 1
[Reparations for Injuries Advisory Opinion, The state as a person of international law should
ICJ (1949)]. possess the following qualifications:
(a) A permanent population;
(b) A defined territory;
Subjects of International Law: (c) Government; and
1. States; (d) Capacity to enter into relations with the other
2. International organizations; and States
3. Natural or Juridical Persons
1. Permanent Population
Note: States are generally considered as the It refers to a permanent population and
primary subjects of international law.
intended to be used in association with that of
territory, and connotes a stable community.
Rationale: The world is today organized on the
basis of the co-existence of States, and that
2. Defined Territory
fundamental changes will take place only
State territory is that defined portion of the
through State action, whether affirmative or
surface of the globe, which is subjected to the
negative’. The States are the repositories of
sovereignty of the State [Oppenheim].
legitimated authority over peoples and
territories. It is only in terms of State powers,
A State must exercise control over a certain
prerogatives, jurisdictional limits and law-
area. It need not be exactly defined by metes
making capabilities that territorial limits and
and bounds, so long as there exists a
jurisdiction, responsibility for official actions,
reasonable certainty of identifying it. No
and a host of other questions of co-existence
minimum land area is required.
between nations can be determined
[Friedmann].
Objects of international law

Persons or things in respect of which rights are
held and obligations are assumed by the
Page 370 of 412
Modes of Acquiring Territory Conquest
○ Act of defeating an opponent and
Occupation occupying all or part of its territory
○ Occupation refers not to mere [Shaw].
discovery, but to effective exercise of ○ Illegal under current international law
sovereignty over a territory that is [See Art. 2(4) of the UN Charter
terra nullius (i.e., not subject to the prohibiting threats or use of force
sovereignty of any other state). against the territorial integrity or
○ Effective occupation means continued political independence of any state].
display of authority. It involves: ○ Does not, by itself, transfer title to land.
▪ The intention and will to act as There must be a formal annexation and
sovereign or animus occupandi; further actions of international nature
and (e.g. treaty of cession) [Shaw].
▪ Some actual exercise or display of
such authority [Eastern Greenland c. Government
Case, PCIJ (1933)]. Denotes a “stable political community
supporting a legal order to the exclusion of
Prescription another in a given area”.
○ Title is acquired by continuous and
undisturbed exercise of sovereignty The existence of effective government, with
over a period of time. centralized administrative and legislative
○ In contrast [to occupation], organs, is the best evidence of a stable political
prescription is the acquisition of community. It is a centralized structure capable
territory that is not terra nullius, of exercising effective control over a human
obtained by means that may initially community living in a given territory.
have been of doubtful legality but is
uninterrupted and uncontested for a State practice suggests that the requirement of
long time. Timely protests by the a “stable political organization” in control of the
‘former’ sovereign will usually bar the territory does not apply during a civil war or
claim [Aust]. where there is a collapse of law and order in a
○ Conditions under which title to territory state that already exists.
may be acquired by prescription:
▪ Possession must be à titre de Under the rules on succession of States, even
souverain. changes of entire governments do not affect
▪ Possession must be peaceful, the identity and personality of the state. Once
uninterrupted and public. statehood is established, neither invasion nor
▪ Possession must be endured for a disorder alone can remove its character as a
certain length of time state [Brownlie].
[Botswana/Namibia Judgment, ICJ
(1999)]. Types of Government
De Jure: Government from law, one with a
Accession or Accretion color of legitimacy.
○ Accession or accretion is the natural
process of land formation resulting in De Facto: One that governs without a mandate
the increase of territory. of law. So long as it is in place, it may command
obedience from the inhabitants of the occupied
Cession area. The de facto ruler may suspend laws and
○ Cession means the transfer of territory enact new ones.
from one state to another by treaty ● De Facto Proper/Government by
(derivative). It is the only bilateral mode Revolution: That which usurps, either by
of acquiring territorial sovereignty. force or the will of the majority, the legal
○ The notion of cession contemplates a government and maintains control against
transfer of sovereignty by one it;
sovereign power to another [Christian ● Government by Paramount Force/by
v. The Queen, UKPC (2006)]. Occupation: Results from the occupation
Page 371 of 412

of a state or a part thereof by invading 3. Secession
forces in time of war; and Secession is the effort of a group or section of
● Government by Secession: Government a state to withdraw itself from the political and
established as an independent government constitutional authority of that state, with a view
by inhabitants of a country who rise in to achieving statehood for a new territorial unit
insurrection against the parent state [See on the international plane [In Re Secession of
Co Kim Cham v. Valdez Tan Keh, G.R. No. Quebec (Can., 1998)].
L-5 (1945)].
Grounds for Secession:
d. Capacity to Enter into Relations with a. Colonization;
Other States/Independence b. Alien subjugation, domination, or
A State must be free from outside control in exploitation outside the colonial context;
conducting foreign and internal affairs, i.e. c. Remedial Secession: When a people is
sovereign and independent. blocked from the meaningful exercise of its
right to self-determination internally, it is
The State is the sole executive and legislative entitled, as a last resort, to exercise it by
authority. It must be independent of other state secession [In re Secession of Quebec
legal orders, and any interference by such legal (Can., 1998)].
orders, or by an international agency, must be
based on a title of international law. The Principle of Continuity and Obligations
Contracted by De Facto Governments
Independence is the decisive criterion of The State is bound by engagements entered
statehood. This concept of independence is into by governments that have ceased to exist.
represented by the requirement of capacity to Hence, the restored government is generally
enter into relations with other States. liable for the acts of the usurper.
Concepts Relating to Statehood: A general government de facto having

1. Recognition completely taken the place of the regularly
Recognition is an act by which a state constituted authorities in the state binds the
acknowledges the existence of another state, nation. So far as its international obligations
government or belligerent community and are concerned, it represents the state. It
indicates willingness to deal with the entity as succeeds to the debts of the regular
such under international law. government it has displaced and transmits its
own obligations to succeeding titular
As a public act of state, recognition is an governments. Its loans and contracts bind the
optional and political act. There is no legal duty state and the state is responsible for the
in this regard. governmental acts of the de facto authorities.
In general its treaties are valid obligations of
Montevideo Convention, Article 3: The political the state. It may alienate the national territory
existence of the state is independent of recognition and the judgments of its courts are admitted to
by the other states. Even before recognition the be effective after its authority has ceased
state has the right to defend its integrity and [Tinoco Arbitration, 1 U.N. Rep. Int’l Arb.
independence, to provide for its conservation and
Awards 369, (1923)].
prosperity, and consequently to organize itself as it
sees fit, to legislate upon its interests, administer its
services, and to define the jurisdiction and B. International Organizations
competence of its courts. The exercise of these
rights has no other limitation than the exercise of the
rights of other states according to international law.
An organization established by a treaty or other
instrument governed by international law and
possessing its own international legal
2. Failed States
personality. International organizations may
States whose government has collapsed
include as members, in addition to States,
[Shaw]. Though retaining legal capacity, they
other entities [Draft Articles on the
have, for all practical purposes, lost the ability
Responsibility of International Organizations,
to exercise it.
Art. 2(a)].
Page 372 of 412

General Rule: International organizations
have special personalities. The status and
powers of an international organization is
determined by agreement and not by general
or customary international law. They are
considered subjects of international law “if their
legal personality is established by their
constituent instrument.” Thus, legal personality
in this context is a relative concept [Magallona].
Exception: United Nations which has an

objective international personality. The UN’s
personality is binding on the whole
international community, including States who
are not UN members [Reparations for Injuries
Advisory Opinion, ICJ (1949)].
C. Individuals
General Rule: Individuals, whether natural or
juridical, do not have international legal
personalities.
Exception: Individuals may assume the status

of subjects of international law only on the
basis of agreement by States and in specific
contexts, not in accordance with general or
CIL.
Examples of Instances where natural

juridical persons are granted personality:
● Art. 187(c)-(e) of the UNCLOS provides for
jurisdiction of the Sea-Bed Disputes
Chamber of the ITLOS over disputes
between parties to contracts relating to the
exploitation of marine resources. Parties to
such contracts may be natural or juridical
persons.
● The London Agreement of the International
Military Tribunal at Nuremberg, relating to
crimes against peace, war crimes and
crimes against humanity, imposed duties
and liabilities upon individuals as well as
upon states.
● Art. VI of the Convention on the Prevention
and Punishment of the Crime of Genocide
defined “parties charged with genocide” as
including individuals [Magallona].
● The International Criminal Court has
jurisdiction over individuals who commit
genocide, crimes against humanity and
war crimes, subject to conditions of the ICC
Statute [Art. 25(1), ICC Statute, in relation
to Art. 5].
Page 373 of 412

V. JURISDICTION OF 4. Universality Principle: A State may

exercise jurisdiction over crimes committed
STATES without respect to the nationality of the
offender, on the ground that such crimes
Jurisdiction means the power of a state under are declared as international crimes by the
international law to govern persons and international community as a whole and
property by its municipal law. This may be thus are prohibited by international law
criminal or civil, and may be exclusive or [Magallona].
concurrent with other States [Harris].
Example: Jurisdiction is asserted with
Types of Jurisdiction: respect to acts considered committed
a. Prescriptive Jurisdiction: This refers to against the whole world [e.g. piracy, see
the power of a State to make its law People v. Lol-lo and Saraw, G.R. No.
applicable to the activities, relations, or 17958 (1922)].
status of persons, or the interests of
persons in things, whether by legislation, 5. Passive Personality Principle: A State
by executive act or order, by administrative may exercise jurisdiction against foreign
rule or regulation, or by determination by a nationals who commit acts to the injury of
court. its nationals within the territory of another
State [Magallona]. A court has jurisdiction
b. Adjudicative Jurisdiction: This refers to if the offended party of the act is a national
the State’s jurisdiction to subject persons of the forum State [S.S. Lotus Case, PCA
or things to the process of its courts or (1927)].
administrative tribunals, whether in civil or
in criminal proceedings, whether or not the Conflict of Jurisdiction
state is a party to the proceedings. This arises when two or more States can
exercise jurisdiction based on one or more
c. Enforcement Jurisdiction: This refers to different principles of jurisdiction (ex:
the State’s jurisdiction to enforce or compel Universality v. Territoriality)
compliance or to punish noncompliance
with its laws or regulations, whether B. On Nationality and
through the courts or by use of executive,
administrative, police, or other nonjudicial
Statelessness
action.
1. Nationality
A. Basis of Jurisdiction
Definition
1. Territoriality Principle: Jurisdiction is Nationality is the tie that binds an individual to
determined by reference to the place his state, from which he can claim protection
where the act occurred or was committed. and whose laws he is obliged to obey. It is
A State takes jurisdiction over persons or membership in a political community with all its
events within its territory [Magallona]. This concomitant rights and obligations.
usually refers to criminal jurisdiction.
Importance
2. Nationality Principle: A State may An individual ordinarily can participate in
exercise jurisdiction over an offender by international relations only through the
virtue of his being its national, without instrumentality of the state to which he
regard as to where he was at the time the belongs, as when his government asserts a
offense was committed and without respect claim on his behalf for injuries suffered by him
to the nature of the offense [Magallona]. in a foreign jurisdiction. This remedy would not
be available to a stateless individual.
3. Protective Principle: A State may
exercise jurisdiction over an offense
committed outside its territory by its
national or non-national, by reason of
protecting its security or vital interests.
Page 374 of 412
2. Acquisition of Nationality 2. An individual who, after renouncing his
original nationality in order to be naturalized in
another state, is subsequently denaturalized
Birth
and is thereafter denied repatriation by his
a. Jus Sanguinis: A person acquires the
former country
nationality of his or her parents,
irrespective of place of birth.
b. Jus Soli: Nationality is determined by the
Rights of A Stateless Person
law of the place of one’s birth. a. The right to religion and religious
instruction
b. Access to courts
Naturalization c. Elementary education
Naturalization is a process by which a person
d. Public relief and assistance and rationing
acquires a nationality after birth by any means
of products in short supply
provided by the law [Coquia and Aguling-
e. Treatment no less favorable than that
Pangalangan].
accorded to aliens
f. Right of Association
Two types of naturalization
a. Direct: Note: That the rights under the Convention
● By individual proceedings, usually Relating to the Status of Stateless is not an
judicial, under general naturalization exclusive list.
laws;
● By a special act of legislature;
Right to Nationality under the Universal
● By a collective change of nationality as
a result of cession or subrogation Declaration on Human Rights (UDHR)
(naturalization en masse); a. Everyone has the right to a nationality.
● By adoption (in some cases) b. No one shall be arbitrarily deprived of his
nationality nor denied the right to change
b. Derivative his nationality [Art. 15]
● Usually subject to stringent restrictions
and conditions: Right to Nationality under the
○ On the wife of the naturalized International Convention on Civil and
husband; Political Rights (ICCPR)
○ On the minor children of the a. Every child shall have, without any
naturalized parent; discrimination as to race, color, sex,
○ On the alien upon marriage to language, religion, national or social origin,
a national. property or birth, the right, to such
measures of protection as are required by
3. Statelessness his status as a minor, on the part of his
family, society, and the State.
b. Every child shall be registered immediately
Definition after birth and shall have a name.
Statelessness is the condition or status of an c. Every child has the right to acquire a
individual who is born without any nationality or nationality [Art. 24].
who loses his nationality without retaining or
acquiring another [Cruz].
4. Nationality of Foundlings
“Stateless person” means a person who is not
considered as a national by any State under Definition
the operation of its law [Art. 1, Convention A deserted or abandoned infant or child whose
Relating to the Status of Stateless Persons parents, guardian or relatives are unknown; or
(1960)]. a child committed to an orphanage or
charitable or similar institution with unknown
Examples: facts of birth and parentage and registered in
1. A child born in a state where only the jus the Civil Register as a "foundling” [A.M. No.
sanguinis principle is recognized to parents 02-6-02-SC, Resolution Approving The
whose state observes only jus soli. Proposed Rule on Adoption (Domestic and
Inter-Country)].
Page 375 of 412
The common thread of the UDHR, UNCRC authorities of his own state to persuade them
and ICCPR is to obligate the Philippines to to champion his claim in diplomacy or before
grant nationality from birth and ensure that an international tribunal.
no child is stateless. This grant of nationality
must be at the time of birth. These 2. State Immunity
circumstances, including the practice of jus General Rule: This refers to a principle by
sanguinis countries, show that it is a generally which a State, its agents, and property are
accepted principle of international law to immune from the jurisdiction of another State
presume foundlings as having been born of [Magallona].
nationals of the country in which the foundling
is found [Poe-Llamanzares v. COMELEC, G.R. It is a basic principle of international law that
No. 221697 (2016)]. one sovereign state (the forum state) does not
adjudicate on the conduct of a foreign state.
C. Exemptions from Jurisdiction The foreign state is entitled to procedural
immunity from the processes of the forum
1. Acts of State Doctrine state. This immunity extends to both criminal
Courts of one country will not sit in judgment on and civil liability [Ex parte Pinochet (No. 3)].
the acts of the government of another in due
deference to the independence of sovereignty State immunity . . . is a creature of customary
of every sovereign State [PCGG v. international law and derives from the equality
Sandiganbayan, G.R. 124772 (2007)]. of sovereign States [Holland v. Lampen-Wolfe,
UKHL (2000)].
Every sovereign state is bound to respect the
independence of every other state, and the Exception: When a state waives the immunity
courts of one country will not sit in judgment on or consents to being sued.
the acts of the government of another, done
within its territory. Redress of grievances by Seizure of Property
reason of such acts must be obtained through At least one of the following conditions must be
the means open to be availed of by sovereign satisfied before any measure of constraint may
powers as between themselves [Underhill v. be taken against property belonging to a
Hernandez, 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. foreign State:
456 (1897)]. a. That the property in question must be in use
for an activity not pursuing government non-
The act of state doctrine is one of the methods commercial purposes, or
by which States prevent their national courts b. That the State which owns the property has
from deciding disputes which relate to the expressly consented to the taking of a measure
internal affairs of another State, the other two of constraint, or
being immunity and non-justiciability. It is an c. That the State has allocated the property in
avoidance technique that is directly related to a question for the satisfaction of a judicial claim
State’s obligation to respect the independence [Jurisdictional Immunities of the State,
and equality of other States by not requiring Germany v. Italy, ICJ (2012)].
them to submit to adjudication in a national
court or to settlement of their disputes without Types of State Immunity
their consent [PCGG v. Sandiganbayan, 1. Rationae Materiae: Attaches to the official
supra]. acts of State officials and is determined by
reference to the nature of the acts in
The U.S. Supreme Court, in Banco Nacional de question rather than by reference to the
Cuba v. Sabbatino, held that international law particular office of the official.
does not require the application of this doctrine a. Doctrine of Restrictive Immunity -
nor does it forbid the application of the rule Divides this immunity into two
even if it is claimed that the act of state in categories:
question violated international law. Moreover, i. Acts performed jure gestionis:
due to the doctrine’s peculiar nation-to-nation private or commercial transactions
character, in practice the usual method for an of States are subject to foreign
individual to seek relief is to exhaust local jurisdiction.
remedies and then repair to the executive
Page 376 of 412
ii. Acts performed jure imperii: the theory was adopted by the ILC when it
foreign State in its capacity as a drafted the draft articles of the VCDR
sovereign, are immune. [Magallona].
● The ultimate test of what
constitutes an act jure imperii is Personal Inviolability
whether the act in question is of General Rule: The person of a diplomatic
its own character a agent shall be inviolable. He shall not be liable
governmental act, as opposed to any form of arrest or detention [Art. 29,
to an act which any private VCDR].
citizen can perform [Kuwait
Airways Corporation v. Iraqi Exception: The diplomatic envoy may be
Airways Co, UKHL (2005)]. arrested temporarily in case of urgent danger,
such as when he commits an act of violence
2. Rationae Personae: Attached to the office which makes it necessary to put him under
itself. It covers official and personal acts. restraint for the purpose of preventing similar
acts [Diplomatic and Consular Staff in Tehran
The Nature of State Immunity Case, ICJ (1980)].
1. It is preliminary in nature and does not
depend on the obligation breached by the The receiving State shall treat him with due
State. respect and shall take all appropriate steps to
2. It is a customary norm. prevent any attack on his person, freedom or
3. Such immunity applies even if the claim dignity [Art. 29, VCDR].
against the state is for violation of a jus
cogens norm in international law. Heads of State
The head of State represents the sovereignty
“Immunity from jurisdiction is an immunity not of the State and enjoys the right to special
merely from being subjected to an adverse protection for his physical safety and the
judgment but from being subjected to the trial preservation of his honor and reputation.
process. It is, therefore, necessarily
preliminary in nature. In addition, there is a The head of State is immune from criminal and
substantial body of State practice from other civil jurisdiction, except when he himself is the
countries which demonstrates that customary plaintiff, and is not subject to tax or exchange
international law does not treat a State’s or currency restrictions. Based on the principle
entitlement to immunity as dependent upon of extraterritoriality, his quarters, archives,
the gravity of the act of which it is accused or property, and means of transportation are
the peremptory nature of the rule which it is inviolate.
alleged to have violated.” [Jurisdictional
Immunities of the State, Germany v. Italy, ICJ Scope
(2012)] 1. The private residence of a diplomatic agent
shall enjoy the same inviolability and
3. Diplomatic Immunity protection as the premises of the mission.
2. His papers, correspondence and, except
Theoretical Bases as provided in paragraph 3 of Article 31.
Diplomatic immunities and privileges have 3. His property shall likewise enjoy
been justified under the following theories: inviolability [Art. 30, VCDR].
a. Extraterritoriality theory: The 4. Personal baggage is exempt from
premises of the diplomatic mission inspection except:
represent a sort of extension of the a. If there are serious grounds for
territory of the sending State. presuming that it contains articles
b. Representational theory: The which are neither for the official use
diplomatic mission personifies the of the mission or for the personal
sending State. use of a diplomatic agent or
c. Functional necessity theory: The members of his family forming part
privileges and immunities are of his household; or
necessary to enable the diplomatic b. If the import or export of the
mission to perform its functions. This articles is prohibited by the law or
Page 377 of 412
controlled by the quarantine 2. Upon expiration of a reasonable period in
regulations of the receiving State. which to leave the country [Art. 39, VCDR].
Such inspection shall be conducted only in Waiver of Immunity from Jurisdiction

the presence of the diplomatic agent or of In proceedings, whether criminal, civil or
his authorized representative [Art. 36, administrative, the waiver must be:
VCDR]. 1. Made by the sending State itself; and
2. Express [Art. 32, VCDR].
a. Immunity from Local Jurisdiction
State practice indicates that the authority to
Persons Entitled exercise the waiver rests with the sovereign
1. Diplomatic agent and family: Diplomatic organs, and not the diplomatic agent or official
agent and the members of the family of the himself [Magallona].
diplomatic agent forming part of his
household who are not nationals of the A diplomatic agent is not obliged to give
receiving state [Art. 31, VCDR]. evidence as a witness [Art. 31, VCDR].
2. Administrative and technical staff: a. Criminal Jurisdiction

a. As to criminal jurisdiction, Rule : A diplomatic agent enjoys immunity from
members of the administrative and criminal jurisdiction of the receiving State [Art.
technical staff of the diplomatic 31, VCDR]. He may not be arrested,
mission, as well as members of prosecuted, or punished for any offense he
their families forming part of their may commit, unless his immunity is waived.
respective households, who are
not nationals of or permanent Note: The immunity of a diplomatic agent from
residents in the receiving State; the jurisdiction of the receiving State does not
b. As to civil and administrative exempt him from the jurisdiction of the sending
jurisdiction, immunity shall not State [Art. 31(4), VCDR]
extend to acts performed outside
the course of their duties [Art. 37, b. Civil and Administrative Jurisdiction
VCDR]; and General Rule: An agent shall enjoy immunity
from its civil and administrative jurisdiction [Art.
3. Service staff: Members of the service staff 31, VCDR].
of the diplomatic mission, who are not
nationals of or permanent residents in the Exceptions
receiving state, with respect to acts 1. A real action relating to private immovable
performed in the course of their duties [Art. property situated in the territory of the
37, VCDR]. receiving State, unless he holds it on behalf
of the sending State for the purposes of the
4. Private servants: Private servants of mission;
members of the mission shall, if they are 2. An action relating to succession in which
not nationals of or permanently resident in the diplomatic agent is involved as
the receiving State enjoys only privileges executor, administrator, heir or legatee as
and immunities to the extent admitted by a private person and not on behalf of the
the receiving State. sending State;
3. An action relating to any professional or
Duration of Immunities and Privileges commercial activity exercised by the
Immunities and privileges begin from the diplomatic agent in the receiving State
moment the person enters the territory of the outside his official functions [Art. 31,
receiving state to take up his post or, if already VCDR].
in its territory, from the moment when his
appointment is notified to the Ministry of No measures of execution may be taken in
Foreign Affairs. respect of a diplomatic agent except in the
cases where he comes under the above
They come to an end when he: exceptions and provided that the measures
1. Exits the country, or concerned can be taken without infringing the
Page 378 of 412
inviolability of his person or of his residence Consular Immunity
[Art. 31, VCDR].
a. Personal Inviolability
Exemption from dues and taxes - Persons
entitled
Rule
1. They are not liable to arrest or detention
1. Diplomatic Agent:
pending trial, except in case of a grave
A diplomatic agent shall be exempt from all
crime and pursuant to a decision of a
dues and taxes, personal or real, national,
competent judicial authority; and
regional or municipal, except:
2. They shall not be committed to prison nor
a. Indirect taxes of a kind which are normally
be subject to any other form of restriction to
incorporated in the price of goods or
personal freedom, except in the case of
services;
grave crime pursuant to a decision of
b. Dues and taxes on private immovable
competent judicial authority, or in the
property unless he holds it on behalf of the
execution of a final judicial decision.
sending State for the mission;
3. If criminal proceedings are instituted
c. Estate, succession or inheritance duties
against a consular officer, he must appear
d. Dues and taxes on private income having
before the competent authorities but the
its source in the receiving State and capital
proceedings shall be conducted with the
taxes on investments made in commercial
respect due to him by reason of his official
undertakings in the receiving State;
position and, except in par. 1, in a manner
e. Charges levied for specific services
which will hamper the exercise of consular
rendered;
functions as little as possible.
f. Registration, court or record fees,
4. When, in the circumstances mentioned in
mortgage dues and stamp duty, with
paragraph 1 it has become necessary to
respect to immovable property [Art. 34,
detain a consular officer, the proceedings
VCDR].
against him shall be instituted with the
minimum of delay [Art. 41, Vienna
2. Administrative and Technical Staff:
Convention on Consular Relations
Administrative and Technical Staff together
(VCCR)].
with the members of their families forming part
of their respective households if they are not
Immunity from Local Jurisdiction
nationals or permanent residents in the
General Rule: Consular officers and
receiving State. They are exempt from all taxes
employees are entitled to immunity from the
and dues, personal or real, national, regional or
jurisdiction of administrative and judicial
municipal to the same extent as Diplomatic
authorities in the receiving state with respect to
Agents but are not exempt from customs
acts performed in exercise of consular
duties, taxes and related charges except in
functions [Art. 43, VCCR].
respect to articles imported at the time of first
installation [Art. 37(2), VCDR].
Exceptions: This immunity shall not apply to a
civil action either:
3. Service Staff: Service staff who are not
1. Arising out of a contract by a consular
nationals of or permanently resident in the
officer or employee, which he did not
receiving State shall enjoy exemption from
conclude expressly or impliedly as an
dues and taxes on the emoluments they
agent of the sending state; or
receive by reason of their employment [Art.
2. By a third party for damage arising from an
37(3), VCDR].
accident caused by vehicle, vessel or
aircraft in the receiving State [Art. 43,
4. Private servants: Private servants of
VCCR].
members of the mission shall, if they are
not nationals of or permanently resident in
the receiving State, be exempt from dues Liability to Give Evidence
and taxes on the emoluments they receive 1. Members of a consular post may be called
by reason of their employment [Art. 37(4), upon to attend as witnesses in the course
VCDR]. of judicial or administrative proceedings.
Page 379 of 412

a. A consular employee or a member of independence necessary to free international
the service staff shall not, except in the institutions from national control and enable
cases mentioned in paragraph 3, them to discharge their responsibilities
decline to give evidence. impartially on behalf of all their members. The
b. If a consular officer should decline to do raison d’etre for these immunities is the
so, no coercive measure or penalty assurance of unimpeded performance of
may be applied to him. their functions by the agencies concerned
2. The authority requiring the evidence of a [International Catholic Immigration
consular officer shall avoid interference Commission v. Calleja, G.R. No. 85750
with the performance of his functions. It (1990)].
may, when possible, take such evidence at
his residence or at the consular post or
accept a statement from him in writing.
3. Members of a consular post are under no
obligation to give evidence concerning
matters connected with the exercise of
their functions or to produce official
correspondence and documents relating
thereto. They are also entitled to decline to
give evidence as expert witnesses with
regard to the law of the sending State [Art.
44, VCCR].
4. International Organizations and

their Officers
The rapid growth of international organizations

under contemporary international law has
paved the way for the development of the
concept of international immunities.
Three propositions underlying the grant of

international immunities to international
organizations. These principles, contained in
the ILO Memorandum are stated thus:
a. International institutions should have a
status which protects them against control
or interference by any one government in
the performance of functions for the
effective discharge of which they are
responsible to democratically-constituted
international bodies in which all the nations
concerned are represented;
b. No country should derive any national
financial advantage by levying fiscal
charges on common international funds;
and
c. The international organization should, as a
collectivity of States members, be
accorded the facilities for the conduct of its
official business customarily extended to
each other by its individual member States.
International immunity is not concerned with

the status, dignity or privileges of individuals,
but with the elements of functional
Page 380 of 412
VI. GENERAL PRINCIPLES 2. It is otherwise established that the

negotiating states agreed that ratification
OF TREATY LAW should be required;
3. The representative of the state has signed
Note: the treaty subject to ratification; or
● Please also See "Section B. Primary 4. The intention of the State to sign the treaty
Sources" above for a discussion on Treaty subject to ratification appears from the full
Law powers of its representative, or was
● Vienna Convention on the Law of Treaties expressed during the negotiation [Art.
is referred to as “VCLT” 14(1), VCLT].
A. Definition of Treaty C. Treaty-Making Process

A treaty, under international law is: 1. Authorization. Two modes where a
1. An international agreement; person is considered as representing their
2. Concluded between states; state: (a) with full powers and (b) without
3. In written form; full powers
4. Governed by international law; a. With full powers: A person is
5. Embodied in a single instrument or in two considered as representing a State in
or more related instruments; and the treaty-making process if he
6. Whatever its particular designation [Art. produces appropriate full powers [Art.
2(1)(a), VCLT]. 7(1)(a-b), VCLT].
b. Without having to produce full
However, the definition of a treaty under the powers: In virtue of their functions, the
VCLT is without prejudice to the use of those following are considered as
terms or to the meanings which may be given representing their State:
to them in the internal law of any State [Art. i. Heads of State, Heads of
2(2), VCLT]. Government and Ministers for
Foreign Affairs, for the purpose of
Thus, other names of treaties include performing all acts relating to the
conventions, covenants, protocols, modus conclusion of a treaty;
vivendi, pacts, charters, concordat. ii. Heads of diplomatic missions, for
the purpose of adopting the text of
B. Requisites for a Valid Treaty a treaty between the accrediting
State and the State to which they
Requisites are accredited;
iii. Representatives accredited by
1. Treaty Making Capacity - Refers to States
States to an international
which have international legal personality,
conference or to an international
see Section D above on subjects of
organization or one of its organs,
international law and Article 6 of VCLT
for the purpose of adopting the text
specifically provides that states have the
of a treaty in that conference,
capacity to enter into treaties)
organization or organ [Art. 7(2)(a-
2. Competence of the representative giving
c), VCLT].
consent
2. Negotiation. The State representatives
3. Consent freely given
discuss the terms and provisions of the
4. Object and Subject Matter
treaty.
5. Ratification
3. Adoption. When the form and content
have been settled by the negotiating
In addition to the constitutional requirement,
states, the treaty is adopted. This is only
ratification is likewise necessary under
preparatory to (1) the authentication of the
international law when:
text of the treaty, and (2) the signing
1. The treaty provides for consent to be
thereof [Art. 9, VCLT].
expressed by means of ratification;
4. Authentication. A definitive text of the
treaty is established as the correct and
authentic one [Art. 10, VCLT].
Page 381 of 412
5. Expression of consent. The state parties connection with the conclusion of the
express their consent to be bound by the treaty;
terms of the treaty. The modes of such b. Any instrument which was made by one or
expression are by (i) signature, (ii) more parties in connection with the
exchange of instruments constituting a conclusion of the treaty and accepted by
treaty, (iii) ratification, (iv) acceptance, (v) the other parties as an instrument related
approval or (vi) accession, or (vii) by any to the treaty
other means if so agreed [Art. 11, VCLT].
The first duty of a tribunal is to endeavor to give
Note: See Articles 12-17 of the VCLT for in effect to the provisions of the treaty in their
detail explanations of each manner of natural and ordinary meaning in the context in
expressing consent which they occur. If the words in their natural
6. Registration. The treaty is then registered and ordinary meaning are ambiguous or lead
with the Secretariat of the United Nations to an unreasonable result, only then must the
[Art. 80, VCLT]. Otherwise, the treaty may Court, by resort to other methods of
not be invoked before any UN organ [Art. interpretation, seek to ascertain what the
102(2), UN Charter], including the ICJ. parties really did mean when they used these
words [Competence of the General Assembly
D. Important Concepts in Treaty (Ad Op), ICJ (1950)].
law An agreement as to the interpretation of a
provision reached after the conclusion of the
1. Pacta Sunt Servanda treaty represents an authentic interpretation by
the parties. Subsequent practice constitutes
Every treaty in force is binding upon the parties objective evidence of the understanding of the
to it and must be performed by them in good parties as to the meaning of the treaties
faith [Art. 26, VCLT]. [Kasikili/Sedudu Island, ICJ (1999)].
Note: This is considered as CIL and it applies 3. Reservations

to all obligations contained in a treaty, whether
or not the state is a party to the VCLT A reservation is a unilateral statement,
[Gabcikovo-Nagymaros Project, ICJ (1997)]. however phrased or named, made by a State,
when signing, ratifying, accepting, approving or
A party may not invoke its internal laws to acceding to a treaty, whereby it purports to
justify its failure to perform its obligation in a exclude or to modify the legal effect of certain
treaty. provisions of the treaty in their application to
that State [Art. 2(d), VCLT].
2. Interpretations
Exceptions: A reservation shall not operate to
Schools of Interpretation [Art. 31, VCLT] modify or exclude the provisions of a treaty:
a. Subjective - intention of the parties a. Where the treaty expressly prohibits
b. Objective - textual reservations in general;
c. Teleological - object and purpose b. Where the treaty expressly prohibits that
specific reservation being made; or
General Rule: A treaty shall be interpreted in c. Where the reservation is incompatible with
good faith in accordance with the ordinary the object and purpose of the treaty [Art.
meaning to be given to the terms of the treaty 19, VCLT; Reservation to the Genocide
in their context and in the light of its object and Conventions Advisory Opinion, ICJ
purpose [Art. 31(1), VCLT]. (1951)].
Exceptions: The context for the purpose of the To be considered binding on the other
interpretation of a treaty shall comprise, in contracting State to the treaty, that State must
addition to the text, including its preamble and accept the reservation. A reservation is
annexes: [Art. 31(2), VCLT] presumed to be accepted. A reservation is
a. Any agreement relating to the treaty which deemed unaccepted when another contracting
was made between all the parties in state objects [See Art. 20, VCLT].
Page 382 of 412
1. If consent was given in violation of
Interpretative Declaration - only specifies and provisions of internal law regarding
clarifies the meaning or scope of a treaty of competence to conclude treaties, provided
certain of its provisions that:
a. The violation is manifest; and
The character of a unilateral statement as a b. It concerned a rule of fundamental
reservation or an interpretative declaration is importance [Art. 46, VCLT].
determined by the legal effect that its author 2. If the representative consented in violation
purports to produce. The statement should be of specific restrictions on authority,
interpreted in good faith in accordance with the provided the restriction was notified to the
ordinary meaning to be given to its terms. other negotiating states prior to the
representative expressing such consent
4. Amendment and Modification [Art. 47, VCLT];
3. Error of fact or situation, provided that:
of Treaties a. Such formed an essential basis of a
state’s consent to be bound;
General rule for multilateral treaties: b. The State did not contribute by its own
Consent of all the parties is required. conduct to the error; and
c. The circumstances were not such as to
Exception: If the treaty itself so allows, two put that State on notice of a possible
States may modify a provision only insofar as error [Art. 48, VCLT].
their relationship inter se. 4. If consent was obtained through fraudulent
conduct of another negotiating state [Art.
5. Non-Binding on Third States; 49, VCLT];
exceptions 5. If the representative of a state was
corrupted to consent by another
A treaty does not create either obligations or negotiating state [Art. 50, VCLT];
rights for a third State without its consent [Art. 6. If the representative of a State was coerced
34, VCLT]. through acts or threats directed against him
[Art. 51, VCLT];
Exceptions: 7. If the conclusion of a treaty is procured by
a. When the third party accepts a provision threat or use of force [Art. 52, VCLT];
establishing an obligation for that third 8. If it violates a jus cogens norm at the time
party [Art. 35, VCLT]. of its conclusion [Art. 53, VCLT].
b. When the third party accepts a right
provided for and exercises such right in b. Other Grounds for Termination of a
accordance with the conditions established Treaty
in the treaty [Art. 36, VCLT].
1. Termination of the treaty or withdrawal of a
6. Non-retroactivity party in accordance with the provisions of
the treaty or by consent of all the parties
[Art. 54, VCLT].
Unless a different intention appears from the
2. Denunciation or desistance by a party in
treaty or is otherwise established, its provisions
accordance with the provisions of the
do not bind a party in relation to any act or fact
treaty, or if the treaty does not so provide:
which took place or any situation which ceased
a. The parties intended to admit the
to exist before the date of the entry into force of
possibility of denunciation or
the treaty with respect to that party [Art. 28,
withdrawal; or
VCLT].
b. A right of denunciation or withdrawal
may be implied from the nature of the
7. Termination and Suspension treaty [Art. 56, VCLT].
3. Conclusion of a subsequent inconsistent
a. Invalid Treaties treaty [Art. 59, VCLT];
4. Material breach or Termination or
Invalidity of a treaty may be invoked: Suspension of a Treaty as a Consequence
of its Breach [Art. 60, VCLT]. This is either:
Page 383 of 412
a. A repudiation of the treaty not either of an obligation under the treaty
sanctioned by the present Convention; or of any other international obligation
or owed to any other party to the treaty.
b. The violation of a provision essential to
the accomplishment of the object or 7. Severance of Consular or Diplomatic
purpose of the treaty [Art. 60 (3), Relations if the relations were
VCLT]. indispensable for the application of the
5. Supervening Impossibility of Performance treaty [Art. 63, VCLT]
[Art. 61, VCLT]
8. Emergence of a new peremptory norm of
General Rule: The impossibility results general international law (Jus Cogens) [Art.
from the permanent disappearance or 64, VCLT]
destruction of an object indispensable for
the execution of the treaty. If the c. Suspension of Treaties
impossibility is temporary, it may be
invoked only as a ground for suspending Grounds for Suspension:
the operation of the treaty 1. Conformity with provisions of treaty [Art.
57, VCLT]
Exception: If the impossibility is the result 2. At any time by consent of all parties [Art.
of a breach by that party either of an 57, VCLT]
obligation under the treaty or of any other 3. Conclusion of a later treaty [Art. 58, VCLT]
international obligation owed to any other a. If it appears from the later treaty or it
party to the treaty. was otherwise established that
suspension of the earlier treaty was
6. Fundamental Change of Circumstances intended
[Art. 62, VCLT], otherwise known as rebus 4. Material breach [Art. 60, VCLT]
sic stantibus a. Material breach by one of the parties
entitles the other to invoke the breach
The doctrine of rebus sic stantibus is a as a ground for terminating the treaty or
principle in customary international law suspending its operation in whole or in
providing that where there has been a part [Art. 60(1), VCLT]
fundamental change of circumstances b. Effect of material breach on multilateral
since an agreement was concluded, a treaties [Art. 60(2), VCLT]
party to that agreement may withdraw from i. Entitles other parties by unanimous
or terminate it. Article 62 of the VCLT is agreement to suspend the
considered as a codification of CIL operation of the treaty in whole or
[Gabcikovo-Nagymaros Project, ICJ in part or to terminate it either:
(1997)]. 1. In the relations between
themselves and the defaulting
Requisites [Art. 62 (1), VCLT]: State; or
a. The existence of those circumstances 2. As between all the parties;
constituted an essential basis of the ii. Party specially affected by the
consent of the parties to be bound by breach to invoke it as a ground for
the treaty; and suspending the operation of the
b. The effect of the change is radically to treaty in whole or in part in the
transform the extent of obligations still relations between itself and the
to be performed under the treaty defaulting State
c. The change of circumstances was not iii. Any party other than the defaulting
foreseen. State to invoke the breach as a
ground for suspending the
When Fundamental Change of operation of the treaty in whole or
Circumstances cannot be invoked (Art. in part with respect to itself if the
62 (2), VCLT): treaty is of such a character that a
a. If the treaty establishes a boundary; or material breach of its provisions by
b. If the fundamental change is the result one party radically changes the
of a breach by the party invoking it position of every party with respect
Page 384 of 412
to the further performance of its The Department of Foreign Affairs has the
obligations under the treaty. power to determine whether an international
5. Supervening impossibility of performance agreement is a treaty or an executive
[Art. 61, VCLT] agreement [Sec. 9, E.O. 459].
a. If the impossibility is temporary, it may
be invoked only as a ground for Executive Agreements
suspending the operation of the treaty.
6. Fundamental change of circumstance [Art. differentiated from Treaties
62, VCLT] Treaties Executive
a. If a party may invoke a fundamental Agreement
change of circumstances as a ground As to Political Transitory
for terminating or withdrawing from a Subject issues; effectivity;
treaty it may also invoke the change as Matter Changes in
a ground for suspending the operation national Adjusts
of the treaty. policy; details to
7. In a multilateral treaty, by agreement of two carry out
or more parties Involves well
a. But only between themselves alone agreements established
b. Temporary of a national
c. Requires that: permanent policies and
i. The treaty provides possibility for character traditions;
suspension, or
ii. The treaty does not prohibit Temporary;
suspension in question, and it does
not affect enjoyment of other Implements
parties of their rights in the treaty treaties,
and is not incompatible with the statutes,
object and purpose of the treaty. policies
As to Requires Does not
E. Treaties under Philippine Law Ratification ratification require
by two-thirds Senate
(2/3) of the Concurrence
Note: see also “B. Relationship between
Senate [Sec.
International law and Philippine Domestic Law”
21, Art. VII,
above
1987
Constitution]
Philippine law makes a distinction between
treaties and executive agreements. Both are
equally binding, but treaties require the As to Effect Can repeal a Cannot
concurrence of the Senate to be effective, on statute and amend or
while executive agreements do not. Municipal can be repeal a
Law repealed by prior law and
Under international law, there is no difference a cannot
between treaties and executive agreements in statute prevail over
terms of their binding effects on the contracting a
states concerned, as long as the negotiating subsequent
functionaries have remained within their la
powers [Bayan Muna v. Romulo, G.R. No.
159618 (2011)]. F. When there is Conflict
between a Treaty and Municipal
Treaties have to be transformed in order to be
part of Philippine law. A treaty is “transformed” Law
when it is ratified by the Senate [Sec. 21, Art.
VII, 1987 Constitution]. After ratification, a The doctrine of incorporation is applied
treaty shall be deemed as if legislated by our whenever municipal tribunals are confronted
legislature. with situations in which there appears to be a
conflict between a rule of international law and
Page 385 of 412
the provisions of the constitution or statute of
the local state. Efforts must be done to give
effect to both since it is to be presumed that
municipal law was enacted with proper regard
for the generally accepted principles of
international law in observance of the
Incorporation Clause.
In a situation, however, where the conflict is

irreconcilable and a choice has to be made
between a rule of international law and
municipal law, jurisprudence dictates that
municipal law should be upheld by the
municipal courts.
The fact that international law has been

made part of the law of the land does not
pertain to or imply the primacy of
international law over national or municipal
law in the municipal sphere.
The doctrine of incorporation, as applied in

most countries, decrees that rules of
international law are given equal standing with,
but are not superior to, national legislative
enactments. Accordingly, the principle lex
posterior derogat priori takes effect [and] a
treaty may repeal a statute and a statute may
repeal a treaty.
In states where the Constitution is the highest

law of the land, such as the Republic of the
Philippines, both statutes and treaties may be
invalidated if they are in conflict with the
constitution [Secretary of Justice v. Lantion,
G.R. No. 139465 (2000)].
Page 386 of 412

VII. DOCTRINE OF STATE 1. Conduct of Organs of a State

RESPONSIBILITY [Article 4, ARSIWA]
The conduct of any State organ shall be
A. General Principles considered an act of that State whether the
Relevant Text: Articles on State Responsibility organ exercises legislative, executive, judicial
(ARSIWA) or any other functions, whatever position it
holds in the organization of the State.
Every internationally wrongful act of a state
entails the international responsibility of that An organ includes any person or entity which
State [Art. 1, ARSIWA]. has that status in accordance with the internal
law of the State.
B. Elements of an Internationally
Wrongful Act: 2. Conduct of Persons or
An action or omission is an intentionally Entities Exercising Elements of
wrongful act when it:
a. Is attributable to the State under Governmental Authority [Article
international law; and 5, ARSIWA]
b. Constitutes a breach of an international
obligation of a State [Art. 2, ARSIWA]. The conduct of a person or entity (which is not
a State organ) empowered by the law of that
The characterization of an act of a state as State to exercise elements of governmental
internationally wrongful is governed by authority shall be considered an act of the
international law. Such characterization is not State, provided the person or entity is acting in
affected by the characterization of the same act that capacity.
as lawful by internal law [Art. 3, ARSIWA].
3. Conduct of Organs Placed at
Theory of Objective or Strict the Disposal of a State by
Liability Another State [Article 6,
With respect to state responsibility, the theory
provides that fault is unnecessary for State ARSIWA]
responsibility to be incurred.
If the organ is acting in the exercise of elements
of the governmental authority of the State at
C. Attribution whose disposal it is placed.
Attribution or imputability is a legal construct
whereby an internationally unlawful conduct of 4. Excess of Authority or
a State organ acting in that capacity is Contravention of Instructions
regarded as the conduct of the State itself, [Article 7, ARSIWA]
making that State responsible for it as an
internationally wrongful act. These are unauthorized or ultra vires acts by a
State organ, person, or entity empowered to
It proceeds from the theory that as an abstract exercise government authority.
entity, the State can physically act only through
individuals or groups of individuals performing Such is considered an act of the State if the
"acts of the State" on its behalf [Differences organ, person or entity acts in that capacity,
Relating to Immunity from Legal Processes of even if it exceeds its authority or contravenes
a Special Rapporteur of the Commission of instructions.
Human Rights, 38 International Legal Materials
873 (1999)].
Page 387 of 412

5. Conduct Directed or This provides a This presents a
higher threshold for lower threshold for
Controlled by a State [Article 8, attribution. attribution.
ARSIWA] A general situation There need not be a
of dependence and showing of actual or
If the person or group of persons is in fact support would thus direct control.
acting on the instructions of, or under the be insufficient to
direction or control of, that State in carrying out justify attribution.
the conduct. This refers to the This refers to the
matter of state matter of individual
a. Effective Control responsibility. criminal
Under the law on state responsibility, a State is responsibility and
responsible only for the acts of its organs and the application of the
over non-state actors over which it exercised rules of international
effective control [Nicaragua case, IICJ, humanitarian law
(1986)]. [e.g. Prosecutor v.
Tadic, ICTY Appeals
For there to be effective control, it should have Chamber (1995)].
given instructions or provided the direction
pursuant to which the perpetrators of the 6. Conduct carried out in the
wrongful act acted. The agents or private
persons should have been told what to do on absence or default of the official
all stages of the act. authorities [Article 9, ARSIWA]
Requires a high degree of dependence. If the person or group of persons exercise
elements of the governmental authority in the
b. Overall Control absence or default of the official authorities and
In the Application of the Convention on the in circumstances such as to call for the
Prevention and Punishment of the Crime of exercise of those elements of authority.
Genocide Case (ICJ, 2007), the ICJ ruled that
the “over-all control test” was only relevant in 7. Conduct of an insurrectional
so far as the question of characterization of the
Yugoslav conflict as an international armed
or other movement [Art. 10,
conflict, or whether or not the conflict has been ARSIWA]
internationalized; it is not relevant to the task of
determining whether a state is responsible for The conduct of an insurrectional movement
the acts of certain non-state organs involved in which becomes the new Government of a State
that same international armed conflict. shall be considered an act of that State.
This requires a check on a demonstrable link. The conduct of a movement, insurrectional or

other, which succeeds in establishing a new
Effective Control Overall Control State in part of the territory of a pre-existing
Control must have Control must have State or in a territory under its administration
been exercised in gone “beyond the shall be considered an act of the new State.
respect to each mere financing and
individual act or equipping of such This is without prejudice to the attribution to a
omission which forces” and must State of any conduct, however related to that of
constitutes the have “participation in the movement concerned, which is to be
breach. the planning and considered an act of that State by virtue of
The private persons supervision of articles 4 to 9.
or groups must have military operations.”
been mere agents of
the state who were
told what had to be
done at all stages.
Page 388 of 412

8. Conduct acknowledged and 1. Consent [Art. 20, ARSIWA]
adopted by a State as its own
Valid consent by a State to the commission of
[Art. 11, ARSIWA] a given act by another State precludes the
wrongfulness of that act in relation to the former
Conduct not attributable under the preceding State to the extent that the act remains within
articles shall nevertheless be considered an the limits of that consent.
act of that State if and to the extent that the
State acknowledges and adopts the conduct in
question as its own. 2. Self-Defense [Art. 21,
ARSIWA]
9. Responsibility of a State in
If the act constitutes a lawful measure of self-
connection with the Acts of defense taken in conformity with the UN
Another State Charter.
A State would be internationally responsible for Requisites of Collective Self-Defense:

the following actions: 1. State must have been the victim of an
1. Aiding or assisting another State in the armed attack;
commission of an internationally wrongful 2. The State being attacked is of the belief
act if: [Art.16, ARSIWA] and so declares that it was a victim of an
a. That State does so with knowledge of armed attack;
the circumstances of the internationally 3. The victim State must request for
wrongful act; and assistance [Nicaragua v. US, ICJ (1986)].
b. The act would be internationally
wrongful if committed by that State. 3. Countermeasures [Article 22,
2. Directing and controlling another State in
the commission of an internationally ARSIWA]
wrongful act if: [Art. 17, ARSIWA]
a. That State does so with knowledge of If and to the extent that the act constitutes a
the circumstances of the internationally countermeasure taken against the latter State
wrongful act; and in accordance with the ASR.
b. The act would be internationally
wrongful if committed by that State. a. Conditions for Countermeasures [Art.
3. Coercing another State if: [Art. 18, 52, ARSIWA]
ARSIWA]
a. The act would, but for the coercion, be 1. Prior to taking countermeasures, the
an internationally wrongful act of the injured State must:
coerced State; and a. Call upon the responsible State to
b. The coercing State does so with fulfill its obligation to cease and
knowledge of the circumstances of the make reparations
act. b. Notify the responsible State of any
decision to take countermeasures
D. Circumstances Precluding and offer to negotiate with that
State
Wrongfulness (Defenses) i. Exception: Notwithstanding
the obligation to notify, the
Although a State which fails to act in conformity injured State may take such
with an international obligation will typically be urgent countermeasures as
subject to international responsibility for the are necessary to preserve its
wrongful act, the State may be excused from rights.
performance of an international obligation if 2. Countermeasures may not be taken or
circumstances precluding wrongfulness are must be suspended without undue
present. delay if:
a. Internationally wrongful act has
ceased
Page 389 of 412
b. Dialogue is pending before a court Exceptions:
or tribunal with authority to make a. The situation of distress is due, either alone
binding decisions on the parties or in combination with other factors, to the
i. Exception: Ceasing or conduct of the State invoking it; or
suspension of b. The act in question is likely to create a
countermeasures does not comparable or greater peril.
apply if the responsible State
fails to implement the dispute 6. Necessity [Art. 25, ARSIWA]
settlement procedures in good
faith. Elements
a. It is the only way for the State to safeguard
b. Limitations of Countermeasures: an essential interest against a grave and
[Art. 49, ARSIWA] imminent peril; and
1. Countermeasures only undertaken to b. It does not seriously impair an essential
against the Responsible State to interest of the State or States towards
induce it to comply with the legal which the obligation exists, or of the
consequences of its internationally international community as a whole.
wrongful act Cannot be invoked if:
2. Countermeasures shall, as far as a. The international obligation in question
possible, be taken in way as to permit excludes the possibility of invoking
resumption of performance of necessity; or
obligations in question b. The State has contributed to the
3. Countermeasures must be situation of necessity.
proportional, commensurate to the
injury suffered. taking into account the
gravity of the internationally wrongful
7. Other Principles
act and the rights in question [Art. 51,
ASR] The responsible State may not rely on the
provisions of its internal law as justification for
failure to comply with its obligations under this
4. Force Majeure [Art. 23, part [Art. 32, ARSIWA].
ARSIWA]
None of the circumstances listed above
General Rule: If the act is due to force precludes the wrongfulness of any act of a
majeure, that is the occurrence of an irresistible State which is not in conformity with an
force or of an unforeseen event, beyond the obligation arising under a peremptory norm of
control of the State, making it materially general international law [Art. 26, ARSIWA].
impossible in the circumstances to perform the
obligation. E. Consequences Of An
Exceptions:
Internationally Wrongful Act
The above rule does not apply if:
a. The situation of force majeure is due, either The international responsibility of a State which
alone or in combination with other factors, is entailed by an internationally wrongful act
to the conduct of the State invoking it; or involves legal consequences [Art. 28,
b. The State has assumed the risk of that ARSIWA].
situation occurring.
The legal consequences of an internationally
wrongful act under this part do not affect the
5. Distress [Art. 24, ARSIWA] continued duty of the responsible State to
perform the obligation breached [Art. 29,
General Rule: If the author of the act in ARSIWA].
question has no other reasonable way, in a
situation of distress, of saving the author’s life
or the lives of other persons entrusted to the
author’s care.
Page 390 of 412

1. Cessation and non-repetition i. Restitution [Art. 35, ARSIWA]
The State responsible for the wrongful act is A State responsible for an internationally
under the obligation to: wrongful act is under an obligation to make
a. Cease the act if it is still continuing; and restitution, that is, to re-establish the situation
b. Offer appropriate assurances and which existed before the wrongful act was
guarantees of non-repetition, if committed, provided and to the extent that
circumstances so require [Art. 30, restitution:
ARSIWA]. (a) Is not materially impossible;
(b) Does not involve a burden out of all
Cessation serves as a preventive function proportion to the benefit deriving from
upon the wrongful state and is described as a restitution instead of compensation.
positive reinforcement.
Restitution consists only in re-establishing
the status quo ante, i.e. the situation that
2. Reparation existed prior to the occurrence of the wrongful
act, and does not require a hypothetical inquiry
The responsible State is under an obligation to into what the situation would have been if the
make full reparation for the injury caused by the wrongful act had not been committed.
internationally wrongful act. Restitution in this narrow sense may therefore
have to be completed by compensation to
Injury includes any damage, whether material ensure full reparation for the damage caused
or moral, caused by the internationally wrongful [ARSIWA Draft Articles].
act of a State.
Full reparation - Means that the responsible
ii. Compensation [Art. 36, ARSIWA]
State must endeavor to wipe out all the
consequences of the illegal act and reestablish
The State responsible is under an obligation to
the situation which would, in all probability,
compensate for the damage caused thereby,
have existed if that act had not been committed
insofar as such damage is not made good by
[Factory at Chorzów (PCIJ, 1928)]. This may
restitution.
be achieved by one form of reparation only or
by a combination of the different forms
Compensation corresponds to the financially
[ARSIWA Draft Articles].
assessable damage suffered by the injured
State or its nationals. It is not concerned to
Material Damage - Refers to damage to
punish the responsible State, nor does
property or other interests of the State and its
compensation have an expressive or
nationals which is assessable in financial
exemplary character [ARSIWA Draft Articles].
terms.
Moral Damage - includes such items as iii. Satisfaction [Art. 37, ARSIWA]
individual pain and suffering, loss of loved ones
or personal affront associated with an intrusion The State responsible is under an obligation to
on one’s home or private life [ARSIWA Draft give satisfaction for the injury caused by that
Articles]. act insofar as it cannot be made good by
restitution or compensation.
c. Forms of Reparation Satisfaction may consist in an
acknowledgement of the breach, an
Full reparation for the injury caused by the expression of regret, a formal apology or
internationally wrongful act shall take the form another appropriate modality.
of restitution, compensation and satisfaction,
either singly or in combination [Art. 34, Satisfaction shall not be out of proportion to the
ARSIWA]. injury and may not take a form humiliating to
the responsible State.
Satisfaction is of exceptional character. It is

only in cases where restitution or
Page 391 of 412
compensation have not provided full reparation
that satisfaction may be required [ASR Draft
Articles].
It is the remedy for injuries not financially

assessable. These injuries are frequently of a
symbolic character, arising from the very fact of
the breach of the obligation, irrespective of its
material consequences for the State
concerned [ARSIWA Draft Articles].
4. Other Principles
Interest on any principal sum due under this
chapter shall be payable when necessary in
order to ensure full reparation. The interest rate
and mode of calculation shall be set so as to
achieve that result [Art. 38, ARSIWA].
Contribution to the Injury

In the determination of reparation, account
shall be taken of the contribution to the injury
by willful or negligent action or omission of the
injured State or any person or entity in relation
to whom reparation is sought [Art. 39,
ARSIWA] .
Page 392 of 412

VIII. REFUGEES 3. He has acquired a new nationality, and

enjoys the protection of the country of his
new nationality; or
A. General Principles 4. He has voluntarily re-established himself in
Reference Treaties: The 1951 Convention the country which he left or outside which
Relating to the Status of Refugees (1951 he remained owing to fear of persecution;
Convention) and the 1967 Protocol Relating to or
the Status of Refugees (1967 Protocol) 5. He can no longer continue to refuse to avail
himself of the protection of the country of
B. Definition his nationality because the circumstances
A person outside the country of his in connection with which he has been
nationality owing to a well-founded fear of recognized as a refugee have ceased to
being persecuted for reasons of race, religion, exist;
nationality, membership of a particular social 6. Being a person who has no nationality he
group or political opinion, is and is unable or, is, able to return to the country of his former
owing to such fear, is unwilling to avail himself habitual residence [Art. 1(C), 1951
of the protection of that country; or who, not Convention].
having a nationality and being outside the
country of his former habitual residence as a D. The Convention shall NOT
result of such events, is unable or, owing to
such fear, is unwilling to return to it [Art. 1A (1),
Apply to: [1951 Convention]
1951 Convention].
1. A person receiving from organs or
agencies of the United Nations other than
The term “the country of his nationality” shall
the United Nations High Commissioner for
mean each of the countries of which he is a
Refugees protection or assistance [Art.
national, and a person shall not be deemed to
1(D)].
be lacking the protection of the country of his
2. A person recognized by the competent
nationality if, without any valid reason based on
authorities of the country in which he has
well-founded fear, he has not availed himself of
taken residence as having the rights and
the protection of one of the countries of which
obligations which are attached to the
he is a national.
possession of the nationality of that country
[Art.1(E)].
Refugees vs. Internally 3. Any person with respect to whom there are
Displaced Persons serious reasons for considering that:
Refugees are people as defined above while a. He/she has committed a crime against
internally displaced persons are those who peace, war crime, or a crime against
have been forced to flee their homes, suddenly humanity;
or unexpectedly in large numbers as a result of b. He/she has committed a serious non-
armed conflict, internal strife, systematic political crime outside the country of
violation of human rights, or natural or man- refuge prior to his admission to that
made disaster, and who are within their country as a refugee;
territory of their country [Analytical Report of c. He/she has been guilty of acts contrary
the United Nations’ Secretary-General on to the purposes and principles of the
Internally Displaced Persons, February 14, United Nations [Art. 1(F)].
1992].
E. General Obligations of
C. The following are Refugees Refugees
Not Covered by the Convention: Every refugee has duties to the country in
1. He has voluntarily re-availed himself of the which he finds himself, which require in
protection of the country of his nationality; particular that he conform to its laws and
or regulations as well as to measures taken for
2. Having lost his nationality, he has the maintenance of public order [Art. 2, 1951
voluntarily re-acquired it; or Convention].
Page 393 of 412

F. Non-Discrimination g. Self-employment [Art. 18]
States shall apply the provisions of this h. To practice liberal professions [Art. 19]
Convention to refugees without discrimination i. Housing [Art. 21]
as to race, religion or country of origin [Art. 3, j. Education other than elementary [Art.
1951 Convention]. 22(2)]
4. Administrative Assistance [Art. 25]
5. Freedom of movement [Art. 26]
G. Personal Status 6. To be issued travel documents [Art. 28(1)]
The personal status of a refugee shall be 7. Be permitted to transfer their assets [Art.
governed by the law of the country of his 30(1)]
domicile or, if he has no domicile, by the law of 8. Sympathetic considerations as regards the
the country of his residence [Art. 12, 1951 following:
Convention]. a. Extension of benefits similar to death
benefits or social security [Art. 24(4)]
Rights previously acquired by a refugee and b. Issuance of travel documents to
dependent on personal status, more refugees who are unable to obtain a
particularly rights attaching to marriage, shall travel document from the country of
be respected by a Contracting State, subject to their lawful residence [Art. 28(1)]
compliance, if this be necessary, with the c. Permission to transfer assets
formalities required by the law of that State, necessary for their resettlement in
provided that the right in question is one which another country [Art. 30(2)]
would have been recognized by the law of that 9. To not be expelled [Arts. 32 and 33]
State had he not become a refugee [Art. 12, 10. To not be penalized for illegal entry until
1951 Convention]. their status in the country is regularized or
they obtain admission into another country
H. Rights of a Refugee [Art. 31]
Among those enumerated in the 1951 I. Principle of Non-Refoulment

Convention are:
1. Non-discrimination of application (for General Rule: No State shall expel or return
refugee status) based on race, religion, or (“refouler”) a refugee in any manner
country of origin [Art. 3] whatsoever to the frontiers of territories where
2. To be treated similar to nationals with his life or freedom would be threatened on
respect to the following: Right to Religion account of his race, religion, nationality,
[Art. 4] membership of a particular social group or
a. Right to Religion [Art. 4] political opinion [Art. 33, 1951 Convention].
b. Rationing system (when supplies are
short) [Art. 20] Exceptions: The benefit may not be claimed
c. Elementary education [Art. 22(1)] by:
d. Public Relief [Art. 23] a. A refugee whom there are reasonable
e. Labor Legislation and Social Security grounds for regarding as a danger to the
[Art. 24(1)] security of the country in which he is, or
f. Fiscal Charges [Art. 29] b. Who, having been convicted by a final
3. To be accorded the same treatment as an judgment of a particularly serious crime,
alien or foreign national with respect to the constitutes a danger to the community of
following: that country [Art. 33, 1951 Convention]
a. To have his personal status respected
[Art. 12]
b. To acquire movable and immovable
property [Art. 13]
c. Protection of industrial property and
rights in literacy, artistic, and scientific
works [Art. 14]
d. Right of Association [Art. 15]
e. Access to Courts [Art. 16]
f. Wage-earning employment [Art. 17]
Page 394 of 412
IX. EXTRADITION duty, or to an insufficiency of governmental

action so far short of international
standards that every reasonable and
A. The General Rule on Standard impartial man would readily recognize its
of Treatment insufficiency [Neer Case, PCIJ (1926)].
Flowing from its right to existence and as an 1. How To Enforce the

attribute of sovereignty, no State is under any International Responsibility arising
obligation to admit aliens. The state can from the International Delinquency
determine in what cases and under what There must be:
conditions it may admit such. Once it admits a. Exhaustion of local (refers to the State
aliens, under the international standard of where the international delinquency
justice, which calls for compliance with the happened) administrative remedies; and
ordinary norms of official conduct observed in b. Representation of the alien by his own
civilized jurisdictions, aliens should be state (this refers to the exercise of
protected by certain minimum standards of diplomatic protection) in the international
humane protection, however harsh the claim for damages.
municipal laws of a state may be.
Territorial sovereignty involves the exclusive

C. Rules on Diplomatic
right to display the activities of a State. This Protection from the Draft
right has a corollary, a duty: the obligation to Articles on Diplomatic
protect within the territory the rights of other
States, in particular, their right to integrity and
Protection (ADP), 2006:
inviolability in peace and in war, together with
the rights which each State may claim for its 1. Definition of Diplomatic
nationals in foreign territory [Island of Las Protection [Art. 1, ADP]
Palmas Arb., PCA (1928)]. Diplomatic protection consists of the invocation
by a State, through diplomatic action or other
However, an alien cannot claim a preferred means of peaceful settlement, of the
position vis-à-vis the national of the State [see responsibility of another State for an injury
Calvo Clause, infra]. caused by an internationally wrongful act of
that State to a natural or legal person that is a
B. State Responsibility when it national of the former State with a view to the
comes to Treatment of Aliens implementation of such responsibility.
A state may be held responsible provided that:: 2. Who is entitled to exercise

1. The act or omission constitutes an Diplomatic Protection [Art. 3,
international delinquency;
2. The act or omission is directly or indirectly
ADP]
imputable to it; a. The State of nationality
3. The act or omission causes injury to the b. Notwithstanding paragraph 1, diplomatic
national of another state protection may be exercised by a State in
respect of a person that is not its national
Liability will attach to the State where its in accordance with draft article 8.
treatment of the alien falls below the
international standard of justice or where it is 3. Requirement of exhaustion of
remiss in according him the protection or local remedies before
redress that is warranted by the circumstances.
presentation of international
The propriety of governmental acts should be claim [Art. 14, ADP]:
put to the test of international standards. The a. A State may not present an international
treatment of an alien, in order to constitute an claim in respect of an injury to a national or
international delinquency, should amount to other person before the injured person has
an outrage, to bad faith, to willful neglect of exhausted all local remedies.
Page 395 of 412

b. “Local remedies” means legal remedies It also refers to the removal of an accused from
which are open to an injured person before the Philippines with the object of placing him at
the judicial or administrative courts or the disposal of foreign authorities to enable the
bodies, whether ordinary or special, of the requesting state or government to hold him in
State alleged to be responsible for causing connection with any criminal investigation
the injury. directed against him in connection with any
c. Local remedies shall be exhausted where criminal investigation directed against him or
an international claim, or request for a the execution of a penalty imposed on him
declaratory judgment related to the claim, under the penal or criminal law of the
is brought preponderantly on the basis of requesting State or government [Section 2(a),
an injury to a national or other person. P.D. 1069].
4. Exception to requirement of 2. Requisites for Extradition to

Exhaustion of Local Remedies be exercised [Government of
[Art. 15, ADP]: Hong Kong Special
Local remedies do not need to be exhausted Administrative Region v. Olalia]
where: 1. There must be an extradition treaty in force
a. There are no reasonably available local between the HKSAR and the Philippines;
remedies to provide effective redress, or 2. The criminal charges that are pending in
the local remedies provide no reasonable the HKSAR against the person to be
possibility of such redress; extradited;
b. There is undue delay in the remedial 3. The crimes for which the person to be
process which is attributable to the State extradited is charged are extraditable
alleged to be responsible; within the terms of the treaty;
c. There was no relevant connection between 4. The individual before the court is the same
the injured person and the State alleged to person charged in the HKSAR;
be responsible at the date of injury; 5. The evidence submitted establishes
d. The injured person is manifestly precluded probable cause to believe that the person
from pursuing local remedies; or to be extradited committed the offenses
e. The State alleged to be responsible has charged; and
waived the requirement that local remedies 6. The offenses are criminal in both the
be exhausted HKSAR and the Philippines (double
criminality rule).
D. Extradition
3. Fundamental Principles on
1. Definition Extradition
Extradition is the surrender by one nation to
another of an individual accused or convicted
a. The duty to extradite must be based
of an offense outside of its own territory, and
within the territorial jurisdiction of the other,
on a treaty
which, being competent to try and to punish
him, demands the surrender [Government of It is not part of CIL, although the duty to
Hongkong Special Administrative Region v. extradite exists only for some international
Muñoz, G.R. No. 207342 (2016)]. crimes. Thus, a state must extradite only when
obliged by treaty to do so [Government of
Extradition has thus been characterized as the Hongkong Special Administrative Region v.
right of a foreign power, created by treaty, to Muñoz, G.R. No. 207342 (2016)].
demand the surrender of one accused or
convicted of a crime within its territorial Principle of Specialty
jurisdiction, and the correlative duty of the other A fugitive who is extradited may be tried only
state to surrender him to the demanding State for the crime specified in the request for
[Government of Hong Kong Special extradition and included in the list of offenses
Administrative Region v. Olalia, G.R. No. in the extradition treaty [US v. Rauscher, 119
153675 (2007)]. U.S. 407 (1886)].
Page 396 of 412

Rule of Double Criminality exhibiting the penal aspect of the
The act for which extradition is sought must be process.
punishable in both the requesting and
requested States [Government of Hongkong The evaluation process itself is like a
Special Administrative Region v. Muñoz, G.R. preliminary investigation since both procedures
No. 207342 (2016)]. may have the same result: the arrest and
imprisonment of the respondent [Secretary of
b. It is a sui generis proceeding Justice v. Lantion, G.R. No. 139465 (2000)].
An extradition proceeding is sui generis. It is E. Extradition vs. Deportation

not a criminal proceeding which will call into
operation all the rights of an accused as Extradition Deportation
guaranteed by the Bill of Rights [Sec. of Justice
v. Lantion, G.R. No. 139465 (2000)].
Effected at the Unilateral Act of the
request of another State
c. Bail may be granted to the extraditee
State
on the basis of clear and convincing
evidence that he is not a flight risk Based on offenses Based on causes
committed in the arising in the local
The potential extraditee must prove by “clear state of origin state
and convincing evidence” that he is not a flight
risk and will abide by all the orders and Calls for the return An undesirable alien
processes of the extradition court [Government of the fugitive to the may be deported to
of Hong Kong Special Administrative Region v. requesting state a state other than
Olalia, G.R. No. 153675 (2007)]. his own or his state
of origin.
d. There must be compliance with
procedural due process The Obligation of aut dedere aut judicare (to
extradite or prosecute)
4. Procedure A conventional obligation of States found in
various treaties. A state subject to this
a. A request for extradition is presented obligation is bound to extradite if it does not
through diplomatic channels to the prosecute, and to prosecute if it does not
state of refuge with the necessary extradite.
papers for identification.
b. The request is received by the State of The effective fulfillment of the obligation to
refuge. extradite or prosecute requires
c. A judicial investigation is conducted by 1. undertaking necessary national measures
the state of refuge to ascertain if the to criminalize the relevant offenses,
crime is covered by the extradition 2. establishing jurisdiction over the offenses
treaty and if there is a prima facie case and the person present in the territory of
against the fugitive according to its own the State,
laws. 3. investigating or undertaking primary
d. If there is a prima facie case, a warrant inquiry,
of surrender will be drawn and the 4. apprehending the suspect, and submitting
fugitive will be delivered to the state of the case to the prosecuting authorities
origin. The evaluation process (which may or may not result in the
partakes the nature of a criminal institution of proceedings)
investigation, having consequences
which will result in deprivation of liberty OR
of the prospective extraditee. A
favorable action in an extradition Extraditing, if an extradition request is
request exposes a person to eventual made by another State with the necessary
extradition to a foreign country, thus jurisdiction and capability to prosecute the
suspect [Final Report of the International
Page 397 of 412
Law Commission on the Obligation of Aut Rights may be restricted for the general
dedere aut judicare (2014)]. welfare, with or without an “emergency that
threatens the independence or security of a
X. BASIC PRINCIPLES OF state party”.
INTERNATIONAL HUMAN A. The Universal Declaration of

RIGHTS LAW Human Rights (UDHR)
1. Definition of Human Rights The UDHR is the first comprehensive catalog
Human rights are those fundamental and of human rights proclaimed by an international
inalienable rights which are essential for life as organization.
a human being. They are recognized by the
international community as a whole through It is not a treaty. It has no obligatory character
their protection and promotion under because it was adopted by the UN General
contemporary international law. Assembly as Resolution 217A (III). As a
resolution, it is merely recommendatory.
2. Definition of International Accordingly, it has been observed that the
Human Rights Law Universal Declaration of Human Rights no
International human rights law lays down the longer fits into the dichotomy of “binding treaty”
obligations of Governments to act in certain against “non-binding pronouncement”, but is
ways or to refrain from certain acts, in order to rather an authoritative statement of the
promote and protect human rights and international community. Thus, a Declaration
fundamental freedoms of individuals or groups creates an expectation of adherence, and
[United Nations, Global Issue]. insofar as the expectation is gradually justified
by State practice, a declaration may by custom
3. Classifications of Human become recognized as laying down rules
binding upon the States. Indeed, several
Rights commentators have concluded that the
a. First generation rights consist of civil and Universal Declaration has become, in toto, a
political rights; part of binding, customary international law
b. Second generation rights consist of [Razon v. Tagitis, G.R. No. 182498 (2009)
economic, social and cultural rights; citing Filartiga v. Pena-Irala, 630 F.2d 876 (2d
c. Third generation rights consist of the rights Cir. 1980)].
to development, to peace, and to
environment [Vasak, Karel]. In the Philippines, the UDHR is considered as
customary international law. It has been
4. The Distinction Between First interpreted by this Court as part of the generally
Generation and Second accepted principles of international law and
binding on the State [Poe-Llamanzares v.
Generation Human Rights Comelec; G.R. No. 221697 (2016)].
a. As to Obligatory Force The UDHR embodies both first and second
generation rights.
1st Generation Rights are strictly or objectively
obligatory, whatever the economic condition or The civil and political rights (1 st Generation
other conditions of the state obliged. 2 nd Rights) enumerated in the UDHR include rights
Generation Rights are relatively or subjectively such as:
obligatory, states are required to progressively 1. The right to life, liberty, privacy and security
achieve the full realization of these rights “to of person;
the maximum of their available resources”. 2. Prohibition against slavery;
3. The right to not to be subjected to arbitrary
b. As to Derogation arrest, detention or exile;
4. The right to recognition as a person before
1st Generation rights are derogable only in the law;
times of public emergency. 2nd Generation
Page 398 of 412
5. Equal protection of the law; 9. The right to protection of a child as required
6. Right to an effective remedy by the by his status as a minor [Art. 24];
competent national tribunal; 10. The right of persons below 18 years old not
7. The right to a fair and public hearing by an to be sentenced to death for crimes [Art. 6];
independent and impartial tribunal; 11. The right against carrying out the death
8. The right to fair trial and presumption of sentence on the part of a pregnant woman
innocence; [Art. 6 ].
9. The right to a nationality;
10. The right to own property; Non-derogable Rights [Art.4, ICCPR]:
11. The right to freedom of thought, 1. Right to life [Art. 6]
conscience and religion; 2. Freedom from torture, or from cruel,
12. The right to freedom of opinion and inhuman, or degrading treatment or
expression; punishment [Art. 7]
13. The right to peaceful assembly and 3. Freedom from slavery or servitude [Art. 8]
association; 4. To not be imprisoned for debt [Art. 11]
14. The right to take part in the government of 5. Freedom from retroactive/ ex post facto
his country. laws [Art. 15]
6. To be recognized everywhere as a person
The economic, social and cultural rights before the law [Art. 16]
enumerated in the UDHR include rights such 7. Freedom of thought, conscience and
as: religion [Art. 18]
1. The right to social security;
2. The right to work and protection against The following are obligations of state parties
unemployment; under the ICCPR:
3. The right to equal pay for equal work; 1. State parties undertake to respect and to
4. The right to form and join trade unions; ensure to all individuals within their territory
5. The right to rest and leisure. the rights enumerated therein, without
distinction of any kind, such as race, color,
Note: See Articles 3-28 of the UDHR for a sex, language, religion, political or other
complete enumeration of the rights. opinion, national or social origin, birth or
other status.
B. The International Covenant on 2. State parties are required to take the
necessary steps to adopt legislative or
Civil and Political Rights other measures that are necessary to give
(ICCPR) effect to the rights recognized in the
ICCPR.
It embodies the first generation of human 3. State parties must ensure that any person
rights, although it lists more rights than the whose rights or freedoms are violated have
UDHR, namely: an effective remedy, notwithstanding that
1. The right to self-determination [Art. 1]; the violation has been committed by
2. The right of members of ethnic, religious or persons action in an official capacity.
linguistic groups not to be denied to enjoy 4. State parties must ensure that any person
their own culture, to profess and practice claiming such remedy shall have his right
their own religion, or to use their own thereto determined by competent judicial,
language [Art. 27]; administrative or legislative authority, and
3. The right to compensation in case of that they shall enforce the remedy when
unlawful arrest [Art. 9]; granted
4. The right to legal assistance in criminal 5. To ensure that the competent authorities
prosecution [Art. 14]; shall enforce such remedies when granted
5. The right against self-incrimination; [Art. 2,].
6. Protection against double jeopardy;
7. The right to review by higher tribunal in
case of criminal conviction [Art. 14];
8. The right of every child to nationality [Art.
24];
Page 399 of 412

C. The International Covenant on grave and flagrant violation of human
rights and fundamental freedoms
Economic, Social and Cultural proclaimed in the Universal Declaration
Rights (ICESCR) of Human Rights and reaffirmed and
developed in international instruments
It embodies the second generation of human in this field.
rights, although it lists more rights than the ○ On the principle of non-discrimination
UDHR, namely: vis-à-vis the right to electoral
a. The right to work [Art. 6]; participation [Ang Ladlad LGBT Party
b. The right to the enjoyment of just and vs. Commission on Elections, G.R. No.
favourable conditions of work [Art. 7]; 190582 (2010)]:
c. The right to health [Art. 7]; ■ The principle of non-discrimination
d. The right to strike and form/join trade requires that laws of general
unions [Art. 8]; application relating to elections be
e. The right to social security [Art. 9]; applied equally to all persons,
f. The right to an adequate standard of living regardless of sexual orientation.
[Art. 11]; Although sexual orientation is not
g. The right to be free from hunger [Art. 11]; specifically enumerated as a status
h. The right to education [Art. 13]; or ratio for discrimination in Article
i. The right to enjoy the benefits of scientific 26 of the ICCPR, the ICCPR
progress [Art. 15]; Human Rights Committee has
j. Freedom for scientific research and opined that the reference to “sex” in
creativity [Art. 15]. Article 26 should be construed to
include “sexual orientation”.
Note: See Arts. 6-15 of the ICESCR for a ○ On the right to nationality [Poe-
complete enumeration of the rights Llamanzares v. Comelec, G.R. No.
221697 (2016)]:
The obligation of a state party to the ICESCR ■ The common thread of the UDHR,
is to undertake the necessary steps to the UNCRC and ICCPR is to obligate
maximum of its available resources, with a the Philippines to grant nationality
view to achieving progressively the full from birth and ensure that no child
realization of the rights enumerated in the is stateless.
covenant by all appropriate means.
1. Common Provisions in the

ICCPR and ICESCR
The common provisions of the two covenants
deal with collective rights, namely:
a. The right of self-determination of peoples;
b. The right of peoples to freely dispose of
their natural wealth and resources; and
c. The right of peoples not to be deprived of
their own means of subsistence.
These rights were not covered by the UDHR.
2. Philippine Jurisprudence on
Human Rights
● On enforced disappearances [Razon v.
Tagitis, G.R. No. 182498 (2009)]:
○ Any act of enforced disappearance is
an offense to dignity. It is condemned
as a denial of the purposes of the
Charter of the United Nations and as a
Page 400 of 412
XI. BASIC PRINCIPLES OF A. Categories of Armed

INTERNATIONAL Conflict:
HUMANITARIAN LAW 1. International Armed Conflicts
International Humanitarian Law (IHL) is the (IAC)
branch of public international law which
governs armed conflicts to the end that the use Definition: An IAC occurs when one or more
of violence is limited and that human suffering states have recourse to armed force against
is mitigated or reduced by regulating or limiting another state, regardless of the reasons or the
the means of military operations and by intensity of the confrontation [Prosecutor v.
protecting those who do not or no longer Tadic, ICTY Appeals Chamber (1995)].
participate in the hostilities.
General Rule: All Members shall refrain in
This used to be known as the Laws of War their international relations from the threat or
which provides for instances when the use of use of force against the territorial integrity or
armed force is justifiable (jus ad bellum) and political independence of any state, or in any
regulates the conduct of armed conflict (jus in other manner inconsistent with the Purposes of
bello). the United Nations [Art. 2(4), UN Charter].
Exception: Inherent right of individual or

IHL IHRL collective self-defense if an armed attack
occurs [Art. 51, UN Charter].
Application In situations At all times;
of armed during war
conflict and peace 2. Internal or Non-International
time Armed Conflicts (NIAC)
Purpose Protect Protect Definition: This refers to conflicts between
people who individuals governmental forces and non-governmental
do not or are from arbitrary armed groups, or between such groups only.
no longer behavior by
taking part in their own Basis: The Common Article 3, Geneva
hostilities. governments Conventions and Article 1, Additional Protocol
. II.
Common Article 3 applies to “armed conflicts

Derogation No Some HR not of an international character occurring in
derogations treaties the territory of one of the High Contracting
are permitted permit Parties.” These include armed conflicts in
under IHL governments which one or more non-governmental armed
to derogate groups are involved.
from certain
rights, in Art. 1 develops Common Article 3. It applies to:
situations of a. All armed conflicts which take place in the
public territory of a state party;
emergency. b. Between its armed forces and dissident
armed forces or other organized groups;
c. Which, under responsible command,
exercise such control over a part of its
territory;
d. As to enable it to carry out sustained and
concerted military operations and to
implement the Protocol.
Page 401 of 412

Armed conflict does not include internal rights. They shall be protected against acts
disturbances or tensions such as: of violence or reprisals [Legality of the
a. Riots; Threat or Use of Nuclear Weapons
b. Isolated and sporadic acts of violence; and Advisory Opinion (ICJ, 1996)].
c. Other acts of a similar nature.
B. Principles of International
3. War of National Liberation Humanitarian Law
Armed conflicts in which people are fighting
against colonial domination and alien 1. Definitions
occupation and against racist regimes in the
exercise of their right to self-determination [Art. a. Combatants
1(4), Protocol I]. These are members of the armed forces of a
party to a conflict [Art. 3(2), Protocol I]. They
Categories: have the right to participate directly and
a. Colonial domination; indirectly in hostilities [Art. 43(2), Protocol I].
b. Alien occupation; and Only combatants are allowed to engage in
c. Racist regimes when the peoples hostilities.
oppressed by these regimes are fighting for
self-determination. b. Hors de Combat
Under Art. 41(2), Protocol I, a person is hors de
combat if:
4. Core International Obligation 1. He is in the power of an adverse party to
of States the conflict;
2. He clearly expresses an intention to
In general, IHL defines the following surrender; or
obligations: 3. He has been rendered unconscious or is
a. Parties to an armed conflict, together with otherwise incapacitated by wounds or
their armed forces, do not have unlimited sickness and is therefore incapable of
choice of methods or means of warfare. defending himself; provided that in any of
They are prohibited from employing these cases, he abstains from any hostile
weapons or means of warfare that cause act and does not attempt to escape.
unnecessary damage or excessive
suffering. c. Protected Persons
b. Parties to an armed conflict shall, at all They are those who enjoy or are entitled to
times, distinguish between civilian protection under the Geneva Conventions.
population and the combatants (principle of
distinction). Civilians shall be spared from Categories of protected persons include:
military attacks which shall be directed only 1. The wounded, the sick, and shipwrecked;
against military objectives. a. “Wounded” and “sick” mean persons,
c. Persons hors de combat shall be protected whether military or civilian, who,
and treated humanely without any adverse because of trauma, disease or other
distinction. Their right to life and physical physical or mental disorder or
and moral integrity shall be respected. disability, are in need of medical
d. It is prohibited to kill or injure an enemy who assistance or care and who refrain
is hors de combat or who surrenders. from any act of hostility. These terms
e. The wounded and the sick shall be also cover maternity cases, new-born
protected and cared for by the party to the babies and other persons who may be
conflict which has them in its power. in need of immediate medical
Protection shall also apply to medical assistance or care, such as the infirm
personnel, establishments, transports and or expectant mothers, and who refrain
material. from any act of hostility;
f. Combatants and civilians who are captured b. “Shipwrecked” means persons,
by authority of the party to a dispute are whether military or civilian, who are in
entitled to respect for their right to life, peril at sea or in other waters as a
dignity, conviction, and other personal result of misfortune affecting them or
Page 402 of 412
the vessel or aircraft carrying them and b. The Principle of Military Necessity
who refrain from any act of hostility. The belligerent may employ any amount of
These persons, provided that they force to compel the complete submission of the
continue to refrain from any act of enemy with the least possible loss of lives, time
hostility, shall continue to be and money [Art. 57(3), Protocol I].
considered shipwrecked during their
rescue until they acquire another status c. The Principle of Proportionality
under the Conventions or this Protocol The legal use of force whereby belligerents
[Art. 8, Protocol I]. must make sure that harm caused to civilians
2. Prisoners of war; and or civilian property is not excessive in relation
a. A person who takes part in hostilities to the concrete and direct military advantage
and falls into the power of an adverse from an anticipated attack or by an attack on
Party shall be presumed to be a military objective [Art. 57(2b), Protocol I].
prisoner of war, and therefore shall be
protected by the Third Convention [Art. d. The Principle of Distinction
45, Protocol I]. Parties to the conflict shall at all times
3. Civilians. distinguish between the civilian population and
a. Any person who does not belong to the combatants and between civilian objects and
armed forces, members of militias, or military objectives and accordingly shall direct
volunteer corps forming part of such their operations only against military objectives
armed forces, or inhabitants of a [Art. 48, Protocol I].
nonoccupied territory who
spontaneously take up arms to resist
the invading forces. In case of doubt
C. Prisoners of War
whether a person is a civilian, that
person shall be considered to be a Under Art. 4, Geneva Convention (III),
civilian [Art. 50(1), Protocol I]. prisoners of war are persons belonging to one
of the following categories:
1. Members of the armed forces of a party to
2. Treatment of Civilians the conflict, including militias or volunteer
corps;
For purposes of protection, civilians are further 2. Militias or volunteer corps operating in or
classified as: outside their own territory, even if such
1. Civilians who are victims of conflict in territory is occupied, provided:
countries involved; a. They are being commanded by a
2. Civilians in territories of the enemy; person responsible for his
3. Civilians in occupied territories; and subordinates;
4. Civilians internees. b. Have a fixed distinctive sign
recognizable at a distance;
a. Martens Clause / Principle of c. Carry arms openly; and
Humanity d. Conduct their operations in
In cases not covered by other international accordance with the laws and
agreements, civilians and combatants remain customs of war.
under the protection and authority of the 3. Members of regular armed forces who
principles of international law derived from profess allegiance to a government or
established custom, from the principles of authority not recognized by the detaining
humanity and from the dictates of public power;
conscience [Art. 1(2), Protocol I]. 4. Civilians who accompany the armed
forces, provided that they have received
Ensures that, regardless of lack of an authorization from the armed forces which
international agreement, civilians and they accompany;
combatants retain protection based on the 5. Members of crews of merchant marine and
principles of humanity and public conscience. the crews of civil aircraft of the parties to
the conflict;
6. Inhabitants of a non-occupied territory who
on the approach of the enemy
Page 403 of 412

spontaneously take up arms to resist the 4. A neutral power is forbidden to allow
invading forces, without having had time to belligerents to use its territory for moving
form themselves into regular armed units, troops, establishing communication
provided they carry arms openly and facilities, or forming corps of combatants.
respect the laws and customs of war; and 5. Troops of belligerent armies received by a
7. Persons belonging to the armed forces of neutral power in its territory shall be
the occupied territory. interned away from the theatre of war.
6. The neutral power may supply them with
Rights of prisoners of war food, clothing or relief required by
1. To be treated humanely; humanity.
2. Not to be subject to torture; 7. If the neutral power receives escaped
3. To be allowed to communicate with their prisoners of war, it shall leave them at
families; liberty. It may assign them a place of
4. To receive food, clothing, religious articles, residence if it allows them to remain in its
and medicine; territory.
5. To bare minimum of information; 8. The neutral power may authorize the
6. To keep personal belongings; passage into its territory of the sick and
7. To proper burial; wounded if the means of transport bringing
8. To be grouped according to nationality; them does not carry personnel or materials
9. To the establishment of an informed of war.
bureau; and
10. To repatriation for sick and wounded [1949 A protecting power is a state or an
Geneva Convention] organization:
1. A neutral or other State not Party to the
D. Law on Neutrality conflict;
2. Designated by one party to an armed
It is the law governing a country’s abstention conflict with the consent of the other;
from participating in a conflict or aiding a 3. To safeguard or protect its humanitarian
participant of such conflict, and the duty of interests in the conflict, the performance of
participants to refrain from violating the which IHL defines specific rights and duties
territory, seizing the possession, or hampering [Additional Protocol I, 1977].
the peaceful commerce of the neutral countries
[The Three Friends, 166 U.S. 1 (1587)]. Neutral Persons
The nationals of a State which is not taking part
Neutrality is the legal status of a State in times in the war are considered as neutrals [Art. 16,
of war, by which it adopts impartiality in relation Hague Convention Respecting the Rights and
to the belligerents with their recognition. Duties of Neutral Powers (1907)].
The Geneva Convention (III) allows neutral A neutral cannot avail himself of his neutrality
powers to cooperate with the parties to the 1. If he commits hostile acts against a
armed conflict in making arrangements for the belligerent;
accommodation in the former’s territory of the 2. If he commits acts in favor of a belligerent,
sick and wounded prisoners of war. particularly if he voluntarily enlists in the
ranks of the armed force of one of the
The Hague Convention Respecting the Rights parties [Art. 17, Hague Convention
and Duties of Neutral Powers (1907) governs Respecting the Rights and Duties of
the status of neutrality by the following rules: Neutral Powers (1907)].
1. The territory of the neutral power is
inviolable.
2. Belligerents are forbidden to move troops
or munitions of war and supplies across the
territory of a neutral power.
3. Corps of combatants cannot be formed nor
recruiting agencies opened on the territory
of a neutral power to assist the belligerents.
Page 404 of 412

XII. LAW OF THE SEA immediate vicinity, the method of straight

lines joining the appropriate points may be
employed in drawing the baseline from
A. Definition which the breadth of the territorial sea is
The United Nations Convention on Law of the measured [Art. 7, UNCLOS].
Sea (UNCLOS) is the body of treaty rules and
customary norms governing the use of the sea, Special Baseline for
the exploitation of its resources, and the
exercise of jurisdiction over maritime regimes Archipelagic States [Art. 47,
[Magallona]. UNCLOS]
a. An archipelagic State may draw straight
It is the branch of public international law which baselines join the outermost points of the
regulates the relations of states with respect to outermost islands and drying reefs of an
the use of the oceans. archipelago, provided that within such
baselines are included the main islands
B. Nature of the UNCLOS treaty and an area in which the ratio of the water
UNCLOS III has nothing to do with the to the area of the land, including atolls, is
acquisition (or loss) of territory. It is a between 1 to 1 and 9 to 1.
multilateral treaty regulating, among others, b. The breadth of the territorial sea, the
sea-use rights over maritime zones [Magallona contiguous zone, and the exclusive
v. Ermita, G.R. No. 187167 (2011)]. economic zone, are measured from the
straight archipelagic baselines
The UNCLOS is a product of international
negotiation that seeks to balance State D. Archipelagic States
sovereignty (mare clausum) and the principle
of freedom of the high seas (mare liberum). It is a state made up of wholly one or more
The freedom to use the world’s marine archipelagos. It may include other islands [Art.
waters is one of the oldest customary 46, UNCLOS].
principles of international law. The UNCLOS
gives to the coastal State sovereign rights in An archipelago is a group of islands, including
varying degrees over the different zones of the parts of islands, interconnecting waters and
sea which are: 1) internal waters, 2) territorial other natural features which are so closely
sea, 3) contiguous zone, 4) exclusive related that such islands, waters and natural
economic zone, and 5) the high seas [Arigo v. features form an intrinsic geographical,
Swift, G.R. No. 206510 (2014)]. economic and political entity, or which
historically have been regarded as such.
C. Baselines
1. Differentiating Island vs.
The line from which a breadth of the territorial Rocks
sea and other maritime zones, such as the
An island is a naturally formed area of land,
contiguous zone and the exclusive economic
surrounded by water, which is above water at
zone, is measured. Its purpose is to determine
high tide.
the starting point to begin measuring maritime
zones boundary of the coastal state.
Rocks which cannot sustain human habitation
or economic life of their own shall have no
The general rule is that there are two types of
exclusive economic zone or continental shelf
Baselines:
[Art. 121, UNCLOS].
a. Normal Baseline: where the territorial sea
is the low-water line along the coast as
marked on large-scale charts officially 2. Types of Archipelagos
recognized by the coastal state [Art. 5, Note: UNCLOS only applies to Mid-Ocean
UNCLOS]. archipelagos:
b. Straight Baseline: where the coastline is a. Coastal: situated close to a mainland and
deeply indented or cut into, or if there is a may be considered part thereof (e.g.
fringe of islands along the coast in its Norway);
Page 405 of 412

b. Mid-Ocean: situated in the ocean at such Under Art. I of the 1987 Constitution, the
distance from the coasts of firm land (e.g. archipelagic waters of the Philippines are
Philippines). characterized as forming part of “the internal
waters of the Philippines.” However, under the
3. Archipelagic Waters UNCLOS, archipelagic waters consist mainly
These are the waters enclosed by the straight of the “waters around, between, and
archipelagic baselines, regardless of their connecting the islands of the archipelago,
depth or distance from the coast [Art 49(1), regardless of breadth or dimension.”
UNCLOS].
Moreover, under Art. 47 of the UNCLOS, it is
They are subject to the sovereignty of the not mandatory upon concerned states to
archipelagic State, but subject to the right of declare themselves as archipelagic states. The
innocent passage for the ships of all states. Philippines did so under its new baselines law,
R.A. No. 9522, which was upheld as
constitutional [Magallona v. Ermita, G.R. No.
4. Rights in Archipelagic Waters 187167 (2011)].
a. The right of innocent passage is also
referred to as “archipelagic Sea Lanes
Passage”: It is the right of navigation and 6. Regime of Islands [Art. 121
overflight of foreign ships and aircraft in the UNCLOS]
normal mode solely for the purpose of to Islands, a naturally formed area of land
have continuous, expeditious and surrounded by water and is above water at high
unobstructed passage in sea lanes and air tides, generate their own territorial sea,
routes through or over the archipelagic contiguous zone and exclusive economic zone.
waters and the adjacent territorial sea of
the archipelagic state, “in transit between Rocks which cannot sustain human habitation
one part of the high seas or an exclusive or economic life of their own shall have no
economic zone.” All ships and aircraft are exclusive economic zone or continental shelf.
entitled to the right of archipelagic sea
lanes passage [MAGALLONA; Art. 53(1) in E. Internal waters
relation to Art. 53(3), UNCLOS]. It is
considered as part of international These are waters of lakes, rivers, and bays
customary law [Magallona v. Ermita, G.R. landward of the baseline of the territorial sea.
No. 187167 (2011)]. Waters on the landward side of the baseline of
b. Rights under existing agreement on the the territorial sea also form part of the internal
part of third states should be respected by waters of the coastal state. However, in case of
the archipelagic State [Art. 51(1), archipelagic states, waters landward of the
UNCLOS]. baseline other than those rivers, bays and
c. Within its archipelagic waters, the lakes, are archipelagic waters [Art. 8(1),
archipelagic state shall recognize UNCLOS].
traditional fishing rights and other
legitimate activities of immediately They are considered as part of the state’s land
adjacent neighboring States [Art. 51(1), territory and are subject to full sovereignty.
UNCLOS]. Exception: Where the establishment of a
d. The archipelagic state shall respect straight baseline in accordance with the
existing submarine cables laid by other method set forth in Article 7 has the effect of
states and “passing through its waters enclosing as internal waters areas which had
without making a landfall” [Art. 51(2), not previously been considered as such, a right
UNCLOS]. of innocent passage as provided in this
Convention shall exist in those waters.
5. How the Archipelagic Sea
Lanes are determined F. Territorial Sea
The archipelagic State proposes it to the
International Marine Organization, which will These waters stretch up to 12 miles from the
then adopt the Sea Lanes through Art. 53 (9) of baseline on the seaward direction. They are
the UNCLOS. subject to the jurisdiction of the coastal state,
Page 406 of 412
which jurisdiction almost approximates that among foreign
which is exercised over land territory. ships, and such
suspension is
The sovereignty of a coastal State extends, essential for the
beyond its land territory and internal waters protection of its
and, in the case of an archipelagic State, its security, and
archipelagic waters, to an adjacent belt of sea, suspension is
described as the territorial sea. This effective only after
sovereignty extends to the air space over the having been duly
territorial sea as well as to its bed and subsoil published [Art. 25,
[Art. 2, UNCLOS]. UNCLOS]
In the designation of Designation of sea
1. Rights that are Available to all sea lanes and traffic lanes and traffic
separation separation schemes
States in Territorial Sea schemes, the is subject to
coastal State shall adoption by
a. Innocent Passage only take into competent
Refers to navigation through the territorial sea account the international
without entering internal waters, going to recommendations of organization upon
internal waters, or coming from internal waters the competent the proposal and
and making for the high seas [Art. 18 (1), international agreement of states
UNCLOS]. organization bordering the straits
This is subject to two limitations:
(i) It must involve only acts that are required 2. Rights that are Available to
by navigation or by distress [Art. 18 (2), Coastal State
UNCLOS]; and
(ii) It must not prejudice the peace, security, a. To prevent passage which is not innocent
or good order of the coastal State [Art. b. To suspend innocent passage temporarily
19, UNCLOS]. [Art. 25, UNCLOS]
c. To apply laws and regulations relating to
b. Transit Passage innocent passage [Art. 21, UNCLOS]
Refers to the right to exercise freedom of d. To enforce criminal law if:
navigation and overflight solely for the purpose i. Consequences of the crime extends to
of continuous and expeditious transit through the coastal State;
the straights used for international navigation. ii. Crime disturbs peace & good order;
The right cannot be unilaterally suspended by iii. Assistance has been requested;
the coastal State [Art. 38, UNCLOS]. iv. Measures to suppress drug trafficking.
[Art. 27, UNCLOS]
Innocent Passage Transit Passage 3. Territorial Sea Entitlements

Pertains to Includes the right of
navigation of overflight (i.e. a. Islands generate territorial sea, EEZ, and
ships only pertains to continental shelf [Art. 121 (2), UNCLOS];
navigation of b. Rocks have a territorial sea but no EEZ or
aircraft) continental shelf [Art. 121 (3), UNCLOS];
Requires Submarines are c. Low-tide elevations have no territorial sea
submarines and allowed to navigate if outside the territorial sea;
other underwater in i. A low-tide elevation is a naturally formed
vehicles to navigate “normal mode” (i.e. area of land which is surrounded by and
on the surface and submerged) above water at low tide but submerged at
show their flag high tide [Art. 13, UNCLOS].
Can be suspended, Cannot be d. Artificial islands do not possess the status
but under the suspended of islands and do not generate maritime
condition that it does zones [Art. 60 (8), UNCLOS].
not discriminate
Page 407 of 412
G. Contiguous Zone installations and structures [Art. 60,
UNCLOS];
The contiguous zone is that which is f. Determine the allowable catch of living
contiguous to its territorial sea. It may not resources [Art. 61, UNCLOS];
extend beyond 24 nautical miles from the g. Give other states access to surplus of the
baselines from which the breadth of the allowable catch [Art. 62, UNCLOS];
territorial sea is measured. h. Board and inspect a ship;
i. Arrest a ship and its crew;
The powers of the Coastal State over the j. Institute judicial proceedings against them.
Contiguous Zone include:
1. Control to prevent infringement of its In arrest or detention of foreign vessels, the
customs, fiscal, immigration or sanitary coastal State has the duty to promptly notify the
laws and regulations within its territory or flag state of the action taken [Art. 73,
territorial sea; and UNCLOS].
2. Control to punish infringement of the above
laws and regulations committed within its 3. Rights of the non-coastal
territory or territorial sea [Art. 33, State
UNCLOS]. Under Art. 58, UNCLOS, all States enjoy the
freedom of navigation, over flight, and laying of
H. Exclusive Economic Zone submarine cables and pipelines in the EEZ of
(EEZ) coastal states
The exclusive economic zone (EEZ) is the Coastal States have the primary responsibility
stretch of area up to 200 miles from the to utilize, manage and conserve the living
baselines. Within this zone, a State may resources within their EEZ (i.e. ensuring that
regulate non-living and living resources, other living resources are not endangered by
economic resources, artificial installations, overexploitation), and the duty to promote
scientific research, and pollution control. optimum utilization of living resources by
determining allowable catch.
1. The extent of the State’s rights There is a duty to share catch if the maximum
in the EEZ allowable catch is determined to be above the
The UNCLOS gives the coastal State capacity of the State to harvest.
sovereign rights over all economic resources of
the sea, seabed, and subsoil in an area The State shall give other States access to the
extending not more than 200 nautical miles surplus by means of arrangements allowable
beyond the baseline from which the territorial under the UNCLOS. The UNCLOS, however,
sea is measured [Arts. 55 and 57, UNCLOS]. does not specify the method for determining
“allowable catch.”
2. Rights of the coastal state in
the EEZ 4. The right of geographically
disadvantaged states or land-
a. Sovereign rights for exploring and locked states
exploiting, conserving and managing the
natural resources of the waters superjacent General Rule: These states have the right to
to the seabed and of the seabed and its participate, on equitable basis, in the
subsoil; exploitation of the surplus of the living
b. Establish and use of artificial islands, resources in the EEZ of coastal states of the
installations and structures; same subregion or region.
c. Conduct marine scientific research;
d. Preserve and protect its marine Exception: A coastal state whose economy is
environment [Art. 56, UNCLOS]; overwhelmingly dependent on the exploitation
e. Authorize and regulate the construction, of its EEZ is not required to share its resources.
operation and use of artificial islands and
Page 408 of 412

I. Continental Shelf Note: “Exclusive” means that if the coastal
does not explore or exploit its resources, no
1. Extended Continental Shelf other state can without the State’s consent.
It is the seabed and subsoil of the submarine
areas extending beyond the territorial sea of Exclusive Continental Shelf
the coastal state throughout the natural Economic Zone
prolongation of its land territory up to: Coastal state is No duty to manage
a. The outer edge of the continental margin; obliged to manage and conserve living
or and conserve living resources
b. A distance of 200 nautical miles from the resources in the
baselines of the territorial sea where the EEZ.
outer edge of the continental margin does
The extent of the The extent of the
not extend up to that distance [Art. 76(1),
right of the coastal right of the coastal
UNCLOS].
state to natural state to natural
resources (non- resources (non-
2. Continental Margin living) only extends living) covers both
Submerged prolongation of the land mass of to the seabed and waters super
the continental state, consisting of the subsoil adjacent to the
continental shelf proper, the continental slope, seabed and those of
and the continental rise [Art. 76(3), UNCLOS]. the seabed and
subsoil.
3. Continental Shelf The extent of the The extent of the
right of the coastal right of the coastal
a. The juridical or legal continental shelf state to living state to living
covers the area until 200 nautical miles resources only resources does not
from baselines. extends to extend to sedentary
b. The extended continental shelf covers the sedentary species species.
area from the 200-mile mark to 350 nautical
miles from the baselines depending on 3. The International Seabed
geomorphologic or geological data and
information.
Authority (ISA)
The ISA is the organization that organizes,
c. The continental shelf shall not extend
carries out, and controls the activities of the
beyond 350 nautical miles from the
Area on behalf of mankind as a whole. The ISA
baseline of the territorial sea, or 100
is composed of:
nautical miles from the 2,500- meter
a. The Assembly: all state parties to the
isobath (i.e. the point where the waters are
UNCLOS
2,500 meters deep). [Art. 76 (1 and 2) in
b. The Council: the executive organ whose 36
relation to Art. 76 (5 and 6), UNCLOS]
members are elected by the Assembly
c. The Enterprise: the organ directly engaged
4. Exclusive Rights of the in the exploration and exploitation of the
Coastal State in the Continental resources of the Area, including the
Shelf: transporting, processing and marketing of
minerals.
a. Sovereign rights with respect to the
exploration and exploitation of its natural
resources, including the mineral and other What may be done by the Enterprise in
non-living resources of the seabed and the Area
subsoil together with living organisms Mining activities directly or by joint ventures
belonging to the sedentary species [Art. 77, with (1) State parties; (2) State enterprises; or
UNCLOS]. (3) Natural or juridical persons sponsored by
b. The coastal state has the exclusive right to state parties.
authorize and regulate oil-drilling on its
continental shelf [Art. 81, UNCLOS].
Page 409 of 412

J. The International Tribunal for 3. Sources of Law to be Applied
the Law of the Sea (ITLOS) in ITLOS:
The ITLOS is an independent judicial body The court or tribunal shall apply the UNCLOS
established by the Third United Nations and other rules of international law not
Convention on the Law of the Sea to adjudicate incompatible with the UNCLOS [Art. 293,
disputes arising out of the interpretation and UNCLOS]. It may also decide a case ex aequo
application of the convention. et bono (what is equitable and just) if the
parties so agree.
Composition: Election of 21 members by the
State parties.
1. The Settlement of Disputes

a. Peaceful Settlement of Disputes: Under
Par. 3, Art. 2 of the UN Charter, States
have the duty to settle disputes by peaceful
means. This obligation extends to State
parties of the UNCLOS, underscoring the
right of the parties to resort to peaceful
means of their own choice on which they
can agree any time.
b. Compulsory Settlement of Disputes:
Where no successful settlement can be
achieved, or if the parties are unable to
agree on the means of settlement of a
dispute concerning the application of
UNCLOS, such dispute may be governed
by the principle of compulsory settlement,
where procedures entail binding decisions.
The parties may choose, through a written

revocable and replaceable declaration, to
submit the dispute to the following:
a. ITLOS;
b. ICJ;
c. Arbitral tribunal; or
d. Special arbitral tribunal.
2. Jurisdiction of the ITLOS

a. Any dispute submitted to it concerning the
application or interpretation of UNCLOS; or
b. Any dispute concerning the interpretation
or application of an international
agreement:
i. Related to the purposes of the
UNCLOS; or
ii. When such dispute is submitted to it in
accordance with that agreement
Page 410 of 412

XIII. INTERNATIONAL When it is uncertain as to the consequence

of the proposed activity to the environment,
ENVIRONMENTAL LAW doubts should be resolved on the side of
caution by taking measures to prevent or
A. Definition avoid environmental degradation [Principle
It is the branch of public international law 15, Rio Declaration].
comprising those substantive, procedural, and
institutional rules which have as their primary 4. Sustainable Development
objective the protection of the environment
[Sands]. It is development that meets the needs of
the present without compromising the ability
The protection of the environment is a vital part of future generations to meet their own
of contemporary human rights doctrine, for it is needs [Gabcikovo-Nagymaros Project, ICJ
a sine qua non for numerous human rights (1997)].
such as the right to health, and the right to life
itself [Danube Dam Case, ICJ (1997)]. No State has the right to use or permit the
use of its territory in such a manner as to
B. Basic Principles cause injury by fumes in or to the territory of
another or the properties or persons therein,
when the case is of serious consequence
1. Polluter-Pays Principle and the injury is established by clear and
convincing evidence [Trail Smelter
Refers to the responsibility of the polluter to Arbitration Case (1938)].
bear the cost of pollution, with due regard to
the public interest and without distorting Two fundamental principles of liability for
investment in the energy cycle or transboundary pollution:
international trade [Principle 16, Rio a. A State must show material damage
Declaration]. and causation to be entitled to legal
relief; and
2. Common but Differentiated b. A State has a duty to prevent and it
Responsibilities may be held responsible for pollution
by private parties within its jurisdiction
States shall cooperate in a spirit of global if such pollution results in
partnership to conserve, protect and restore demonstrable injury to another state
the health and integrity of the earth’s [Trail Smelter Case, US v. Canada,
ecosystem. In view of the different 1941].
contributions to global environmental
degradation, States have common but 5. Sic Utere Tuo Ut Alienum Non
differentiated responsibilities. The Laedas or the No-Harm Principle
developed countries acknowledge the
responsibility that they bear in the States have, in accordance with the Charter
international pursuit to sustainable of the United Nations and the principles of
development in view of the pressures their international law, the sovereign right to
societies place on the global environment exploit their own resources pursuant to their
and of the technologies and financial own environmental policies, and the
resources they command [Principle 7, Rio responsibility to ensure that activities within
Declaration]. their jurisdiction or control do not cause
damage to the environment of other States
3. Precautionary Principle or of areas beyond the limits of national
jurisdiction [Principle 21, Stockholm
Where there are threats of serious or Declaration].
irreversible damage, lack of full scientific
certainty shall not be used as a reason for Principle 21 as Custom:
postponing cost-effective measures to “The Court recognizes that the environment
prevent environmental degradation is daily under threat and that the use of
Page 411 of 412
nuclear weapons could constitute a
catastrophe for the environment. The
existence of the general obligation of States
to ensure that activities within their
jurisdiction and control respect the
environment of other States or of areas
beyond national control is now part of the
corpus of international law relating to the
environment” [ICJ Advisory Opinion on the
Legality of the Threat or Use of Nuclear
Weapons (1996)].
6. Protection of the Environment

During Armed Conflict
Each State Party undertakes not to engage
in military or other hostile use of
environmental modification techniques
having widespread, long-lasting or severe
effects as the means of destruction,
damage or injury to any other Party State
[Art. 1, Convention on the Prohibition of
Military or other Hostile Use of
Environmental Modification Techniques or
the Environmental Modification Convention
(ENMOD)].
Page 412 of 412


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TABLE OF CONTENTS 5. Double Taxation.......................................

I. SUFFRAGE ........................................... 281 IV. LOCAL TAXATION ......................... 353

I. BASIC CONCEPTS Adoption of Generally Accepted Principles

Role of the Armed Forces Independent Foreign Policy

SECTION 4, ARTICLE II. The prime duty of the

1. Absolute Theory — A sovereign Action in personam vs. Action in rem

Suits Against the State Beyond Scope of Authority

Test for Valid Delegation It is a power coextensive with self-protection,

Specific Coverage As in the case of senior citizens, the discount

There is no vested right in a tax exemption.

Exemptions may either be constitutional or

Police Power Eminent Domain Taxation

1. As to Concept Power to make and Power to take private Power to enforce

2. As to Scope Broad in application as Merely a power to Plenary,

3. As to the Government and its Generally, by the Government and its

4. As to the Purpose Promotion of general The taking of private Enforced contribution

6. As to the Relatively free from Superior to and may Subject to

7. As to Limitation Limited by the demand Bounded by public Constitutional and

Special/Regulatory/Sumptuary Tax are

Tariff duties intended mainly as a source of

The distinction is important when the one

Since Congress has the power to exercise the

Eminent Domain and Taxation, the distinction

Taxation Eminent Domain Police Power

Persons Operates upon: a Operates on: an individual as Operates upon: a

Relationship to Subject to constitutional Inferior to the impairment Relatively free from

If the taxing authority is the National Exception: Government-owned or controlled

Tax Exemption of the Bangko Sentral ng b. Provisions indirectly affecting taxation:

Delegation of tariff powers to the President Scope of Real property taxes on

“Exclusive" – Possessed and enjoyed to the

Proprietary educational institutions, including those

Factors that determine situs

Situs of Income Tax Situs of Property Tax

Kind of Property Situs

intangibles are Sale of real Where the real property is

Taxes Toll An enforced Legal

May be imposed only May be imposed by 2. As to burden or incidence

5. As to scope or authority imposing A progressive tax is, therefore, also different

a. National Regressivity is not a negative standard for

General Rule: d. Tax Rules and Regulations

Meaning of Impact and Incidence of Initial Intermediate Result

Since fraud is a state of mind, it need not be Purpose Merely Entirely

The doctrine also allows the government to

The doctrine finds NO application in this

9. Prohibition on Compensation and

Exception: If the claims against the

III.LEGISLATIVE c. R.A. No. 6735

Note: A regional assembly exists for the 2. Principle of Non-delegability;

Exceptions (PLATE): B. Houses of Congress;

ns born citizen born citizen 2. House of Representatives

vi. Rules on Computation of Seats: Two- Privileges

3. Shall not be financially interested, When to disclose:

Who must declare:

In computing a quorum, members who are

“Majority” shall take into consideration the

a. Doctrine of Shifting Majority

Action Votes Required House Voting Basis

Punish for disorderly 2/3 Separately; All Section 16(3), Article VI

Override Presidential 2/3 Separately (House Section 27(1), Article VI

Grant Tax Exemption Majority Silent Section 28(4), Article VII